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property of others. If the harmful or innocent character of the prohibited use of lands furnishes the test for determining the constitutionality of the legislative prohibition, it is clearly a judicial question, and is certainly not within the legislative discretion, whether the prohibited act or acts work an injury to others. If they do not cause injury or annoyance to others, the attempted legislative interference is unwarranted by the constitution, and it is the duty of the courts to declare it to be unconstitutional. The following language from an opinion of the Supreme Court of New Jersey will serve to fortify the position here taken on the limitation of the legislative power to declare what is a nuisance : “ Assuming the power in this board [of health] derived from the legislature, to adjudge the fact of the existence of a nuisance, and also assuming such jurisdiction to have been regularly exercised, and upon notice to the parties interested, still, I think, it is obvious that, in a case such as that before this court, the finding of the sanitary board cannot operate, in any respect, as a judgment at law would, upon the rights involved. It will require but little reflection to satisfy my mind, accustomed to judge by legal standards, of the truth of this remark. To fully estimate the character and extent of the power claimed, will conduct us to its instant rejection. The authority to decide when a nuisance exists, is an authority to find facts, to estimate their force, and to apply rules of law to the case thus made. This is a judicial function, and it is a function applicable to a numerous class of important interests. The use of land and buildings, the enjoyment of water rights, the practice of many trades and occupations, and the business of manufacturing in particular localities, all fall, on some occasions, in important respects, within its sphere. To say to a man that he shall not use his property as he pleases, under certain conditions, is to deprive him pro tanto, of the enjoyment of such property. To find conclusively against him, that a state of facts exists with respect to the use of his property,

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or the pursuit of his business, which subjects him to the condemnation of the law, is to affect his rights in a vital point. The next thing to depriving a man of his property, is to circumscribe him in its use, and the right to use property is as much under the protection of the law as the property itself, in any other respects, is, and the one interest can no more than the other be taken out of the hands of the ordinary tribunals. If a man s property cannot be taken away from him except upon trial by jury, or by the exercise of the right of eminent domain upon compensation made, neither can he, in any other mode, be limited in the use of it. The right to abate public nuisances, whether we regard it as existing in the municipalities, or in the community, or in the hands of the individual, is a common-law right, and is derived in every instance of its exercise, from the same source - that of necessity. It is akin to the right of destroying property for the public safety in case of the prevalence of a devastating fire or other controlling exigency. But the necessity must be present to justify the exercise of the right, and whether present or not, must be submitted to a jury under the guidance of a court. The finding of a a sanitary committee, or of a municipal council, or of any other body of a similar kind, can have no effect whatever, for any purpose, upon the ultimate disposition of a matter of this kind."'1 To the same effect is the following quotation


Hutton o. City of Camden, 39 N. J. 122 (23 Am. Rep. 209). See Manhattan Fertilizing Co. v. Van Keuren, 8 C. E. Green, 251 ; Weil v. Ricord, 9 C. E. Green, 169. “The common council, in the exercise of the power to declare nuisances, may not declare anything such which cannot be detrimental to the health of the city, or dangerous to its citizens, or a public inconvenience, and even then not when the thing complained of is expressly authorized by the supreme legislative power in the State. Its legislation must be subordinate to that of the State, the power to which it owes its existence. When its acts of legislation are brought before this court, whose high duty it is to see that inferior tribunals, vested with a limited jurisdiction, whether legislative or judicial, do not exceed their power, we must determine whether these are valid or not. I cannot think an ordinance declaring the running of any loco

from the opinion of the Supreme Court of the United States in a case in which the constitutionality of a city ordinance was questioned, which declared certain wharf structures to be nuisances and provided for their removal : “ The mere declaration by the City Council of Milwaukee that a certain structure was an encroachment or an obstruction did not make it so, nor could such a declaration make it a nuisance unless it in fact had that character. It is a doctrine not to be tolerated in this country, that a municipal corporation, without any general laws either of the city or of the State, within which a given structure can be shown to be a nuisance, can, by a mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every

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motive or train of cars upon any track in the city, at a greater rate than one mile in six minutes a removable nuisance, or declaring the stopping of a train of cars for one moment upon the track of a railroad authorized by law, where the track does not cross a street or a public square, a removable nuisance, is a fair or legal exercise of the power to declare nuisances and provide for their removal.

The doing of such acts cannot interfere with the public health or expose the inhabitants of the city to danger or inconvenience. I do not see why any railroad depot, or track, or freight house, any train of cars in motion or stationary at any point in the city, cannot under the same power, with equal propriety, be declared nuisances, if the common council should so determine." State v. New Jersey, etc., R. R., 29 N. J. L. 170. “There is a difference between abating a nuisance and declaring what shall be a nuisance. For the definition of a nuisance, and consequent ascertainment of the subjects to which their power of abating or removing may be extended, the council must refer to the general law, just as they must, in requiring the performance of patrol duty, learn what that duty is. In derogation of the ordinary rights of property, they may abate or remove anything which by law is a nuisance, and in an action against them proof, that a thing was a nuisance, and was therefore removed or destroyed, would constitute their justification. But they have no power to declare that to be a huisance which is not, or to dispense with other proof of the noxious character of a thing, by showing that by an ordinance they had declared that all such things should be nuisances.” Dissenting opinion of Wardlaw, J., in Crossby v. Warren, 1 Rich L. 388; Lakeview v. Setz, 44 Ill. 81. See Baldwin v. Smith, 82 Ill. 163.

business, and all the property of the city, at the uncontrolled will of the temporary local authorities.” 1

§ 1226. Unwholesome trades in tenement houses may be prohibited. — Perhaps the judicial character of the power to determine what is a nuisance, is best displayed in the consideration of a late case from the New York Court of Appeals,” in which an act of the legislature was declared to be unconstitutional, which made it a misdemeanor to manufacture cigars, in cities of more than five hundred thousand inhabitants, in any tenement house occupied by more than three families, except on the first floor of the house, on which there may be a store for the sale of cigars and tobacco. In delivering the opinion of the court, Judge Earle said: “It is plain that this law interferes with the profitable and free use of his property by the owner or lessee of a tenement house who is a cigar maker, and trammels him in the application of his industry and the disposition of his labor, and thus, in a strictly legitimate sense, it arbitrarily deprives him of his property and of some portion of his personal liberty. The constitutional guaranty that no person shall be deprived of his property without due process of law may be thus violated without the physical taking of property for public or private use. This guarantee would be of little worth if the legislature could, without compensation, destroy property or its value, deprive the owner of its use, deny him the right to live in his own house or to work at any lawful trade therein. If the legislature has the power under the constitution to prohibit the prosecution of one lawful trade in a tenement house, then it may prevent the prosecution of all trades therein."

“All laws which impair or trammel these rights, which limit one in his choice of a trade or a profession, or confine bim to work or live in a specified

1 Yates v. Milwaukee, 10 Wall. 505. . In the matter of Jacobs, 98 N. Y. 98 (50 Am. Rep. 636).


locality, or exclude him from his own house, or restrain his otherwise lawful movements (except in police regulations) are infringements upon his fundamental rights of liberty, which are under constitutional protection.”

In speaking of the limitations upon the police power of the government, he continues : “ Under it the conduct of an individual, and the use of property may be regulated so as to interfere to some extent with the freedom of the one and the enjoyment of the other, and in cases of great emergency, engendering overruling necessity, property may be taken and destroyed without compensation, and without what is commonly called due process of law. The limit of the power cannot be accurately defined, and the courts have not been able or willing definitely to circumscribe it. But the power, however broad and extensive, is not above the constitution. It furnishes the supreme law, and so far as it imposes restraints the police power must be exercised in subordination thereto.” “Generally, it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety, and while its measures are calculated, intended, convenient and appropriate to accomplish these ends, the exercise of its discretion is subject to the review of the courts. If it passes an act ostensibly for the public health, and thereby destroys or takes away the property of a citizen or interferes with his personal liberty, then it is for the courts to scrutinize the act and see whether it really relates to and is convenient and appropriate to promote the public health.” Whether the court was correct in holding this statute to be unconstitutional, because the regulation did not tend to promote the public health, need not be discussed here. The principle is clearly settled, that the court did not exceed its power, in

pronouncing the law to be unconstitutional on that ground. But the court would have trespassed upon the powers of the legislature, if it had undertaken to pass upon the necessity of the

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