The People v. Carpenter.

was sustained. The court say, "that the primary object of the street was for the free passage of the public: and any thing that impeded that free passage without necessity, was a nuisance." The free passage of the street having been shown by the facts on the trial, as well as the inconvenince to which the public had been subjected, no question could arise as to the correctness of the verdict.

The same remark applies to the case of Rex v. Cross, 3 Camp. 227, It was proved on the trial, that, by the acts of the defendant, " private carriages could very rarely be drawn up to the opposite houses, and considerable difficulty was experienced in passing along that side of the street." The annoyance, therefore, to the public was manifest, and no doubt could be entertained of the legality of the conviction.

In Rex v. Russell and others, 13 Eng. C. L. 254, the defendants were indicted for a nuisance in a navigable stream. The majority of the court held, that if the erection was for a public purpose, and produced a public benefit, and if the erection was in a reasonable situation, and a reasonable space was left for the passage of vessels on the river, then the defendants ought to be acquitted. From this opinion, Lord Tenterden dissented, and held, that the questions submitted to the consideration of the jury were not raised by the indictment: that the question properly arising was, whether the navigation and passage of vessels on this public river (Tyne) was injured by the erections? upon this question there was evidence on both sides," &c. If this opinion be correct, as I think it was, it is quite clear that proof of the erection, in and of itself, would not furnish sufficient evidence to support the indictment, unless accompanied by other proof, that the navigation and passage of vessels on the river was injured.

In the case of King v. Ward, 31 Eng. C. L. 92, the rule is explicitly recognized, that the question of nuisance or no nuisance is a question of fact for the jury. Lord Denman, in the course of his opinion, after quoting from a remark of Lord Hate, that all nuisances and impediments of passage of boats and vessels, though in the private soil of any person, may be punishe 1 by indictment," observes: "There is no incongruity in his (Lord Hale) afterwards asserting that the question of nuisance or no nuisance is for the jury: so Lord Tenterden considered it in Rex v. Russell, and gave the form in which he thought it ought to be submitted to them; and that is precisely the course taken

The People v. Carpenter.

on the trial of this indictment." From the report of the case, it appears that the jury, after deliberation, stated that an impediment had been created; with this, however, the chief justice was not satisfied, for the reason that such a finding " was not equivalent to the word nuisance:" whereupon the jury "said at length that they considered it to be a nuisance."

The case of the Commonwealth v. Wilkinson, 16 Pick. 175, does not raise the question I am now discussing. The only question raised in that case was, whether the defendant, who was indicted for continuing certain buildings within the limits of the highway, could show that that portion of the road covered by the buildings was not within the traveled part thereof. Of the correctness of the ruling of the court there can be no doubt. No person is authorized so to appropriate any portion of a highway, as to interfere with the rights of the public.

In the case of Hopkins v. Crombie, 4 N. H. Rep. 520, the supreme court of New Hampshire, in considering the question, whether every encroachment on a highway is ipso facto a nuisance, held that "the question whether anything within the limits of a highway is to be deemed a nuisance, is a question of fact, to be settled by a jury."

The case in 2 Watts' R. 23, was referred to as sustaining a contrary doctrine. I have examined that case, and am unable to perceive how it conflicts with the case of Hopkins v. Crombie. A building had been erected on a public square; and in the course of their opinion the court say: "The points, then, in this cause may be narrowed down to a question of fact. For if the jury believe, from the testimony, that these buildings were erected on the public square, although their limits and extent have not been precisely defined, they are a public nuisance."

Looking to the purposes for which publie squares are usually dedicated to the public, it would seem to be a necessary conclusion, that the erection on such squares of a stable and shed,” would be a nuisance. All that can be gathered from the case, however, is, that upon the trial of a cause, it would be the duty of the court so to instruct the jury, who, after all, determine the question of nuisance or no nuisance.

The case of the Commonwealth v. Passmore, 1 Serg. & Raw. 217, is more in point; and that it sustains fully the principle for which I contend, will appear by quotations from the opinion of the learned chief justice. He says: "The defendant has been indicted for a nui

The People v. Carpenter.

sance in placing goods on the foot-way and carriage-way of one of the public streets of the city, and suffering them to remain for the purpose of being sold there, so as to render the passage less convenient, although not entirely to obstruct it."

It is a fair inference, then, that if the acts of the defendant had not the effect to "render the passage less convenient," he would not be guilty of a nuisance.

The case of the State v. Caldwell, 2 Speer's R. 163, would come better recommended as authority, if the facts, which it is said were all submitted to the jury, had been reported, and the opinion of the court of appeals had developed the reasoning by which the decision of the inferior court was sustained. That opinion simply affirms, that the court were satisfied with the instructions given to the jury, and with their finding.

Without extending my review of cases any further, I am of the opinion that the verdict of the jury does not embody such facts as will authorize this court to pronounce judgment. The case must be remanded, with instructions to issue a venire de novo.

Although the validity of the acts of 1807 and 1815, and of the several ordinances of the city of Detroit, are not necessarily involved in the decision of this cause, it may not be improper, inasmuch as their validity was drawn in question and fully discussed, to say, that neither the governor and judges nor the common council of the city of Detroit had, or have, any power or authority to grant the exclusive use of any of the streets or alleys to individuals. Such a use is inconsistent with the rights acquired by the act of dedication. Rights thus acquired are vested rights, protected by the constitution of the United States; and it is not, therefore, competent for the legislative power of the state, much less of the common council of the city, to pass any act or ordinance which shall in any wise impair or defeat those rights. The powers of the city authorities are restricted to the regulation of the streets: this is a necessary power, and one which, if wisely exerted, cannot fail to prove highly beneficial to the community; but the power to regulate streets does not include the power to pass ordinances which shall affect injuriously public or private rights. The common council are, to some extent, the guardian of those rights: as such, it becomes them duly to employ all the powers with which they are vested, to purify the streets

Scott v. Smart's Executors.

of the city, and to cause all obstructions not warranted by law or necessity to be removed. The adoption of such a policy will remedy the mischiefs that have grown up under a course of legislation by which the rights of the public have been made subservient to the convenience or cupidity of individuals.

Certified accordingly.

SCOTT v. SMART'S EXECUTORS.

On the change from a territorial to a state government, the legislature of the stato abolished the supreme court of the territory, and transferred certain causes pending therein to the supreme court and court of chancery of the state; but certain other causes pending therein, owing to a defect in the law, were not transferred to any court. The following year, the legislature passed an act transferring these last mentioned causes to the supreme court of the state. Held, That it was competent for the legislature to pass the act last mentioned, and that by virtue thereof, the causes were transferred to the supreme court of the state, to be proceeded in and disposed of.

To hold a law unconstitutional, it must be a plain violation of some provision contained in the constitution. It must be an ex post facto law, or a law impairing the obligation of contracts, or a law manifestly in collision with some constitutional provision.

PETITION to revive a suit in chancery. The facts fully appear in the opinion of the court.

Backus, for complainant.

Fraser and Davidson, for defendants.

By the court, WING, J. The petition in this case is filed, praying that a suit pending in this court may be revived.

The petition was filed January 2, 1849. It states that the petitioner heretofore exhibited his bill in the supreme court of the territory of Michigan, against defendants, which by an act of the legislature has been transferred into this court.

Scott . Smart's Executors.

To this petition, some of the defendants therein named filed their plea, on the 4th of January, 1849, in which they state that said suit was originally commenced in the supreme court of the late territory of Michigan on the 31st day of August, 1826, in which court it continued and was pending and undetermined at the time of the adoption of the constitution of the state of Michigan: that by virtue of an act of the legislature of the state, entitled "An act to establish a court of chancery, and for other purposes," adopted the 26th of March, 1836, and which took effect on the 4th of July, 1836, it was enacted and declared, that all the powers and jurisdiction conferred on the supreme court of the late territory of Michigan, in and by an act entitled "An act to prescribe the mode of proceeding in chancery," are hereby conferred on said court of chancery: that by virtue of the provisions of this act, and a certain other act of said legislature, entitled "An act to organize the supreme court of the state of Michigan, and to establish circuit courts," approved the 26th March, 1836, which also took effect on the 4th of July, 1836, all jurisdiction, powers, and authority vested in said supreme court of the late territory of Michigan, touching all suits in chancery or otherwise, were repealed, abrogated, and taken away, and said court was then and there abolished, and ceased to exist, on said 4th of July, 1836; and that by force and effect of the provisions of the Revised Statutes of 1838, page 690 to 697, all and every law and provision of law by which said late supreme court had been either created or vested with equity powers or jurisdiction, were repealed: that on the 26th March, as well as on the 4th of July, 1836, the said suit in chancery was and remained undetermined in said supreme court of the territory of Michigan: that Elon Farnsworth had been solicitor, and so continued, and after the death of Miller he became one of the defendants, as executor of Miller, and on the 18th of July the said Farnsworth became and continued to be the chancellor, until the 28th day of February, 1842: that said suit so remaining in said supreme court of the late territory of Michigan has not been legally removed or transferred to this or any other court having cognizance to hear, try, and determine the same, by reason of which the said suit has become discontinued, abated, and cased to be pending in any court whatever. The defendants, therefore, humbly pray the judgment of this court, whether the complainant is entitled to have said suit revived