SECTION 26.-IN DEALING WITH NUISANCES

REYNOLDS v. SCHULTZ.

(Superior Court of City of New York, 1867. 27 N. Y. Super. Ct. 282.)

ROBERTSON, C. J.14 * * * The statute 15 requires the execution of the order to be suspended on demand of the party notified, and a hearing to be given him upon a fair and reasonable opportunity therefor, when he is to be allowed to give such proofs as he has to offer, and the board may also introduce new proofs. Upon such hearing they may modify or rescind such order in an action at law. The board were then required to "cause the facts in regard to such complaint to be investigated and the appropriate remedy applied." This resembles greatly the trial and decision of issues in an action. If private individuals failed to call to their notice peccant employments, premises or substances, such board had a staff of accusers, consisting of ten medical inspectors, to report twice a week on such facts as had come to their knowledge relative to the purposes of such act. So that abundant means were provided for obtaining the sufficient proof which the board were to take, without leaving their office, or uttering a word themselves, of accusation. I cannot come to any other conclusion than that such a mode of accusation, or obtaining evidence in advance, with such opportunity of being heard with evidence, and such a mode of final determination, was an exercise of judicial powers, and binding, unless prevented by some positive constitutional prohibition. If the compulsory attendance of witnesses for the accused, if necessary, be required to make the proceedings judicial, the board would probably be bound to give him the aid of the power they possess under the twenty-fourth section of the statute, to procure testimony. But in this case there is no pretense that any testimony has been lost by that means. If it had been set up, possibly this court might have exercised an equitable jurisdiction in obtaining such testimony, and perhaps also have thereby acquired jurisdiction over the whole subject. In order to enable such board to obtain proof sufficient for them to act upon, there was no necessity of their becoming active in hunting up testimony. The twenty-first section of the act requires them to keep a book open for public inspection, in which complaints of a sanitary character are to be recorded, signed by the accuser with his name, in which is to be entered the name of the accused, the date and the remedy suggested. This is not very unlike a complaint.

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14 Only a portion of the opinion of Robertson, C. J., is printed.

15 For provisions of statute in question, Laws N. Y. 1866, c. 74, see Metropolitan Board of Health v. Heister, ante, p. 137.

The main objections to the constitutionality of the exercise of power under such first subdivision are that such proceedings violate "the laws of the land" required to be observed by the second section of the article of the Constitution of this state, and are not "due process of law" under the sixth section of the same article. The special points in which they are supposed to deviate therefrom are six in number, as follows:

(1) That the functions of accuser and judge are blended in the same body.

(2) That no process is served, or notice of the proceedings given to parties interested.

(3) That the judgment precedes the trial.

(4) That the accused is not confronted with witnesses against him.

(5) That the testimony is not under oath, nor the ordinary rules of evidence observed.

(6) That no means are afforded to the accused to compel the attendance of witnesses.

The remarks already made dispose of the first and last of these objections. Indeed, I am not aware that there is any warrant for assuming that there must be a public prosecutor, except in cases in which the Constitution requires the presentment of a grand jury in order to make a conviction legal. Prosecuting officers are the creatures of statutes, and, however expedient, are not indispensably necessary to procure the punishment of offenders. The people of the state are the accusers and "actors" in all cases of public offenses.

The second and third of such objections are inapplicable to the case of an order, made absolute by the default of a party notified to move to set it aside after notice, or confirmed after a hearing upon evidence on both sides. Indeed, they are founded upon the mistaken notion that the first order is the final adjudication, instead of being a conditional order, made absolute only after a hearing, or neglect to appear after notice and demand of such hearing. The seizure of chattels in an action of claim and delivery, or the issuing of a preliminary injunction order, attachment or order of arrest, would be equally subject to such an objection.

As to being confronted with witnesses, if that applies to the hearing, the board are bound to allow it, if their proceeding would otherwise be unconstitutional, and any irregularity in that respect could be corrected on certiorari. If oaths are necessary to be administered to witnesses, the same rule would prevail.16 Although I am not prepared to say that an adjuration of a witness, the form of which may be varied by law, and is allowed according to the conscience of the party

16 Groenvelt v. Burwell, 1 Ld. Raym. 454, 472 (1699): "And by Holt, Chief Justice, where judicial power is given to persons by statute, they may by consequence of law administer an oath; but to that, he said, he would not give a positive opinion."

sworn, including the simple affirmation of a member of the Society of Friends, is a constitutional requisition to make a trial valid.

In regard to the attendance of witnesses, what I have already said as to that cause of complaint will suffice. And I am inclined to think that it will be found, on examination, that a power to compel the attendance of witnesses for the accused will not be found to be part of "the law of the land," at least that mentioned in "Magna Charta,” and was given in more recent times.

There still remains an objection to be considered, to wit, that no trial by jury is allowed under such statute. The words of the Constitution upon that point are (article 1, § 2) that "the trial by jury in all cases, in which it has been heretofore used, shall remain inviolate forever." The term "case," in such provision, has been held to mean the kind of action, prosecution or proceeding, and is not confined to the subject-matter. Thus, in the case of Duffy v. People, 6 Hill, 75, it was held that a proceeding to compel a husband to support his wife, being a mere preventive proceeding, like giving security to keep the peace, did not require a trial by jury, and that, preventive remedies for similar offenses having been used before the adoption of the Constitution, obtaining them was not a "case" within the meaning of the Constitution in which trials by jury had been used, although it was held that the adjudication of the magistrate on the subject of the marriage of the parties, although sufficient to compel giving security, was not conclusive. But although the judgment for the abatement of a nuisance at common law, "quod permittat prosternere," may have required a trial by jury, when demanded, yet courts of equity could always restrain the conducting of any business which was one, without such jury. And that is all which the order, as finally modified in this case, does. Such objection, therefore, falls to the ground. * *

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HUTTON v. CITY OF CAMDEN.

(Court of Errors and Appeals of New Jersey, 1876. 39 N. J. Law, 122, 23 Am. Rep. 203.)

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BEASLEY, C. J.17 But to rest here would be to put this matter on too narrow a ground. There is an infirmity in all proceedings of this nature, which lies deeper than the one just noticed. Assuming the power in this board, 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 any mind, accustomed to

17 For first part of opinion, see ante, p. 136.

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, 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 aspect, is; and the one interest can no more be taken out of the hands of the ordinary tribunals than the other can. 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 land 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 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. It cannot be used as evidence in any legal proceeding, for the end of establishing, finally, the fact of nuisance, and if it can be made testimony for any purpose it would seem that it can be such only to show that the persons acting in pursuance of it were devoid of that malicious spirit which sometimes aggravates a trespass, and swells the damages.

I repeat that the question of nuisance can conclusively be decided, for all legal uses, by the established courts of law or equity alone, and that the resolutions of officers, or of boards organized by force of municipal charters, cannot, to any degree, control such decision.

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18 Accord: Munn v. Corbin, 8 Colo. App. 113, 44 Pac. 783 (1896).

SECTION 27.-IN REMOVING FROM OFFICE

STATE ex rel. MEADER v. SULLIVAN.

(Supreme Court of Ohio, 1898. 58 Ohio St. 504, 51 N. E. 48, 65 Am. St. Rep. 781.)

SPEAR, C. J.19 Two questions are presented. One relates to the sufficiency of the charges; the other, to the action of the mayor upon them. [The decision upon the first question is here omitted. See ante, p. 188.]

Upon the other branch of the case it will be noted that the answer avers that at the trial "not a word of evidence tending to sustain the truth of the facts alleged in said charges, or either of them, was adduced or heard by said mayor, and that no statement or information of any personal or official knowledge of the mayor, of any kind, tending to substantiate or prove the facts alleged in said charges, or either of them, was made or communicated to this defendant.” It will be further noted that in his order the mayor recites that, "I find from the evidence, and also from the facts within my personal knowledge," etc. As stated elsewhere, the power given the mayor is not judicial within the meaning of the Constitution, yet, as already found, it is not to be exercised arbitrarily; that is, a hearing is to be given the accused, and he is to have the opportunity to refute what is adduced against him. So that it would not be a proper exercise of power for the mayor to determine the truth of a charge on his own personal knowledge without making that publicly known, and offering the opportunity above alluded to. If the averment that not a word of evidence tending to sustain the truth of the facts alleged was adduced or heard by the mayor, etc., is to be taken as an averment that no testimony at all was heard, but that the mayor's finding rested entirely on facts within his personal knowledge, uncommunicated—and it is insisted by counsel for defendant in error that such is its meaning-then clearly, upon this ground, also, should the mayor's order be held invalid.

The majority of the court, at least, inclines to regard the legal effect of the averment as a conclusion of law merely; that is, that in the opinion of the pleader the evidence did not tend to sustain the truth of the charges, and that whatever statement the mayor may have made upon personal knowledge did not tend to substantiate the facts alleged.

19 For statement of case, see ante,, p. 188.