New-York daily tribune., 1855-08-27

Browns Opinion; bu. il eies in shs face and
eyes Of al past legislation and jurisprudence, as
we'll as OF common sense
There is Just one more point in this Opinion
that is worth considering-thst which relates
to the legal power TO sbste nuisances. In order
that we Insy not be accused of unfsifness or any
unnecessary contempt of Court, we quote this
norton of Brown, AZ we did the former, entire;
PowTRoF THE LEGISLATORS TO DICTATE sUIsAscE.
"Nor can the force and efficiency OF the Consttu'
tiopsl limitations be ey ided ayerted by the decEa-
ration OF the 2jth Sec OF the Act thar ihtoxieSlnS
liquors public nuisance In the worus OF Ouel-
Justice Rufin, "such a construc ion w0uid aoroSAe
all restrictions on legislative authority IL class
Of citizens can lie deprived OF a particular KIND ot
property BY legislative declaration that X is puOc
nuisance then another class may be deprived Oh Oery
by legislative act prescribing them as maetactors
and felons CIabt this power TO the Legislature and
tie limitations OF the Constitution are no longer OF aey
value Every kind of property may be put without
The pale OF the laws and the protecaon OF tae Soas
and exposed to seizure and forfeiture by simple act
declaring the prescribed article 20 be public nuisance
Tie existence of such power " inconsistent Win tne
theory Of limited representative COVE neni, because
IL is destructive Of the euds which such agovernmen,
ia designed to accomplish. Tee 25th Section proceeds
uuou misapprehe nson of what nuisance i5. Con
mon or public uusanccs oicnScs against tine pqo-
he or economical regimen OF the state being ei'ner
the doing Of thing 10 the annoyance Oh me KING
subjects or the negleciing to do thing which the
cornmon good requires" Black Com. loo I'm,
pediments and distractions placed IN highways ana
iavigable streams nuisalces PEI So because 'ney
interrupt the passage and thereby annoy others.
Traces and manufactures OF certain knss become
uuisances from the places where AMI the manner IN
which ibey are conduc ed. Animals, such as u1gs
swine, &c are rot nuisanc's until they become onch-
siye by being suffered 10 a. 9ge or kept IN the
vicinity of mems habiations. SO an accumulation OF
vegetables and fruits in process OF decay the sh ana
olal OF animals, guDPOwdcr, drains aLd sewers IN
cities and ropulous places, may OF may not become
nubc ruisrcts by heir localities aud other attendant
Circumstances The true test Is, that the thing trade
or busue ss il in way detrimental TO me puolc,
for the elementary writers say, common nulsances
ale such inconyenien Troublesome otenses as an
{" nov the whole community in general and not some
"parlicular person" Common nusances may De
nbated or removed by the party annoyed or injured,
who is not required to wait for the SLOW progress OF tue
ordnsrv forms of usice. Liquors that utoxicate ex'
bbit none Of the qualities which constitute common
nuisance. They obstruct no ravigabie rivers, and
impede the passage of no public highways; 1hey
create no noise 10 disturb the public tranquility and
1ence They e1hae offensive 0dors TO talnt tue air
and impair the public health. Nof do they endanger
tne security of persons of other property by ten
dency TO ignition and explosion. In the stores OF the
importer tie vaults of the brewer, and IN the cellars
of The wiue.grower and consumer tneyaro as harmless
as the wood or glass in which they are enclosed He
who knows how TO enjoy them with reason ana mod
Grafton or has the moral power and seifdena 10 let
them alone may consider himself free from annoyance
and danger. They may be- and doubtless are converter
to bod uses-uses which produce intemperaoce, pau
'perism and crime and may add, moral degr .1a-
ton and grief ard anguish unspeake1le Ana then
the places where they thus used ana those concerned
in prosttuting them TO such uses tau clearly Tlini9
the province of legislative regulation AM CONTROL and
the maxim: Sic ere mo nj dieHum non tefds, apples
in all It's force. But Intoxicating liquors cdnn0t 0e
debrircd of the detenses 10Th tchich ne Constitution
surrounds the property Of The citizen by an act pro-
scriJiHg IL as a public nuisance"
The sum of these assertions is exactly
this: The People, acting upon and through their
Legislature chosen with express reference to
this question, cannot effectively pronounce the
Liquor Traffic nuisance-cannot determine
what is and what is not nuisance-that being
the prerOgstiye Of Brown. The People have
decided, and the Legislature has enacted, that
the Liquor Traffic does "create noises which
"disturb the public tranquility and peace
docs impair the public health ''-does subject to
annoyance ard danger"-yes to positive injury
and loss- thousands who have t" tn self ienial to
"let them slone'-ond that therefore the places
where intoxicating beverages are sold do "fall
clearly within the province of Legislative reg
"ulation and control" The vital issue is simply
one of fact, ard Brown on this issue overbears
the People of New-York and the Legislature of
their choice. RE has challenged them to mortal
combat, and they must boldly meet or meanly
shrink from the issue.
We are glad that this Opinion has been
pronounced thus seasonably; we rejoice in view
of the fact that in this country the People make
not merely their Legislators but their Judges
If they want the Rum Traffic restored to its
palmiest estate-nay, raised far above that; for a
refusal in any township to grant licenses is illegal
and invalid if this Opinion is law-they hsve
only to Gil their Supreme and Appeal Courts with
Browns and the job is done. If they want the
Liquor Traffic suppressed, or confined to the
presumptiyely legitimate uses specified 10 the
"act to abolish Intemperance, Pauperism and
Crime" they will have to fill the Bench with
men not go learned ana eloquent on Liquor as
John w. Brown, but little better posted Id
Law. There is no longer a chance to blink the
question; be who votes for q LiquOr-l loving
Judge votes to uphold and perpetuate the
Liquor Traffic. Let no man plead ignorance of
the issue thus forced upon us; le. no man seek
to evade it. We have beaten Liquor in three
fair contests, carrying frat the Assembly; next
the Legislature in both branches then the
Legislature and Governor. All the fruits of
these victories are lost If we no permit the
Rum interest to pack Judiciary against us.
Already we see two Hard" candidates for the
Court Of Appeals nominated expressly on the
platform Of hostility in every aspect to the Pro-