The national Republican., 1867-09-16

luo hfFtht ot sonu ~ tihIho ut btoNtounns
Cornsiiu, Noonan, Of the Sanitary Police foros,
charged with maintaining q nuisance In Market
Space, between Eighth and Ninth streets west,
BY refusing 70 remove dilapidatsd building,
which was pronounced BY many a. unsafe and
dangerous. The caso was taken before Justice
Walter, when Mr.. Clarke was held for court,
but denied the jurisdiction Of the justice, and
petitioned Judge Wylis, through his counsel,
Mr.. Phillips. for o writ Of os,tiorari 10 remove
| the proceedings. Judge Wylie, on Saturday
morning, rendered decision In the case, a. fol-
lows, sustaining fully the aston Of the Sanitary
police In tho premises:
United States vs.. John p. Clarke, No. $3.50,
rule on part Of defendant TO show cause why
oeyiiorart should not issue To Cbas Walter, ESQ.,,
to remove proceedings in this case.
oPsioN.
The defendant has presented to tho court his
petition, praying for a cctiorari 10 Justice Wal
| ter, directing him 10 certify and send up the
record Of his proceedings In this cass, on the
ground, as alleged. Of a want Of Jurisdiction In
tho Justice over the matter In controversy. It
sots forth that on the 18th Of june, 1867, . war
rant was issued by tho Justice for the arrest Of
| the defendant on charge made on oath BY q
third person, that defendant was maintaining on
his lot, In this city, certain erection or build
ing which was prejudioial 10 the lives and health
Of tho public, and that defendant had been or.
rested and held to ball by the said Justice to
answer the charge at court The petition also as
ssrts that the said charge Is wholly FALSE and that
tho prOosedinss before the Justice wore in pur:
suanoe Of the I'd section Of the act Of Congress Of
10th July, 1852, ohsptsr18l. On the presentation
Of this petition rule was granted by the court
| against the Justice, to show cause why the cer-
tiOrari should not issue as prayed. At the srgu.
mont on the rule the counsel for tho defendant
undertook to show that the naid act Of Congress
was unconstitutional and void, because II pro.
1 r. A.. L.. II
Police and the police magistrates the power Of
removing IN alleged nuisance, and Of hning the
person by whom II was maintained, without
givisg TO defendant the right Of trial BY jury to
ascertain FIRST, whether the structure complained
Of was 10 fac. nuisance. Tho present case,
however, ihowsshat the building In question
has not been abated as nuisance, and that the
defendant has not bosn fined BY tho magistrate
for maintaining II, but only that he has been
held to bail to answer tho charge at court. Tho
defendant has therefore not been deprived Of his
trial by jury In this case, but has simply been
hold to bail to answer the charge hereafter
whore he will certainly have tho full enjoyment
Of that privilege before the building complained
Of can be abated. II the charge be false, as he
says II Is, that Is not question which the court
! can examine on esrtiorari. Tho proceedings In
this case, though averred to have been based
| upon the provisions Of the act Of Congress,
amount to nothing more than such a. might
have taken place under the common law and
without the act Of Congress, But II is said that
the defendant might have been fined, and his
! property might have been removed as q nui.
J sancs under the act Of Congress had the msgis.
! trate chosen TO 90 order. The court, however,
can decide only on the case as II is, and do.
fendant has no right to seek aid In his at,
tempt to show q want OF jurisdiction on the
part Of the magistrate In the present In
stance from fa@s which do not exist in hii
! case, and which he sets up Is Hypothetical
only. Tho rule must therefore bo discharged
and It 10 so ordered. But since the whole subject
has been elaboratey argued on the part Of th,
defendant and 1t Is one deeply interesting to tn,
police authorities Of the city, as we'll as to th,
! public, and l have been solicited TO state M
opinion, may be excused for availing myself o
this occasion to express my views as to this brancl
Of the law Of nuisance. Blackstone says: Whist
soever unlawfully annoys or doeth damage 10 an
other Is q nuisance, and such nuisance may b
abated; that IL, taken away or removed by tn,
. party sggrieyed thereby, so as he commit no rio
In the doing II. II house or wall is erected O.
!, near TO mino that II stops my ancient lights
which Is q private nuisance, / may enter m
neighbor's land and forcibly pull II down; or II
new gate be erected over tho public highway
which Is common nuisance, any Of the king
destroy iti and thS reason why the law allow
o this private and SUMMARY method Of doing one
self Justice Is because injuries Of this kind, who
obstruct or annoy such things as are Of daily con
yenience and use, require IN immediate remedy
and cannot wait the slow progress Of the ordinar
forms Of justice" This right Of doing summar
. Justice In abating q nuisance 10 indeed q oorol
larry Of the right Of self-defenoej but q wise dis
cretion will dictate Its sparing exercise BY th
q private individual. In most cases, other RENE
0 dies, obtainable through the forms Of law, ar
l sufficiently prompt and thorough. But the righ
o ..;u IN hs individual be exarcised 4
: each case at his risk. In Meeker vs.. Van Ren
salaer, 10 Wendill 397, It was decided that
dwelling house cut up into small apartments In
0 habited by crowd Of poor people, In o filth
0 condition, and likely to breed disease, vas
public nuisance and might DO abated by individ
uals by tearing II down. Much more importan
= Il is that the right TO abate nuisances In Q sun
o mary way should be maintained in the hands Q
the police, who are entrusted by law with tn
protection Of the public health, as we'll as th
security Of persons and property. Tho constitr
tional provisions which declare that no perso
s, shall be deprived Of lfs liberty, or property
10 without duo process Of law, and that In suits I
common law where value In controversy snail e'
coed $40 the right Of trial BY jury shall be pr
10 served, amendments, articles s and T. are b
N no means In conflict with these views Tbei
Is constitutional provisions introduced no now Ia
!. into this country. They were designed only
0. protect rights already secured by the commo
lawi and by that law 1t was always lawful, bot
g. for individuals and tho police authoritie
h promptly to remove everything which migt
10 prove Injurious as n nuisance to the publ
" health-quits as much so as promptly to p,
Is down any efforts to commit breach Of u
le peace or to commit felony. The right Of tri
4. BY Jury would not be worth Its cost II II cou
9. be used to uphold nuisances by which disea
lg and death might be spread throughout the con
10 munity long before the question could be tris
n. by Jury. In Vanderbilt VS.. Adams, 18th Cowal
352,) the Court say: "Police regulations are leg
III and binding because for tho general benefit, ar
10 do not proceed to the length Of impairing al
right, In the proper sense Of that term. tt
l. sovereign power in a community, therefore, mt
III and ought to prescribe the manner Of eIercisiI
b. individuals rights over property. 1t 10 for Il
6. better protection and enjoyment Of that absolu
Of dominion which the individual claims. tt
n powers rest in the implied right and duty Of Il
to supreme power to protect all by statutory reg
lations, 50 that, on the whole, the benefit Of :
I'll 10 promoted. Every public regulation In oil
ss may, and does In some sense, limit and restri
,d the absolute right that existed previously, b
he this 10 not considered as IN injury So far fro
g. It, tho individual, as we'll as others, Is suppos
to be benefited. And again, the owner Of q !
ly In the city intends to build Of wood, Tho co
stituted authorities say, "You must not exerci
that right; 1t Is dangerous to ALL you may bui