Evening star. [volume] (Washington, D.C.) 1854-1972, 1867-09-14
LOCAL NEWS.
light to Erect Frame Buildings Near
Brick Houses

Some time since DIR. John f. CLARK was ar
rested by Lieutenant Eoonan on warrants
sued by Justice Walter, charging him with
maintaining nuisance in the shape OF q de-
lspidated building on Pennsylvania avenue,
near eth street. On the case coming up he
waived an examination, and denied the Juris.
.diction Of the Justice, and subsequently APP
piled to Judge Wylie through Mr.. Philips,
Tor writ Of eertiordri to remove the proceed.
iRgs. Mr.. Philips argued that the law, under
which the proceedings were had, was uncon-
7StitutIoDal.
This morning Judge Wylie maze the follow
ing decision. by which 1t will be seen that the
police are sustained in their action. and that
they have the power to at once abate such
luisances as are pre!udicial to the health and
safety of the public.
Uaited States VS.. John F. Clarke, No $3.50,
rule on part OF defendant, to show cause why
ccrtiorari should not issue to Chas. Walter.
Esq, to remove proceedings in this case.
OPINION.
The defendant has presented to the court his
petition, praying for a certiori to Justice Wal.
ter. directing him to certify and send up the
record OF his proceedings in this case, on the
ground, as alleged, OF want of jurisdiction
in the Justice over the matter in contro versy.
1t sets forth that on the 18th OF June, 1867, q
warrant was issued by the Justice for the ar
oath by third person, that defendant was
maintaining on his lot in this city a certain
erection building which was prejudiclal to
the lives and health of the public, and that
defendant had been arrested and held to bail
by the said Justice to answer the charge at
court. The petition also asserts that the said
Chcrge is wholly false. and that the proceed.
ings before the Justice were in pursuance of
the ID section Of the act of Congress of 10th
July, 1852 chapter Isl. On the presen tation of
thus petition rule was granted by the court
against the Justice, to show cause why the
CsrtioTi should not issue prayed. At the
argument on the rule the counsel for the de-
fendant undertook 10 show that the SAID act of
Congress was unconstitutional and void, be-
cause It protested to confer on the Board of
Metropolitan Police and the police magistrates
the power of removing an alleged nuisance,
and of fneng the person by whom it was
maintained, without giving 10 defendant the
right OF trial by jury to ascertain, first, W beth
Ell the structure complained of was in fact
nuisance. The present case, however, shows
that the building in question. has not been
abated as a Nuisance, and that the defendant
has not been fined by the magistrate for main
tanning it, but only that he mas been held to
bail TO answer the charge at court. The de-
fendant has therefore not been deprived OF
mis- trial by jury in this case. but has simply
been held 10 bail TO answer the charge hereaf-
ter, where he will certainly have the full en-
joyment OF that privilnge, before the building
complained of can be abated II the charg
De false, as he says it is, that is not question
which the court can examine on certiOrdtr.
The proceedings in this case though averred to
have been based upon the provisions Of the
act of Congress, amount to nothing more
place under the common law and
without the act of Congress. But 1T is said
his properly might have been removed as
nuisance under the act of Congress had the
magistrate chosen to SO order. The court, how
ever, can decide only on the case as il is, and
defendant has NO right to seek aid in
his attempt to show a want of Jurisdiction on
the part OF the magistrate In the present
stance from facts which do not exist in his
case, and which he sets up as Hypothetical
only. The rule must therefore be discharged,
and IT is SO ordered. But since the whole sub
ieot has been deliberately argued on the part OF
the defendant, and il ia one deeply interesting
TO the police authorities Of the city, as well as
TO the public, and have been solicited to state
self of this occasion to express my views
as to this branch of the law of nuisance.
Blackstone says :--'s Whatsoever unla wfully
annoys or doeth damage to anotaer is
nuisance. and such nuisance may be abated;
that Is, taken away or removed by the party
agerieved thereby, so as he commit no riot in
the doing it, II a house or wall is erected so
rear to mine that 1t stops my ancient lights
which II q private nuisance, 1 may enter nv
neighbours land and forcibiy pull 1t down: or
i a new gate De erected over the public high
kings subjects passing that way may cut it
down and destroy it; and the reason why the
of doing ones self justice is because injuries Of
this KIND, which obstruct or annoy such things
as are of daily convenience and use, require
slow progress of the ordinary forms of Justice"
This right OF doing summary justice in abatng
a nuisance is indeed corollary Of the right
Oh SELL ueleus6. out d wise QlSc1eLOn
Will dictate its sparing exercise by the pri-
waite individual. In most cases, other RENE
dies, obtainable through the forms Of law. are
sufficiently prompt and thorough. But the
right still belongs 10 the indIvid ual, to be ex.
ercised in each case at his risk. In Meeker
We. Van Rensselaer,, Is WendilI, 397. it was de.
clded that dwelling house cut up into small
apartments. inhabited by a crowd Of poor peo-
pie, in filthy condition, and likely TO breed
disease, was a public nuisance, and might be
abated by individuals by tearing it down.
m IA hat no pinht to
abate nuisances in a summary way should be
maintained in the hands Of the police, who are
entrusted by law with the protection of the
public health, as well as the security OF per-
provisions which declare that no per
son shall be deprived of life, liberty
law" and that in suits at common law
where value in controversy shall exceed $50,
the right OF trial by jury shall be preserved,
means in conflict with these views. These
constitutional provisions Introduced no new
law into this country. They were designed
common law; and by that law 1t was always
lawful, both Tor individuals and the police
authorities, promptly to remove everything
which might prove injurious as q nuisance to
the public health quite much SO as
promptly to put down any effort to commit
breach OF the peace or to commit felony.
It's cost if it could be used to uphold nuisances,
by which disease and death might be spread
throughout the comm unity long before the
question could be tried by jury. In Vanderbilt
VS.. Adams, 18th Cowan, 352,) the Court say
''Police regulations are legal and binding,
because for the general benefit, and do
not proceed to the length Of impair.
Grg any right, in the proper sense Of
that term The sovereign power in a commu.
nifty, therefore, may and ought TO prescribe
the manner OF exercising individuals rights
over property. It is for the better protection
and enjoyment Of that absolute dom inion
which the individual claims. The powers
rest in the implied right and duty Of the su.
preme power to protect all by statutory regu-
lations, SO that. on the whole, the benefit OF all
is promoted. Every public regulation in q
city may, and does Ia some sense, limit and re.
strict the absolute right that existed revIously
but this 10 not considered as an injury. So far
from it, the individual, As well as others, is
supposed to be benefiitted. And again. the
owner Of lot in the city intends to build of
wood. The constituted authorities say, You
must not exercise that rgnt-it is dangerous TO
all: you may build Of brick or OF stone, because
the safety Of all is In that way promotec." In
the case Of Coates vs.. the Mayer, &C., of New
York. 9th Cowan, 352,) party was fined
by the police authorities for interring a
dead body In Cemetery after the prac-
tice had been forbidden by q law OF the
Corporation, and the law was held to be
constitu uonal, and the Court decided that cal.
though q Corporation may have granted LANDS
for the purpose Of interment, and have even