Evening star. [volume] (Washington, D.C.) 1854-1972, 1874-06-08
Power. or the Board or Uc.,,,


issue OF TIE STAR, Judge DIN, as stated, de-
Ivered tie opinion Of the court. After recitin ?
tie powers OF the Board Of Health as set forth
IN the organic sct-to declare what shall BE-
deemed Euisances injurious to health, aui to
provide Tor the removal thereof, he says: Ella
ms exercise OF the power supposed to be con-
enacted an ordinance containing many sections
IN reference to great variety OF matters,
among them one enacting "that all establish
offal, swili, bones, or taIlow, crushing or GRIND
ing or burning bones or shells, cleansing guts,
making glue, yarnish or lampblack, distilling
degenerate into noxous gases and odors within
tie limits Of the cities of Washington aud
Georgetown shall be deemed instances iniu-
rious 70 health and any person who shall within
bones, fat, tsllow or lard for any purpose except
that OF cooking, or who shall enter into tn >
business Of crushing bones, shells or cleaning
OF keeping and maintaining a nuisance, aud
shall, on conviction, be punished by a hne of
rot less than two, nsr more than twenty dol
For violation of this regulation an informa-
ton was filed in the Police Court, Charging
that the defendant (Bstes) did boil off.l, tat,
tailoW, &c, IN an establishment for the puT-
rose, on q, between 9Th and 18th streets, north
vest, sc. Defendant filed pea to the iuris-
d.ctlon OF the court, which was oyeTruled by
the Judge and the case postponed. On tue
cay preceding the one set for the hearing de.
feEGaBt sued out a writ Of csrtior4ri al dressed
70 tie I2dge of the Police Court, comm lnd;ng
hlm to certify and send his PROCEEDINGS ia the
case 10 the Supreme Court, To the end "a 1t ri
be done. The judge OF the Police Court certi-
fed the case, and tnereUpOn the counsel for the
board moved to qUash the writ: "1st. Because
the Board of Health is a corporation created. BY
and existing under tue laws OF Congress, and
by virtue OF such laws has exclusive right to
pass ordinances, to declare what shall be deem
ed nuisances. I'd. Because the Police Court
has full and exclusive jurisdiction OF such
ordinances, being court of record,' &c.
The first question presented in this case Isl WI At
are the powers conferred on the Board OF
Health in the section cited? The language of
this statute IL hardly susceptible of doubt. But
the Interpretation placed upon this section by
the Board of Health, and insisted upon by its
counsel, is that the board is empowered to
declare anything, or any condition of things, to
be nuisance, which, in the exercise of its
judgment and discretion, is deemed luxurious TO
health, and deals with 1t as such, although the
thing, or the condition of things, WAS never,
before the passage of this ordinance by the
board, deemed or adjudged TO be such by the
rules of the common law or any statute law
governing this District. Such a construction OF
the statute would confer a most extraordinary
legislative power, and q summary mode for the
exercise OF II. The power claimed b. the board,
hesitate not to say, is not possessed by Con
gTess or any legislative assembly in any state OF
this Union, nor can it be conferred, until the
Constitution of the United States becomes a
dead letter. The rules OF the common Law
showing what are nuisances Injurious to health
are cited. Such nuisances as are there defined
are OUenses against the WnOl9 community where
they exist and every ind vidual OF the Community
has right TO remove such nuisance; that's
aoate IL by force IL need be. A nuisance BY
rules OF the common law is nearly "a well de-
Tined as IL the oHence OF assault and battery;
sit IL anything that renders the en-
joyment OF life and property uncomfortaoie''
ibis definition would be nearly perfect By ad-
ding anything which naturally aud necessarily
tends to depraye and corrupt the morals OF a
community. But there are many nuisancss BIZ
the common law which are not injurious to
of the act of Congress. Several
cases are cited to show that there are nuissncss
defined by the common law which are not iu-
furious 10 health, but on the contrary are emf
nently conducive TO il, such as exercise a. the
bowling alley or the billiard table for m an of
habits. Judge Cowan's language,
The nuisance consists in the gainful establish.
ment Ter the purpose OF sports having sps-
lude and tendency to induce idleness and
Draw together d;sorderly persons, which be-
comes lncOnvenient 70 the neIghborhood -
Is quoted. Many things in and OF themselves
perfectly innocent may become nuisan e by
reason Of surrounding circumstances. Music
II the proper time AID place is a delightful en-
10Y ment, yet II the Marine band should appear
isily before the City Hall during the sessions
If the court, and discourse music ever 50 we'll,
he court could treat the bsni as a nuisance
md remove It in summary way. A nuisan &c.
1y the rules OF the common Law, IL kind of
~ ID sUpiRuBa, which any and everybody il au-
hOriZed TO knock in the heal. So if the passage |
II the section before quoted made the boiling !
Il Ia and tallow, except for c29king Purposes. |
Nuisance, any BODY and everybody may law
ully put an end to It. This ordinance, IL en-
orced, would, n effect, work condscatio1 Of all
Bates property employed In the man1fa cture |
VI soap aud candles. But, perhaps, his kettles |
Dr. csuldrons could be employed .'in boiling
,wiil,' but alas that branch OF industry is pro-
libited BY this ordinance, "except for cooking
purposes As nan IL the only animal who has
hitherto contrived TO cook his fOOt, the orii-
nance graciOusly exempts from its pantltias all
Who desire 10 totl sloiU for cooking purposes Ii
:. deyoutiy to be hoped that tds ben
.tciaries under this exception are not
very numerous in this District. The
power conferred on the Board Of Health
lid not authorize il to declare a thing or any
condition of things TO be nuisance which, IN
heir judgment, was in jurieus to health, which
ming or condition OF things was 10 nuisance by
he rules OF common law or any statute law in
orce in this District. but simply the power to
leelare ehat RUisdnees soere Injurious 70 hs1lti
{ Is said to be an Ill wind that blows nobody
my good, and the prohibition to manufacture
andes may promote the interest of the gas
company; and when monopoly Of the business
y nshung our houses is given to these COM |
E mewhat improved and the price considerably |
s,,,,, cleanliness be the next :,,in2 to
the good people Of this District should
III desire an abundant supply OF soap ana 70
omac water. No one who passes daaiy the
Uests and avenues of this city but WILL nave
cession 10 reeret the sparing use OF both. Tue
Manufacture Of soap and candles has hitherto !
n the worlds history been taken and deemed |
q he An honest and useful branch OF business, |
,ut If il be in aud OF itself nuisance, Injurious
., Z; nnsht 70 be ston"Ad 80 -. IL !,
and health are dearer rights than the right of
property. II the manufacture of soap and
candles is a nuisance, IL is equally 80 anywhere
Else as we'll as on street. If Il is I'M GrIous to
tie health Of the neigh borhood, II must BE- still
more dangerous to the health OF those en-
gsd In the business, and why not,
therefore, prohibit the business everywhere?
Z pom what theory is 1t declared TO be nut
sauce within the limits OF Washington AMI
G cor etOwn and outside of these limits? I'm
pliediy, no nuisance at all 1.-THE facts in this
case show that for almost half century Bates
al LIS ancestors have prosecuted continuously
this business at this place. At the time when
the place on which this factory was established
it could not have been q nuisance except %
those employed in II snd the frogs and owls Vt
that ighb0ThCOd ThIca chiefly, If not solely,
composed The population Of that vicinity, Ia
tie course OF time dwelling houses have been
built up. Ali the purchasers Of lots Of ground
kneW that Bates soap factory Was there, sud
they were under 10 legal or moral ccnstrajat TO
purchase lets or build houses By the side of IT,
II would be quite as legal, aud certainly more
equitable, tor the B1aTd of Heath 70 enact and
OTdain that persons WHO have built houses 50
near u Bates factory a. TO render their ocCu
patton Injurious to health, }" must instantly
remove thersfTom under penalty. To show
that The power assumed by the board could not
be conferred on il, for the reason that il
would practically effect conhscation