Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-04-01
BRoApBENT VS.. THE IMPERIAL GAS con-.
PANY -

subsequent stage, by amendment it was made
suit at the instance of the Attorney General,
well private suit because il any person was so
advised, he might get complete remedy by suing
at law for damages by of the disturbance of
the pavement before his house for any appreciabe
space of time. Now attending TO the principles LAID
down in that case, cannot come to the conclusion
that there was anything there decided to warrant
this Court in wi hholding the relief OF injunction
to person seriously and constantly injured by
lawful acts III 1t should turn out that the lmpany
had no right so to manufacture gas o damage the
plaintiff ) market garden, have Come to the con-
cluson that cannot enter into any question of how
far 1t might be convenient for the public that the
gas manufacture should go on. That might be a
good ground for the Legislature to declare that the
company might make gas il they Unidentified the
plaintiff but, unless the company had such right
think the present is not case in which this Court
can go into the question of convenience incon-
venience, and say, where parry is subt ia italy
damaged, that he can only be compensated by bring
ing an action totes quotes That would be adsgract
full state Of the law, and quteagre with the Vice
Chancellor in holding that in such this Cou I
must issue an injunction, whatever may be the con
sequences with regard to the lighting of the parishes
and districts which this company supplies with gas
The particular portion Of that to which call
your Honor's attention is that wherein it is SAID
that whstaver may be the effect OF the injunction
upon the gas for these PARISHES, the injunction
should issue that the effecs was not a question
which addressed t,elf TO the Court
But the case of all cases, which resembles this
case In all its points is the case of the
ATTORNEY GENERAL vs.. THE COUNCIL OF BIR
MINGHAM,
e KAY & johnson. 53S) That case illustrates two
propositions in this case. First, the proprety of
the commencement Of this action by the law officer
Of the StIte and, secondly, the prUp-iety Of the
issuance Of injunction the effect OF which might
destroy the realm. The language of Mr. Vice Chan
.ellor, Page-Wood is such in its char c.er as
seems to me to determine finally and definitely the
law iu relation to ma ters of this kind if
20 to the common law to ascertain what our rights
are. But our position is based upon broader prn
cipie, constitutional principle, which makes it The
duty of the State To protect these rivers and OF is
officers to exercise the functions commit led to them
to that end. That was c!se in whlcl the city of
Birmingham claimed by prescription, and also by
grant from Parliament, the right TO run its sewage
into the riyer Rea, which river at point below
tered the river Themes, which ran by the farm Of
citizen, who being injured by it, applied to the At
torney General for relief in the name Of the vern
ment.
The Vice-Chancellor, in passing upon the case,
used the following very pc tnent language: " 1t
has been urged upon me- more than once during the
argument by the counsel for the defendants that
there $50 900 inhabitfnts in the town OF Biz
mtngham and that this circumstance must be taken
into consideration in determining the question
of the plaintiffs right an injunction.
say the plaintiffs right, rather than the
rights OF the other members Of the COM
mumty on whose behalf the information is ex
hibted, because, as regards the latter, there may
circumstances to be taken into consideration which
do not affect thu question so far it regards the
plaintiff There at Law in which it has
been held that where the question arises between
two portions OF the community, the convenience OF
one may be counterbalanced by the Inconvenience
to the other, where the latter lar more numer-
GUS But in the case Of an individual claiming
tain private rights and seeking to have those rights
protected against an infracton Of the law the ques
ton is Simply whether he has those rights and, if
So whether the Court, lool ing to the presidents by
which it must be governed in the exercise Of its
judicial discretion, can interfere to protect them.
NIL ri 10 lf
plaintiff right to an injunction, it appsars to
that, far this Court is concerned 1t is matter
of almost absolute Indifference whether the decision
will affect population of ZOO, or single in
dividual carrying a mandatory for his own
benefit. The rights OF the plaintiff must be meas
ured precisely they have been left by the Legis
lature. | am not sitting here as a committee for
public safety, armed with ar .itrary power to pre-
vent what, 1t is said will be great injury, not to
Birmingham only, but to the whole OF En-, land
that is not my function My function is only to To-
terpret what the Legislature (the proper body to
which all such arguments should be addressed), has
considered necessary for the town of Birmingham.
The town Of Birmingham is to have neither more
less than the Legislature has thought fs for its
protection. The plaintiffs rights are neither more
less than the Legislature has thought it proper
to leave him. And the question, whether tie town
of Birmingham is concerned, or whether, as IN the
case of Delarue vs. The Aldershot Decd Jrizing Man
ure Company, the defendants are carry ling on these
operations for their own profit, is which it is
tirely beside the purpose argue in this Court"
Now the respect in which that case 10 my judy
ment determines the question which counsel who
last addressed your Honor has propouuded, is that
there, as in THE case, there was vast amount in
volved; there was public measure to be enjoined
which had been authorized by Act OF Parliament
perm ting the construction of the sewers COM
planned Of. As your Honor will remem Der, Parlia
ment in England is almost unlimited in its power
law which contravenes Magma Charta is not In
that country absolutely yoid while in this country
law prohibited by the Constitution is absolutely
void Parliament when il exceeds itJ
simply does that which is voidable and the very
fac that it is Act Of Parliament is sHfc ent to
authorize it to be called law while in this country
whenever the legislative department, either OF
State or Of the Federal Government transcendsits
power under the Constitution, the enactment Is not
law. and it would be misnomer to term it law.
Parliament had there authorized the thing
complained OF in that public necessity, but
the Court recognized the rights of prop
erty. and 1t construed this Act as impiiedly
protecting individual rights from injuries resulting
from lis enforcement, and it was held in that case
that II the protection Of the health Of $500
people, and the convenience Of the population Of
vat city, and even, as the Court said if might
suit in injury to the entire realm still the individual
had right to have his property protected against
acts done by officers under the authority Of Parlia
ment In that thu Court said that the right Of
the individual riparian owner had beer Violated
the right to the use of the water Of stream, right
which had been recognized as property under the
common law should be protected. There is no such
imitation upon the powers OF the Government of
England as there is here II it were true that there
had been no change in the lin relation to riparian
rights, that the common law mair tanned in its
full vig0r in this country upon that subject, the
right to have the water flow in its nat
ura condition would be property within
the meaning Of the Constitution, and it would
then be beyond the power of any Legislature, or
Of any department of this Government, to take
away from those residing along the banks of these
streams the property which they owned in them
without making just compensation for it. In this
country we go further than they do in England in
the protection OF property rights, and this case Is
tr ger than the English case refer to- In Eng ID
they put limitation by construction upon the POW
of these officers, while in the United States
have limitation which is in the form OF
date in the Constitution, limiting the powers OF
the Legislative Department and securing forever
the rights OF private prope ty-securing those
rights against such Entertainments, whether au-
thorZed by legislation not. II it were true, in
this case, that there had been Acts of the Legis
lsture and Acts OF Congress attempting to author
ize the injuries complained of-attempting to
thorize an injary to the property of persons resd
ing along the banks of the streams-the injury is
such that Congress and the Legislature COM
bined could not haze authorized it, and hence,
as Judge allace must tell you, and as your Honor
must know, the law would be that those persons re-
ceiying injury were entitled to protection the in
jury is nevertheless to considerable number Of
persons, which the law declares to be nuisance;
of which the prosecuting officers Of the Government
must take notice. as matter Of law and not mat
ter Of policy. But says the counsel while this is So
yet the matter can be easily remedied by legisa
ton that Court should nc intervene but should
permit the acts resulting in the injury to continue
II rights being violated, if public and pr.
vate lights being disregsrded to such an extent
call for the exercise Of the powers of the Gov
ment to prote them, then want to know how long
will the Court make wait before it will put in
fJrce the constitutional provision and protect
our property against this injury; how many
times are to address ourselves to the Chancellor
or TO Court of equity, before a remedy will be
given u.s. Are to be told that these illegal acts
resulting in injury to property, are to be con.
tnued, and that the remedy will come from the
Legislature, while in the meantime we find this ma
terial tumblng through these canyons and these
rorges. and coming down to destroy us absolutely?
Are the farmers sending their farms to the noun
tains TO destroy their mines?
WHO IS IT THAT SHOULD BE COMPLIED TO
WAIT?
Who. by the decree of Court Of equity, should be
asked to wait for legislation? Should we he COM
PEELED to wait, whose rights are being dsregardei,
and whose property il being destroyed? Are we to
wait until, in the instance given by Mr.. Bechet
the other day. the old folks shall be driven out the
homes shall be abandoned the orchards shall
be destroyed, the flower gardens covered
up the house washed away, and the farm, once
beautiful and home, shall be deserted,
be ause a Court OF equity tells us to wait-to
wait for the exercise OF political power2 Why,
YOUR Homer, this is the first time IN the
history Of Jurisprudence when men have
come into a Court, conceding the existence
of legal rights which should not be violated-con-
ceding the existence of legal rights which the Gov
eminent Is bound to protect cnnceding the exist