The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1891-01-16

a COMMON NUISANCE.

United States Circuit Court in Tennessee.
One King, being q SeYenth-day Adventist
and, as such, an observer of Saturday in
stead Of Sunday as the day of rest, plOwed
his field Oh Sunday in the sight of church.
goers. For this he was indicted, under the
common law, and found guilty of commit
ting a common nuisance. He has appealed
the case to the United States court on the
ground that his conviction was a violation
of the fourteenth amendment.
1t is hard to see what that amendment,
which was intended to prevent Southern
Legislatures from abridging the rights of
freedmen, has 10 do with the right of a
farmer to plow his field on Sunda$ His
counsel will probably rest his appeal on
other grounds. He was convicted under
the common law which is in force in Ten
nessee as in California Under that law,
when a man commits an act not warranted
by law, which act Obstructs, or causes in
convenience or damage to the public in the
exercise OF their lawful rights, he commits
common nuisance. which IS mi>d mean
or. 1t is the doctrine of the common law
that it is not necessary to violate any par
ticular statute to commit a nuisance. 1t
appertains TO the Judge or jury to decide
whether the act he committed did or did
age to the public in the exercise of their
lawful rights. II they decide that it did,
the act was a common nuisance, and punish
able accordingly.
1t will be curious TO observe the decision
on appeal. 4 great number of acts are
committed by persons in this State, which,
without being actual infractions of law, 10
obstruct and cause Inconvenience to the
public at large Some of these, which are
fragrant, are recognized as nuisaHces, and
may be the foundation of suits at law; as,
for instance. conducting a bOne-boiling es-
Enlistment in proximity to residences,
storing explosives near occupied dwelling
houses, giving exhibitions which are often
sive to good taste and sound morals. All of
these, and others which fall into the same
category, are nuisances; they may be and
they frequently are proceeded against,
either under the common law or under
special statute. BIT there are other per
formances which, however offensive to the
public at large, have never in this State
been classed as common nuIsances and
formed the basis OF prosecutions.
In California religious opinion and re-
lgious observance are so absolutely free
that it is impossible to conceive that in this
State man could be indicted for blowing
that he had religious scrupes against plow-
ing it On Saturday. We have the advantage
of our Tennessee friends in this respect.
| But it is possible to inconvenience COM
munity without offending its religious
| notions. Very curious ideas sometimes get
! hold of the minds of jewellers in small COM
muniteS, and sometimes they pervade the
whole community. In such cases recall
| citrant member might he accused of incon-
yenenciDg his fellOw-membsrs by osten-
tatlously refusing to embrace their views,
and under the old common law it would
seem that he might be charged with commit
ting a common nuisance. That would be
bad ethics. even if it were good law.
1t seems curious that so profound a writer
as Justice Stephen in his digest of crimina
law did not explain that the doctrine of
common nuisance was an offsnoot from the
ancient notion that uniformity of belief and
opinion in everything was desirable, and
might be enforced by legislation. That doc
trine rests upon the idea that majorities are
omnipotent, even in the smallest details of
private life and that it is an offense against
the commonwealth TO depart from the rules
which they have laid down. This idea has
become obsolete in our day. We hold that
majorities should govern in all matters per-
tanning to general public affairs, but that in
| private life, so long as the health and morals
of the community are not endangered, the
individual is sovereign. In our State Con-
siitution the rights of the individual are
jealousy guarded. 1t will be singular if in
Tennessee it proves to be different. In this
State if any one tried to prevent rancher
from stacking his grain when Old Prob pre-
dicted ram he would encounter a windy ex-
perence.