Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1896-03-19
A VICTORY FOR THE CITY
The Case Of LiebiG Against the Board
Of Health.
DECISION GIVEN ON SATURDAY
The Injunction Prayed For Not
Granted.
MANIFESTATION OF MUCH INTEREST

other Persons Present. when Chancellor
Nicholson Read the opiniOn-synopsls Of
the Interesting document.
Chancellor John r. Nicholson handed
down his decision in the injunction
case Of the Liebig Manufacturing Co.
vs. the Board Of Health at the Court
House Saturday morning.
The Chancellor denies tho prelimin-
airy injunction and the Board Of Health
wins
1.-THE complanants, the Liebig
Manufacturing Co., ~ said the Chan
cellor, "are now and for some months
past have been engaged in the business
of manufacturing fertilizers within one
mile Of the city of Wilmington in the
property formerly occupied and used by
the Walton & Whann Co. for the manu-
fscture OF fertilizers. +"
The Chancellor quotes the notice
from the secretary of the Board OF
Health, dated January 22d, 1896, to
ahate the nuisance within five days,
He also quotes the resolutions of the
hoard adopted the same date, and con-
tinues;
After receiving this notification and
before the expiration OF the five days
therein limited the Liebig ManufRc-
turing Co. filed bill in equity to re.
strain the Board of Health from TAX
ing any actions or proceedings against
them. Upon the presentation Of the
compainant's bill | granted rule to
show cause why the preliminary in
junction prayed for in said bill should
not be awarded. Z
After quoting the bill Of complaint,
he goes on:
swer fully meeting and denying all the
equities of the bill. A great number
of atiidavits have been presented and
read on both sides and the questions
involved argued with conspicuous earn
estness and ability upon the motion for
preliminary injunction.
The Chancellor next quotes from the
charter Of the city in regard to the
Board of Health.
1t is admitted that the defendants
the Board Of Health of the city Of
Wilmington-have been regularly APP
pointed and oragnized in accordance
with the provisions of the above re.
cited section 1876 of the charter, and in
the action taken by them in relation
TO the factory of the complainant they
have manifestly intended to proceed in
accordance with the provisions of sec
tion 1877 above cited.
The authority of the Legislature to
confer powers Of this character for the
protection of the public health and the
suppression of nuisances upon munich
pal bodies or officers is we'll settled, and
has long been exercised in every State
OF the Union.
Such powers must be summarily ex-
ercised in order to accomplish their OBJ
ject. To allow an alleged nuisance to
remain until it had been decided by u
court, after deliberate trial, to be
nuisance, would defeat the purpose Of
such statutes,
In such cases private rights must he
held subordinate to the public welfare
under the strictest Interpretation of
the maxim, "Salus populi suprema
lex. ~
II ia settled principle Of the com.
mon law growing out of the nature Of
vol ordered civil society, that every
holder of property however absolute
and unqualified may be his title, holds
it under the implied liability that his
use Of 1t must be SO regulated that it
shall not DO injurious to tho equal en-
joyment OF others having an equal right
To the enjoyment of their property, nor
injurious TO the rights Of the com
muuity.
Rights Of property, like all other
social and conventional rights, are sub.
ject to such reasonable limitations in
their nj1yment al shall prevent them
from being injurious. The prohibition
Of noxious uses Of property is Very
different from the exercise of the fright
of eminent domain-the right of the
State TO take and appropriate private
property 70 public whenever the
public nTigency requires it; which ear
be done only on conditions of providing
reasonable compensation therefor
When such noNiuus use of property
rs injurious to tho rights of the com,
munlty, causing public annoyance d
sensible, tangible sort, il is called a
prblic or common nuisance, and II y
criminal offence. Tho person or person.
responsible for it's existence are liable
to indictment and the nuisance itself
might at common law be summariIy
abated by private individuals, under
certain conditions and limitations, ever
If the abatement should involve the de,
structiun OF valuable private property.
Oriagalnia bill IN equity might be fiiet
IN the name Of the attorney general tC
enloin the npAlOus use complained OIL
Although all this il '' Horn book law
ana generally admitted as soon Il!
stated-sa that 1t would be superfluoul
To clte authurities-yot confusion o
ideas IN regard to it "a practical innor
ing OF its meaning and its consequences
appears ~ 50 many aumdicated case.
that restatement IN the precise Ian
guage Of some of our greatest jurists o
these fundamental common law pfinci
pies seems desirable if not necessar,
introduction To the consideration NJ IN