Evening journal., 1896-03-14
THE LIEBIG WORSTED,
Continued From First Page


mental to the public health.
"Thers are many American cases in
which the courts have been called upon
to pass on the question of the conclusive
ness OF the summary adjudication Of
municipal bodies In relation TO nuisances
whether under such statutes as this,
they we're this sole aud exclusive judges
OF the existence OF facts upon which the
exercise Of the power OF summary
abatement depended.
"a number OF them bad been cited by
counsel on other points; In such cases
either municipal body has been 2 defen-
dant In an action for damages. where
valuable property has been injured or
destroyed IN pursuance OF an R6j adica-
tion by the municipal authorieties that IL
constituted q nuisance, or the municipal
body or officer has appeared as plaintiff
suing for the expenses Incurred In Rbat
ing what had been adjudlcated to be a
nuisance, or for a penalty.
ut is expressly admitted by counsel on
both sides that an adjudication Of the
Board Of Health Of the City OF Whining
ton Is not conclusive, and that II the
Board Of Health should enter upon aud
interfere in any wey with the complain
ants plant, the LiebIg Company might
test the lawfulness OF its action
1T must be considered then as settled,
that although the Board OF Health
possesses the power to summsrlly abate
nuisances which are or may be dstrlmen-
tai to the public health OF the city Of
Wilmington, and II tho abatement
should involve the deprivation or
destruction OF property the owner would
be deprived Of his property By due
process Of law within the meaning OF the
constitution; yet the adjudication by The
Board Of the fact OF nuisance would not
protect it from the judgmsnt Of the
court, and In all cases 10 would act at It's
peril
upon the question of judicial inter
ference by injunction TO restrain the
abatement Of what the landowner OF
occupant denies to be a nuisance. the
cases are comparatively few, and most Of
them deal with obstruction to streets,
highways and waterways.
The general principles governing
Courts OF Equity In the exercises OF the
great power OF Injunction are too we'll
known to require statement or comment,
but their application TO the class OF cases
TO which the case bstore the court be
longs does require most careful consider
alton.
"If local board, clothed with the
police power OF the state for the protec
tion and preservation Of the lives and
health oi,the Inhabitants within its jurs
dicsion, were restrained from acting by
the strong arm Of a Court Of Equity
whenever a doubt could be raised as to
the correctness Of It's decision upon that
as a fact, and the alleged nuisance 81
lowed TO continue undated until full
trial could be had before the chancellor,
the whole object for which such extrsor
dinary powers are conceded or delegated
would be defeated
"rho doctrine have stated Is neces
sarily implied in that Of the summary
abatement OF uuisRnces and as Is apt to be
the case with obvious and fundamental
principle. 10 Ia generally followed by the
courts without being expressly formu
lated
There Is no precedent in this state
for an application OF this kind and but
few are reported in other states. For
that reason / viii cite at length the few
cases which resemble the one before ths
court, especially the threo from New
York and New Jersey, which iavolve all
the points arising In tbs case before the
court
"All these decisions which hRvo cited
at such length are remarkably hsr-
monious, aud ara obviously in complete
accord with the principles which / have
already laid down. The long quotations
which have made from them show them
better than could any analysis, and rem
der analysis and comment unnecessary.
In the case before the court. the
complainant does not allege "msla fides, '
and does not raise any constitutional
question, but bases Its application for
a preliminary injunction essentially upon
the two grounds OF irrsparable mischief
or inadequate remedy at law, and a
denial of the fact Of nuisance.
''lt ~ apparent without considering
the allegations OF the defendants on this
point that the fnal adjudication Of the
board was made after inspection OF the
complainant's plant. and after much con-
slderation and deliberstion.
But the complainant alleged in its bill
that the defendants have mistakenly
ascrlbsd the emanstion Of vile odors aud
gases to its factory instead OF to other
sources in the nsighborgood OF it's plant
from which they DO emanate, and that
It's business i5 not detrimental TO the
public health aud that the health OF the
inhabitants Of the City Of Wilmington
is not nor can it De injured from any
cause or causes arising from the opera
tlon OF said factory"
ITO this allegation the defendants In
their sn5wer allegs that this business as
carried on by complainant Is offensive
aud injurious to the comfort. convenience
and health oi the public. and that the
offensive aud deleterious odors and case
complained OF do come from complain.
ants works and not elsewhere"
He then refers to the large number Of
sfiidavits bearing upon both sides OF the
case, and weighed them carefully from a
Judicial polnt OF view, and concludes.
After hearing all these afidsvlts and
carefully considering and Weighing them,
| i am ssti fed that t does not appear
from them that the odors or gases ems-
mating from complsinsnt's works were
not or could not be nuisance whereby
the health OF the inhabitants Of the city
OF Wilmington WAS or might be Injured,
or that the defendants had trauscended
( their jurisdiction In the adjudication and
noiics upon which c0mplalnAnt's applies
ton Is based. Therefore this court viii
not grant a preliminary Injunction re-
/ qtraininC the defandnuta from nroc sed n Q