Evening journal. [volume] (Wilmington, Del.) 1888-1932, 1896-02-11
LIEBIG AND THE BOARD.
Propositions Put in Yesterday
Afternoon.
KNOWLES AND VANDERBILT ARGUE


Appeal To-day in RehaIf Of the Board
of:Heaith-Mr. vandeErift VIII Close
for the Compiainants This Afternoon.
The Injunction case Of the Liobig
Chemical Company vs. the Board OF
Health. of this city, Is stlll being argued
before Chancellor Nichols on. Yesterday
sftern oon d 4 Ward, Of solicitors for
complainant, submitted the following
propositions, cited authorities. and argued
IN favor Of an Injunction restraining the
board from interfering Ia any way with
the company:
'The general jurisdiction OF the Board
of Health Is limited 10 the powers and
authority which the Council might or
could exercise. relative TO the obi sct OF
their institution; to the powers aud
authority conferred and duties enioined
upon members Of the Board Of Health by
the laws Of the state, and by ordinances
Of the city, for the preservation OF the
public health within the said city. or
within one mile thereof.
Legislative power is nowhere ex
pressly conferred upon the Board OF
Health by the charter OF the city, or any
act of the General Assembly, and will
not be implied In fact, the Board OF
H salth never exercises legislative pow
ers, and has not done 30 in the present
case; the question Of its power TO
legislate as nuisRncss does not therefore
arise In this case.
1.-THE powers and authorities conferred
and duties enjoiusd upon the members Of
tho Board of Health do not touch the
present case, and do not enlarge or
modify the powers or duties OF the
Board Of Health under the charter and
ordinances OF the city.
''The mode OF procedure In section 1877
OF tie city charter, laid down for the
Board Of Health TO hear aud determine
complaints and sdjudge concerning the
character Of the matter or thing COM
planned Of, is eAparte without notice to
the party charged, without opportunity
for such accused party TO be heard by
himself or his attorney, or to defend the
charge By calling witnesses upon the
facts to be determined. The hearing aud
determination OF the board is therefore
neither judicial nor quasi judicial one.
does not bind the accused party or con-
clude any OF bis rights
"The decision OF the Board Of Health
upon the question Of nuisance or no
nuisance Is like the finding OF a grand
Jury, that Is TO say, il constitutes q
chGrgs against person, which, IN the
proper tribunal. may Do judlclslly
Investigated at the option Of the accused
party. II the accused party scquissces
and obsys the directions Of the board 10
sbate the matter or thing complained Of.
no issus is raised II, on the contrary,
the accused party do7s not accept the
determ nation OF the board he may have
his day In court, aud a full hearing &c
novo. One method OF so securing q
hearing upon the merits IA by an ipjunc
tion blu IN chancsry, staying the action
Of the Board Of Health.
"Thls board is attempting here to
exercise what Is called the police
power It has bsen asserted By tbs
Supreme Court Of the United States that
this power Is incapable OF any exact
definition OF limitation, aud IL is easier
10 determine particular cases within
the general scope OF the power
than to give an abstract definition OF the
power itself. which Will be In ell re-
speots accurate.
The question whether a nuisa nee oi
any sort exists cannot be ,settied con
cluslveiy except in q regular course OF
law, before the established courts Of Ia v
or equity.
"a preliminary or intsrlocutory in-
junction will be granted upon less
positive proof THAI would BE- req lired at
the hnsl hearing to obtain q perpetual
Injunction.
1t is particularly desirable that inter
locutory injunction should be awarded
until by compulsory process the com
plslnant shall have opportunity Of fully
presenting the evidence IN the case
voluntary affidavit being difficult tC
procure. An Injunction should bC
awarded In this case as upon the undis
puted facts, little or no harm would be
done the defendants.
When the sffidavits produced at the
hearing OF the application for & prsli mi
nary Injunction are conflicting, the
preliminary Injunction will be granted
when It appears that It will do the de.
fendant no harm and its refusal vii
subject the plaintiff to some peculiar
hardships
'In determining whether any business
constitutes or produces publi
nuisance, the court msy take into con.
sideration the magnitude and importsnc
Of the enterprise as measured by th'
/ capital invested in it, the labor !
employs. ETC., aud weigh the public
annoyance as against public benefit"
Board of Health Side OF It.
City Solicitor Harmsn and Mr. KnoWle
submitted the following propositions IL
behalf of the Board OF Health:
Abatement by the Board Of Hes ltl
(dnder It's police p lwers, and the author
ity conferred upon Il by the Legislature
Of that which IL aijudges to be datrlmsn
tai 70 the public health, Is not takini
Of property without compensation
within the meaning OF the constitution
nor is it taking Of property without du
process OF law
"If the Board OF Health gets outside o
its jurisdiction and wRutoniy declare
that to be a nuisance, which is such, aa'
summarilv states It as such. Il is liabl
in damages to the aggrleved party-th
complainant therefore has fully adequat
, and complete remedy at law for an
wilful or illegal act on the part OF tn
Board Of Health.
Equity will not grant an injunction
where the right OF the party elaining
Is doubtful, but only in 4 perfectly clea
case