Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1896-03-19

not protect IL from the judgment of the
court, and 10 all cases ii would act at
its peril. A patient examination of
the whole course of decisions on tho
general subject Of the police power and
the summary abatement Of nuisance
has left me in no doubt that court
of equity upon an application for an
injunction to restrain board OF health
or other municipal body from the sum
mary abatement Of what it has ad-
judged to be public nuisance detri-
mental to the public health, will de.
cline to restrain the proposed action OF
tho local body unless il is made to APP
pear clearly that ii has acted wantonly
and in bad faith or has transcended its
jurisdiction And the Court upon such
application will not ignore the adju.
dication Of the Board OF Health or try
the issues Of fact involved in the final
determination OF the question whether
nuisance actually exists in any given
case in the same manner that ii would
upon bill or information filed by the
proper authority to enioin an alleged
public nuisance.
If a local board clothed with the
police power OF the State for the pro-
lection and preservation OF the lives
and health of tho inhabitant within
Its jurisdiction were restrained from
acting by the strong arm OF court OF
equity whenever doubt could be
raised as to the correctness Of its deci
sion upon that as fact, and the alleged
nuisance allowed to continue undated
until full trial could be had before
the Chancellor, the whole object for
which such extraordinary powers are
conceded or delegated would be de
feated.
This doctrine | have stated ia neces-
sarily implied in that Of the summary
abatement Of nuisanccs, and, as is apt
to be the case with obvious and funda-
mental principles, it is generally fol.
lowed by tho courts without being ex.
here Belcher vs.. Farrar, Allen, p, $50,
in which Chief Justice Bigelow in con-
STRUNG a Massachusetts statute provi-
ding for summary abatement Of nut
sances, expresses the controlling prin-
ciple of public policy with force and
emphasis.
There is no precedent IN this State
| for an application Of this kind and but
few are reported in other States. For
that reason | will cite at length the few
cases which resemble the one before
the Court, especially the three from
New York and New Jersey, which in
volve all the points arising in the case
before the Court.
The leading case in New York.
widely cited and followed, is that OF
Zoe VS.. Schultz, reported in AZ Barbour,
| p. 100 (lSG5). This was heard on a
motion to continue the injunction, and
the opinion Of Sutherland, j., is az
follows;
The Chancellor then refers to the
cases of Cne vs.. Schultz, Babcock vs..
City Of Buffalo, Ferguson Va. City OF
Selma, Mayor. &C., of Americas vs..
Mitchell, Kennedy VS.. Phelps, We'll,
ct al, Vi. Ricord. and thus continues
In the case before the Court the COM
plainant does not allege "mala tides"
and does not raise any constitutional
question, but bases its application for
a preliminary injunction essentially
upon the two grounds of irreparable
mischief or inadequate remedy at law.
and denial of the fact of nuisance. II
is true that it is alleged in the bill,
That the Board of Health gave COM
plainant no opportunity 10 be heard at
the time said board heard and deter-
mined the complaints made, and did
not at said time view the matter or
thing complained or But it was not
and could not be seriously commended
| by eounsel that an onnortt,nitv for sncb
| i bcnr;ns, vas raantsita ~ III 49,,
larity OF the proceedings taken by the
section IN ~ tbc rb,rtor aIra,d,,
cited. and the necessity os n Wow ~
| TAI tbina ~ Lac ~, Y,
mainly lnft ,o thar discretion
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