The Providence news. (Providence [R.I.]) 1891-1906, 1897-05-15
IMPORTANT POINTS.
Constltutl0nality OF Certain Laws
Questioned.
Cases Argued Before the Appellate Divi-
sion Today.


today TO hear a number of appealed cases
in which constitutional points were in
volved. Chief Justice Mattoson and JUS
tices Stiness, Tillinghast, Rogers and
Douglas sat i'm the large court room on
the second floor and there were mum Der
of counsel i'm attendance 20 listen To the
arguments or the points raised. The
court has not. In good while given
its attention to the hearing of cases re-
quiring the attendance of all the judges
i'm the city. Judge Wilbur was busy hold
ing court at Woonsocket so he was ab-
sent from the hearings.
The first case heard by the court was
that Of Frank w. Merrill ct al. of New
port, VS.. James H. Bowler OF the same
place.
Charles Acton Ives counsel for the
defendant, attacked the constitutionality
Of the insolvency law on throe grounds.
First because there Is no provision in the
act, that Is the insolyent law, by which
the assignee in whom are vested the
rights Of insolvent, or the insolvent HIM
self, may have jury trial of the validity
of any claim presented against the estate
and the entire act IL therefore repugnant
TO the constitution and void. second.
the provisions inyalldating all assignment
for the beneft of creditors are unconsti-
tutional and void. Third the requirement
by rule. OF deposit OF $50 as condition
precedent To relief under the act, If valid,
takes out of the category of acts done In
fraud of the act all acts done by an IN
solvent by reason of his inability TO com
ply with the rule. And aS TO such acts
of an insolvent the enforcement of the
act becomes and is unconstitutional.
These points were answered, or rather
argument upon them by Colonel samuel
IL. Honey who maintained that tie act
xxruc rlnatlp nafifuflnnal
The second case heard was that OF Ruth
NJ. Harrington VS. Board of Aldermen
of the city of Providence, which was an
appeal from the decision of Judge Rogers
in the Common Pleas division of the
court. This case attacks the constitu'
tonality of the provisions of the sewer
law.
The appellants took numerous excep-
tions at the trial before Judge Rogers,
the chief of which were: To the ruling
that the acts of the Board OF Aldermen
To Ruth NJ Harrington on August j,
1895, TO connect the drainage Of certain
land and premises on West Clifford street
with the sewer in the street AMI that no
tice prior to the passage of the order was
not required; Co the ruling rejecting evil
dence To tho effect that the vault in ques-
tiOn was not a nuisance and net preJudi
cial TO the public health, and also eyi'
dence as TO the propriety and necessity ol
the making of such an order; 10 the rul'
ing rejecting evidence that SAID vault,
although used IA receptacle OF human
excrement was not used for drainage.
Counsel for the appellants claimed al
the hearing that chapter ~ of the Public
Laws and chapter liO1 in amendment
thereof Trrc uneonstfttttiofftt47 47-beeHtise.- He
provision is made for notice To owner
or occupants of the promises, and no op
portunity for hearing thereon Is given tC
mt haf A
order by the Board Of Aldermen, and be
cause also, by the provisions of section
of chapter l401, the pendency of an ap
peal will not affect power OF the board tt
iii up and destroy the privy vault OF sucf
owner or occupant of the premises. IL
was admitted that no notice had becr
given Ruth NJ. Harrington prior To th'
issuance of the order
In support of the contention that the
passing of an order was unconstitiona
no notice of the pendency OF the same
having been given II was argued tha
this was Judicial determination without
giving the owner 'his day in court, " anC
without giving him an opportunity 10 b'
heard That the process amounted 10 the
derivation of person Of property with
out due process of law which is inhibited
by the federal constitution and by the law
of the land
The only excuse possible the counse
for the appellants claim FOR such ai
arbitrary law Is the public benefit and
that it is further objectionable in that II
takes or destroys private property Tor the
public benefit without compensation.
There was also considerable stress LAID
by counsel in the errCr of the court below
as they claimed. in refusing to admit evi
dence TO show that the privy vault which
was ordered closed was not menace u
the public health
ON behalf of the city it was argued thai
privy vault was public nuisance anc
that the legislature had the right 20 give
the board of aldermen power 10 forthwith
order the abatement of nuisances. Tha
all the authorities held that such vanl
being prima facla "a nuisance the abate
ment of the same came within the polio,
powers of the state. IL was also arguot
that the board did not act under genera
but a special authority and that the max
ing of the order without previous notice Il
the owner was perfectly proper
stephen A. Cook and Colonel III. D.
Spooner were attorneys for the plaintiff
and City solicitor Colwell and Assistan