The herald., 1897-11-14
OF DIsINFEcTING ORCHARDS
PAYMENTS MUST COME FROM
THE GENERAL FUND
Young Urich Acquitted-A New Road
to Whittier-The Meloy Scandal.
Those Notarial Bonds

cultural commissioners Will have httle
to do, for by a decision of Judge van
Dyke, handed down yesterday, they are
practically prohibited from making any
charge for spraying or otherwise treat
ing infected orchards. If the county
cannot collect for the work done, II IS
reasonable to suppose the work will be
left undone. Unless, indeed. the board
of supervisors determines to carry on
the work, free gratis and for nothing,
for the general benefit of the community.
On more than one occasion The Herald
has alluded to the large number OF
orchardists who were indebted to the
county for having their trees sprayed
Some of these had lapsed by limitation
of time. but a number of others We're
collectable and suits were brought for
this purpose.
Judge Van Dyke, in a lengthy opinion
in the case of the County of Los Angeles
VS.. w. D. Spencer ct al. examines into
the act approved March IA. 1881. and
amended March 10, 1889, and March 81
1891. and it's operations. He then pro
ceeds to criticise it in light of number
OF superior court ueClSlOliS.
THE COURTS JURISDICTION
whether certain acts or things,
says the court, under the circum-
stances, amount to Il nuisance. is
judicial question, and the power to pre-
vent or abate that nuisance is one OF
the incidental powers of court OF
equity BY the constitution of this state
and that of most, if not all of the states.
powers of government are divided into
three departments, the Legislative, eX-
ecutive and judicial, and in ours it is
expressly declared that no person
charged with the exercise of powers
properly belonging to one of these de-
partments shall exercise any functions
pertaining to either of the others, ex-
cept as in the constitution itself eX-
pressly directed or permitted. The leg
islature. therefore. has no power to con-
fer upon the horticultural commission,
or commissioners, judicial functions.
In Learned VS.. Castle the court. refer
ring to case arising before the adoption
of the present constitution, says: The
constitution then in force gave the dis
trict courts existing under it original
jurisdiction in all cases in equity and
to the county courts existing under it
II gave original jurisdiction of actions
to prevent or abate nuisance. 1t was
held here in number of cases that the
district and county courts had concur
rent jurisdiction of such actions--the
county courts, by reason of the juris-
diction in terms conferred upon them by
the constitution. and the district court;
because of the jurisdiction conferred up
on them in all cases in equity Tho
present constitution confers upon the
superior court not only jurisdiction in
all cases iii equity, but also expressly
of actions to prevent or abate a nuisance.
And it is expressly provided in such
article that the jurisdiction conferred
on the inferior courts to be established
by the legislature shall not in any case
trench upon the jurisdiction of the sew
eral courts of record In Sullivan vs.
Royer, it is held that an action for the
abatement of a nuisance is a suit il
equity. Also Richardson VS.. City of
Eureka.
WHAT IS A NUISANCE?
Declaring certain things to be nui-
sance, or certain conditions to consti-
tute a nuisance, does not make them
such. What might be entirely lawful
and harmless under certain circum-
stances, might be harmful and consti-
tute a nuisance under other circum-
stances, and the power to judge and de-
termine these questions, as already re-
marked, is judicial. For instance, a
powder magazine on a rock in the ocean,
or miles from any habitation, would not
constitute a nuisance: whereas, if To-
Gated in city or town it would be high
ly dangerous and therefore a nuisance.
So, if a few scale insects or pests should
be found upon one or two fruit trees
eight or ten miles from any orchard Or
other fruit trees it could not reasonably
be said to be a public nuisance; whereas,
if dangerous pests We're found upon
trees in the midst of growing orchards
and likely to spread and communicate
to and destroy other trees, it would
probably amount to a public nuisance.
In the case of Yates VS.. Milwaukee it is
said: The mere declaration by the city
council of Milwaukee that a certain
structures "a wharf, was an encroachmeilt
or an obtruction did not make it so, nor
could such a declaration make it a nui-
sance unless it in fact had that charac-
ter. 1t is doctrine not to be tolerated
in this country that municipal corpo-
ration, without any general laws either
of the city or of the state within which
a given structure can be shown to be n
nuisance, can by its mere declaration
that it is one subject it to removal by anv
person supposed to be aggrieved or even
by the city itself. This would place
every house and every business and all
property at the uncontrolled will of the
temporary local authorities. 1t is true
that any one may abate public nui-
sance, but unless it be adjudged to be
public nuisance he takes the risk, ana
if it should afterwards turn out
that it was a public offense
he would be liable. And again it is
made a penal offense to commit or con-
tinue a public nuisance, but before the
party who is charged with the offense
can be held liable he must have his day
in court to contest the question whether
IL be public nuisance or not, that he is
so charged with having committed or
continued.
A GENERAL CHARGE
"The law under consideration. it will
be seen, declares that the expense of
abating the so-called nuisance shall he
a county charge and allowed and paid by
the board of supervisors out of the gen
eral fund of the county The question