The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1899-04-04

e The word Regulation" has well-de-
99ned meaning in law. Perhaps the best
oelnltlon is that to be found in the Amer
Ican and English Encyclopedia Of Law,
volume 20, page 1872:
10 ad1udge by rule, method or estab-
nshed mode; to direct by rule or restric-
or laws" 'F-e'
A power to regulate" does not properly
hibit," for the very essence of regulation
IS the existence Of something to be regu-
lated- But the power to regulate a
nicipality to confine the exercise of such
business to certain localities, to certain
hours Of the, day, etc.
The Board Of Supervisors under this
statute has not the power arbitrarily to
say that any mans house is a nuisance
because Of its peculiar construction or its
height, or that certain display signs are
nuisanCes because they project beyond
the property line to any extent. But the
Board of Supervisors has the power to
height of houses and the extent to which
signs may project, and they have the
right to enforce such regulations. AS to
turntables, the same rule applies. The
Board of Supervisors clearly has the pow
er to prevent the construction of anv
turntables; in the future, providing they
90 so by regulation; 1t also has the UNI
doubted power, Notwithstanding such a
leEulauon, TO grant franchise to lay a
turntable thereby and to that extent re-
peaInS the regulation. But if such fran
chise is once given, the board has no
power during the life of the franchise to
retract the privilege.
A regulation means a law to which all
can CONFORM. The resolution complained
OF IN this suit is clearly not a rule Of con-
duct, but declaration of condemnation
concerning a special thing
regulations must be laws binding upon
all persons, and the Board of Supervisors
mas no power Of making regulations ex-
cept by ordinance. In City Of Denver VS.
Mullen, Col, 345. the court says: "A
provision in the charter of a city confer
ring authority upon the Council to make
regulations to secure the general health
OF the inhabitants, TO declare what shall
be a nuisance, and to prevent and abate
the same will warrant the declaration nv
general ordinance of what shall constitute
ana the conditions and circumstances un-
der which a given thing shall become and
be deemed a nuisance, but does not au-
thorize the Council, by mere resolution or
motion, arbitrarily to declare any par
ticular thing nuisance which has not
heretofore been pronounced TO be such
by law. or so adjudged by judicial deter
In Yates VS. City of Milwaukee. 10
Wall, 497. the Supreme Court of the United
States said:
But the mere declaration by the city
of Milwaukee that certain structure was
an encroachment or obstruction did not
make it so, nor could such declaration
make it nuisance unless it in fact had
that character"
In Spokane Street Railway Company VS.
Spokane Falls, Wash, 521, the court
said:
There was a resolution passed by the
Council, but that resolution was mere
special direction in this particular case
The law contemplates that in all such
cases there shall be a general ordinance
which shall be a law of the city which ii
is bound to follow as much as the people
are bound to obey. In an absence of an
ordinance regulating such matters the
city should have resorted to legal proceed
ings and not taken in its own hands by
force the execution of decree against
a party who has no legal notice of the
tendency Of the matter"
Decisions to this effect might be multi
piled, but no useful purpose would be sub
served.
Aside from these general considerations
that the city cannot act by order or resO-
luton when its power is limited by
are other considerations which of them
selves would be sufficient to stay the con-
templated action of the city.
Neither does the power to abate nuis-
anCes warrant the destruction of valued
property which was lawfully erected or
anything which was erected by lawful
authority. 1t would indeed be danger
Gus power to repOse in municipal corpora
lions to permit them to declare. by ordi-
nance or otherwise, anything a nuisance
which the caprice or interests OF those
having control of it's government might
see fit to outlaw without being responsible
for all the consequences, and, even If such
power is expressly given by the Legisla-
ture it is utterly imperative and void
unless the thing is in fact nuisance, or
was created or erected after the passage
of the ordinance and in defiance of it.
Therefore except in cases of great
public emergency. when the emergency
may safely be regarded as so strong as to
justify extraordinary measures upon the
ground of paramount necessity, or When
the use of property complained of is so
clearly a nuisance as to leave no room for
doubt upon the subject, it is the better
course TO secure an adjudication from the
courts before proceeding to abate II.
This doctrine was laid down in the Spo-
kane case already cited.
1T is very questionable whether in any
such case where there is a doubt as to
whether or not there may not be exist
ing rights in the person whose property
is sought to be destroyed the municipal
corporation should proceed to its de-
struction without resort to a tribunal
which may determine the right Of the
matter. " While a well-constructed
street railroad may be a technical nui-
sance If unauthorized, it is not danger
Gus to either life, health or property, and
so long as the courts are open to the de-
termination of such controversies there
is no call for violence or any manner of
arbitrary or oppressive action.
the court has not the power to determine
in this litigation whether the so-called
Geary street turntable is a nuisance or
not. The defendants have not hled a
crosse complaint asking such adjudica
ton, and any attempt on the part of the
court to so adjudicate would be void and
outside of the issues. This was express
Railway Company vs.. Easton, 1873 Pa.
St sos The court says:
THE defendants have no right in this
proceeding to ask this court to settle any
question affecting the rights of the city
in the matter in controversy. They have
not filed a cross-bill, nor have they ap-
piled to this court or any other court to
adjust the differences between the city
and the appellant company. They have
no prayer for relief. On the contrary
they have assumed to decide the delicate
questions involved for themselves and to
enforce their decision by the strong
hand. This cannot be permitted We are
of opinion that their acts were unlaw-
full and that the plaintiff is entitled to
the relief prayed for
| am therefore of the opinion that the
permanent injunction prayed for by the
plaintiff should be granted to the extent
that defendants be forever restrained
and enjoined from removing the said
turntable by reason of the direction to
that effect contained in the resolution
complained of.
Nothing in this opinion is intended to
enjoin said defendants or any person
specially damaged by reason of the ex-
istence of said turntable from commend
ing a proper action at law or in equity
looking to the condemnation of said turn
table as a nuisance.