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§ 146.: What is a nuisance, a judicial question.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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What is a nuisance, a judicial question.—
It is clearly within the legislative discretion to determine whether the private interest or the public good shall yield in a case where the two are antagonistic, and to prohibit or permit the doing of what promotes the public welfare and at the same time causes personal discomfort or injury; and its judgment cannot be subjected to a review by the courts. The courts cannot reverse the legislative decree in such a case; it is not in any sense a judicial question. But the police power of the legislature, in reference to the prohibition of nuisances, is limited to the prohibition or regulation of those acts which injure or otherwise interfere with the rights of others. The legislature cannot prohibit a use of lands, which works no hurt or annoyance to the neighbors or to adjoining property. The injurious effect of the use of the land furnishes the justification for the interference of the legislature. The legislative prohibition or regulation of the use and enjoyment of one’s private property in land is in violation of constitutional principles, when it is not confined to the prevention of a nuisance. A certain use of lands, harmless in itself, does not become a nuisance, because the legislature has declared it to be so. The legislature can determine whether it will permit or prohibit the doing of a thing which is harmful to others, in the proper consideration of the public welfare; but it cannot prohibit as a nuisance an act which inflicts no injury upon the health or property of others. If the harmful or innocent character of the prohibited use of lands furnishes the test for determining the constitutionality of the legislative prohibition, it is clearly a judicial question, and is certainly not within the legislative discretion, whether the prohibited act or acts work an injury to others. If they do not cause injury or annoyance to others, the attempted legislative interference is unwarranted by the constitution, and it is the duty of the courts to declare it to be unconstitutional.
In the case of Lawton v. Steele,1 the court say: “The statute defines and declares a new species of public nuisance, not known to the common law, nor declared to be such by any prior statute. But we know of no limitation of legislative power which precludes the legislature from enlarging the category of public nuisances, or from declaring places or property used to the detriment of public interests or to the injury of the health, morals or welfare of the community, public nuisances, although not such at common law. There are, of course, limitations upon the exercise of this power. The legislature cannot use it as a cover for withdrawing property from the protection of the law, or arbitrarily, where no public right or interest is involved, declare property a nuisance for the purpose of devoting it to destruction. If the court can judicially see that the statute is a mere evasion, or was framed for the purpose of individual oppression, it will set it aside as unconstitutional, but not otherwise.2
The following language from an opinion of the Supreme Court of New Jersey will serve to fortify the position here taken on the limitation of the legislative power to declare what is a nuisance: “Assuming the power in this board [of health] derived from the legislature, to adjudge the fact of the existence of a nuisance, and also assuming such jurisdiction to have been regularly exercised, and upon notice to the parties interested, still, I think, it is obvious that, in a case such as that before this court, the finding of the sanitary board cannot operate, in any respect, as a judgment at law would, upon the rights involved. It will require but little reflection to satisfy any mind, accustomed to judge by legal standards, of the truth of this remark. To fully estimate the character and extent of the power claimed, will conduct us to its instant rejection. The authority to decide when a nuisance exists, is an authority to find facts, to estimate their force, and to apply rules of law to the case thus made. This is a judicial function, and it is a function applicable to a numerous class of important interests. The use of land and buildings, the enjoyment of water rights, the practice of many trades and occupations, and the business of manufacturing in particular localities, all fall, on some occasions, in important respects, within its sphere. To say to a man that he shall not use his property as he pleases, under certain conditions, is to deprive him pro tanto, of the enjoyment of such property. To find conclusively against him, that a state of facts exists with respect to the use of his property, or the pursuit of his business, which subjects him to the condemnation of the law, is to affect his rights in a vital point. The next thing to depriving a man of his property, is to circumscribe him in its use, and the right to use property is as much under the protection of the law as the property itself, in any other respects, is, and the one interest can no more than the other be taken out of the hands of the ordinary tribunals. If a man’s property cannot be taken away from him except upon trial by jury, or by the exercise of the right of eminent domain upon compensation made, neither can he, in any other mode, be limited in the use of it. The right to abate public nuisances, whether we regard it as existing in the municipalities, or in the community, or in the hands of the individual, is a common-law right, and is derived in every instance of its exercise, from the same source—that of necessity. It is akin to the right of destroying property for the public safety in case of the prevalence of a devastating fire or other controlling exigency. But the necessity must be present to justify the exercise of the right, and whether present or not, must be submitted to a jury under the guidance of a court. The finding of a sanitary committee, or of a municipal council, or of any other body of a similar kind, can have no effect whatever, for any purpose, upon the ultimate disposition of a matter of this kind.”1 To the same effect is the following quotation from the opinion of the Supreme Court of the United States in a case in which the constitutionality of a city ordinance was questioned, which declared certain wharf structures to be nuisances and provided for their removal: “The mere declaration by the City Council of Milwaukee that a certain structure was an encroachment or an obstruction did not make it so, nor could such a declaration make it a nuisance unless it in fact had that character. It is a doctrine not to be tolerated in this country, that a municipal corporation, without any general laws either of the city or of the State, within which a given structure can be shown to be a nuisance, can, by a mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business, and all the property of the city, at the uncontrolled will of the temporary local authorities.”1
119 N. Y. 233.
Citing In re Jacobs, 98 N. Y. 98; Mugler v. Kansas, 123 U. S. 661.
Hutton v. City of Camden, 39 N. J. 122 (23 Am. Rep. 209). See Manhattan Fertilizing Co. v. Van Keuren, 8 C. E. Green, 251; Well v. Ricord, 9 C. E. Green, 169. “The common council, in the exercise of the power to declare nuisances, may not declare anything such which cannot be detrimental to the health of the city, or dangerous to its citizens, or a public inconvenience, and even then not when the thing complained of is expressly authorized by the supreme legislative power in the State. Its legislation must be subordinate to that of the State, the power to which it owes its existence. When its acts of legislation are brought before this court, whose high duty it is to see that inferior tribunals, vested with a limited jurisdiction, whether legislative or judicial, do not exceed their power, we must determine whether these are valid or not. I cannot think an ordinance declaring the running of any locomotive or train of cars upon any track in this city, at a greater rate than one mile in six minutes a removable nuisance or declaring the stopping of a train of cars for one moment upon the track of a railroad authorized by law, where the track does not cross a street or a public square, a removable nuisance, is a fair or legal exercise of the power to declare nuisances and provide for their removal. * * * The doing of such acts cannot interfere with the public health or expose the inhabitants of the city to danger or inconvenience. I do not see why any railroad depot, or track, or freight house, any train of cars in motion or stationary at any point in the city, cannot under the same power, with equal propriety, be declared nuisances, if the common council should so determine.” State v. New Jersey, etc., R. R., 29 N. J. L. 170. “There is a difference between abating a nuisance and declaring what shall be a nuisance. For the definition of a nuisance, and consequent ascertainment of the subjects to which their power of abating or removing may be extended, the council must refer to the general law, just as they must, in requiring the performance of patrol duty, learn what that duty is. In derogation of the ordinary rights of property, they may abate or remove anything which by law is a nuisance, and in an action against them proof, that a thing was a nuisance, and was therefore removed or destroyed, would constitute their justification. But they have no power to declare that to be a nuisance which is not, or to dispense with other proof of the noxious character of a thing, by showing that by an ordinance they had declared that all such things should be nuisances.” Dissenting opinion of Wardlaw, J., in Crossby v. Warren, 1 Rich. L. 388; Lakeview v. Setz, 44 Ill. 81. See Baldwin v. Smith, 82 Ill. 163.
Yates v. Milwaukee, 10 Wall. 505.