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there may be in nuisance and filth on the other. Life and health are to be preserved at the cost of nuisances and filth. The statute does not mean to destroy property which is not in fact a nuisance, but who shall decide whether it is so? All legal investigations require time, and cannot be thought of. If the board of health are to decide at their peril, they will not decide at all. They have no greater interest in the matter than others, further than to do their duty; but duty, hampered by a liability for damages for errors committed in its discharge, would become a motive of very little power.

It would seem to be absolutely necessary to confer upon some constituted body the power to decide the matter conclusively, and to do it summarily, in order to accomplish the object the statute has in view. We think this has been done. We think the board of health of the town of Groton had the power to decide conclusively, in the apparent necessities of the case, that the brush in Pequonock river was a nuisance, endangering the life and health of the inhabitants of the village.

The powers of the board in these respects cannot be questioned, for they are expressly conferred; and if they are exercised in good faith, and with proper care and prudence, in the manner prescribed by the statute, the board cannot be made responsible for mere errors of judgment, whatever may be the consequence. And we think a like construction must be given to the sections of the act in question in this suit, as we have already intimated. The statute commenced by declaring that the board of health "shall have all the powers necessary and proper for the preservation of the public health and the prevention of the spreading of malignant diseases." The second section commences by declaring that it shall be the duty of the board to "examine into all nuisances and sources of filth injurious to the public health, and cause to be removed all filth found within the town which in their judgment shall endanger the health of the inhabitants." Here power is expressly given to decide what constitutes filth, and if they merely err in judgment there can be no redress. This is conceded, but it is said that the statute makes a distinction between nuisances and filth. What distinction there can be in fact in respect to their baneful influence upon contagious and malignant diseases it is difficult to We see none, and clearly none exists. And further, by the common law, a private person has a right to abate a private nuisance that does him harm, without resort to the courts

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for redress. But in such case he abates at his peril. He cannot justify the act done unless he proves that the supposed nuisance was one in fact. This is the doctrine the plaintiff insists should govern this case. But unless the statute goes farther than this, nothing was accomplished by its enactment, and neighborhoods afflicted with malignant diseases might as well have been left to their rights at the common law.

But it is said that any other construction of the act renders it unconstitutional, and for the reason that it takes away the right of trial by jury; that it deprives the owner of his property without due process of law; that it confers judicial powers upon a tribunal not warranted by the constitution, and that it takes private property for public use without compensation.

We cannot doubt the constitutionality of the act when rightly considered. It is nothing more nor less than a police regulation. The property was not taken for public use within the meaning of the constitution. It was destroyed for the protection of the public health.

We think the act is constitutional.

We think there is nothing in the claim that the board that passed the vote declaring the brush a nuisance and injurious to the public health on the 8th of December, was a different board from the one that passed a similar vote on the 10th day of August of the same year, because it was composed of some new members who had been elected in the meantime. The board was the same, although all the members might be different. As well might it be claimed that the Superior Court changes as often as different judges preside.

The board being the same, it might well act in December upon what it had done in August preceding.

We further think that there was no error committed by the board in removing the brush in December, when it did not at that time endanger the life or health of the inhabitants. The board refrained from removing the brush in August, when the first vote of removal was passed, through fear that by so doing the poisonous effluvia would be greatly increased, and the malady which then prevailed would be aggravated in proportion. It became necessary, therefore, to remove the brush when it could be done in safety to the public health. Aud further, the brush was removed in December to prevent a recurrence of the malady the following sum

mer.

It was reasonable to suppose, if the brush, with the oysters upon it, had caused the contagion and malignant diseases that afflicted the village during the summer preceding, it would occasion like results the following summer. We think there was no error in this regard.

Complaint is made that the defendants destroyed the oysters as well as the brush. But the facts of the case furnish no foundation for this complaint. The court has found that the defendants did no unnecessary damage. This is equivalent to finding that the oysters were so attached to the brush that separation could not be made. We think there is nothing in this claim.

We advise judgment in favor of the defendants.

In this opinion the other justices concurred; except GRANGER, J., who dissented.

See United States v. Ju Toy, 198 U. S. 253, and Bates & Guild Co. v. Payne, 194 U. S. 107. This last case would seem to hold that even in the absence of a statute to that effect the determination of an administrative officer as to a matter within his jurisdiction is final certainly as to the facts and probably also as to a question of mixed law and fact, where he has not been guilty of an abuse of discretion. This principle is also enunciated in City of Salem v. Eastern R. R. Co., 98 Mass. 254, infra.

MYGATT V. WASHBURN.

Court of Appeals of New York. June, 1857.
15 N. Y. 316.

DENIO, C. J. The act relating to the assessment of taxes requires that every person shall be assessed in the town or ward where he resides when the assessment is made, for all personal estate owned by him. I R. S. 389, sec. 5. As the plaintiff resided in Oxford, during a portion of the year of 1846, and changed his residence to Oswego while the proceedings to make out the assessment for that year were going on, it becomes necessary to ascertain when, in the course of these proceedings, the assessment shall be said to be made.

In my opinion the assessment should be considered as made at the expiration of the time limited for making the inquiry, namely, on the first day of July. If there is any change

of residence or in the ownership of the property, after that day, it does not affect the assessment roll. The inquiries are then completed. Any changes which the assessors are authorized to make after that time, are such as may be required to correct mistakes. No earlier day can be assumed, because what is done by one or all the assessors prior to the first of July is inchoate and preparatory, and liable to be altered according to their final judgment on the matter. When the statute speaks of the time "when the assessment is made" it refers to the binding and conclusive act which designates the tax payers and the amount of taxable property. If I am correct in what has been said, it follows that the time, referred to in the statute, is the first day of July. It cannot be an earlier or a later day without involving incongruities which we cannot suppose the legislature would have permitted to exist.

The plaintiff, therefore, was not subject to the jurisdiction of the assessors. In placing his name on the roll, and adding thereto an amount as the value of his personal property they acted without authority. As the board of supervisors was obliged by law to annex a tax to the name of every person assessed upon the roll, and to issue a warrant for the collection of the tax, the unauthorized act of the assessors was the means by which the property of the plaintiff was procured to be sold. They are, therefore, responsible to the plaintiff for the damages which ensued. It was not, in the view of the law, the case of an error of judgment. It is a salutary rule, though in some cases, and perhaps in the one before us, it may operate harshly, that a subordinate officer is bound to see that he acts within the scope of the authority legally committed to him. The principle is too well settled to require a reference to authority; but its application to the case of assessment of a person not liable to taxation in the town or district in which the assessment is made has often been declared in the courts of this and other states. Suydam v. Keys, 13 John. 444; Prosser v. Secor, 5 Barb. 607; People v. The Supervisors of Chenango County, supra; Freeman v. Kenney, 15 Pick. 44; Lyman v. Fiske, 17 id. 231.

The judgment of the Supreme Court should be affirmed.

All the judges concurred in affirming the judgment, except SHANKLAND, J., who dissented.

Judgment affirmed.

See also American School of Magnetic Healing v. McAnnulty, 187 U. S. 94.

C. ENFORCEMENT OF THE LAW.

1. Judicial Process.

BARCLAY V. COMMONWEALTH.

Supreme Court of Pennsylvania. 1855.

25 Penn. St. 503.

WOODWARD, J. After much consideration it was settled in Taggart's Case, 9 Harris 527, that, on conviction for a continuing nuisance, the defendant, besides being sentenced to fine and imprisonment, should be ordered also to abate the nuisance; and that if he failed to do so, a writ, founded on such a judgment, might issue to the sheriff, requiring him to abate the nuisance, at the costs of the defendant.

The court in this case entered no judgment against the defendant that the nuisance should be abated, but ordered the sheriff to abate it by removing the barn.

This was erroneous, not only because the defendant should have been sentenced, as in Taggart's Case, but because of the order for the removal of the barn. The defendant was acquitted on the first count, which charged the barn with being a nuisance, and was convicted only on the second count, wherein the erection of the barn is alleged by way of inducement to the offence, which is described as putting hay, straw and other products of the farm in said barn, and keeping horses, mules, cattle and other animals in and about said barn, and in the yard adjacent thereto, and feeding the said cattle, horses and other animals with the aforesaid hay, and straw and other products in said barn, and in the said yard near the aforesaid springs, &c. The offence laid in this count consisted in the use made of the barn and yard in close proximity to the springs, and the nuisance would be effectually abated by discontinuing such use. Where an erection or structure itself constiutes a nuisance, and where it is put up in a public street, its demolition or removal is necessary to the abatement of the nuisance; but where the offence consists in the wrongful use of a building, harmless of itself, the remedy is to stop such use, not to tear down or remove the building itself. The barn may be used for storing hay and grain without annoyance to the public, but for stabling and feeding. cattle it cannot be. The public are entitled to pure waters from the springs in question, and must be protected in the enjoyment of

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