
    BATES vs. DISTRICT OF COLUMBIA.
    I. The 26th section of the act of Congress to provide for a government for the District of Columbia designates a board of health, whose duty it shall be to declare what shall be deemed nuisances injurious to health, and to provide for the removal thereof; hut it does not confer power upon said hoard of health to declare anything or any condition of things a nuisance, injurious to health, which -was not a nuisance by the rules of the common law, or made such by some statute governiug the District.
    II. Where the defendant and his ancestors had prosecuted continuously the business of manufacturing soai) and candles in the same place for a period of more thau forty years, it was held it could not he removed unless the facts up>on which the question of nuisance depended were tried by due process of law, consisting of indictment and trial by jury; and it was also held that the hoard of health had no authority to pass ordinances under which the defendant was iwosecuted by iuformation in tbe police court for tbe purpose of recovering a fine or penalty for maintaining tbe alleged nuisance.
    III. Writ of certiorari is the appropriate remedy to review the proceedings of a subordinate tribunal which has proceeded or is proceeding to judgment without jurisdiction. Iu a case where the police court has no jurisdiction the writ may issue to review such proceedings, although the statute provides for an appeal where there is to be a retrial of tbe case.
    STATEMENT OE THE CASE.
    The question involved in this case arises out of the provisions contained in section twenty-six of an act of Congress passed February 21, 1871, to provide for a government for the District of Columbia, which section is as follows:
    “ That there shall be appointed by tbe President of the United States, by and with the advice and consent of the Senate, a board of health, to consist of five persons, whose duty it shall be to declare what shall be deemed nuisances injurious to health, and to provide for tbe removal thereof.
    “2d. To make and enforce regulations to prevent domestic animals from running at large in the cities of Washington and Georgetown.
    “3d. To prevent the sale of unwholesome food in said cities, and to perform such duties as shall be imposed upon said board by the legislative assembly.” 16 vol. U. S. S., pp. 224 and 225.
    
    The board of health appointed in pursuance of the section of the statute quoted, in the exercise of the power supposed to be conferred upon it, passed a resolution or enacted an ordinance containing twenty or thirty sections in reference to a great variety of matters, but the only one necessary to be considered in this case is the following:
    “ Be it enacted that all establishments or places of business for boiling any offal, swill, bones, or tallow; crushing or grinding, or burning bones or shells; cleansing guts; making glue, varnish, or lamp black; distilling liquors or alcohol, or other substances that may degenerate into noxious gases and odors within the limits of the cities of Washington and Georgetown, shall be deemed nuisances injurious to health; and any person who shall, within the limits of said cities, boil any offal, swill, bones, fat, tallow, or lard for any purpose, except that of cooking, or who shall enter into the business of crushing, grinding, or burning bones or shells, or cleansing guts, or making glue, from any dead animal, or part thereof; or storing or keeping any scrap fat, or grease, or any offensive animal matter; or shall hereafter establish or erect any manufactory or place of business for boiling any varnish or oil, or for distilling any ardent, alcoholic, or fermented spirits; or for making any lamp-black, turpentine, or tar; or for conducting any other business that may generate any unwholesome, offensive, and deleterious gases, smoke deposit, or any exhalation, shall be deemed guilty of keeping and maintaining a nuisance, and shall, upon conviction, be punished by a fine of not less than two nor more than twenty dollars.”
    For an alleged violation of this regulation or ordinance, an information was filed in the police court by William A. Cook, attorney for the District of Columbia, and A. K. Browne, attorney for the board of health, in substance charging that the defendant “ did, in the city of Washington, on G street, between Sixth and Seventh streets, northwest, and near unto houses of divers good citizens there situate, and being unlawfully and injuriously, with force and arms, within the limits of the city of Washington, and within the jurisdiction of this court, boil offal, fat, tallow, or lard, in an establishment or place of business, for the purpose of manufacturing soap and candles, and did then and there store or keep scraps, fat, grease, or other offensive matters, in divers large quantities; by reason of which said establishment or place of business, divers noxious gases, odors, noisome, offensive, unwholesome smokes, smells, and stenches were from thence emitted and degenerated, so that the air then and there was, and is, greatly filled and impregnated, to the great damage and common nuisance of divers good citizens of said District, residing and passing there, and contrary and in violation of an ordinance entitled ‘ An ordinance to declare what shall be deemed nuisances injurious to health, and to provide for the removal thereof,’ passed May, 1871.”
    Upon the appearance of the defendant, he filed a plea to the jurisdiction of the court, which plea was overruled by the judge, and the further hearing of the case was postponed until the 6th of January, 1871. On the oth of January, the day preceding the one set for the hearing, the defendant sued out a writ of certiorari, addressed to the judge of the police court, commanding him to certify and send his proceedings in the case to this court, with all things touching the same as fully and entirely as the same remained before him, to the end that this court might do therein what of right ought to be done.- In obedience to this writ, the judge of the police court certified and sent the papers here, and the counsel for the prosecution thereupon moved to quash the writ:
    “ 1st. Because the board of health is a corporation created by and existing under the laws of Congress, and by virtue of such laws has exclusive power to pass ordinances, to declare what shall be deemed nuisances injurious to health, and to provide for the removal thereof, in said District.
    2d. Because the police court of said District has full and exclusive jurisdistion of any and all violations of said ordinances of said board of health.
    3d. Because the information filed in the cause in said police court by the District of Columbia, at the instance of the board of health, is properly brought, and ought not to be in the name of the United States.
    
      4th. Because the said police court is a court of record: and “ from any sentence or judgment of said police court there is a full and efficacious remedy for the defendant, if aggrieved by such sentence or judgment, by appeal to the supreme court of the District.”
    The case is now heard upon this motion to quash at the general term in the first instance.
    
      William A. Cook and A. K. Browne for board of health.
    The first three points argued on their printed brief are that certiorari will not lie when an appeal is provided for.
    FOURTH.
    The board of health is vested with full and exclusive power to determine and “declare” what “are nuisances” in the District “injurious to health,” as well as “to provide for their removal;” and the mode which it has adopted of executing these powers by general ordinances or orders, including the imposition of fines and penalties through the intervention of the police and criminal court, is wise and correct.
    The authority for the existence of the board, and for the exercise of its powers, is derived from the organic act:
    “Sec. 26. And be it further enacted, That there shall be appointed by the President of the United States, by and with the advice and consent of the Senate, a board of health for said District.> to consist of five persons, whose duty it shall be to declare what shall be deemed nuisances injurious to health, and to provide for the removal thereof; to make and enforce regulations to prevent domestic animals from running at large in the cities of Washington and Georgetown; to prevent the sale of unwholesome food in said cities; and to perform such other duties as shall be imposed upon said board by the legislative assembly.” 16 U. S. Stats, at Large, p. 424.
    First. It will be observed that this board is composed of persons appointed, not by the governor of the District or by the legislative assembly, but by the United States.
    Second. Not only are the members of the board appointed by the United States, but they are also paid by it. They are, therefore, clearly officers of the United. States, and not of the District. 17 U. S. Stats, at Large, p. 500.
    Third. Thus appointed and paid, the hoard is vested, not by the legislative assembly of the District, but by Congress, with enumerated functions.
    Fourth. And this is done in the most direct and absolute form. It is made its duty to perform these functions conferred on it. They cannot be evaded or innocently neglected.
    Fifth. Among the powers thus conferred upon the board are these: 1st. To declare “ what shall be deemed nuisances injurious to health.” Th is requires it not only to determine or decide, but, in addition to this, to proclaim, to make an open and explicit avowal. 2d. This avowal or declaration must embrace the judgment or opinion of the board as to what, in the words of the law, “shall be deemed nuisances injurious to health.” While they are thus confined to questions affecting health, the range of their duty in this respect clearly goes beyond “ nuisances at common law,” and makes them the public guardians of the health of the inhabitants of the District. 3d. And the board, and it alone, is authorized to decide what shall be regarded such nuisances, i. e., nuisances affecting the health of the people of the District. The power conferred upon it in this respect is clearly discretionary, and its declaration is conclusive. It is what shall be deemed by the members of the board a nuisance affecting health, which is to be declared such.
    Not only is it made the duty of the board to consider, to determine, and to declare what they may regard as nuisances injurious to health, but in addition to this it is to provide for the removal of such nuisances. It is not required to, directly and by its own action, remove them, but to provide for the removal; that is, to arrange beforehand, to adopt a plan or to establish regulations having in view the removal of an evil and adapted to the end.
    It is then authorized to make and enforce regulations to prevent domestic animals from running at large, and in reference to the sale of unwholesome food.
    And finally to perform such other duties as the legislative assembly may impose upon it.
    
      Such, while an imperfect, appears to be a fair and correct analysis of the law.
    Now, in attempting to perform the duty imposed upon it as respects nuisances and their removal, it has passed an ordinance entitled “ An ordinance to declare what shall be deemed nuisances injurious to health, and to provide for the removal thereof.”
    In passing this order, or, as it is termed, ordinance, has „ the board acted within the letter or intention of the act of Congress creating it !
    First. The answer must be derived, in the first place, from the cited section of the act of Congress; and by reference to-it and the analysis given of it, it clearly appears that the board possesses the power to determine what are nuisances, not simply nuisances at common law, but nuisances injurious to health. Therefore, as respects the determination of the board and its declaration, this part of the ordinance must be sustained.
    Second. It is equally clear that the board is empowered to provide for the removal of what they may regard and-declare to be nuisances injurious to health, so that the adoption or use of appropriate means for the preservation of health and the removal of nuisances is thus expressly authorized; and as the means are not prescribed, they are left to-the choice of the board. Exercising this choice, the ordinance cited has been adopted, and proceedings in a competent court authorized. Was not this a wise choice! It is indisputably one in harmony with the practice of local authorities everywhere. Why, then, should its adoption be denounced or censured ! What sound objection can there be to it! Is it not one within the very meaning of the term provide, as used in the act of Congress, viz, an appropriate means adopted for the arrest or removal of an evil! ,
    Our municipal corporations are usually invested with power to preserve the health and safety of the inhabitants. This is, indeed, one of the chief purposes of local government, and reasonable by-laws in relation thereto have always been sustained in England as within the incidental authority of corporations to ordain. 1 Dillion on Municipal Corporations, p. 404.
    
      Power “ to suppress bawdy houses,” gives the corporation authority, by implication, to adopt by ordinance the proper means to accomplish the end. 1 Dillion on Municipal Corporations, p. 412.
    Under power to “ prevent and remove nuisances,” a corporation may, if a vacant building is so used as to endanger by fire the property of others, or the health of the community, declare the same a nuisance, and notify the owners to abate it. Nolin vs. Mayor, 4 Yerg., (Tenn.,) 163, 1833: 1 Dillion on Municipal Corporations, p. 412, note 1.
    Mr. Justice Walker, one of the most accomplished of early American judges, speaking of an ordinance prohibiting the making of soap or candles contrary to the mode prescribed; and within the limits of the city, says : I am willing to admit that the by-law itself is a valid one. If it restrained an inoffensive trade, it would not be so; but it is made to restrain one that is both offensive and dangerous. It- is, therefore, calculated to guard the comfort and safety of the citizens; and the benefit of a by-law is generally the touchstone of its validity. In Zylstra vs. Corporation of Charleston, 1 Bay, (South Car.,) 382, 1794; 1 Dillion on Municipal Corporations, p. 406.
    Board of health. An ordinance creating and giving to the board of health general supervision over the health of the city," and “ all necessary power to carry the ordinance into effect,” was considered to include the power to rent a building for a temporary hospital, to protect the city from an apprehended visitation of the cholera, and to make the corporation liable for the rent, although it did not become necessary to use the house. Aull vs. Lexington, 18 Mo., 401, 1853; 1 Dillion on Municipal Corporations, p. 407.
    As the police and sanitary powers were possessed by municipal corporations at common law, it is believed that, without any legislation conferring the authority, they could regulate by proper ordinance and by-laws the manner of carrying on any trade or business within the municipality, so far as to prevent monopolies; the sale of unfit commodities, and insure proper conduct of those who practice it; prevent slaughterhouses and the slaughtering of animals, tallow chandlers and the like, within the walls or certain limits of a city. Potter’s Dwarris on Statutes and Constitutions; Wilcox on Municipal Corporations, p. 141.
    Such are a few of the authorities which tend to establish that a municipal corporation, in the absence of express authority, possesses the power as an incident of its existence and character to pass by-laws or ordinances for the suppression of nuisances, by the imposition of fines or penalties ; and also that general power to prevent and suppress nui" sanees carries with it the right to pass such ordinances. Indeed, this cannot well be disputed as respects municipal corporations proper, or as ordinarily constituted.
    Now, what corporations proper, or as ordinarily constituted, may do in the absence of express legislation, or under a general authority as respects ordinances or regulations, may not quasi corporations do ? This is a question to be determined by reason and authorities; both concur in furnishing an affirmation.
    Municipal governments are mere creations of the law. They are exactly what the supreme authority see fit to make them ; and if that authority creates an anomalous or peculiar government it can do so. If it curtails the power ordinarily bestowed, or if it withholds any commonly granted, and confers the withheld powers on a distinctive body, it can do so. In either event the government is just what it is made by the law-maker; and as made, in its aggregate or in its separate parts, its functions are complete; but in one form no more than in the other.
    This is peculiarly true of the government of this District, created by Congress under that part of the 8th section of the Constitution which confers on Congress exclusive legislation in all cases whatsoever. And when Congress has created a government of parts — 1st, the legislative and executive; 2d, the board of public works; 3d, the board of health; and 4th, the judiciary and courts — it should be so regarded, and the functions of each be construed accordingly.
    With possible abuses or with considerations of propriety the court has nothing to do. Potter’s Dwarris, 453.
    It will thus be seen that these corporations, while they differ to some extent from those commonly called municipal, at the same time may constitute a division or part of a local government, and, to the extent to which they are charged, with any duties, possess the power to render them efficient, or enforce them, as well as to maintain their privileges. Hence, within the range of their limited powers they may make orders, adopt regulations, or pass ordinances. And the controlling question becomes one as to the intention of the legislature — in this case of the inteution of Congress.
    The answer which may be promptly suggested is that it is unusual thus “ to divide up governmental or legislative powers.” So it may be; but this is immaterial. If it is done, the division of power should be sustained, even if it compels the recognition of different bodies with full or quasi legislative powers.
    
      Davidge and Williams for Frederick Bates.
   Mr. Justice Olin

delivered the opinion of the court as follows:

The first question presented in the case is, what are the powers conferred on the board of health under the statute The language of the act seems hardly susceptible of doubt or controversy, and its meaning perfectly obvious. It is this: “The board of health shall be empowered to declare what nuisances are injurious to health, and provide for the removal thereof.” But the interpretation placed upon this section by the board of health and insisted upon by its counsel, is, that the board of health is empowered to declare anything or any condition of things to be a nuisance which, in the exercise of its judgment and discretion, is deemed injurious or dangerous to health, and proceed to deal with it as such, although the thing or condition of things declared to be a nuisance was never, before the passage of this ordinance by the board, deemed, taken, or adjudged to be such by the rules of the common law, or in pursuance of any statute law relating thereto for governing this District. Snch a construction of the statute would confer a most extraordinary legislative power and a very summary mode for its exercise. The power claimed by the board, I hesitate not to say, is not possessed by Congress or any legislative assembly in any State of this Union, nor can it be conferred until the Constitution of the United States becomes a dead letter. I will attempt to show this; but, first, it may be proper to consider what is the consequence by the rules of the common law of making or maintaining a nuisance, and especially a nuisance injurious to health. Such a nuisance is an offense against the whole community where it exists, and every individual of this community has the right to remove it; that is, to abate it by force, if need be. A nuisance, by the rules of the common law, is nearly as well defined as is the offense of assault and battery. It is, says Blackstone, “ annoyance, anything that worketh hurt, inconvenience, or damage.” 3 Bl. Com., 215. A far better definition of a nuisance will be found in 9th Co., 58 n. d. c., William Aldred’s case, and by Lord Mansfield, 1st Burr., 337, and it is this: “ Anything that renders the enjoyment of life and property uncomfortable.” I think this definition would be nearly perfect if you but add, Anything which naturally and necessarily tends to deprave and corrupt the morals of the-community. By the rules of the common law, where such nuisance exists any member of the community has the right to abate it; that is, to take the law into his own hands and destroy or remove it.

But there are many things nuisances by the common law which are not injurious to health, and this fact alone seems to me to offer a key, as it were, to the interpretation of the section of the act of Congress here quoted. I need only in this connection refer to one or two cases. In Hall’s case, (1st Mod., 76,) Hall, a rope-dancer, had erected a stage or was about erecting one at Charing Cross, and the Court of King’s Bench pronounced it a nuisance and ordered its removal— abatement — and this upon the authority, as Lord Chief-Justice Holt states, of a case occurring in the reign of Charles I. Noy came into court and prayed a writ to remove a bowling-alley erected near St. Dunstan’s Church, and had it (See 2 Keb., p. 8, 116.) Here a writ was granted to remove the bowling-alley wdthout any presentment at all; and says a learned judge, (see 5 Hill, 124,) the tendency of the alley, being w'ell known, it was adjudged to be a nuisance of itself, and a writ accordingly issued to remove it without any trial.

In the case of the People vs. Sargant, 8 Cowen, 129, the same court which decided that a bowling-alley kept for gain and hire was a nuisance, decided that a billiard-room kept for the same purpose was not. It is somewhat difficult, I confess, to discover the principle which makes the bowling-alley a nuisance in and of itself, and a billiard-room kept for the same purpose no nuisance at all. Perhaps the distinction in the two cases consists in the fact that knocking down pins with wooden balls disturbs the quiet of a neighborhood more than does the punching of a small ivory ball around a table covered with cloth. I mention these cases for two purposes: first, to show that there are nuisances by the common law which are not injurious to health, but, on the contrary, are eminently conducive to it, such as the exercise at the bowling-alley or the billiard-table for men of sedentary habits. The most learned of the profession, to whom is committed the care of our health, and often our lives, have recommended such exercise as most salutary. And second, to show what legal consequences follow the keeping or maintaining of a nuisance. It will be observed, it is stated that "Noy came into the court of King’s Bench and prayed for a writ to remove a bowling-alley erected under the eaves of Saint Dunstan’s Church,” and the writ was granted without any presentment or trial. This would seem a pretty summary proceeding, which in effect destroyed a man’s property, and condemned him without trial or hearing, and yet the decision was in strict conformity to law, if it be conceded that a bowling-alley is per se a nuisance. The Court of King’s Bench assumed no more power in issuing a writ to remove it than might have been exercised by the whole congregation of Saint Dunstan’s Church, though when done under the authority of a judicial writ, executed by the sheriff, it would probably be done in a more quiet and orderly manner than by a mob composed of the congregation and the neighbors.

Cowen, J., says that the decision in Hall’s case is not because rope-dancing, or playing at nine-pins, or any other game with bowls is a mischief, nor that being a spectator at a rope-dance is censurable in the least. In themselves they are innocent. This nuisance consists in the common and gainful establishment for the purpose of sports, and having an aptitude and tendency, as Hawkins says, (1 Hawkins, p. 6, by Curwood, Ch. 32, p. 6,) to induce idleness, and draw together great numbers of disorderly persons, which cannot but be very inconvenient to the neighborhood. If the decision in Hall’s case had been placed upon the ground, not that a bowling-alley was a nuisance per se, but that erecting a bowling-alley beside a church, which had been a place of worship for a much longer period than Bates’s soap and candle factory has existed, which is said to be only some forty years, it would to my mind be much more satisfactory. Many things perfectly innocent, in and of themselves, may-become a nuisance by reason of surrounding circumstances. Thus a bowling-alley erected so near a church as, when employed, to interfere with the decent solemnity of worship is a nuisance; and so while music at the proper time and place is a delightful enjoyment, yet if the Marine Band should appear daily before the City-Hall during the sessions of this court, and discourse music ever so well, I think this court could treat the band as a nuisance and remove it in a summary way.

It will thus be seen that a nuisance, by the rules of the common law, is a kind of caput lupinum, which any and everybody is authorized to knock in the head; that is, destroy-abate. So if the passage of the section I have before quoted, made the boiling of fat, tallow, grease, or swill, except for cooking purposes, a nuisance, anybody and everybody may lawfully put an end to it by force, if necessary. This ordinance then, if enforced, would in effect work a confiscation of all Bates’s property employed in the manufacture of soap and candles; for it is absurd to say you do not confiscate a man’s property when you prohibit the use of it for the purposes it was designed for, and in the only way iu which it can be made valuable. It is, in substance, the same as to enact that whoever owns a horse may keep it, take good -care of it, but shall not sell it, or use it any- way in which horses have heretofore been used or can be profitably used-It is quite possible that all the heating-apparatus, kettles, tubs, and other contrivances used in the manufacture of soap and candles may be used in some other branch of industry, and thus not be wholly destroyed. We are not advised how that may be; perhaps his kettles or caldrons could be employed in "boiling swill;” but, alas! that branch of industry is prohibited by this ordinance, “except for cooking purposes.” As man is the only animal who has hitherto contrived to cook his food, this ordinance graciously exempts-from its penalties all who desire to boil sic ill for cooking-purposes. It is devoutly to be hoped that the beneficiaries under this exception are not very numerous in this District I have thus far attempted to show that the power conferred on the board of health did not authorize it to declare a thing, or any condition of things, to be a nuisance, which in their judgment or discretion was injurious to health, which thing or condition of things was no nuisance by the rules of the common law, or any statute law in force in this District; but simply the power to declare what nuisances were injurious to health.. In other words, it was not a power to make a thing a nuisance which was no nuisance at all prior to the passage of this-ordinance. It is said to be “ an ill wind that blows nobody any good,” and the prohibition to manufacture candles may promote the interest of the gas-companies of the District, and. when a monopoly of the business of lighting our houses is given to these companies, the quality of the gas, doubtless, wilL be somewhat improved, and the price considerably reduced. All monopolies are, by some modern political economists, said to have that tendency. If cleanliness be the next thing to godliness, the good people of this District should all desire an abundant supply of soap and Potomac water. No one who passes daily the streets and avenues of this city but will have occasion to regret the sparing use of both. The manufacture of soap and candles has hitherto, in the world’s history, been taken and deemed to be an honest and useful branch of business, and one to be promoted and encouraged ; but if it be in and of itself a nuisance “ injurious to health,” it ought to be stopped, because life and health are dearer rights than the right of property, and when the latter interferes with the higher rights of life and health, it- must give Avay. If the manufacture of soap and candles is a nuisance, it is equally so anywhere else as well as on G- street. If it be injurious to the health of the neighborhood, it must be still more dangerous to the health of those engaged in the business, and why not, therefore, prohibit the manufacture soap and candles everywhere? Upon what theory is declared to be a nuisance injurious to health within the limits of the cities of Washington and Georgetown, and outside of those limits, impliedly, no nuisance at all Í Are the good people of this District outside of the limits of those cities not to be protected against nuisances injurious to health ? The board of health is appointed for the District, and not solely for the cities of Washington and Georgetown. It will probably be replied to this, that a soap-and-candle factory, carried on in the neighborhood of dwelling-houses and in a portion of the city considerably built up, may properly be deemed a nuisance, and Bates be reasonably required to remove this factory to some unsettled and unoccupied portion of the District, if he can find such a place.

The facts in this case show that for almost half a century (over forty-six years) Bates and his ancestors have prosecuted continuously the business of manufacturing soap and candles at this same place. At the time when, and the place where, this factory was established, it could not, we know historically at least, have been a nuisance, except to those employed in it and the frogs and owls of that neighborhood, which chiefly, if not solely, then composed the population of that vicinity. In the progress of improvement and increase of population in the vicinity of this factory, the lands were purchased and dwelling-houses built upon them, and such other buildings as were necessary and convenient for the ordinary business of men, at much less rate per foot, doubtless, than could have been purchased on la Fayette or Franklin Squares. All the purchasers of these lots knew, or ought to have known, that Bates’s soap-and-candle factory was there, and they were under no legal or moral constraint to purchase a lot and build a dwelling-house by the side of it. It would be quite as legal, and certainly more equitable, for the board of health “ to enact and ordain that persons who have built dwelling-houses so near to Bates’s factory as to render their occupation ‘injurious to health ’ must instantly remove therefrom, under a penalty of not less than two nor more than twenty dollars per day.” I have before stated that the power assumed by the board could not be conferred on it, for the reason that it would practically effect a confiscation of Bates’s property “ without due process of lato.” How far the proceedings against Bates conform to due process of laio it would seem idle to inquire; yet it may be pertinent, in this connection, to repeat what has been said by learned judges as to the meaning of this phrase, due process of laic. To do that, I quote at some length from Comstock, J., in the case of The People vs. Wyenhamer, reported in the 3d of Kernan, 378, as expressing more clearly and forcibly my views of the law than I can hope to do by any lauguage of my own.

Speaking of the limitations of legislative power under our form of government, and particularly of that provision in the fifth amendment of the Federal Constitution, he says:

“These provisions have been incorporated, in substance, into all of our State constitutions. They are simple and comprehensive in themselves; and I do not perceive that they derive any additional force or meaning by tracing their origin to Magna Gharta, and the later fundamental statutes of Great Britain. In Magna Gharta, they were wrested from the King as restraints upon the power of the Crown. With us, they are imposed by the people as restraints upon the power of the legislature. Ko doubt, it seems to me, can be admitted of the meaning of these provisions. To say, as has been suggested, that the ‘law of the land' or due process of law’ may mean the very act of legislation which deprives the citizen of his rights, privileges, or property leads to a simple absurity.

The Constitution-would then mean that no person shall be deprived of his property or rights unless the legislature shall pass a law to effectuate the wrong, and this would be throwing-restraint entirely away. The true interpretation of these constitutional phrases is, that where rights are secured by the existing law, there is no power in any branch of the Government to take them aicay; but where they are held contrary to the existing law, or a forfeiture by its violation, then they may be taken from him, not by an act of the legislature, but in the due administration of law before the judicial tribunals of the State. The cause or occasion for depriving the citizen of his supposed rights must be found in the law as it is, or at least it cannot be created by a legislative act which aims at their destruction. Where rights of property are admitted to exist, the legislature cannot say they shall exist no longer, nor will ifc make any difference although a process and a tribunal are appointed to execute the sentence. If this is the ‘law of the land’ and ‘due process of law’ within the meaning of the Constitution, then the legislature is omnipotent.”

“Clear as this matter stands upon principle,” says Com-stock, J., “it is equally well settled by authority.”

“ Chief-Justice Gibson, of Pennsylvania, speaking, of a similar clause in the constitution of that State, and the right of property protected by it, said, ‘What law ? Undoubtedly a pre-existing rule of conduct, not an ex-post-facto rescript made for the occasion. The design of the convention was to exclude arbitrarypower from every branch of the Government, and there would be no exclusion of it if such rescripts or decrees were to take in effect the form of a statute. The right of property has no foundation or security but the law; and when the legislature shall successfully attempt to overturn it the liberty of the citizen will be no more.’ Norman vs. Heirst, 5 Watts and Serg., 193. And Chief-Justice Bronson, of this State, in the case of Taylor vs. Porter, 4 Hill, 175, said: ‘ The words law of the land, as here used, do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this part of the constitution into mere nonsense.”

So to the same effect the opinion of C. J. Ruffin, of North Carolina. In the case of Hoke vs. Henderson, 4 Dev., 15. Chancellor Kent, 2 Com., 13, says: “ The words lato of the land, as usedoriginally in Magna Ghartain reference to this subject, are understood to mean due process of law; that is, by indictment or presentment of good and lawful men; and this, said Lord Coke, is the true sense and exposition of those words.” The better and larger definition of due process of law, says Kent, “ is that it means law in its regular course of administration through courts of justice." See Story on Const., 661; 10 Yerger, 59; 2 Coke’s Inst., 45, 50.

The views thus expressed by Comstock, from whom I have just quoted at some length, were concurred in by such eminent judges as Johnson, Selden, and Davis.

Since the foregoing was written, my attention has been called to the case of Bartemyer vs. The State of Iowa, decided by the Supreme Court of the United States, reported in the April number of the American Law Register, 1874, vol. 13, No. 4. On a careful perusal of the case, I do not see that its decision conflicts with any principle I have attempted to maintain as applicable to this case.

I will not attempt to define the limits or extent of what is termed the police power of the State. This power is very ill-defined by courts, and is perhaps undefinable. The best attempt at it I have seen will be found in the opinion of Justice Field in the case last before referred to, in which he says : “I have no doubt of the power of the State to regulate the sale of intoxicating liquors, when such regulation does not amount to the destruction of property in them, the right of property in an article, the person to sell and dispose of any such article, as well as to use and enjoy it. Any act which declares that the owner shall neither sell it or dispose of it, nor use or enjoy it, confiscates it, depriving him of his property without due process of law."

I will only add, that where the right to regulate the use of property is so exercised as necessarily to effect a confiscation of the property, it overthrows all constitutional limitations of legislative power. All power, when conferred, whether executive, legislative, or judicial, is impatient of restraint or limitation, and it was well observed on the argument of this case that, as a general rule, the less the power conferred the more was assumed.

But it is argued, in the second place, that although this ordinance be void and inoperative, yet Bates has mistaken his remedy ; and for that cause the writ of certiorari should be dismissed. It is claimed that whenever an appeal is given from the decision of a subordinate tribunal to a superior, the common-law writ of certiorari will not lie, and numerous cases are cited which are supposed to establish this position. These cases, when examined, will not, I think, be found such authority as is claimed for them. 1st, the office of the common-law writ of certiorari has always been the appropriate remedy to review the proceedings of a subordinate tribunal which has proceeded, or is proceeding, to judgment without jurisdiction of the subject-matter or of the person or the property proceeded against; whereas the office of an appeal is to give to a party believing himself aggrieved a retrial of his cause before another tribunal. Suppose the police court entertain a suit for a divorce and is proceeding to judgment, would au appeal from its judgment be the appropriate remedy? Upon appeal, there would be no retrial of the case; neither the police court nor the appellate court (criminal) having any jurisdiction whatever of the subject-matter. Still worse, suppose the police court proceeds to judgment, or is in progress of doing so, against a person charged with some criminal offense, who has never been arrested, or in any way served with the legal process notifying him of the proceeding against him; in other words, no jurisdiction of his person having been obtained, the court, however, proceeds to judgment, and imposes a fine, or fine and imprisonment. Is his only remedy by appeal ? By bringing an appeal in such case, which is simply asking a retrial, he appears in court, subjects himself to its jurisdiction, and thus obviates the very objection against the proceedings in the police court of which he complains. The appellate court then, by the appeal, having jurisdiction of his person, I do not see why it may not proceed to try the cause upon its merits. The writ of certiorari has frequently been adj udged the appropriate remedy when an inferior court having jurisdiction of the subject-matter and of the person yet proceeds irregularly orcontrary to the prescribed rules of law. In such case, if no appeal be given, the only appropriate remedy is by the common-law writ of certiorari. These distinctions I have pointed out will, I thiuk, reconcile all the adjudicated cases referred to in the briefs cited to show that when an appeal is given from the judgment of a court of inferior jurisdiction, the writ of certiorari will not lie. Looking through the ordinance enacted by the board of health it seems to me to be a wholly mistaken view of the powers conferred upon it, and to exemplify the wisdom of the maxim ne sutor ultra crepidam, which, liberally interpreted, may mean “Doctor, stick to your lancet and bolus.” New men learned in the law, and still fewer legislative assemblies, have had the wisdom to enact a code of municipal law which has had more than a butterfly-life, and it is by no means extraordinary that this code of municipal law, for such it is so far as it goes, should turn out a failure.

This simple and wise provision authorizing, as I have attempted to show, the board to declare what nuisances are injurious to health, and- directing them to provide for the removal thereof, is construed to mean a power to declare anything a nuisance which in their judgment is injurious to health; and having thus been made a nuisance, maybe dealt with as such, under the power given for the removal of such nuisances as are injurious to health, with one or two solitary exceptions. The power to remove is attempted to be exercised by imposing a penalty of greater or less amount. This, it seems to me, is no provision for the removal of a nuisance, especially of one injurious to health.

We were informed on the argument of this case that the board of health, before enacting this ordinance in question, procured the opinion of counsel learned in the law as to the true meaning of the section of the statute before quoted, and as to what power was by it conferred upon the board; and, further, that an application was made to the Department of Justice as to the true construction of the act of Congress in question, and that, in both cases, the board was advised that the act gave the power to do what the board has done in enacting the ordinance in question. This court, I trust, will always listen with distinguished consideration to the opinions of men learned in the law, even when well paid for giving their client such an opinion as desired. The opinion from the Department of Justice isa little remarkable in several respects. In the first place, it says if the punctuation of the statute were altered and one word added thereto, the statute would confer the power attempted to be exercised by the board. In reference to this matter, I have only to say I do not perceive what the Department of Justice has to do with construing ah act of Congress applicable to this District. Judges are appointed mainly for the purpose of deciding what the law is, but if such a barnacle as the Department of Justice can be attached to the administration of the law to construe statutes, judges would seem to be useless, expensive, and unnecessary.

Secondly, I observe it is not the business of judges to alter the punctuation of statutes, much less to add words to or subtract words from it, if, upon considering it as written and punctuated, they can perceive with reasonable certainty what the statute means.

But doubtless we are favored with the opinion of counsel and also that of the Department of Justice as evidence that the board of health was actuated by an honest desire to learn the extent of the power conferred on it, and to discharge its whole duty. That needed no evidence. This whole community, I think, recognize the great services this board have rendered it for the few past years. Beyond doubt hundreds of the people of this District are to-day alive by reason of the faithful, intelligent, and well-directed efforts of this board of health; and it is refreshing in these days to see men of learning and skill devote themselves assiduously to the important duties imposed upon them, for a salary so contemptibly meager. But for the reasons I have assigned, I think the motion to set aside the writ of certiorari should be denied, and that a judgment in favor of Bates, dismissing the proceedings in the suit commenced before Justice Snell, should be entered,

Mr. Justice Wylie

concurred in thejudgment, but expressed the opinion that the right to maintain a nuisance could not. be acquired by long use, and that when a nuisance was really injurious to the health of persons occupying neighboring dwellings, it could be abated by legal process, although such nuisance had been in the same place before settlement and population extended to that part of the city; but that where property was involved in the abatement of a nuisance the proceeding must be by indictment and trial by jury.

Mr. Justice MacArthur dissented, and the chief-justice did not sit in the case.  