
    Peleg Brown vs. District of Narragansett.
    WASHINGTON
    JANUARY 18, 1899.
    Present: Matteson, C. J., Stiness and Tillinghast, JJ.
    (1) Order of Board of Health. Appeal. Motion to Dismiss. Jurisdiction. Practice.
    
    An appeal from a tow or district council sitting as a board of health, which has been certified from the Common Pleas Division on motion to dismiss the appeal, is improperly before the court.
    In such case the Common Pleas Division should pass upon the motion, and the party aggrieved may then have his exception thereto as the basis of a petition for new trial.
    Appeal from a district council sitting as a board of health. Certified from the Common Pleas Division and heard on motion to dismiss for want of jurisdiction.
   Per Curiam.

We do not think this case is properly before us. It was certified here from the Common Pleas Division on the appellee’s motion to dismiss on the ground that the order of the district council of the District of Narragansett, sitting as a board of health, for the abatement of the nuisance in question, was not an appealable order. We think the Common Pleas Division should have passed on the motion, leaving the party aggrieved by the ruling to petition this Division for a new trial if he saw fit. If it was a criminal proceeding, it could properly be certified here upon such a motion in the first instance, under Gen. Laws E. I. cap. 250, § 19. But, being a civil proceeding, we find no statute giving this Division jurisdiction until a ruling is made in the Common Pleas Division.

John E. Conley and William J. Cronin, for appellant.

Albert B. Crafts, for appellee.

Case remitted to the Common Pleas Division for further proceedings. 
      
       Sec. 19. If the defendant in any criminal proceeding commenced in the common pleas division or pending therein on appeal from a district court, shall, during the pendency thereof, except during trial before a jury, raise any question of law (other than constitutional questions) which, if decided in his favor, would bar or terminate such criminal proceeding, said division shall forthwith certify said question to the appellate division for its decision thereon. The appellate division shall give precedence to the hearing of such question over all other business excepting constitutional questions, and shall make special assignments thereof. Having decided such question it shall send back the record with its decision certified thereon to the common pleas division, which shall take action accordingly.
     