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 aspect, is; and the one interest can no more be taken out of the hands of the ordinary tribunals than the other can. 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 land 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. It cannot be used as evidence in any legal proceeding, for the end of establishing, finally, the fact of nuisance, and if it can be made testimony for any purpose it would seem that it can be such only to show that the persons acting in pursuance of it were devoid of that malicious spirit which sometimes aggravates a trespass, and swells the damages.

I repeat that the question of nuisance can conclusively be decided, for all legal uses, by the established courts of law or equity alone, and that the resolutions of officers, or of boards organized by force of municipal charters, cannot, to any degree, control such decision.

* * 18

18 Accord: Munn v. Corbin, 8 Colo. App. 113, 44 Pac. 783 (1896).

SECTION 27.-IN REMOVING FROM OFFICE

STATE ex rel. MEADER. SULLIVAN.

(Supreme Court of Ohio, 1898. 58 Ohio St. 504, 51 N. E. 48, 65 Am. St. Rep. 781.)

SPEAR, C. J.19 Two questions are presented. One relates to the sufficiency of the charges; the other, to the action of the mayor upon them. [The decision upon the first question is here omitted. See ante, p. 188.]

Upon the other branch of the case it will be noted that the answer avers that at the trial "not a word of evidence tending to sustain the truth of the facts alleged in said charges, or either of them, was adduced or heard by said mayor, and that no statement or information of any personal or official knowledge of the mayor, of any kind, tending to substantiate or prove the facts alleged in said charges, or either of them, was made or communicated to this defendant." It will be further noted that in his order the mayor recites that, “I find from the evidence, and also from the facts within my personal knowledge," etc. As stated elsewhere, the power given the mayor is not judicial within the meaning of the Constitution, yet, as already found, it is not to be exercised arbitrarily; that is, a hearing is to be given the accused, and he is to have the opportunity to refute what is adduced against him. So that it would not be a proper exercise of power for the mayor to determine the truth of a charge on his own personal knowledge without making that publicly known, and offering the opportunity above alluded to. If the averment that not a word of evidence tending to sustain the truth of the facts alleged was adduced or heard by the mayor, etc., is to be taken as an averment that no testimony at all was heard, but that the mayor's finding rested entirely on facts within his personal knowledge, uncommunicated—and it is insisted by counsel for defendant in error that such is its meaning-then clearly, upon this ground, also, should the mayor's order be held invalid.

The majority of the court, at least, inclines to regard the legal effect of the averment as a conclusion of law merely; that is, that in the opinion of the pleader the evidence did not tend to sustain the truth of the charges, and that whatever statement the mayor may have made upon personal knowledge did not tend to substantiate the facts alleged.

19 For statement of case, see ante, p. 188.

The decision therefore is rested upon the first proposition. Judgment affirmed.20

MINSHALL, J., dissents.

PEOPLE ex rel. McALEER v. FRENCH et al.

(Court of Appeals of New York, 1890. 119 N. Y. 502, 23 N. E. 1061.)

Appeal from Supreme Court, General Term, First Department. The police commissioners of New York city dismissed the relator from the police force for intoxication. On certiorari that order was affirmed by the Supreme Court, General Term, and relator appeals.

EARL, J. The members of the police force of the city of New York have a permanent tenure of office; and they cannot be dismissed from the force, for any fault or misconduct, until after charges have been preferred against them, and such charges have been examined, heard, and investigated as provided in the statutes, and the rules adopted by the board of police commissioners. The following is one of the rules adopted by that board: "Any member of the police force may be punished by the board of police, in their discretion, either by reprimand, forfeiture, and withholding pay, not exceeding thirty days for any one offense, or by dismissal from the force on conviction of either of the following offenses, to wit." Among the offenses specified are intoxication, neglect of duty, and conduct unbecoming an officer. We are dealing in this case with the offense of intoxication, as that was the charge made against the relator. ** Taking the case as it appears to us, it was certainly a very severe punishment to dismiss the relator from the police force, where he had so long and faithfully served. But the extent of the punishment rested entirely in the discretion of the commissioners, and neither the Supreme Court nor this court has any jurisdiction to interfere therewith.

We think the force and effect of the decision in the Masterson Case 22 has been somewhat misapprehended. In determining the guilt of a police officer who is on trial for charges preferred against him, the police commissioners cannot act upon their own knowledge. The charges must be tried upon evidence, and the guilt must be established by evidence produced before the commissioners upon the

20 "The law contemplates that the members of the board will act upon proof of some sort appropriate to the case and made a matter of record; not necessarily that they will in all cases act regardiess of personal investigation, but that in case of reliance thereon the result of the investigation will be made matter of record." State ex rel. Medical College v. Chittenden, 127 Wis. 468, 517, 107 N. W. 500 (1906).

21 Only a portion of the opinion of Earl, J., is printed.

22 People ex rel. Masterson v. French, 110 N. Y. 494, 18 N. E. 133 (1888). See, also, People v. Glennon, 37 Misc. Rep. 1, 74 N. Y. Supp. 794 (1902).

trial. They can neither act upon their own knowledge, nor supplement the evidence by their own knowledge. But, in inflicting the punishment, they may take into consideration the evidence, as well as their own knowledge of the police officer, and inflict such punishment, authorized by the rules and the statutes, as, in their judgment, the case, in view of all the circumstances, requires. We did not determine in that case that the Supreme Court, upon certiorari, did not have jurisdiction to review the determination of the police commissioners upon the evidence; and it is a mistake to suppose that, if there is any evidence in the record brought to the Supreme Court by certiorari sustaining the determination of the commissioners, that court has no right to interfere therewith. Such is the rule in this court, and such was the rule at common law.

But now, by section 2140 of the Code of Civil Procedure, upon the hearing on the return of a writ of certiorari the Supreme Court may inquire whether there was any competent proof of all the facts necessary to prove in order to authorize the making of the determination, and, if there was such proof, whether there was, "upon all the evidence, such a preponderance of proof against the existence of any of those facts that the verdict of a jury affirming the existence thereof, rendered in an action in the Supreme Court triable by a jury, would be set aside by the court as against the weight of evidence." Therefore, in all this class of cases, it is the duty of the Supreme Court, not only to inquire whether there is any competent proof tending to establish the guilt of the accused officer, but it must look into the evidence; and, if it finds that there is a preponderance of evidence against the determination of the commissioners, then it has the same jurisdiction to reverse the determination that it has to set aside the verdict of a jury as against the weight of evidence. It is the purpose of the law to give a review in the Supreme Court by certiorari, not only upon the law, but upon the evidence, to the extent specified in the statute; and every party who seeks such a review is entitled to the fair and judicious exercise of that jurisdiction. We do not perceive that the relator's right to call witnesses, and have them sworn in his behalf, upon his trial, was denied or curtailed by the police commissioner who took the evidence. We are therefore constrained to affirm the order; but, under the circumstances, it must be without costs.

SECTION 28.-POWER TO OBTAIN INFORMATION 23

LANGENBERG v. DECKER,

(Supreme Court of Indiana, 1892. 131 Ind. 471, 31 N. E. 190, 16 L. R. A. 108.)

Appeal from superior court, Marion county.

Proceedings in habeas corpus by Philip Decker against Henry W. Langenberg, Sheriff of Marion County. From a judgment discharging plaintiff from custody defendant appeals. Affirmed.

COFFEY, J. The General Assembly of the state passed an act, which was approved and went into force on the 6th day of March, 1891, entitled "An act concerning taxation, repealing all laws in conflict herewith, and declaring an emergency." The act creates a state board of tax commissioners, composed of five persons, viz., the Secretary of State, the Auditor of State, and the Governor of the state, who are styled ex officio members, and two persons of opposite political faith, appointed by the Governor of the state. * * It also contains this provision: "They shall have the power to send for persons, books, and papers, to examine records, hear and question witnesses, to punish for contempt any one who refuses to appear and answer questions by fine not exceeding one thousand dollars, and by imprisonment in the county jail of any county not exceeding thirty days, or both. Appeals shall lie to the criminal court of Marion county from all orders of the board inflicting such punishment, which ap

23 The power to require an oath (to be administered by some official authorized to administer oaths) may be implied from usage. United States v. Bailey, 9 Pet. 238, 9 L. Ed. 113 (1835). See, also, Caha v. United States, 152 U. S. 211, 14 Sup. Ct. 513, 38 L. Ed. 415 (1894).

Power to require production of papers, etc. Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746 (1886); State v. Davis, 108 Mo. 666, 18 S. W. 894, 32 Am. St. Rep. 640 (1892); St. Joseph v. Levin, 128 Mo. 558, 31 S. W. 101, 49 Am. St. Rep. 577 (1895).

As to powers of inquisition, see Commissioners of Enquiry, 12 Coke, 31; article on the Corporation Commission, 11 Law Magazine 68; University Commission, 15 Law Magazine (N. S.) 79.

Power, to require information or reports, tending to incriminate. Com. v. Emery, 107 Mass. 172, 9 Am. Rep. 22 (1871); Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110 (1892); Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 644, 40 L. Ed. 819 (1896); People ex rel. Lewisohn v. O'Brien, 176 N. Y. 253, 68 N. E. 353 (1903), overruling People v. Kelly, 24 N. Y. 74 (1861); People v. Butler Street Foundry Co., 201 Ill. 236, 66 N. E. 349 (1903); Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. 370, 50 L. Ed. 652 (1906). For general administrative power to obtain information (not to be found in English or American law), see General Administrative Act of Prussia of July 30, 1883, § 119: "The administrative authorities have power, even in other cases than those expressly designated by law, to summon parties in interest or their authorized representatives to an oral hearing for the purpose of ascertaining facts."

24 Only a portion of the opinion by Coffey, J., is printed.