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The plaintiff complains that the defendants (the General Council of Medical Education and Registration of the United Kingdom) have wrongfully and unlawfully erased his name from the medical register, and asks for a mandamus commanding the defendants to restore his name to the register. The plaintiff also complains that the defendants have libeled him, by printing and publishing of him in a book, entitled Minutes of the General Council, that his name had been erased from the Medical Registry, page 317, and that in the opinion of the council the plaintiff had committed the offense charged against him— that is to say, of having published and publicly caused to be sold a work entitled "The Wife's Handbook," in London and elsewhere, and at so low a price as to bring the work within the reach of both sexes, to the detriment of public morals, and that the offense was, in the opinion of the council, infamous conduct in a professional respect. With regard to the erasure of the plaintiff's name, the plaintiff says that the defendants acted without jurisdiction, that there was no evidence of any infamous conduct in a professional respect, and, therefore, nothing upon which to found their jurisdiction. The defendants say, on the other hand, that they lawfully, and in the exercise of a jurisdiction conferred upon them by the act of Parliament, struck the plaintiff's name off the register, and that, as there was jurisdiction to enter upon this inquiry, they (the Medical Council) are the sole judges of what was done during the inquiry which they had jurisdiction to initiate. The learned judge thought that there was no evidence of any of the complaints which he ought to leave to the jury, and gave judgment for the defendants.

The section upon which the council have acted in erasing the plaintiff's name is the twenty-ninth section of 21 & 22 Vict. c. 90, which says: "If any registered medical practitioner shall be convicted in England or Ireland of any felony or misdemeanor, or in Scotland of any crime or offense, or shall after due inquiry be judged by the general council to have been guilty of infamous conduct in any professional respect, the general council may, if they see fit, direct the registrar to erase the name of such medical practitioner from the register." Having regard to the nature of the complaint, the council clearly had jurisdiction to enter upon the inquiry, and, having that jurisdiction, are constituted by the legislature the sole judges whether that complaint was substantiated. To use the words of Cockburn, C. J., in Ex parte La Mert, 33 L. J. (Q. B.) 70: "This court has no more power to review their decision than they would have, in the present mode of proceeding, of determining whether the facts had justified a conviction for felony or misdemeanor under the first branch of the section."

It is said by the plaintiff that there was no "due inquiry," and that that question onght to have been left to the jury. We think that there was no evidence of any absence of a due inquiry which ought to have been left to the jury. All charges of mala fides were with

drawn, and it was admitted that the council acted honestly, and without any improper feeling or motive towards the plaintiff. We can find nothing irregular in the proceedings of the council; the plaintiff had every opportunity afforded to him of bringing his case before the council, who heard his counsel and his evidence, and adjudicated thereon.

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FIRE DEPARTMENT OF CITY OF NEW YORK v. GILMOUR. (Court of Appeals of New York, 1896. 149 N. Y. 453, 44 N. E. 177, 52 Am. St. Rep. 748.)

Appeal from Common Pleas of New York City and County, General Term.

Action by the Fire Department of the City of New York against John Gilmour to recover penalty imposed for refusal to obey an order of the board of fire commissioners. There was judgment for plaintiff, which was reversed by the General Term (4 Misc. Rep. 202, 23 N. Y. Supp. 1022), and from the order of reversal plaintiff appeals. Affirmed.

This action was brought in a district court in the city of New York, to recover of the defendant a penalty of $25 for neglect on his part to obey an order dated May 21, 1892, purporting to have been made under the authority of the board of commissioners of the fire department of the city of New York, requiring him, within five days from the service of the order, to build a wall of stone, brick, or other fireproof material, not more than 18 feet in height, around the yard of premises 87 White street, in the city of New York, in rear of the building thereon, and prohibiting him from storing in the yard boxes of wood to a height above a point 12 inches below the top of the wall. The defendant occupied the building and yard 87 White street, using the yard (a space about 60 by 35 feet) for the storing of packing boxes manufactured by him at another place, and had so used the yard for a period of about 14 years. The boxes were piled at times as high as 20 to 30 feet.

The order contains a recital that the packing boxes so stored were combustible, and were kept and stored in such quantity as to be dangerous, "and the same is considered dangerous in causing and promoting fires, and prejudicial to the safety of life and property, and in its present condition a violation of law." The order refers to chapter 410 of the Laws of 1882 (Consolidation Act) as the basis of the order. By section 463 of that act, the board of fire commissioners, and its officers and agents under their direction, or the direction of either of the commissioners, are empowered to "enter any

9 See, also, Bogle v. Sherborne Local Board, 46 Justice of Peace, 675 (1880); Attorney General v. Great Western Ry. Co., 4 Ch. D. 735 (1876).

building or premises where any merchandise, gunpowder, firewood, boards, shingles, shavings," etc., "or other combustible materials may be lodged, and upon finding that any of them are defective or dangerous, or that a violation of this title exists therein, may deliver a written or printed notice containing an extract from this title of the provisions in reference thereto, and notice of any violation thereof, and notice to remove, amend or secure the same within a period to be fixed therein." The section proceeds to declare that, in case of neglect or refusal on the part of the occupant or of the possessor of such combustible materials "so to remove or amend or secure the same within the time and in the manner directed by the said commissioners in such notice, the party offending shall forfeit and pay, in addition to any penalty otherwise imposed, the sum of twentyfive dollars, and the further sum of five dollars for each day's neglect," Attached to the notice and order served on the defendant was a copy of section 463, and also of section 467 of the act.

etc.

The surveyor of combustibles was the only witness sworn on the trial. He testified that he made an inspection of 87 White street, and was directed, before going there, to report against the place "if they did not have a proper wall around it, and a large number of boxes were stored there." He made the report, and the order was thereupon issued. The defendant sought to show by the witness facts bearing upon the condition of the premises, their surroundings, and the absence of danger or conflagration from the boxes piled in the yard. Most of the questions put to the witness bearing upon the question of the propriety or reasonableness of the order were excluded by the justice, on the ground that the court could not consider the matter. The defendant, on the conclusion of the plaintiff's case, offered to prove by two witnesses a variety of facts which were enumerated, bearing upon the question of the reasonableness of the order, and to show that the use made by him of the premises did not involve any danger of fire beyond the ordinary danger attending the ordinary uses of property. The justice refused to hear the evidence, saying "the question before the court is, has there been a refusal to comply with the order of the board? The court regrets that it cannot go into the question whether the order was necessary, or whether the department acted properly." The court rendered judgment for the plaintiff for the penalty given by statute, which was reversed on appeal to the General Term of the New York Common Pleas, and from the order of reversal the plaintiff brings this appeal. ANDREWS, C. J. (after stating the facts).10 The action was tried and determined by the justice of the district court upon the theory that the determination of the board of fire commissioners that the use made by the defendant of the yard of his premises for the piling

10 Only a portion of the opinion of Andrews, C. J., is printed.

FR.ADM. LAW-35

of boxes was dangerous, as being likely to cause or promote a conflagration, to the prejudice of life and property, was conclusive, and not open to inquiry in an action brought for the penalty, given by section 463 of the consolidation act. It was upon this view of the law that the justice excluded the evidence offered by the defendant to show that, in fact, the use made by him of the yard did not involve any unusual risk of fire, either from the inherent nature of the property stored therein, or in promoting a conflagration originating on adjacent premises. This, the justice declared, he could not consider, but was confined to the simple inquiry whether the order of the board of commissioners had been disobeyed.

We think the justice erred in the principle upon which he proceeded. There can be no doubt of the power of the Legislature to enact regulations for the protection of cities or villages against the serious dangers from conflagrations. It is one of the subjects to which the police power of the state extends, and there is no one in the wide range of this power upon which the Legislature has more frequently acted. It may directly enact a code of regulations applicable to exposed localities, or, as is more commonly done, it may invest municipalities with the power to pass ordinances regulating the subject. The authority given in most charters of municipalities to the legislative body to fix fire limits, to prohibit the erection of buildings therein of wood or other combustible materials, the storing of gunpowder or other explosive compounds in quantities and under circumstances hazardous to life and property, are among the familiar instances of the delegated power. Regulations on this subject are restrictions of personal freedom and the free use of property. But they are justified by public necessity, and so are within the acknowledged power of the Legislature.

The Legislature, by section 463 of the consolidation act, conferred upon a subordinate department of the city government the power to determine in specific cases whether the use of property for storage of combustible materials by the owner or occupant was a menace to the public safety, and, upon the determination of the board of commissioners that such use was dangerous, authorized an order to be made by the board for the discontinuance of such use or the regulation thereof, upon disobedience to which the owner or occupant is sub'jected to a penalty. It is manifest that if an irreviewable discretion is thereby lodged in the board, and the citizen is precluded in a suit for the penalty from contesting the reasonableness of an order made, the board is vested with a power of the most arbitrary description, liable to great abuse-a power which, though in terms vested in the board of commissioners, is, sometimes at least, as the evidence in this case shows, in fact wielded by the subordinate appointees in the name of the department. It would have been competent for the Legislature to have enacted a general regulation prohibiting the piling of boxes or masses of combustible material in

yards or open spaces in the populous and defined districts within a city, and such an enactment every citizen would be bound to obey; and, where sued for a penalty, it would be no defense to a party who had violated the law to show that in his particular case, owing to exceptional circumstances, the regulation was unnecessary or unreasonable.

The will of the Legislature would stand as the reason for the rule, and, being general, no one, however situated, could escape its obligation, unless, indeed, he could establish that, passing beyond the police power, it involved some right of person or property protected by the Constitution. In other words, where the Legislature, in the exercise of the police power, enacts a regulation defining the duty of citizens, either in respect to their personal conduct or the use of their property, the reasonableness of the thing enjoined or prohibited is not an open question, because the supreme legislative power has determined it by enacting the rule. See Dill. Mun. Corp. § 328, and cases cited. But where the Legislature, as in the present case, enacts no general rule of conduct, but invests a subordinate board with the power to investigate and determine the fact whether, in any special case, any use is made of property for purposes of storage, dangerous on account of its liability to originate or extend a conflagration, not prescribing the uses which it permits or disallows, then we are of opinion that in such cases the reasonableness of the determination of the board, or of the order prohibiting a particular use in accordance with such determination, is open to contestation by the party affected thereby, and that he is entitled when sued for a disobedience. of the order, to show that it was unreasonable, unnecessary, and oppressive. It was not necessary in this case that the defendant should have been notified (as he was not) of the investigation made of his premises by the appointees of the fire commissioners, or that he should have been afforded an opportunity to be heard before the order was made. Health Department of City of New York v. Rector, etc., of Trinity Church, 145 N. Y. 32, 39 N. E. 833, 27 L. R. A. 710, 45 Am. St. Rep. 579. But we think he was entitled to contest, in the action for the penalty, the reasonableness of the order made and the facts upon which it proceeded. People v. Board of Health of City of Yonkers, 140 N. Y. 1, 35 N. E. 320, 23 L. R. A. 481, 37 Am. St. Rep. 522; Health Department of City of New York v. Rector, etc., of Trinity Church, supra; City of Salem v. Eastern R. Co., 98 Mass. 431, 96 Am. Dec. 650.

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For the denial of this right, we think the judgment should be affirmed. All concur.

Judgment affirmed.11

11 See, also, Chatfield v. New Haven (C. C.) 110 Fed. 788 (1901). "Whether or not the Secretary of the Treasury failed to carry into effect the expressed purpose of Congress, and established standards which operated to exclude teas which would have been entitled to admission had

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