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sworn, including the simple affirmation of a member of the Society of Friends, is a constitutional requisition to make a trial valid.

In regard to the attendance of witnesses, what I have already said as to that cause of complaint will suffice. And I am inclined to think that it will be found, on examination, that a power to compel the attendance of witnesses for the accused will not be found to be part of "the law of the land," at least that mentioned in "Magna Charta," and was given in more recent times.

There still remains an objection to be considered, to wit, that no trial by jury is allowed under such statute. The words of the Constitution upon that point are (article 1, § 2) that "the trial by jury in all cases, in which it has been heretofore used, shall remain inviolate forever." The term "case," in such provision, has been held to mean the kind of action, prosecution or proceeding, and is not confined to the subject-matter. Thus, in the case of Duffy v. People, 6 Hill, 75, it was held that a proceeding to compel a husband to support his wife, being a mere preventive proceeding, like giving security to keep the peace, did not require a trial by jury, and that, preventive remedies for similar offenses having been used before the adoption of the Constitution, obtaining them was not a "case" within the meaning of the Constitution in which trials by jury had been used, although it was held that the adjudication of the magistrate on the subject of the marriage of the parties, although sufficient to compel giving security, was not conclusive. But although the judgment for the abatement of a nuisance at common law, "quod permittat prosternere," may have required a trial by jury, when demanded, yet courts of equity could always restrain the conducting of any business which was one, without such jury. And that is all which the order, as finally modified in this case, does. Such objection, therefore, falls to the ground.

* * *

See Ames ea: Log. Vol 1. pp 559-60n. Ny. allows ever doubtful ca the ecided ju Pfofo avor wo peractatlaw. In most of perm injunct ouf after success in actor at low off ffort or tops wrong au doubtful

HUTTON v. CITY OF CAMDEN.

(Court of Errors and Appeals of New Jersey, 1876. 39 N. J. Law, 122,
23 Am. Rep. 203.)

*

ild Adm2 Bd cannot BEASLEY, C. J.17*
ea on due n thear
eleom the existings of this nature, which lies deeper than the one just noticed. As-

But to rest here would be to put this
matter on too narrow a ground. There is an infirmity in all proceed-

suming the power in this board, derived from the Legislature, to ad-
judge the fact of the existence of a nuisance, and also assuming such
jurisdiction to have been regularly exercised, and upon notice to the
parties interested, still, I think, it is obvious that, in a case such as

that before this court, the finding of the sanitary board cannot operate

far. r. even tho egr attempts to in the power that delerm "cau It if he made hajury gund of act

in any respect, as a judgment at law would, upon the rights involved.
will require but little reflection to satisfy any mind, accustomed to

17 For first part of opinion, see ante, p. 136.

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, fór 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.

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

165/4/8 of 5 of Cal Pal Code 3028.2 half, 3059, 8060 of also, 40/226.esp 231-2 affs/52/464

For antage of adm heard of 189795,115.

1167/404

SECTION 27.-IN REMOVING FROM OFFICE

3STATE ex rel. MEADER v. SULLIVAN.

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

Rep. 781.)

Pad or Mayor hear testimony if offered on mattersonssh. mayor professes to act of he professed tract or either of them, was made or communicated to this defendant.' on pero n. lu It will be further noted that in his order the mayor recites that, "I must make that find from the evidence, and also from the facts within my personal knowledge," etc. As stated elsewhere, the power given the mayor Known 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.

Mayor must SPEAR, C. J.10 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,

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.

8 PEOPLE ex rel. McALEER v. FRENCH et al.

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

Policeman diomy

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

The extent of the EARL, J.21 The members of the police force of the city of New punisht is solely York have a permanent tenure of office; and they cannot be dis- uudiscret missed from the force, for any fault or misconduct, until after commiss this charges have been preferred against them, and such charges have thy can use the

They

been examined, heard, and investigated as provided in the statutes,
and the rules adopted by the board of police commissioners. The fol- un
lowing 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 dis-
cretion, 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."

Rn as well as the cards But in detering the guilt can act Among the offenses specified are intoxication, neglect of duty, and inf on the ind conduct unbecoming an officer. We are dealing in this case with the scautuse then offense of intoxication, as that was the charge made against the relator. own know to *** Taking the case as it appears to us, it was certainly a very

severe punishment to dismiss the relator from the police force, where supplement

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 regardless 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). Interesting deatrite bylsaqnor on porns police can exercise as compares those they do exercise macy. The case was an appl" by a dismisst policeman convicted of a misdemeanor for a ctf of reas" dougton lys convicts the misdemeant Mind was zelful neglect of deity withat he neglected to delect & arrest keeper of a brothel. Gaynor issued atf. The said he that the poliegman had not been prop enly guarded at the trial from the influence of clamor spijudice "In andout times accused fpersona ed fly for refuge to establwhed saveter ares especially in times of clamor! I safe sanctuary to accused timwork he a court of justice no matter what bessons with it and always

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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.

3

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.

W. A up Ct 221 US.88.91 (1912) Lamar thus seemmarizes.

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