Lalor, 38 Hun, 542, the statute provided that the drainage and
plumbing of all buildings should be executed in accordance with plans.
previously approved in writing by the board of health, and in conse-
quence of such specific authority the owner of property was prohibited
from departing from the plan so approved.

It is well settled that, in order to uphold the action of boards ex-
ercising a special statutory jurisdiction, authority for it must be found
in the positive law. In our statutes, before referred to, the power is
given in general terms to the board of health to pass ordinances to reg-
ulate the drainage of stables. There is no language which authorizes
the board to prescribe a mode to which stable owners must rigidly con-
form. On the contrary, the act of 1888 expressly recognizes the right
of the stable owner to submit plans for drainage to the board for ap-,
proval, and this negatives the idea that an ordinance may lawfully be'
adopted which will deprive the owner of that privilege. The conclusion.
which results from this view of the statute is, not that the ordinance is
void, but that the owner is not restricted to the manner of laying the,
floor which is prescribed by the ordinance. The ordinance stands as
a protection to those who conform to it. If the owner secures the
sanitary condition of his building by adopting some other plan, he is
not amenable to prosecution. In departing from the directions contain-
ed in the ordinance, he takes the risk of creating a nuisance. If the
plan he resorts to is a failure, he may be held for the penalty, not on
the ground that he has not conformed to the plan specifically set.
out in the ordinance, but on allegation and proof that his stable is a
nuisance.

Whether, in this case, the complaint is in such form, and the ordinance so framed, that upon proper proof the penalty could lawfully be imposed upon the owners of the stable, it is not necessary to decide.! The justice before whom the proceedings below were had convicted the owners of the offense of violating the ordinance, and imposed the penalty for that alleged offense, and not for maintaining a nuisance. They may have violated the ordinance without committing the offense of creating a nuisance. No conviction could lawfully have been had except for maintaining a nuisance.

The judgment below must, therefore, be set aside.17

17 Compare Durgin v. Minot, 203 Mass. 26, 89 N. E. 144, 24 L. R. A. (N. S.)

241 (1909). A stat wh authys and of tilt, when in its it the publ, had requires it, to require the purface of any private passageway to be paved or otherwise provided with a roadbed in a manner with materials satisfactory to the board, at the expense of its owners is an unconst interference with proprights

、

Cases in a scord collected in plc & in note in the whe states gent doctime libe

While health authups have pors to require owners of prop to abate condns there on wh are detrimental to publ. heo, tigen rule that their porn extends only to the abatement of the r. & prevention of its recurrence; & prevention of its recurrence; & the method to the adopted

to this end as for the property ownes to select.

of 7612571.55

SECTION 5.-SAME-CONDITIONS ANNEXED TO GRANT OF LICENSE

10 REG. v. BOWMAN et al., Justices.

(High Court of Justice, Queen's Bench Division. [1898] 1 Q. B. 663.) Rules to justices for the borough of South Shields for a certiorari to bring up an order granting a license to one John Duncan to sell intoxicating liquors to be quashed, and for a mandamus to hold an adjournment of the general annual licensing meeting and hear and determine according to law an application by the said Duncan for a license.

At the general annual licensing meeting for the borough of South Shields held on August 25, 1897, John Duncan, who was at that time. the holder of three licenses to sell intoxicating liquors within the borough, applied for a provisional full license to sell intoxicating liquors on certain premises then about to be erected. The hearing of the application was adjourned to September 29, when Henry Yooll and John George Patton, being inhabitants and ratepayers of the said borough, attended the licensing sessions and opposed the application. At a further adjourned session held on November 3 the chairman of the licensing committee stated that the justices had decided to grant y the license on condition of the three existing licenses being surrendered and of a sum of £1,000. being paid by Duncan to the justices. The conditions having been performed, the license was granted, and the grant was subsequently confirmed. Messrs. Yooll and Patton thereupon obtained the above-mentioned rules for a certiorari and a mandamus on the ground that the justices in annexing the said conditions to the grant of the license were acting illegally and outside their jurisdiction.

It was admitted by them that it was the intention of the justices to apply the £1,000. so paid by Duncan in reduction of the rates of the borough, or for some other similar public purpose.

WILLS, J.18 This is a case of considerable importance, but it is one which presents no difficulty as soon as the facts (which are not in dispute) are ascertained. It is clear that any member of the public has a right to be heard in opposition to an application for a license, and, having such a right, he is entitled to be heard according to legal principles. If the justices allow themselves to take into consideration matters which have no bearing upon the merits of the case before them, and which influence their minds in arriving at their decision, it cannot

18 Parts of the opinions are omitted.

FR.ADM. LAW.-3

NB

be said that the objector has been heard according to law. In the present case the justices stated that they were prepared to grant the license upon the terms that the three existing licenses then held by the applicant should be surrendered, and that he should further pay to them a sum of £1,000. for some public purpose.

As to whether the justices were entitled to attach the condition of the surrender of the old licenses I will express no definite opinion, though as at present advised I incline to the view that they might lawfully have done so, as the number of the licensed houses which the needs of the neighborhood demanded was one of the matters which they had to consider. But the condition of the payment of £1,000. was wholly unjustifiable. If authority were needed, it is enough to refer to the case, which was cited, of Rex v. Athay, 2 Burr. 653. The justices had no more right to require the payment of money for public purposes than to require that it should be paid into their own pockets. If the attachment of such a condition were allowed to pass without objection, there would soon grow up a system of putting licenses up to auction-a system which would be eminently mischievous and would open the door to the gravest abuses. No doubt the justices were acting in perfect bona fides and in the interests of the public. But their conduct was none the less illegal. There has been no real hearing, and the mandamus must therefore go. DARLING, J. I entirely agree. The justices have here done a thing which in a few years' time they may perhaps be allowed to do.19 They have sought to make vendors of intoxicating liquor, and through them the persons who indulge in it, bear more than their ordinary share of the public burdens. It has often been suggested that a law to that effect would be a very proper one to enact. But it is not law yet. If ever it is made the law it must be by the authority of Parliament, and when Parliament does so enact it will no doubt take care to specify the particular public objects to which the money is to be applied. The justices have here approached the consideration of the case with preconceived theories as to the proper distribution of the unearned increment of value arising from the grant of a license to particular premises, and have allowed those theories to influence their decision. Under those circumstances it is enough to refer to Reg. v. Adamson, 1 Q. B. 201, to show that a mandamus must be allowed.

19 The power was given by Licensing Act 1904, § 4.

* *

*

*

VAN NORTWICK v. BENNETT.

(Supreme Court of New Jersey, 1898. 62 N. J. Law, 151, 40 Atl. 689.)

Liceuse fraules c conds nothkeep open bar. The

On certiorari to review the granting of a license to sell ale, etc., by state from presest?

the Monmouth pleas.

VAN SYCKEL, J. The defendant, Bennett, applied for a license allowed open to sell ale, strong beer, etc., under the act approved April 4, 1872 (Gen. St. p. 1797, pl. 60).

This application, as recommended by the ten freeholders [as required by the said act, and in due form], was for a license to sell in the place occupied by the petitioner, being the northwesterly side of the building erected on the southeasterly side of Shark river, between the county bridge and the railroad bridge.

When the application was presented to the Monmouth pleas there was a remonstrance against granting it. Thereupon the application was amended by restrictive words, defining the portion of the premises in which the license was to be used, and the following clause was inserted in the affidavit thereto: "This application is made with the express understanding that no open bar is to be maintained, and that the purpose of this license is to serve guests at table with meals."

The affidavit was not again taken after this alteration, nor did the freeholders who recommended the application sign the recommendation after the petition was altered.

The court granted a license to Bennett "with the express condition that no open bar was to be maintained, and that the purpose of the license was to serve guests at table with meals."

The act of 1872 prescribes the form of the license which the court may grant, which is "to sell malt liquors in the place which the applicant keeps." A license so granted authorizes the licensee to keep an open bar. From the fact that the court annexed to the license granted a condition that he should not keep an open bar, and should sell only with meals served, we must infer that in the exercise of its discretion the court decided that a license such as the statute authorizes should not be granted. The license granted is not authorized by the act of 1872, or by any other statute, and was not recommended by ten freeholders. The common pleas, therefore, had no jurisdiction or authority to grant such a license. A constituent essential to the jurisdiction of the court was absent, and that makes its action subject to review in this court, under the case of Dufford v. Nolan, 46 N. J. Law, 87.

The suggestion that the restriction imposed will be in the interest of good order cannot be considered. Licenses can be granted only in virtue of the statute. The Legislature alone prescribes the conditions. and terms, and the common pleas is without power to depart from these provisions, and to say that, although the license provided by law ought not to be granted, it will issue some other license not authorized

bav

$69. As person shall bred occupy or use for a stable any bldy
popul" exceeds 25000 unless such use is atting
cily & in such ease
only to the extent so liceused!

in a city whose of sard

by the bd sphealth

36

ADMINISTRATIVE POWER AND ACTION.

(Part 1

by the act. The action of the court has no basis in legislation, and is therefore invalid.

The license certified is vacated and set aside.20

98-116105.

SECTION 6.-SAME-LICENSING POWER AND POWER TO
REVOKE LICENSES

12 CITY OF LOWELL v. ARCHAMBAULT.

(Supreme Judicial Court of Massachusetts, 1905. 189 Mass. 70, 75 N. E. 65.) Appeal from Superior Court, Middlesex County.

Bill in equity by the City of Lowell against one Archambault. From a decree for plaintiff, defendant appeals. Reversed.

BRALEY, J. This is a bill in equity, brought under Rev. Laws, c. 102, § 71, to enjoin the defendant from occupying and using a stable, in violation of the provisions of section 69 of the same chapter. In the superior court the case was submitted on agreed facts, and after a decree had been entered in favor of the plaintiff, it comes before us on the defendant's appeal.

It appears that the defendant, who is engaged in the business of an undertaker, desiring to erect on his land a stable to be used in

20 Compare Chester v. Wabash, etc., Co., 182 Ill. 382, 55 N. E. 524 (1899), consent with a time limit held valid. As to the validity of consents given for a consideration, see Maguire v. Smock, 42 Ind. 1, 13 Am. Rep. 353 (1873); Howard v. First Indep. Church, 18 Md. 451 (1862); Doane v. Chicago City R. Co., 160 Ill. 22, 45 N. E. 507, 35 L. R. A. 588 (1895); Hamilton Traction Co. v. Parish, 67 Ohio St. 181, 65 N. E. 1011, 60 L. R. A. 531 (1902).

See Francis v. Francis, 203 U. S. 233, 242, 27 Sup. Ct. 129, 132, 51 L. Ed. 165 (1906): "It follows that the words in the patent of 1827, 'but never to be conveyed by them or their heirs, without the consent and permission of the President of the United States,' were ineffectual as a restriction upon the power of alienation. The President had no authority, in virtue of his office, to impose any such restriction; certainly not without the authority of an act of Congress, and no such act was ever passed."

See Sidney and Beatrice Webb, English Local Government, I, "The Parish and the County," p. 541: "The whole sphere of licensing afforded a wide opportunity for virtual legislation. We have sufficiently described elsewhere the extent to which the justices, at first in pairs and afterward in Brewster sessions, exercised their plain legal right to impose conditions on alehouse keepers seeking licenses, and to bind them over, by 'articles' attached to the statutory recognizances, to close at certain hours or on certain days, to follow this or that line of conduct, and to abstain from particular lawful acts of which these particular justices chose to disapprove."

As to the power of municipal corporations to annex conditions to their consent to the laying of railroad tracks or to the placing of other public utility appurtenances in the public streets, see Byrne v. Chicago General R. Co., 169 III. 75, 83-85, 48 N. E. 703 (1897); Allegheny City v. Millville, etc., Ry. Co., 159 Pa. 411, 28 Atl. 202 (1893), in favor of the power; Matter of King County Elevated R. Co., 105 N. Y. 97, 114, 13 N. E. 18 (1887) quære; State ex rel. v. City of Sheboygan, 111 Wis. 23, 86 N. W. 657 (1901), and Wisconsin Telephone Co. v. Milwaukee, 126 Wis. 1, 104 N. W. 1009, 1 L. R. A. (N. S.) 581, 110 Am. St. Rep. 886 (1905), against the power. c mẹ. 682(4).