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something of value for the execution of the alleged contract, cannot ignore the same, and proceed in the assertion of his original rights as if such contract had not been made, without disaffirming such contract, and substantially restoring or offering to restore the status quo. Mining Co. v. Casteel, 68 Ind. 476; Cates v. Bales, 78 Ind. 285; Johnson v. Culver, 116 Ind. 278, 19 N. E. Rep. 129; Insurance Co. v. Howard, 111 Ind. 544, 13 N. E. Rep. 103; Thompson v. Peck, 115 Ind. 512, 18 N. E. Rep. 16; Westhafer v. Patterson, 120 Ind. 459, 22 N. E. Rep. 414; Insurance Soc. v. Girton, 124 Ind. 217, 24 N. E. Rep. 984; Insurance Co. v. McRichards, 121 Ind. 121, 22 N. E. Rep. 875; Railway Co. v. Herr, 135 Ind. 591, 35 N. E. Rep. 556; Protective Union v. James, 8 Ind. App. 449, 35 N. E. Rep. 919. This prin ciple applies equally to a case of contract made in settlement of contractual disputes and the adjustment of rights growing out of torts. There is no better reason why parties having a defense to an antecedent tort shall not make settlement of such defense than if such defense grew out of a contract. Nor is there is any better reason why in the one case having made an agreement of settlement, and having received something of value in consideration for the same, either party should be permitted to repudiate the settlement and stand upon his antecedent rights without restoring the status quo in one case than in the other. A large proportion of controversies arise between individuals having a choice of actions either to waive the tort and sue in contract or sue in tort. In Railway Co. v. Herr, supra,—an action for a personal injury by appellee against appellant,-a contract of settlement had been made, and the court held

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reply to an answer setting up such settlement, which failed to show a rescission and restoration of status quo, bad. While the word "fraud" is not used in the pleading, it was agreed that the alleged settlement was made and receipt procured from the appellee when he was non compos mentis, and when the appellant well knew that he was non compos mentis. When a party goes into court in an equitable suit to rescind, it is sufficient if he brings into court that which was received, and the return of which is necessary to the restoration of the status quo, but the case at bar is an action at law upon an orig. inal alleged liability. There is an answer of compromise and settlement, and reply averring that such compromise and settlement was obtained by fraud, but not denying the receipt of the money in consideration of the settlement, and neither alleging restora tion nor offering to restore the same. Such allega. tions would not be sufficient in a direct proceeding in equity for rescission. In the case at bar the court erred in overruling the demurrer to the reply.

Counsel for appellee, in their able brief, argue with earnestness and ability, and cite a number of authori ties in support of the negative of the proposition here presented. At the risk of unduly extending this opinion, these authorities will be considered. O'Brien v. Railway Co., 57 N. W. Rep. 425, is a case strongly relied upon by appellee, and supports her position. It is a decision of the Supreme Court of Iowa. It appears from the opinion that the decisions in that State are in conflict on this question. The opinion, on page 427, quotes from the case of Kley v. Healy (N. Y. App.), 28.N. E. Rep. 593, as follows: "A more satisfactory answer, however, may be found in the principle that one who attempts to rescind a transaction on the ground of fraud is not required to restore that which, in any event, he would be entitled to retain, either by virtue of the contract sought to be set aside, or of the original liability."" And, following the

quotation, the Supreme Court of Iowa says: "This principle commends itself as eminently just. Apply ing it to the facts in the case at bar, we may well in. quire, why should the plaintiff tender to the defendant that which the plaintiff was entitled to retain even if defeated in the action? In that event he would retain the $250 [the amount paid in settlement] by vir tue of what the defendant contends is a valid transaction. When the court directed the jury that, if the plaintiff was entitled to recover, the sum paid at the alleged settlement should be deducted from the ver. dict, it was, in effect, a return of the money paid for the release." Kley v. Healy, supra, was an action to set aside a judgment in favor of the plaintiff, and the language so quoted was used with reference to that fact. There was no dispute that the judgment was valid, and that the amount shown upon its face was due. The judgment defendant had procured the judgment plaintiff to execute a release thereof by false representations, and as a part of said transaction had paid a part of the costs; and the court correctly said that, in any event, the judgment defendant was liable for the face of this judgment and the costs, and that, therefore, he had not paid anything that he was not bound to pay, and therefore had no right to have repayment before action brought for the fraudulent representation. In the Iowa case a brakeman sued his employer for negligence causing him personal injury. The liability was not admitted, but denied. In the case at bar the liability is denied. With deference to the learned court from whose opinion we have just quoted, we think the case of Kley v. Healy, supra, is not analogous to O'Brien v. Railway Co., supra, and gives it no support. In the case at bar two issues were for trial: First. Was the appellee injured under such circumstances as to entitle her to damages from the appellant? Second. Was the settlement made under such circumstances that it ought to be set aside? If the last issue had been found in favor of plaintiff, and the first issue in favor of the defendant, the plaintiff would have $150 of defendant's money without right; and, if she were insolvent, the defendant would be without remedy. The doctrine of the Iowa case must rest upon the proposition that, when an action is brought for damages for personal injuries, or is threatened to be brought against an individual or a corporation, and a compromise is made, and money paid to avoid litigation, the courts will conclusively presume that such party was bound to pay at least as much as was paid. This is against the accepted policy of the law that no party in making a compromise shall be deemed as admitting a cause of action, because the law favors the avoidance of litigation by compromise. In some of the cases cited in appellee's brief the respective plaintiffs claimed, and gave evidence in support of such claim, that the money received was not received in compromise and settlement of the damages, but for some other purpose, such as wages, loss of time, loss of property, as gratuity, etc. To this effect are the following cases: Mateer v. Railway Co. (Mo. Sup.), 15 S. W. Rep. 970, in which case plaintiff's testimony was positive that the $300 paid him was for loss of time, and not in settlement of his claim for damages. In Shaw v. Weber (Sup.), 29 N. Y. Supp. 437, it was claimed that the money received was a gratuity given by defendant's wife to plaintiff. In Sobiesky v. Railroad Co., 41 Minn. 169, 42 N. W. Rep. 863, and Vautrain v. Railway Co., 78 Mo. 44, the amounts were paid as wages, not in settlement of claims for damages. In Railway Co. v. Welch, 52 Ill. 183, the money was paid for loss of time, and not in settlement. The law on this subject

and the distinctions are clearly stated in the case of Mullen v. Railroad, 127 Mass. 86, being one of the cases cited in O'Brien v. Railway Co., supra. The Massachusetts court says: "It is well established that if a party enters into a contract, and in consideration of so doing receives money or merchandise, and afterwards seeks to avoid the effect of such contract as having been fraudulently obtained, he must first give back to the other party the consideration received. Coolidge v. Brigham, 1 Metc. (Mass.) 547; Estabrook v. Swett, 116 Mass. 303. And if, after accepting a cer tain sum in settlement of an unliquidated claim for damages under a contract, one seeks to pursue his remedy for the damages on the ground that the settlement was procured by fraud, or is not binding upon him, he must first repay the amount received. Brown v. Insurance Co., 117 Mass. 479. The principle upon which these decisions rest is just; but it applies to those cases only where that which was received, and which must be returned, was the consideration of the contract or settlement which the receiver intended to make, and understood that he was making, and which he seeks to avoid by reason of fraudulent practices of the other party which led him to agree to its terms. It does not apply to cases where a party holds out that he gives the consideration for one thing, and by fraud obtains an agreement that it was given for another thing." In the following cases, cited by appellee, the question of restoration to status quo was not raised: Bussian v. Railway Co., 56 Wis. 325, 14 N. W. Rep. 452; Conner v. Chemical Works (N. J. Ch.), 17 Atl. Rep. 975; Packet Co. v. Defries, 94 Ill. 598; Webb v. Steele, 13 N. H. 230; Dixon v. Railroad Co., 100 N. Y. 170, 3 N. E. Rep. 65; Sobieski v. Rail. road Co., 41 Minn. 169, 42 N. W. Rep. 863; Railway Co. v. Welch, 52 Ill. 183; Schultz v. Railway Co., 44 Wis. 638. In Girard v. Car Wheel Co., 46 Mo. App. 79, a portion of the consideration received in settle. ment was not paid back, and the court says: "It is not the law that a party who has been induced by the fraud of the other party to release his right of action against the latter must restore the consideration which he has received for the giving of the release in order to entitle him to set up the fraud in avoidance of the release for an action upon the cause of action thus released. Railroad Co. v. Lewis, 109 Ill. 120. It is true, as a general proposition of law, that one who is induced by fraud to enter into a contract with another must, within a reasonable time after discovering the fraud, notify the other party of its rescission, and restore to him whatever consideration he has received under it. But he is not bound to restore to the other party what he has received under it, where the other party is indebted to him in a larger amount." The reasoning is along the line of O'Brien v. Railway Co., supra. An examination of the case of Railroad Co. v. Lewis, supra, will show that the evidence tended to show that the money received, and which was not tendered back, was not received in settlement, but was paid for loss of time and expenses incident to the delay resulting from the accident. It does state that, if a release was obtained by fraud at a time when plaintiff was incompetent to contract, it was absolutely void as between the parties, and will not stand in the way of an assertion of any right by the party defrauded. Our supreme court holds the reverse, as the decisions heretofore cited show. The case of Girard v. Car Wheel Co., supra, and O'Brien v. Railway Co., supra, assumed the matter in dispute. They assume that whether there was an indebtedness was not an open question. In Railroad Co. v. Doyle, 18 Kan. 58, a reply avoiding

the release stated that the plaintiff, if he executed the release, did so under the belief that it was a receipt for wages. The language of the court, however, is broader than the reply called for, and may be said to sanction the doctrine as declared in O'Brien v. Railway Co., supra.

An examination of the cases cited by appellee leads us to the conclusion that most of them are distinguishable from the case at bar, and that most of these which are not are contrary to the decision of our su preme court, and are unsound in principle.

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1. General Principles.-In addition to their general police powers, most cities have the express power granted to them by their charter or organic law to declare, prevent, and This abate nuisances within the city limits. authority has been productive of much discussion, and opinions more or less conflicting. Ordinarily, nuisances are declared, prevented, and abated by virtue of by-laws or ordinances passed in conformity with the charter power or authority conferred by general statutes. Frequently, the board of health or the health department is given discretion more or less limited over particular nuisances. In considering this subject, it is well to bear in mind, that ordinances relating to the suppression or abatement of nuisances are treated as police regulations. Generally, cities Generally, cities are given ample authority by State statute or charter to maintain their cleanliness and the health of their inhabitants, to establish and maintain good sanitary conditions within their corporate limits; to suppress all nuisances, and to impose fines and imprisonment for the violation of ordinances and by-laws created in pursuance of this general power. Much discre

1 First Nat. Bank v. Sarlls, 129 Ind. 29; Hasty v. Huntington, 105 Ind. 540; Salem v. Maynes, 123 Mass. 372; Klinger v. Bickel, 117 Pa. St. 326; City of Tarkio v. Cook, 120 Mo. 1; St. Louis v. Weber, 44 Mo. 547; St. Louis v. Jackson, 25 Mo. 37; St. Louis v. Russell, 116 Mo. 248; St. Louis v. Howard, 119 Mo. 47; Kansas City v. Neal, 49 Mo. App. 72; Lawton v. Steele, 119 N. Y. 226, 16 Am. Dec. 381; Mugler v. Kansas, 123 U. S. 661; Wynehawer v. People, 13 N. Y. 378; Fisher v. McGirr, 1 Gray, 1, 61 Am. Dec. 381.

tion is vested in the municipality in the exercise of its police powers, such as determining what is and what is not a nuisance; and the discretion thus exercised will not be judicially interfered with unless the corporation has been manifestly unreasonable and oppressive, invaded private rights and transcended the powers granted to it.2 Every city may, to a limited extent, prescribe the manner of exercising rights over property within its borders. The power rests upon the implied right and duty to protect all by proper restriction, to the end that, on the whole, the benefit of all is promoted. Every public regulation in a city may, and does, to a certain extent, limit and restrict the absolute right that existed previously, but this cannot be considered an injury; fur from it, the individual is presumed to be benefited. It must be conceded that city authorities have the right to regulate the use of private property within the city, so as to prevent its proving pernicious to the health and comfort of the citizens generally or injurious to certain classes of property and business within the city, otherwise we would strike at the very foundation of police regulations. Every right, from an absolute ownership in property down to a mere easement, is purchased and holden, subject to the restriction, that it shall be exercised so as not to injure, inconvenience or discommode others.3 "The plenary authority of the law-making power to provide for the preservation of public health, and to protect the citizen in his natural rights to the enjoyment of pure air, has too long been firmly fixed in our jurisprudence to require discussion." It is within the discretion of the municipal authorities to enlarge the category of public nuisances, subject to the limitations already indicated. They may declare places or property used to the detriment of public interests, or to the injury of the health, property, business, morals or welfare of the community, public nuisances, although not such at common law.5

2 Dillon on Municipal Corporations, sec. 379; Hart v. Mayor, etc., 3 Paige, 213; Mayor, etc. v. Gerspack, 33 La. Ann. 1011.

8 Baker v. Boston, 12 Pick. 193, 194; Vanderbilt v. Adams, 7 Cowen, 349; Green v. Mayor, etc., 6 Ga. 1; Stuyvesant v. New York, 7 Cowen, 604.

4 St. Louis v. Stern, 3 Mo. App. 48.

Lawton v. Steele, 119 N. Y. 226, 16 Am. St. Rep. 318; Mugler v. Kansas, 123 U. S. 661; Wynehawer v. People, 13 N. Y. 378; Fisher v. McGirr, 1 Gray, 1, 61 Am. Dec. 381.

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Nuisance per se.-The

2. General Rule general rule is stated in many text books and decisions to be that a city has no authority to declare that a nuisance which is not so in fact. Under this rule, some decisions would appear to limit the inquiry as to what is a nuisance to those things which have been regarded so at common law or have been declared such by statute. Many decisions hold that where a city has power to determine what constitutes a nuisance, and it declares that a particular thing is a nuisance, such determination is conclusive of the question.' It has been held, and it is doubtless the true rule, that where a particular thing declared against is a nuisance per se the action of the city authorities is conclusive. "It appears to be settled that when the legislature delegates to certain municipal agents a general power to provide for the preservation of the public health by the removal of nuisances, an adjudication by such agents upon the facts of such nuisance existing within their local jurisdiction is conclusive; at least in every case where the subject-matter comes within the classification of prima facie nuisances or nuisances per se.9

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3. City may Declare Nuisance, When-Ilustrations.-The Supreme Court of Louisiana held that where the city of New Orleans had conferred upon it by its charter the general power to declare what constitutes a nuisance, an ordinance declaring that smoking in a street car is a nuisance is constitutional and valid.10 Likewise, an ordinance prohibiting the cultivation of rice within the corporate limits of a city has been held valid, as a po

6 Wood on Nuisances, p. 773, § 740; Beach, Pub. Corp. §§ 1026, 1029, 1031; Wreford v. People, 14 Mich. 41; State v. Jersey City, 29 N. J. Law, 170; Everett v. Council Bluffs, 46 Iowa, 66; In re Jacobs, 98 N. Y. 98; Yates v. Milwaukee, 10 Wall. 497; Village of Des Plaines v. Poyer, 123 Ill. 348; Bliss v. Belknap, 36 Iowa, 583; Chicago v. Laflin, 49 Ill. 172; Patterson v. Vail, 43 Iowa, 412; Dillon on Municipal Corp. (3d Ed.), § 374, Tied. Lim. § 122; Evansville v. Miller (Sup. Ct. Ind.), 45 N. E. Rep. 1054.

7 Van Wormer v. Mayor, etc., 15 Wend. 262; Kennedy v. Board of Health, 2 Pa. St. 366; Green v. Mayor, etc., 6 Ga. 1; State v. Heidenhain, 42 La. Ann. 459; Crosby v. Warren, 1 Rich. (S. C.) Law, 385; Kennedy v. Snowden, 1 McMullen (S. C.), 323; Goddard v. Jacksonville, 15 Ill. 588.

8 Kansas City v. Neal, 49 Mo. App. 72; Kansas City v. McAleer, 31 Mo. App. 436; St. Louis v. Steele, 12 Mo. App. 570.

9 St. Louis v. Stern, 3 Mo. App. 48, 55; People v. Rosenberg, 138 N. Y. 410.

10 State v. Heidenhain, 42 La. Ann. 483.

lice regulation, and in a proceeding under such ordinance it is not necessary to show that the cultivation of rice is injurious to health, since the power to declare what constituted a nuisance was conferred by the charter." The opinion in the last case is based upon the principle of Martin v. Mott,12 which is that where a statute gives a discretionary power to any person to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of these facts. So, where the legislature confers upon an incorporated town the power to declare what shall be a nuisance, an ordinance declaring that swine running at large within the town is a nuisance is valid.13 Likewise, an ordinance declaring that the selling of spirituous liquors within the corporate limits of a city is a nuisance.14

4. True Doctrine Stated-Illustrations.— The general rule of law is well established, and supported by authorities, that the power of a municipality to declare what shall be deemed a nuisance is not so absolute as to be beyond the cognizance of the courts to determine whether it has been reasonably exercised in a given case or not.15 Likewise, the general proposition is well supported that under a general grant of power over nuisances, municipal authorities have no power to pass an ordinance declaring a thing a nuisance which, in fact, is clearly not one.16 There are some things which, in their nature, are nuisances, and which the law recognizes as such. There are others which may or may not be so, their character, in this respect, depending on circumstances.17

Speaking for the Supreme Court of the United States, Mr. Justice Miller said: "It is a doctrine not to be tolerated in this country that a municipal corporation, without general laws, either of the city or of the State, within which a given structure can be

11 Green v. Mayor, etc., 6 Ga. 1.

12 12 Wheat. 19.

13 Roberts v. Ogle, 30 Ill. 459; Crosby v. Warren, 1 Rich. (S. C.) Law, 385; Kennedy v. Snowden, 1 McMullen (S. C.), 323.

14 Goddard v. Jackson, 15 Ill. 588.

15 Yates v. Milwaukee, 10 Wall. 497; River Render

ing Co. v. Behr, 77 Mo. 91, 98.

16 Evansville v. Miller (Sup. Ct. Ind.), 45 N. E. Rep. 1054.

17 Town of Lake View v. Letz, 44 Ill. 81.

shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or can by the city itself. This would place every house, every business, and all property of the city at the uncontrolled will of the temporary local authorities.”18 In a recent case before the Supreme Court of Indiana, where it appeared that the city had the power to declare what shall constitute a nuisance conferred upon it by the State legislature, it was held that the city had no power to declare by ordinance that a partially burned building constituted a nuisance, irrespective of its actual condition as effecting private or public safety and health.19 Likewise, it has been held in Illinois that public picnics and open air dances are not, in their nature, nuisances, and cannot be so declared by ordinance, notwithstanding the power to declare and abate nuisances exists in the city by virtue of the State law. The nuisance must consist in the manner of conducting them which may be productive of annoyance and injury to the public, and this is a question of fact and not of law.20 20 The same rule has been declared in Colorado where the charter of the city of Denver conferred upon it the authority to declare what shall be a nuisance and to prevent and abate the same. Here it was held that this grant of power did not authorize the city to arbitrarily declare any particular thing a nuisance which had not theretofore been declared such by law, or so adjudged by judicial determination. The court said: "The proper construction of this language is that the city is clothed with the authority to declare, by general ordinance, what shall constitute a nuisance; that is to say, the city may by such ordinance, define, classify, and enact what things or classes of things, and under what conditions and circumstances such specified things are to constitute and be deemed nuisances."'21

5. Courts are Reluctant to Interfere-Reasonableness.-Where a city possesses express authority to declare, prevent, and abate nuisances, the enactment of an ordinance of the character under consideration makes out a

18 Yates v. Milwaukee, 10 Wall. 497.

19 Evansville v. Miller (Sup. Ct. Ind.), 45 N. E. Rep. 1054.

20 Village of Des Plains v. Poyer, 123 Ill. 348. 21 City of Denver v. Mullens, 7 Colo. 345.

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prima facie case that it is reasonable.2 It is generally held that municipal corporations are prima facie the sole judges of the necessity of ordinances of this character, and courts will not ordinarily review their reasonableness when passed in pursuance of an express grant of power.23 Hence, an ordinance declaring that the running of a rock crushing machine on a block or square, where there are three or more residences occupied, is a nuisance, is reasonable and constitutes such act a nuisance.24 A clear case should be made out to authorize a court to interfere with the powers of a city respecting the exercise of its police powers on the ground of unreasonableness. 25 Where the question is in doubt the action of the municipal corporation is conclusive.26 "In determining whether it is reasonable the court should not substitute its discretion for that of the municipal legislature." Ordinarily, whether or not an ordinance is reasonable is a question for the court and not the jury.28 The presumption is that an ordinance duly passed by virtue of the power conferred by the charter is reasonable, and the burden is upon the party who denies the validity of the ordinance.29 "Before a by-law can be set aside on this ground, its unreasonableness must be shown demonstrably. There should be no equipoise or vacillation in the beam, the scale containing the proofs should instantly descend and hold the counter-proofs in steady suspension."30 "The authorities of a city are invested with a large discretion in determining the necessity or expediency of the ordinances they shall adopt; and when the powers are exercised within the bounds of

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22 Morse v. West Point, 110 Mo. 502; Fisher v. Harnesberg, 2 Grant (Pa.), 292; The Commonwealth v. Robertson, 5 Cush. 438.

23 Hannibal v. Telegraph Co., 31 Mo. App. 23; St. Louis v. Green, 7 Mo. App. 468.

24 Kansas City v. McAleer, 31 Mo. App. 433.

25 St. Louis v. Weber, 44 Mo. 547; State v. Pond, 93 Mo. 606; Plattsburg v. Riley, 42 Mo. App. 18; St. Louis v. Speigel, 8 Mo. App. 478.

26 Railroad v. Lake View, 105 Ill. 207; St. Louis v. Griswold, 58 Mo. 192; State v. Able, 65 Mo. 357.

27 Kansas City v. McAleer, 31 Mo. App. 436. 28 Commonwealth v. Worcester, 3 Pick. 462; State v. Overton, 4 Zab. (N. J.) 435; 1 Dillon Munic. Cor. sec. 327; Angel & Ames Cor. sec. 357; Boston v. Shaw, 1 Met. (Mass.) 130; Commonwealth v. Stodder, 2 Cush. (Mass.) 562.

29 State v. Trenton, 53 N. J. L. 132, 20 Atl. Rep. 1076.

30 Paxon v. Sweet, 13 N. J. L. 196.

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reason and apparent necessity, they should not be held null by the courts.' "In assuming of the right to judge of the reasonableness of the exercise of corporate powers, courts will not look closely into mere matters of judgment where there may be a reasonable difference of opinion. It is not to be expected that every power will always be exercised with the highest discretion, and when it is plainly granted a clear case should be made to authorize an interference on the ground of unreasonableness.''32 Where it is conceded that a municipal corporation has the power to pass an ordinance, "the mere passage of the ordinance makes out a prima facie case for the validity of the ordinance, so far as it concerns any question of reasonableness; the presumtion is in favor of the exercise of the power of the city authorities as being a reasonable and legitimate exercise of such power. When the courts are called

upon to exercise the judicial powers in declaring a municipal ordinance unreasonable, they will make such a declaration only when the prima facie case made by the passage of the ordinance is overcome in the most satisfactory manner.

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6. Doubt as to Nuisance. "In doubtful cases," says the Supreme Court of Illinois, "where a thing may or not be a nuisance, depending upon a variety of circumstances, requiring judgment or discretion on the part of the town authorities in exercising their legislative functions, under a general delegation of power like the one we are considering, their action, under such circumstances, will be conclusive of the question. There are many innoxious useful things which the municipal authorities of a town or city could not lawfully, under a general grant of power, like the one in question, declare a nuisance -such, for instance, as the exercise of certain trades and callings, as that of a physician, druggist and the like. In all such cases as these, courts, acting upon their own experience and knowledge of human affairs, would say, as matter of law, the exercise of these trades or callings, or things of like character, are not nuisances, and that any

31 Morse v. West Point, 110 Mo. 502, 508; City of Tarkio v. Cook, 120 Mo. 1,9; Maggard v. Pond, 77 Mo. 117; State v. Burgdoerfer, 107 Mo. 1, 34; State v. Kingsley, 108 Mo. 135, 139.

32 Per Bliss, J., in St. Louis v. Weber, 44 Mo. 550. 33 Morse v. West Point, 110 Mo. 502, 508, 509.

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