chief already done; and that if the house where the powder was kept was appropriated for that use before the houses near by were erected, it is no nuisance, and that if gunpowder be kept in such a place, as it is dangerous to the people, it becomes a nuisance. This case, as far as it is any authority, goes in confirmation of the principle, that the time, place, and manner are all important and essential in determining whether a powder house amounts to a nuisance; but considering the loose manner in which this case is reported and the book in which it is found, it is not entitled to much if any consideration. The case of King v. Taylor,1 was also cited, but it throws no light on the question; it states merely the fact that the Court of King's Bench granted an information against the defendant as for a nuisance, for keeping great quantities of gunpowder, to the endangering the church and houses where he lived. The inference to be drawn from the British statute of 5 George I.,2 is certainly of very considerable weight in the argument that a powder house near dwelling-houses is not of itself and under all circumstances a nuisance. That statute recites that great quantities of gunpowder were frequently kept in warehouses and other places in and about the cities of London and Westminster to the apparent danger of the inhabitants; and it enacts that from a certain day thereafter it should not be lawful to keep above six hundred weight at one time, in any warehouse or other place, within the said cities; and it is worthy of notice that the statute also declares that after a certain day it should not be lawful to carry through the streets more than two thousand weight of gunpowder at one time, and particularly prescribes the mode of carriage. If the present indictment be good these stores of gunpowder within the city of London were probably all nuisances, as they must have been near dwellinghouses and other buildings, as well as near public streets. It can hardly be supposed that if they were so the frequent use of them would have been endured, and that it would have been deemed requisite to have declared that after such a day they should be unlawful. It is not unfrequent for a statute to come in aid of the common law by giving a new remedy or additional penalties. The case of keeping swine within the paved streets of the city of London where the houses are contiguous, is mentioned as an instance; but the language of the statute of 2 William and Mary,3 is in that case very different. It declares that for the better keeping the streets, etc., no person shall breed or keep swine under the pain of forfeiting them, and does not declare that the practice thereafter shall be deemed unlawful, for the common law had already made such a declaration.4 1 Str. 1167. 2 ch. 26. 3 Sess. 2, ch. 8, sec. 20. 42 Salk. 460. The second count in the indictment admits of much less doubt than the first. It contains only the naked fact that the defendants caused to be carried, through the streets, ten casks of powder in a cart, the wheels of which were bound with iron. The quantity of powder in these casks or the manner in which they were secured in the cart, is not stated, and it appears to me impossible to adjudge that the act alone amounted to a nuisance however well the powder might have been guarded from accident, and however small the quantity might have been. The fears of mankind will not alone create a nuisance without the existence of real danger.1 I am of opinion accordingly that judgment ought to be arrested. TOMPKINS, J., having been concerned as counsel gave no opinion. SPENCER, J., delivered a dissenting opinion. Judgment arrested. NUISANCE - PUBLIC HEALTH BURNING BY ORDER OF PUBLIC AUTHORITIES TO PREVENT SPREAD OF DISEASE. STATE v. MAYOR AND Aldermen of Knoxville. [12 Lea, 146; 47 Am. Rep. 331.] In the Supreme Court of Tennessee, 1883. It is not an indictable nuisance for city authorities to burn infected bedding and cloth. ing to prevent the spread of small-pox, using proper means and precautions for the safety of others, although such burning causes inconvenience to a few persons by nox. ious smoke and vapors. Conviction of nuisance. The opinion states the case. Lea, Attorney-General, and J. C. J. Williams, for State. FREEMAN, J. It appears from this record that in the latter part of the year 1882, and first of 1883, the small-pox, as an epidemic, prevailed to a considerable extent. The city of Knoxville, as well as the county, thought it their duty, through their authorized agencies, to take active measures to relieve as well as prevent the spread of disease both in the city and the surrounding country. To this end a small-pox hospital was established at the fair grounds, about two miles from the city with suitable buildings for receiving infected patients, and two physicians, Drs. Hudgins and Shaw employed, the one by the city, the other by the county, to attend patients suffering with the disease. Among the 1 3 Atk. 750. precautionary measures taken to prevent the spread of the plague, the clothing, beds and bedsteads used by persons who had the disease and either recovered or died, were directed to be burned, no doubt, under the directions of the attending physicians. This we take it was done regularly and frequently for some months as often as occasion required. The fair grounds property consisted of between sixty and sixty-five acres of land, the building being within this property, and the infected articles burned on these grounds, probably in pits dug for the purpose. The burning seems to have been some four hundred yards from the nearest houses, but there appears to have been numerous dwellings occupied about that distance, and farther off, but still liable, more or less, to be affected by the smoke and the scent from the burning clothing, etc. That this at times was more or less offensive is probable, if not certain. For a nuisance, the result of this burning and the unpleasant effects of the smoke thus generated and disseminated, the defendants are indicted. The substance of the charge in the indictment is as follows: "That the defendants in April, 1883, near the houses of divers good citizens of the second district of said county, and near two public and common highways, to wit: the Rutledge pike and the road running by and through Eastport for all the people to pass, did keep and maintain a certain house and ground known and called a small-pox hospital, where small-pox patients and patients afflicted with the loathsome disease were conveyed and quarantined by said board of mayor and aldermen and J. C. Hudgins, and that they, the defendants, unlawfully and injuriously did burn and caused to be burned, bed clothes, feathers, bedsteads and clothing that had been used upon, for and about and in nursing said small-pox patients, and persons afflicted with small-pox as aforesaid." It is then averred that by means aforesaid that is by such burning, the said defendants did in fact impregnate and poison the atmosphere around and about said public highways and said dwellings and grounds of citizens, whereby noisome unwholesome smells from said burning aforesaid on divers days did arise so that the air was made corrupt, noisome and unhealthy to the common nuisance of the good citizens residing and passing," etc. We have quoted the language of the indictment to which the defendants plead not guilty. The question definitely made by the averment is whether the defendants are guilty of a public nuisance by burning the clothing, beds, etc., of small-pox patients so as to impregnate the air by such burning with smoke to the annoyance, hurt or inconvenience of the public residing near by or passing the public roads in the manner indicated by the statement of the indictment? It is not averred that the manner of doing this was improper, that there was any neglect of ordinary or reasonable precautions to protect persons from the effects of the burning clothing, but only that it was 'unlawfully and injuriously done" producing the smoke by which the air was unwholesomely impregnated with offensive smells from the burning articles, and this unwholesome infection of the air is averred to have been a common nuisance. There is no averment of the indictment putting in issue the right of the city or county to establish this hospital or that the hospital itself was per se a nuisance. The establishment of the hospital is only stated by way of historical inducement to the real charge, which is that by burning the clothing, beds, etc., the air was rendered unwholesome and noxious and offensive to the citizens inhabiting near the place and the public highways. This is the real question then presented by the indictment, whether under the facts and circumstances of the case under a proper charge of the court, the defendants are guilty of an offense against the public to be punished by the State in what they are charged to have done. That the State may well authorize the erection of hospitals and make such regulations as shall be deemed effective to prevent the spread of an infectious epidemic disease, no one at this day would question. It is among the inherent police powers that belong to all governments. Regulations requiring drainage in cities, the removal of offal and noxious decaying substances in the midst of dense populations, and many other like things belong to this category.1 That it can equally authorize such needful regulations and establishments by towns and cities is equally clear. In fact it might be fairly inferred as the incidental powers of a municipal government charged with the protection of life and property of a citizenship by the necessity of the case, closely aggregated within a comparatively small space, where infection in case of prevalent epidemics is liable to spread rapidly and certainly, to establish hospitals and make such regulations as would tend to isolate the infected from contact with the general public. The failure to exercise such power would be deemed in this age a mark of a crude and undeveloped civilization.2 Suffice it to say however here, that the power to establish the hospital in this case is not a question raised by the indictment directly, but the question is whether the impregnation of the air by the smoke from the burning clothing under the circumstances is criminal. That smoke or noxious vapors which materially corrupt the air, rendering the occupation of houses near hy uncomfortable as habi 2 See Cooley Const. Lim. (5th ed.) 740-743. 1 See 4 Wait Act. & Def. 764, and authori. ties cited. has tations, is a nuisance, is settled by the uniform current of authorities. That the owner or occupier of houses, whether in the city or county, the right to enjoy pure and wholesome air, that is as pure and wholesome as their local situation can reasonably supply, and any act which materially corrupts or pollutes the air, done without authority or justification is strictly a nuisance, is well settled by authority. This is all clear. The jury have found the defendants guilty, and on the facts, that is the existence of the smoke and of its rendering the occupation of the houses of persons living hard by uncomfortable and the air less pure temporarily than otherwise would have been the case from the nature of their location, there is no ground on which this court could reverse the finding of facts for want of testimony to sustain it. The question is whether this finding was under a correct statement of the law by the court below, and whether there was a sufficient justification and authority for what was done; whether his honor gave defendants. the benefit of the rules of law tending to show such justification and authority for their acts, which are not of themselves denied or seriously controverted. His honor, after defining a nuisance with reasonable accuracy and telling the jury that the burning must have been of such character and so often as to create a permanent, frequent and common nuisance, said to the jury that the question was not as to the authority of the city and county to take precautionary measures to prevent the spread of disease or to build a hospital for that purpose, or whether it was properly located, or even whether it was a suitable place, or whether the burning was the best means to destroy infected articles of bedding, clothing, etc. He then refers to the grounds of the defence that no nuisance was really committed, and if so the acts were within the scope and authority conferred on the county and city authorities by law. In reference to these defences he tells the jury that if no nuisance was committed, — that is, no injury done by the burning to the purity of the air, as a matter of course defendants were not guilty. As to whether there was any legal authority for doing what was done, the burning of the clothing, etc., and consequent creation of the smoke complained of, he says, substantially, that the powers conferred on county, court or city authorities to prevent the introduction and spread of diseases must be construed to mean lawful acts, and not the exercise of unlimited and arbitrary powers, and it could not be presumed the Legislature intended to confer such powers, as from mistake, want of proper information or regard to the rights of individuals and the public, with design or otherwise, greater evil may arise than 1 See 4 Wait Act. & Def. 748, authorities cited. |