they may be combating. How an act authorized by the Legislature could per se be unlawful we do not see.

He then on this basis told the jury the Legislature could not be construed to have authorized a violation of law, and the powers conferred on the city were to be exercised with due regard to the legal rights of all; and if in the exercise of their powers the city or county should violate the law they would be amenable to the law for its violation. Just precisely what his honor intended the jury to understand by these generalities it is not very easy to see thus far. But the next sentence enables us perhaps to gather the application of the remarks quoted. He summed up the point to the jury in these words: "The question on the indictment is, nuisance or no nuisance, and if the nuisance be proved, then the next question is, who caused it or procured it to be done?" He then instructs the jury that in misdemeanors all who participate are principals in the act, and adds: "Relatively all citizens of community have rights for the use and enjoyment of the common air in as pure a state as the ordinary transactions of men permit."

The theory of all this is, that though the hospital was properly located, and burning the best means to destroy the infected articles of clothing and the like under the circumstances, yet if in doing it the air was rendered less pure than by the ordinary transactions of men, the defendants were guilty and should be convicted of the nuisance charged. This, under his previous definition of a nuisance, as "that which incommodes or annoys, something which produces inconvenience or damage," left the jury nothing to do but find this inconvenience or annoyance; and if so, then a verdict of guilty must follow.

This is made stronger and clearer by his refusal to charge as requested by defen lant's counsel in the first request made, which was substantially that if the burning of the infected clothing which had been used by persons afflicted with small pox, at or near the hospital grounds, was reasonably necessary to prevent the spread of the disease, and if done in a place reasonably remote from human habitation, then the mere smoke and smell arising from the burning of such clothing, although it may have been a temporary and slight inconvenience to such of the people as may be living in the neighborhood, would not, under these circumstances, be an indictable nuisance. This request is sound law, as we think. Refusing this request, and charging as he did, involved the proposition that means reasonably adopted to prevent the spread of the disease could not be used if it produced temporary inconvenience to persons resident near where the means were thus being

used.

In this his honor clearly erred. All the rules of our law that rest on the idea of restraint or limitation placed upon the rights of the indi

vidual, where the interests of the public are to be advanced or protected, are based on the opposite theory from what is thus announced by his honor.

The general principle resulting from the decided cases is thus given by Judge Cooley.1 "It would," he said, "be quite impossible to enumerate all the instances in which the police power is or may be exercised, because the various cases in which the exercise by one individual of his rights may conflict with a similar exercise by others, or may be detrimental to the public order or safety, are infinite in number and variety. And there are other cases where it becomes necessary for the public authorities to interfere with the control by individuals of their property, and even destroy it where the owners themselves have fully observed all their duties to their fellows and to their State, but where, nevertheless, some controlling public necessity demands the interference or destruction. A strong instance of this description is where it becomes necessary to take or destroy the private property of individuals to prevent the spreading of a fire, the ravages of pestilence, the advance of a hostile army, or any great public calamity. Here the individual is in no default, but his interest must yield to that necessity which knows no law."

The principle thus stated is sound and applicable to the case in hand. The proof very definitely tended to show that burning the articles mentioned was the best means known of preventing the spread of infection, if not the only certain means of doing so; that it was the uniform practice in hospitals where such diseases were being treated, and recognized as the accredited mode, recommended and indorsed by the best lights of the medical profession.

If this be so, then the simple question is whether parties using such means so accredited in good faith shall be held criminally liable if they should produce temporary inconvenience to other parties near by, for this is the substance of the request refused by his honor.

The loss to the individuals was only a temporary one by having the air for a time impregnated with smoke, offensive though it was, yet if this was done in order to, and did reasonably tend to prevent the spread of a loathsome and dangerous disease, by which the lives of from twenty-five to fifty per cent of persons attacked are liable to die, as one physician swears in this case, then it is too clear to doubt that the interest of the life of many can not be permitted to be periled that others may enjoy the air untainted by smoke from clothing infected by the disease being burned at a reasonably safe distance from their dwellings. If you may rightfully destroy the house in which a man

1 Const. Lim. (54h ed.) 739.

dwells in order to prevent the spread of a fire or the ravages of a pestilence, it follows you may much more destroy for a time the salubrity of the air, provided it shall tend reasonably to the result demanded by the public interest.

We do not deem it necessary to enlarge on such a proposition.

The rule applicable to such a case is that if the act was done by public authority or sanction, and in good faith, and was done for the public safety and to prevent the spread of the disease, and such means used as are usually resorted to and approved by medical science in such cases, and was done with reasonable care and regard for the safety of others, then the parties were justified in what they did, and the parties inconvenienced could not complain nor could the State enforce a criminal liability for results of temporary inconvenience or unpleasantness that accrue from the use of such proper and accredited means for the safety of the community against the spread of the disease.

The theory of his honor is the opposite of this and is erroneous. the judgment be reversed and the case remanded for a new trial. Judgment reversed; case remanded.

Let

GAME LAWS-OFFERING TO SELL BIRDS KILLED IN ANOTHER STATE.

COMMONWEALTH v. HALL.

[128 Mass. 410; 35 Am. Rep. 387.]

In the Supreme Judicial Court of Massachusetts, 1880.

The Statute Punishing any one who in Massachusetts takes or kills a woodcock, etc., between specified days, or buys, sells, offers for sale or has them in his possession within the same time, does not apply to such birds lawfully taken or killed in another State.

Conviction of unlawfully offering woodcock for sale. The opinion states the facts.

E. Avery, for defendants.

G. Marston, Attorney-General, and F. H.

Geelitt, Assistant Attorney-General, for the Commonwealth.

GRAY, C J. This complaint is founded on the statute of 1879,1 by which it is enacted that "whoever in this Commonwealth takes or kills ny woodcock or any ruffed grouse, commonly called partridge, between the first day of January and the first day of September in any year, or any quail between the first day of January and the fifteenth day of

October in any year, or within the respective times aforesaid sells, buys, has in possession or offers for sale, any of said birds, shall upon conviction be punished by a fine of $20 for each and every said bird.” The clause of this statute as to having in one's possession within the times mentioned "any of said birds" neither on the one hand, expressly includes like the statute of 1855,1 and the General Statutes 2 "birds taken or killed in this Commonwealth or elsewhere; nor on the other hand is it in terms limited like the Revised Statutes,3 and the statutes of 1870,4 and 1877,5 to birds taken or killed within the Commonwealth.

The question presented by the case at bar is whether in the absence of any explicit manifestation of the intent of the Legislature the words "any of said birds' are to be construed in the larger sense as meaning any woodcock, partridge or quail whatever; or in the more restricted sense as meaning any woodcock, partridge or quail taken or killed in this Commonwealth within the times before mentioned. By the first alternative the mere possession in the first part of every year, of birds which had been lawfully taken or killed in another State, or even in this Commonwealth, and at a time when it was lawful to kill them here, would be made a punishable offense; as if for instance woodcock killed in the autumn should be preserved in ice after the first of January for subsequent consumption. To adopt such a conclusion, when not imperatively required by the language of the act, would be inconsistent with the ordinary rules of construction of penal statutes.

Some stress was laid by the attorney-general on the proviso inserted at the end of section 1 of the statute of 1879 in these words: "Provided that any person may buy, sell or have in possession quail and pinnated grouse, commonly called prairie chicken, during the months of January, February, March and April, provided the same are not taken or killed contrary to the provisions of this act.” This proviso, with no other change except in being limited to four months instead of extending throughout the year, is taken from the statute of 1877,6 in which it appears at the end of section 7, corresponding to section 9 of the statute of 1879 and imposing a penalty on "whoever in this Commonwealth at any season of the year, takes or kills any pinnated grouse, commonly called prairie chicken, unless upon ground owned by him and grouse placed thereon by the owner." This proviso relating both to quail and to pinnated grouse, has thus been transferred, from a section relating to pinnated grouse and not to quail, to a section relating to quail and not to pinnated grouse. That it is not necessarily inconsis

1 ch. 197, sec. 1.

2 ch. 82, sec. 1.

3 ch. 53, sec. 1.

4 ch. 304, sec. 1.

5 ch. 95, sec. 1.

6 ch. 95.

tent with a strict construction of the enacting clauses of the statute is shown by the very fact of its having been first introduced in the statute of 1878 which expressly limited the prohibition of having in possession woodcock, partridge or quail to those "taken or killed within this Commonwealth."1

The true construction of the clause in question is put beyond doubt by section 10 which enacts that "in all prosecutions under the provisions of this act, the possession, except as provided in section 1, by any person or corporation, of birds mentioned as protected by this act, during the time within which the taking or the killing of the same is prohibited, shall be prima facie evidence to convict under this act.” That the words "except as provided in section 1, " refer to the proviso only and not to the enacting clauses of that section, may be inferred from the exceptions not mentioning the second, third and fourth sections, relating to ducks and teal, plover and redsnapper, doves and terns, which contains no such proviso, but are in all other respects like the first section. And saying that possession shall be prima facie evidence necessarily implies that it shall not be conclusive, and if the mere possession of birds during the time within which the taking or killing of them is prohibited, of itself constituted an offense under the previous sections of the statute, to say that such possession shall be prima facie evidence would be superfluous if not absurd.

The object of the statute is to protect these birds during the breeding season and for such a reasonable portion of the year as may prevent them from being exterminated or their numbers diminished in this Commonwealth. The mode in which the statute seeks to attain this object is by punishing the taking or killing of such birds in this Commonwealth during the times specified, or the buying, selling, offering for sale, or having in possession in this Commonwealth during those times, of birds so taken or killed; and by enacting that the possession in this Commonwealth at such times of any birds of the kinds specified shall be prima facie evidence to convict; leaving it for the defendant to prove if he can that the birds found in his possession were not taken or killed in this Commonwealth at a prohibited time. So construed, the statute is reasonably adapted to carry out its object, and is free from all constitutional difficulty.2

In the case at bar it being agreed that the woodcock which the defendants had in their possession, offered for sale and sold, had been lawfully taken or killed in another State, the defendants were wrongly convicted.

1 Stat. 1877, ch. 95, sec. 1.

2 Com. v. Williams, 6 Gray, 1,6; Phelps v. Racey, 60 N. Y. 10; s. c. 19 Am. Rep. 140; Railroad Co. v. Husen, 95 U. S. 465.