Nuisance in Law
In the development of American law, the legislature assumed the statutory power to declare a use previously considered to be "innocent" as "malum prohibitum" ( evil or noxious by virtue of legislative determination, or "nuisance in law.) Through statute and the general authority of the "police," (or "municipal powers,") the legislature clarified and enlarged the types of property use that would constitute a "public nuisance." Such would include individual private actions, occupations and land uses that caused (or threatened to cause) a real and substantial injury to the person, property, property ownership, or equal rights of others as the public-at-large. These nuisances were statutorily identified and prohibited or regulated - most commonly in the context of zoning or their occurrence relative to a particular locality.
The traditional view of the boundaries of the police powers and their applicability to statutory declarations of "nuisance in law" are summarized in the opinion of District Court Judge Martin in the case of the Tufts v. Ziebold et al., cited in Mugler v. Kansas, 123 U.S. 623 (1887.) [Note: Although the Martin decision was overruled in Mugler, the Supreme Court's decision was, based upon (1) lack of a legitimate federal question; and (2) the determination that the private and commercial manufacture of liquor was in the nature of a legitimate "nuisance per se" under the common law, not a "nusisance in law" and, as such, a mere revocable privilege subject to permit. The concepts voiced by Martin were not negated, only their relevancy in the particular case.]
J. MARTIN..."In the implied compact between the state and the citizen, certain rights are reserved by the latter, with which the state cannot interfere. These are guarantied by the federal and state constitutions in the provisions which protect 'life, liberty, and property.' Under the doctrines of the Commune, the state has the right to control the tastes, appetites, and habits of the citizen. But under our form of government, the state does not attempt to control the citizen except as to his conduct to others. John Stuart Mill on 'Liberty,' 145, 146; 2 Kent, Comm. 1; 1 Cooley, Bl. 122, 123; Munn v. People of Illinois, 94 U.S. 113, citing Thorpe v. Railroad Co., 27 Vt. 143..."
"If the legislature can prescribe what a man shall or shall not manufacture, ignoring the question of whether he intends to dispose of it to others, or whether its manufacture is dangerous in the process of manufacturing to the lives or property of others, then the same power can prescribe the tastes, habits, and expenditure of every citizen. The right of the state to prohibit unwholesome trades, etc., is based on the general principle that every person ought to so use his own as not to injure his neighbors. This is the police power; and it is much easier to perceive and realize the existence and sources of it than to mark its boundaries. Slaughter-House Cases, 16 Wall. 36; Union Co. v. Landing Co., 111 U.S. 588, 4 Sup. Ct. Rep. 652, (opinions of Justices Bradley and Field;) Com. v. Alger, 7 Cush. 84. But broad and comprehensive as is this power, it cannot extend to the individual tastes and habits of the citizen. License Cases, 5 How. 583. Whatever may be the injurious results from the use of beer, it will not be contended that there is anything in the process of manufacturing it which endangers the lives or property of others. Corfield v. Coryell, 4 Wash. C. C. 371. There can be no doubt but that 'citizens of the United States' and 'citizens of the states' have the natural right to manufacture beer for individual use..." To this right is added the right, secured by the other clause of the fourteenth amendment, 'nor shall any state deprive any person of life, liberty, or property without due process of law.'
"The general laws governing society' guaranty the right to manufacture beer; and until the citizen attempts to sell or barter, he cannot be punished. If all that is charged in this indictment be proved, no offense is shown to have been committed under the laws of any free people. Under the power to regulate, the state cannot deprive the citizen of the lawful use of his property, if it does not injuriously affect or endanger others. Lake View v. Cemetery Co., 70 Ill. 191. Nor can it, in the exercise of the police power, enact laws that are unnecessary, and that will be oppressive to the citizen. Railway Co. v. City of Jacksonville, 67 Ill. 37-40; Tenement-House Cigar Cases, 98 N. Y. 98; People v. Marx, 99 N. Y. 377; Intoxicating Liquor Cases, 25 Kan. 765, ( opinion of Judge BREWER;) Calder v. Bull, 3 Dall. 386; Fletcher v. Peck, 6 Cranch, 135; Dash v. Van Kleeck, 7 Johns. 477; Taylor v. Porter, 4 Hill, 146, (per Bronson, J.;) Goshen v. Stonington, 4 Conn. 225, (per HOSMER, J.)"
..."A legislative enactment cannot make that a nuisance which is not such in fact. To make such a determination is a judicial function. Rights of property cannot be so arbitrarily destroyed or injured. Yates v. Milwaukee, 10 Wall. 497, 504, 505; Hutton v. City of Comden,, 39 N. J. Law, 122, 129, 130; Cooley, Const. Lim. (5th Ed.) 110, and notes, 446; Lowry v. Rainwater, 70 Mo. 152; Jeck v. Anderson, 57 Cal. 251. Such a legislative determination would also be void, because, where the fact of injury to public health or morals did not exist, as here, it would be a violation of the absolute right of the citizen to follow such pursuit as he sees fit, provided it be not in fact 'injurious to the community.' People v. Marx, 99 N. Y. 386, 2 N. E. Rep. 29, and cases cited. Such legislation is unconstitutional. Quintini v. City of Bar St. Louis, 1 South. Rep. 625, 628."
"The police power cannot go beyond the limit of what is necessary and reasonable for guarding against the evil which injures or threatens the public welfare in the given case, and the legislature, under the guise of that power, cannot strike down innocent occupations and destroy private property, the destruction of which is not reasonably necessary to accomplish the needed reform; and this, too, although the legislature is the judge in each case of the extent to which the evil is to be regulated or prohibited. Where the occupation is in itself immoral, there can be no question as to the right of the legislature. 2 Kent, Comm. 340. Nor is it denied that every one holds his property subject to the proper exercise of the police power. Dill. Mun. Corp. 136; Tied. Lim. Police Power, 122, 122a; Com. v. Tewksbury, 11 Metc. 55. Nor that the legislature can destroy vested rights in the proper exercise of this power. Coates v. Mayor of New York, 7 Cow. 585. But the unqualified statement that when the legislature has exercised its right of judging, by the enactment of a prohibition, all other departments of the government are bound by the decision, which no court has a right to review, (Bish. St. Cr. 995,) cannot be true. The legislative power cannot authorize manifest injustice by positive enactment, or take away security for personal liberty or private property, for the protection whereof government was established. Calder v. Bull, 3 Dall. 386. The state cannot deprive the citizen of the lawful use of his property if it does not injuriously effect others. Lake View v. Cemetery Co., 70 Ill. 191. The state cannot enact laws, not necessary to the preservation of the health and safety of the community, that will be oppressive and burdensome to the citizen. Railway Co. v. City of Jacksonville, 67 Ill. 37. The constitutional guaranty of life, liberty, and pursuit of happiness is not limited by the temporary caprice of a present majority, and can be limited only by the absolute necessities of the public. Intoxicating Liquor Cases, (BREWER, J.,) 25 Kan. 765; Tenement-House Cigar Case, 98 N. Y. 98; Cooley, Const. Lim. (5th Ed.) 110, 445, 446. No proposition is more firmly established than that the citizen has the right to adopt and follow such lawful and industrial pursuit, not injurious to the community, as he may see fit. People v. Marx, 99 N. Y. 377, 386, 2 N. E. Rep. 29. The mere existence of a brewery in operation, or of beer therein in vats, or packages not intended for consumption in the state is not in any way detrimental to the safety, health, or morals of the people of Kansas; nor can it be said that there is anything immoral in the business of brewing, or in beer itself, as in gambling or lotteries. Stone v. Mississippi, 101 U.S. 814."
