pose of being registered and authenticated, according to the provisions of this title, marriages shall be solemnized only by the following persons:

"Ministers of the gospel, or of legally incorporated religious congregations, the leader of the Society for Ethical Culture in the city of New York, and priests of every denomination, mayors, recorders and aldermen of cities, judges of the County Courts, justices of the peace, and justices of the District Courts and police justices in the city of New York, justices and judges of courts of record."

It was not seen how marriages "solemnized agreeably to the regulations of societies," but not "for the purpose of being registered and authenticated, according to the provisions of the title," by the persons therein nained, could be received, entered and made a matter of record, so as to furnish the presumptive proof specified.' Returns of such marriages were undoubtedly a part of the vital statistics required, but were not for registry under this law. It followed that some certificates could not be received for record, while the marriages were still susceptible of proof, and might be held valid on the same kind of evidence as the respective certificates purported to give.'

In 1879, in the N. Y. Supreme Court, in the case of The People on the relation of Wolfgang Kufner, against the Health Department, etc., an application for mandamus to record a certificate, made by a notary public, of the acknowledgment and declarations before him of persons uniting in marriage, was denied, and on appeal the decision was affirmed. A recent decision of the Rhode Island Supreme Court has given us the following statement: "In proof of a ceremonial mar

12 R. S., chap. 8, tit. 1, pp. 139-141; O'Gara v. Eisenlohr, 38 N. Y. 291, 296–299. 2 Best Presumpt., L. & F. 46; Ransom v. Ransom, 156 Mass. 78.

3 The distinctive qualification of "ministers of the gospel" and "priests of every denomination," excluded some officers claiming to be rabbi in incorporated religious societies, who could not be classified as priests, acknowledged of any denomination, and their certificates did not come within the law, with the one exception of the statute, for the leader of the "Society of Ethical Culture."

The case was reported in the newspapers of the day, but is not to be found in Hun's Reports.

Odd Fellows Ben. A. of R. I. v. Carpenter, 17 R. I. 720, and see cases cited in the opinion. This case holds that cohabitation for about five months, without proof when it commenced, and that the fact that the man recognized the woman in his will as his wife, are not sufficient proof of their being husband and wife to support a common-law marriage in view of the man's contradictory statements, and of a serious misunderstanding between him and his children from his relations with this woman. In Fagan v. Fagan, N. Y. Supreme Court, General Term, July, 1890, Mr. Justice Bartlett re

riage, the marriage certificate, or record of evidence, or a witness thereof, must be produced."

The general power of a State to control and make exactions of all trades, professions and occupations has recently been passed upon by the Supreme Court of the United States in Ficklen v. The Taxing District of Shelby County, and would seem also to cover this subject.' The regulation licenses and taxes of occupations are considered in a subsequent chapter.

views New York cases, and decides that cohabitation for twenty years is not sufficient proof of marriage, and adds, "As to the morality of defendant's conduct I have no comments to make, whatever we may think of it, the court cannot properly punish him by adjudging a marriage to exist where there was no marriage in fact."

1 Ficklen v. Shelby Tax Dist., 145 U. S. 1; Ex parte Williams, 20 S. W. R. 582, and cases cited; see chap. XVI.

2

CHAPTER IX.

OFFENSIVE TRADES AND NUISANCES.

The law of offensive trades and nuisances has been extended and diversified, rather than changed, and remedies, both legal and equitable, have multiplied since the days when all nuisances were comprehended in two classes, public and private.' Blackstone reminds the student that common nuisances annoy the whole community in general, and, therefore, are indictable only and not actionable, but he mentions one exception, "where a private person suffers some extraordinary damage beyond the rest of the king's subjects by a public nuisance, in which case he shall have a private satisfaction by action." Chancellor Kent foreshadows the rise of statutory law on this general subject, in his description of the power of government to interdict such uses of property as would create nuisances, and become dangerous to the lives or health or peace or comfort of the citizens. To the list must be added or perhaps included under the word "peace," what in the wisdom of the legislature may be deemed dangerous to the morals of the people,* and even to sound trade. Equity could interfere by injunction where the injury was irremediable, on the principle of the inadequacy of the remedy at common law."

3

The New York Court of Appeals, in Health Department v. Purdon, while sustaining the power of the court to issue an injunction "in case of the exercise of any trade or business which is either illegal or dangerous to human life, detrimental to health or the occasion of great public inconvenience," saying, "it is not only conferred by the provisions of the statute, but belongs to the general powers possessed by

1 4 Blackst. Com. 167.

23 Blackst. Com. 220; see Sharswood & C. notes.

32 Kent, 340.

4 Mugler v. Kansas, 123 U. S. 623; People v. Arensburg, 105 N. Y. 129; Comm. v. Huntley, 156 Mass. 236.

52 Kent Com. 340, notes; 3 Ired. Eq. (N. C.) 301; Attorney-General v. Sheffield Gas Co., E. L. & Eq. 639.

courts of equity to prevent irreparable mischief, and obviate dangers, for which no adequate remedy exists at law;" proceeds to quote with approval the language of Chancellor Brougham, in Earl of Ripon v. Hobart, regarding the extension of equity powers: "It is always to be borne in mind that the jurisdiction of this court over nuisances by injunction at all is of recent growth, has not till lately been much exercised, and has at various times found great reluctance on the part of the learned judges to use it even in cases where the act or thing complained of was admitted to be directly and immediately hurtful to the complainant."

The development by statute law has been very great.' In Indiana, courts have held the common-law nuisance passed by and not existing, and the codes and revisions of laws have elsewhere provided substitutes classifying all offenses, and attempting to regulate every right of action, but in California and in other States, among them New York, statutes giving remedies by action do not take away any common-law remedy in the abatement of nuisances. In general it may be said, the courts, civil, criminal and in equity, have been given larger jurisdiction, and to every suitor wider doors are opened for relief. Some of the old distinctions, doubtless, must be modified. The State legislature may declare a place, business, property or thing, a public nuisance, which is not such, per se, or at common law. A private nuisance is not limited to "hurt or annoyance to the land, tenements and hereditaments of another," and in the light of such cases as Bohan v. Port Jervis GasLight Company, and Baltimore and Potomac R. R. v. Fifth Baptist Church, the difference in result between actions in respect to injuries to property, and respecting acts producing personal discomfort, is lost. Furthermore, there may be the legislative authorization of a nuisance, public or private, of which there are numerous examples.

199 N. Y. 241, 242; 3 Myl. & Keen, 179; 2 Kent Com. 340, notes.

2 Hackney v. State, 8 Ind. 494; Stiles v. Laird, 5 Cal. 120; Gould v. City of R., 105 N. Y. 49; People v. Sturtevant, 9 N. Y. 263; Henderson v. N. Y. C. R. R., 78 N. Y. p. 423, at p. 430; and see 90 N. Y. 122; 112 N. Y. 189-190.

3 Mugler v. Kansas, 123 U. S. 623; Stone v. Mississippi, 101 U. S. 814; Bohan v. P. J. G. L. Co., 122 N. Y. 18; Bal. & P. R. R. v. Fifth Bap. Ch., 108 U. S. 31; People v. West, 106 N. Y. 293. Of legalized nuisances, are purprestures, and structures in the streets, and see the questions discussed in Atwater v. Trustees, 124 N. Y. 602, where a coffer-dam was erected in the outlet of a lake and caused the overflow upon plaintiff's land. Fertilizer Co. v. Hyde Park, 97 U. S. 670; see People v. Rosenberg, 138 N. Y. 410-416, as to prohibition of fat-rendering business within corporate limits, and the quære." Douglas v. Com., 24 S. W. Rep. 233.

per

"There is a class of nuisances designated legalized," is the remark of the court in Fertilizer Company v. Hyde Park, which added to those declared by statute to be common nuisances per se, and to the private nuisances, working not only material, but personal annoyance haps not limited to a single complainant, make with public nuisances at least four classes, merging ofttimes as they are regarded from a different point of view, or spreading out to new relations. Legalized nuisances "rest for their sauction upon the intent of the law under which they are created, the paramount power of the legislature, and the importance of the public benefit and convenience involved on their continuance." Private nuisances, though said to differ in principle from public nuisances in that they are not necessarily founded upon a wrong, and, consequently, cannot be indicted and punished as an offense, may not always maintain this character, as we have seen in the gunpowder cases cited in a previous chapter, or in Commonwealth v. Kidder, in Massachusetts, where it was held that a statute authorizing the storage and refining of petroleum "did not justify the manufacture at any place where the necessary consequence was the emission of vapors which constitute a nuisance at common law by their unwholesome and offensive nature." Yet, in a business of a public nature and utility which the State can control and provide for, immunity is not granted for consequential damages sustained by private persons, as would appear by Bohan v. Port Jervis Gas-Light Company, and Baltimore and Potomac R. R. Co. v. Fifth Baptist Church, above mentioned.

There are qualifications of this power of the legislature.' It cannot be used as a cover to withdraw property from the protection of law, or decree the destruction of property used so as to constitute a nuisance merely as a punishment of the wrong, it not being a nuisance per se ; while the legislative authorization of a nuisance "exempts only froin liability to suits, civil or criminal, at the instance of the State; it does Bot affect any claim of a private citizen for damages for any special inconvenience and discomfort not experienced by the public at large.' Yet, acts, as was said in Lawton v. Steele, such as are "reasonable inci

1 Lawton Steele, 119 N. Y. 226–239; Mugler v. Kansas, 123 U. S. 623; Stone v. Mississippi, 101 U. S. 814; Bal. & Pot. R. R. v. Bap. Ch., 108 U. S. 332; Sinnickson v. Johnson, 2 Harr. (N. J.) 151; Comm. v. Kidder, 107 Mass. 188; Fish v. Dodge, 4 Denio, 311. A public hospital for small-pox patients held not to be a "noxious business" under the limitations of a statute. Eng. Ct. App., 68 Law T. R. (N. S.) 337; Wittington Bd. of H. v. Corporation of Manchester. An insane asylum not to be prohibited. Ex parte Whitwell, Sup. Ct. of Cal., April 1, 1893, 32 Pac. R. 87; Douglas v. Com., 24 S. W. Rep. 233.

2 108 U. S. 332; 122 N. Y. 34; Hill v. Managers Met. Asylum, L. R., 4 Q. B. 433.