concluding that judicial review of administrative determination of what constitutes a nuisance is required because “nothing less would amount to due process of law, without which the Bill of Rights declares no citizen shall be deprived of his property”
How later courts described this case
- concluding that judicial review of administrative determination of what constitutes a nuisance is required because “nothing less would amount to due process of law, without which the Bill of Rights declares no citizen shall be deprived of his property”
- explaining that administrative determination of nuisance generally “is not conclusive”
- “The State, in the exercise of its public power, may denominate certain things to be public nuisances, and because of their having that character provide for their summary abatement.”
Written by the judges who cited it.
The opinion
Mr. Justice HAWKINS
delivered the following concurring opinion.
The conclusions of law set forth in the foregoing opinion, applying constitutional limitations upon legislative authority and upholding the right of this property owner to a hearing, in a judicial tribunal, on the facts, in advance of the destruction of his property, have my hearty concurrence. But I do not concur in the declaration that “It is wholly unreasonable that the trees of this one hedge threatened a general pestilence for all the citrus fruit trees in that vicinity.”
That expression serves no useful purpose. The reasoning of the opinion, resulting in said conclusions of law, is complete without it. The controlling thought in relation to the lack of proper showing of acute danger or imminency of such general pestilence is strongly stated in the next preceding sentence: “We decline to hold that any such emergency was presented.”
It will be observed that said first quoted declaration, standing alone, is not restricted to and does not even involve the question concerning the imminency, or acute danger in point of time, of said alleged general pestilence. Said declaration carries no express or necesarily implied reference to any emergency. Consequently that declaration, considered apart from other portions of the opinion, reasonably may be construed and understood to be of general import, and as asserting, broadly, that in the opinion of this court, and as a matter of law, it is wholly unreasonable to contend that the diseased condition of trees in said hedge threatens any general pestilence, (whether near or remote in time), for other citrus fruit trees in that vicinity.
In that sense said declaration would constitute an invasion by this court of the province and functions of the trial court, or jury, in relation to an untrammeled determination, in the first instance, of the facts, and would not be in harmony with the order of this court remanding the cause to the trial court for proper ascertainment, by such judicial tribunal, of the material facts, which may or may not support a decree of court abating the alleged nuisance.
My objections to said declaration are not sufficiently answered by the suggestion that its meaning and effect are brought out and controlled by other portions of the opinon in which it is embodied. That though may prove helpful in future; but it should not presently prevent elimination or modification of said declaration concerning an issue of fact.
Opinion filed May 14, 1920.