As throwing additional light on the interpretation of the health laws of this State, and upon the right and the duty of summary authority in so great an interest as the protection of the public health, we are glad to be able to furnish the text of the recent charge of Justice E. W. Scudder, of the Supreme Court, in the case of Hyers v. Cole and others:

GENTLEMEN OF THE JURY-The plaintiff in this action has brought a suit against five different parties for alleged assault upon him, followed by arrest and imprisonment in the lock-up, at Asbury Park. This, it is alleged, took place on the 14th day of September, 1883, and he claims large damages of these defendants for the injury which he has sustained at their hands. The particulars of the occurrence are given by the parties and their witnesses, and the first question for the court and jury to determine, relates to the legal rights of the Board of Health and the police of Asbury Park; their right to inspect premises, and their right to arrest for breaches of the peace.

I do not intend to examine these laws and ordinances at this time critically; it might only embarrass you in the considerations of the facts in this case. It is the duty of the court to tell the jury what the law is, and then it is the jury's duty to apply the facts to the law.

After an examination, in the short time I have had, of the charter of Asbury Park, the laws of our State relating to Health Boards, the ordinances of the commissioners or council of Asbury Park, my conclusion is, that the health officers duly appointed, as these appear to have been, under the charter and ordinances, and the laws of our State, had the right to inspect premises, houses and lands adjoining residences in that place. I do not say what further they can do under the charter and ordinances and laws, but they had the right to inspect premises that they might base upon that inspection some action for the abatement of the nuisances, if they existed. In doing this, the inspector, whoever he may be, appointed under the charter and ordinances, must act upon reasonable cause, and that seems to me is the great guard in this case. We have heard much about officers going into people's houses and examining from mere curiosity, as an abuse of private rights, but that is not the question. The question now is, whether a man acting under public authority, duly clothed with the power of the law, has a right to make an inspection where there is reasonable cause to believe a nuisance exists. Whether there is a reasonable cause or not, is, of course, a question of fact for the jury. That is the fundamental point that lies at the basis of this action, whether they had reasonable cause to believe that there was a nuisance affecting public health upon those premises, and whether they made their examination in a reasonable way.

There is another rule of law that is fundamental to these proceedings, and that is this: when an attempt is made to enter upon a man's

premises, officers must make known to him their authority, and why they are there. Any one would resent a stranger entering upon his property and examining his premises, but if he came to you saying, "I am an officer of the law; I have reason to believe, unwittingly perhaps, you have something on your premises that is injuring the health of your family and in that way may spread in the neighborhood and do harm; I am here as a public officer to make the necessary examination; here is the badge of my office, and this is my purpose." A good citizen under these circumstances should not resist the officer and say: "You have no right here," and order him off, but would say, "For the sake of my family and my neighbors, I am willing to submit and give up some of my legal rights in this matter." There are these two points, therefore, to be determined: first, whether there is reasonable cause for the examination, and second, whether he makes known to the party the reason of his official visit. The Health Board law requires that he shall wear the "health_badge." Mr. Cole testifies that he had it upon him at the time he entered the plaintiff's premises. The plaintiff says he did not see anything of the kind. It may have been there, nevertheless, if he did not see it. These badges are worn on the breast, where they can readily be seen, or if the plaintiff had asked to see his badge of office, it might have been shown, but he asked for a paper, as if he expected some warrant to make the examination; but he was not bound to show him any warrant merely to make an examination; he had not come there to remove the nuisance, but he came as an inspector, as he has testified.

Another rule applicable to this case is this, that in making this inspection the officer must use no unnecessary force himself; and if he goes there with a power and purpose to examine and see whether there is anything wrong, he must go with the manner of a man who has a duty to perform, and not to insult and annoy. He must use no unnecessary force or violence. If, however, he is resisted in a fair examination of the premises, I think he may go as far as it may be necessary to overcome opposition, in order to discharge his public duty. The more perverseness there is in the man opposing him, the greater may be his reason to believe there is something wrong. The Inspector says he saw a heap of manure and it was covered with offensive matter, as he and Dr. Mitchell say, with maggots feeding upon something likely to breed disease. He went to the nearest door and found a man there who, when spoken to, flew into a rage and ordered him off the premises. It would be most natural to suspect, under these facts, that he had something to do with it. Why should a man be so indignant if he were innocent? All he had to do was to say that he had nothing to do with it, in a quiet way, and then, if the officer insisted upon an examination, in the discharge of his duty, it was his duty to answer his inquiries and submit to a proper examination. The officer could insist, in a respectful way, on seeing whether it came from his house. The question then was, whether there was reasonable cause to suspect

there was some nuisance there, and that it was traceable, according to the conduct of this man, to his own premises. He says he had been making root beer of some kind in his house. If the officer knew that, and he says he had heard it, it was natural for him to suppose that this refuse that he saw on the manure heap might come from that; although the plaintiff denied it, he was not bound to believe that, therefore he went in to make the inspection.

Now, so far, in looking at the ordinances, the laws and the charter, I think there was power, at least, for the officer to inspect those premises if he had a reasonable cause to believe that there was a nuisance of some kind there, likely to breed disease. You will find in the charter of 1874 quite a general power. It says: "The said commissioners (that is, the governing body of Asbury Park,) shall have power to appoint a police justice and police officers sufficient for the preservation of order, and determine the compensation they shall receive, and to suppress any nuisance, to make and enforce all necessary sanitary regulations." That is a very general power. They can "make and enforce all necessary sanitary regulations;" that is, regulations necessary to preserve the good health of that borough. The act of 1880, which has been referred to, says: "The Board of Health of any city, borough, incorporated town or township, shall examine into all nuisances, foul or noxious odors, gases or vapors, or causes of ill health or disease that may be known to them." The Board of Health may examine into all nuisances that may be known to them. They of course may make inspection; they may appoint officers to examine; it is not to be supposed that the Board itself is to examine all parts of the town; they appoint their proper officers to do it, and in this case they appointed health inspectors. In that way the Board of Health examined into all nuisances as all official bodies do. They act by committees and special officers, who are delegated to certain ministerial duties, and so the Board of Health, in this case, although they did not all go to examine these premises, yet, acting under this law and their ordinances, they had appointed health inspectors to examine into all nuisances. "The Board of Health shall examine into all nuisances that may be known to them or be certified to them," the law says. As this officer passed along the street, or the alley, he noticed this place, he says; he was an officer of the Board, not a mere intruder, or stranger, and he was acting for the Board and by their authority; he was looking into this matter and beginning to make his inquiries about it. And so as to other particulars, in going through the laws, although they are somewhat confused, the general conclusion that I have reached is that the inspector had the right to examine and see whether there was a nuisance the premises. The question for you is, whether he exercised that right properly. It is said that the officer must find the owner, or the occupant of the property, where it exists. Well, accept that as the law, was not the plaintiff in this case the occupant of those premises? He occupied a portion of the building in front of this land where the manure-heap

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was found, and, finding the door open, the inspector went to make inquiry. He may be said to be the occupant, as far as the public are concerned. There may have been other occupants, having the right to use this yard for certain purposes, but the inquiry was addressed to a proper person. At the first visit made by Mr. Cole, finding what he says, he entered or attempted to enter the house when the door was open, saw the plaintiff, and made his inquiry of him. The plaintiff said he had nothing to do with it; that it belonged to others, and it ended in his ordering the officer to go away from the house. Mr. Cole says at that conversation he used some pretty high language in reference to the Board of Health, as to their authority to come there. After Mr. Cole left, he went to the president of the Board. One of the ordinances of 1880, which has been read, authorizes the president to act, when the Board is not in session, and between their meetings he has the power to give orders. He did not convene the Board, and you can see that could not conveniently be done; to call all the members together whenever there was a case directly in view under inspection would nullify the whole law. The Board had given authority to the president to act between their meetings, and this inspector went to the president, who, by the ordinance of 1880, was acting for the Board when not in session. The president of the Board went with him to this place. They testified that they went together and examined the place where it was alleged this difficulty was found. You have heard the testimony of Dr. Mitchell of what he found there. After this examination, they went to the house and there saw the plaintiff; and Dr. Mitchell testifies, and Mr. Cole also, that they spoke to him of the nature of this offensive matter, and offered, if he would furnish a barrel, that they would have it removed. That was the first remedy they proposed. He refused to do anything, according to their evidence, and that induced Dr. Mitchell to make further examination, and in looking around the house he found some indications that induced him to believe that the origin of this trouble was in the house. He may have been mistaken about that, but as I have said, you are to say whether they were acting upon probable cause in making this examination and in going to this house. He testifies that he saw upon the ground near the house indications of something that was not right-something offensive and that led him to desire an admittance to the house. You will recollect also that these officers, acting as they did, had this further cause to believe there was something wrong, and that the plaintiff was the origin or cause of it, because Mr. Cole testified that in his first interview with Mr. Hyers he told him that he threw this offal out there himself. This is denied by Mr. Hyers, and it is not said that upon their second visit he made any such admission; it stands, therefore, upon Mr. Cole's testimony alone. If that be true, and these officers went there with that knowledge, they had some cause, at least, to look to him and to his premises for the reason. The cause might be, as has been intimated, the man

ufacture of beer or something of that kind inside, which the plaintiff now admits that he was doing. He says that it was root-beer, that he got the ingredients from New York and there was no offensive refuse from it. If that fact was known to these officers and they saw this offal outside, was it a reasonable cause for them to examine the premises? The president, Dr. Mitchell, says they told him who they were and the purpose of their visit, but he resisted and objected to any examination being made; flatly denied that he had anything to do with this offal outside and stood upon his rights; said his house was his and nobody could go into it. If that be so, then we might as well abolish all Boards of Health. If a man's contradiction is to stand against an officer's inspection of what they see and what they say he admitted; if his refusal is to stand in opposition to the law, our Boards of Health can act upon nothing except what can be seen outside the house. The great cause of disease may be inside a man's dwelling and he may be utterly unconscious of it, and if the officers come to him, stating their purpose in a peaceable way, and ask leave to make their examination, I doubt very much whether his house, under those circumstances, can be considered his castle, when the law, in express terms, authorizes an examination to be made. They entered his house, as they say, and began the examination; he objected to it; of course we must assume that, from all they say. He says distinctly that he told them to go out, when they came in the house; and then his version is that they got hold of him and took him out; that he demanded a paper authorizing them to make the search, and they said they had none. He says they used violence, and all that he did was to hold back; but he did not strike them or resist them in any way, except by holding back. When he was outside he says that Mr. Cole threw him down and held him there until these other defendants came and took him off to the lock-up.

On the other hand, the statement is this: That Dr. Mitchell and Mr. Cole entered the house for the purpose of making an inspection based on what they had seen outside, and that Mr. Cole went upon one side of the room to make an examination into a barrel, and while the doctor was looking upon the other side of the room, and as Mr. Cole was stooping over the barrel, he saw the plaintiff, Mr. Hyers, strike Mr. Cole violently on the side of the head with his fist, and, as he recovered from it, kicked him in a painful part of his person. If this statement be true and believed by you (and Mr. Cole and Dr. Mitchell say it is so), whether these defendants had any right to these premises or not, he is guilty of an assault and battery for which they had a right to arrest him. There is no law in this State that justifies a man in striking and kicking a person who is a mere trespasser upon his land. It is greater force than is necessary under the circumstances. Your first right is to order a trespasser off your lands. If he refuses, and resists and strikes you, you may strike him backusing just as much force as is necessary to resist force-and remove