Heylman v. District of Columbia, 27 App. D.C. 563

Heylman v. District of Columbia

27 App. D.C. 563

| D.C. Cir. | 1906

Mr. Chief Justice Shepard

delivered the opinion of the Court:

*566The counsel for the District of Columbia, being compelled to confess error in the admission of the certificate of the physician as evidence, seek to sustain the conviction on the ground that the remaining evidence was ample to show guilt of the particular offense charged, namely, disturbing the quiet and comfort of a certain person in ill health. This contention involves the question whether in the case of trial by the police court, any more than in a trial by jury, a conviction can be affirmed where material testimony has been erroneously admitted on behalf of the prosecution.

It is unnecessary to pass upon the question. The difficulty in the case is with the regulation itself. Whether it creates, two offenses — one, that of disturbing the comfort and quiet of the neighborhood, and, second, that of disturbing the comfort and quiet of a person in ill health — is also unimportant in this consideration. The latter is the particular offense charged in the information, and, by express provision of the regulation, is “to be evidenced by the certificate of a duly licensed physician.” We are not warranted in treating those words as mere surplusage. To do so would be to materially amend the regulation, and then undertake to enforce it as amended. Moreover, those words were evidently used for a purpose. They indicate clearly the manner in which the offense shall be proved, and that character of proof is plainly illegal. It follows, therefore, that the regulation is void and incapable of enforcement. We are not to be understood as meaning that the keeping of barking and howling dogs on one’s premises in a populous neighborhood may not so interfere with the peace and quiet of the same as to become a nuisance within the power of municipal prohibition. One must so use and enjoy his own property as not to infringe the legal rights of others. All regulations looking to the protection of the rights of others in such cases must be reasonable, and the test of reasonability is that the prohibited use must be one naturally productive of material discomfort to persons of ordinary susceptibilities, tastes, and habits, and under ordinary circumstances exceptions cannot be made to meet cases of pronounced idiosyncrasies and infirm health. Akers v. Marsh, 19 App. D. C. 28, 42.

*567However this may be, the present regulation is invalid for the particular reason above given. The judgment will be reversed and the cause remanded, with direction to dismiss the information.

It is so ordered. Reversed.