| Ark. | Nov 12, 1898
(after stating the facts). The question presented by this appeal is, whether a city council can confer upon the board of health power to abate nuisances dangerous to the public health. The circuit judge charged the jury at the trial that the city council had no such power, but that was before the case of Gaines v. Waters was determined by this court. We said there that the “contention that the city council could not delegate to the board of health the power to determine judicially that a certain structure is or is not a nuisance has no bearing on the case, for- the reason that the council itself had no such power, nor does the board of health, in abating nuisances, exercise judicial powers, within the usual meaning of such term.” Gaines v. Waters, 64 Ark. 609" date_filed="1898-01-08" court="Ark." case_name="Gaines v. Waters">64 Ark. 609; Cole v. Kegler, 5 Am. & Eng. Corp. Cases, 361, and note.
We think it equally clear that counsel for appellee are mistaken in their contention that the power to abate a nuisance is a legislative power. “Legislative power is the power to enact laws, or to declare what the law shall be,” (Anderson’s Law Dictionary.) It is the power to enact new rules for the regulation of future conduct, rights and controversies. Cooley on Const. Lim. 110-112. It is very plain that the board of health does not, in abating a nuisance, exercise any such power.
The legislature has expressly conferred upon the city council legislative power in the matter of creating a board of health, and has authorized the council to invest the board “with such powers, and impose upon it such duties, as shall be necessary to secure the city and the inhabitants thereof from the evils of contagious, malignant and infectious diseases.” The powers which the council is thus authorized to confer upon the board are not specifically enumerated, further than they must be such only as ‘ ‘ shall be necessary to secure the city and the inhabitants thereof from the evils of. contagious, malignant and infectious diseases.” From the language, used we do not think that the legislature intended that the functions of the board should be advisory only, but that it intended to authorize the council to confer upon the board such limited discretionary and executive powers as might be necessary: to effect the purpose for which the board *was created. Aull v. City of Lexington, 18 Mo. 401" date_filed="1853-07-15" court="Mo." case_name="Aull v. City of Lexington">18 Mo. 401. Within the limitations named, a discretion is given the city council. The power to abate nuisances dangerous to the public health comes, as we think, fairly within the limitations imposed by the statute. We therefore adhere to our former ruling that the city council may confer upon the board of health power to abate such nuisances. Gaines v. Waters, 64 Ark. 609; Cole v. Kegler, 5 Am. & Eng. Corp. Cases, 361, and note.
The nuisance must be one the abatement of which tends to protect the city and the inhabitants thereof from the evils of contagious, malignant and infectious diseases. The council could not confer upon the board power to abate a nuisance which tended only to injure property rights or the morals, of the inhabitants of the city; it must be one affecting the public health.
It follows, from what we have said, that, in our opinion, the circuit judge erred in instructing the jury. The judgment is therefore reversed, and a new trial is ordered.