POLICE POWER 31 



gation of the facts, and that it is not the result of 

 either prejudice or emotion. "While a city cannot 

 by ordinance make that to be a nuisance which is 

 not such in fact, where there is an honest dif- 

 ference of opinion the determination of the com- 

 munity as expressed in a city ordinance is gen- 

 erally held to be conclusive for that community.^^ 

 A resolution of a board of health declaring that 

 certain property is a nuisance is not a judicial 

 determination of the question, and its opinion thus 

 expressed is subject to deteraiination by the 

 court.^^ 



Ordinarily legislative determination is held to 

 be conclusive as to whether or not a thing or con- 

 dition shall be deemed a nuisance ; but this is not 

 always so. If the legislature authorizes an act to 

 be done which without the statute would consti- 

 tute a public nuisance, such an act is thereby made 

 lawful, and cannot legally be considered a nui- 

 sance, unless the legislature exceeded its authority, 

 since a public nuisance per se cannot be lawful. ^^ 

 Just as the declaring that to be a nuisance does 

 not make it so when it is not a nuisance in fact, 

 so, conversely, for the legislature or city council 

 to declare a thing not to be a nuisance when it is 

 really a nuisance, does not protect the owner or 

 doer of the act in continuing thus to injure or 

 endanger others. In granting a permit, as for the 

 maintenance of a factory, it is presumed that the 

 business will be so conducted as not to create a 

 nuisance. It is hardly to be presumed that legis- 



i3Bushnell v. C, B. & Q. R. i-i Sopher v. State, 169 Tnd. 



E. Co., 259 111. 391. 177, 81 N. E. 913. 



14 Gaines v. Waters, 64 Ark. 

 609, 



