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 determination by the 
court.14 
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- 
13 Bushnell v. C., B. & Q. R. 15 Sopher v. State, 169 Ind. 
R. Co., 259 Ill. 391. 177, 81 N. E. 913. 
14Gaines v. Waters, 64 Ark. 
609. 
