4 to 5 feet high, and about one third were | weeds that were 4 to 5 feet high were rank, sunflowers. The city offered in evidence and also that rank weeds, of the height said §§ 608 and 612 of city ordinance No. 19,991, approved April 3, 1900, supra, to the admission of which defendant objected on the ground that the same were incompetent, as said sections are invalid and void, as the city had no authority or power to pass the same under its charter, and also the same are a violation of §§ 4, 20, art. 2, of the Constitution of Missouri, and articles 5 and 14 of the Amendments to the Constitution of the United States. The said objection was by the court overruled, and defendant then and there excepted to the action of the court in overruling said objection, and said sections were read in evidence. That was all the evidence in the case, and the court found the defendant guilty, and adjudged against him a fine of $10 and costs." Third. That the defendant filed a motion for a new trial, which was overruled, and he appealed. Upon this showing, the defendant assigns two errors: First, that there was no evidence to support the finding of the court; and, second, that the city had no power to enact the ordinance upon which this case rests, and that it violates §§ 4 and 20 of the Constitution of Missouri, and articles 5 and 14 of the Amendments of the Constitution of the United States. 1. The first assignment of error is untenable. The testimony is not preserved by a bill of exceptions or presented by an abstract of the record. The record only shows that "the city offered evidence tending to prove that at the time said notice was issued and served there were weeds on said premises from 4 to 5 feet high, and about one third were sunflowers." The record does not show that the defendant objected to the introduction of such evidence, nor that the court ruled adversely to him upon such proposition. The defendant, however, challenges, not the admissibility of the testimony, but its probative force, by assigning as a ground for a new trial, and as error, that there was no evidence to support the finding; and the particular reason given for the contention is that the evidence does not show that the weeds that were shown to be upon his lot exhaled unpleasant and noxious odors, nor that they were high and rank. The record shows that there were weeds upon the lot, and that they were 4 or 5 feet high, and that the notice to abate them was dated on July 10th. So that there is positive evidence that the weeds came within the definition of the term "weeds," as employed in the ordinance, so far as being "high" is concerned; and, from the time of the year when the offense is charged to have occurred, the trial court was justified in inferring that It is a specified, will exhale unpleasant and noxious The application of this general term is somewhat relative. Handsome but pernicious plants, as the ox eye daisy, cone flower, and the purple cowwheat of Europe are weeds to the agriculturist, flowers to the aesthetic; so, also, plants that are cultivated for use or beauty, as grasses, hemp, carrot, parsnip, morningglory, become weeds when they spring up where they are not wanted. The exotics of cool countries are sometimes weeds in the tropics." Webster's International Dictionary defines the word "weed" as follows: "(1) Underbrush; low shrubs. (2) Any plant growing in cultivated ground to the injury of the crop or desired vegetation, or to the disfigurement of the place; an unsightly, useless, or injurious plant." Adding in this connection: "The word has no definite application to any particular plant or species of plants. Whatever plants grow among corn or grass, in hedges, or elsewhere, and are useless to man, injurious to crops, or unsightly or out of place, are denominated weeds. (3) Fig. Something unprofitable or troublesome; anything useless." It is manifest, therefore, that the city ordinance did not intend to restrict the lexicographer's definition of the word, nor to give an exclusive meaning to it. So that | security to these things is the principal ofthe defendant may have been guilty of a violation of § 608, by permitting weeds, as they are commonly known to mankind and to the lexicographers, to grow on his lot, although such weeds may not fall within the inclusive definition of § 612 of the Municipal Code of St. Louis. If, in the exercise of the police power conferred upon the city by the state, the city has offended against the poetic, the æsthetic, or the rustic tastes of the defendant, or has blurred in even the smallest degree his memory of his happy boyhood days, then the court should closely scrutinize the act of the city, and protect the rights of the defendant, being therein restrained only by a proper observance of the principles that underlie the wholesome doctrine of, Sic utere tuo ut alienum non lædas. A critical analysis of the evidence, however, fails to convince the impartial mind that either the ordinance or the evidence was leveled at the famous, emblematic flower, which is so sacred to the defendant. The offense proved would be just the same if the sunflowers be eliminated from consideration, and, if the defendant had obeyed the notice from the health commissioner by cutting the weeds and leaving the sunflowers, he would probably not have been proceeded against, or at any rate would not have been the appellant in this case. 2. The second error assigned challenges the power of the city to enact the ordinance in question, and claims that it violates §§ 4 and 20 of article 2 of the Constitution of Missouri, and the 5th and 14th Amendments to the Constitution of the United States. These are grave defects in the ordinance, if the claim is well taken. The 4th section of article 2 (the Bill of Rights of our Constitution) is as follows: "That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty, and the enjoyment of the gains of their own industry; that to give fice of government, and that when government does not confer this security it fails of its chief design." The point that this police regulation of the city violates this provision of our organic law has at least the refreshing merit that it is a variation from the grounds upon which such city ordinances are usually attacked, but it is unfortunate for the defendant that this contention is not open to a more extended consideration than can be given to it in this case, because it has been firmly settled by the decisions in this state that the rights preserved to the individual by this section are held in subordination to the rights of society. State v. Addington, 12 Mo. App. loc. cit. 217, 77 Mo. 110; St. Louis v. Meyrose Lamp. Mfg. Co. 139 Mo. 560, 61 Am. St. Rep. 474, 41 S. W. 244; State ex rel. Russell v. Beattie, 16 Mo. App. loc cit. Therefore the right of the defendant to grow 145; Chillicothe v. Brown, 38 Mo. App. 609. weeds upon his city lot is subordinate to the right of society that he shall not do so, because he would thereby endanger the health of others. Section 20 of article 2 of our Constitution prohibits the taking of private property for private use, with or without compensation, without the consent of the owner, except for private ways or necessity, or for drains for agricultural or sanitary purposes. The defendant invokes this guaranty. The apparent infirmity underlying this contention is that the ordinance does not take or authorize anyone to take the defendant's property, but only regulates his use of his property so as not to injure others. The same contention was held to be untenable in Green v. Savannah, 6 Ga. loc. cit. 13, where a city ordinance forbidding the growing of rice within the limits of the city of Savannah was held to be within the police power conferred upon the city by the state. The ordi. nance in question, therefore, does not violate the Constitution of Missouri. The 5th Amendment to the Constitution of the United States, invoked by the defendant, prohibits the taking of private property for public use without just compensation, and provides that no person shall be deprived of life, liberty, or property without due process of law. Enough has already been said to show that the defendant is not deprived of his property for public use or at all, and therefore he is not within the protection of the Federal Constitution in this regard. The fact that the defendant is here upon appeal from a judgment of a lower court, where he had exactly the same kind of a trial that is accorded to every other person similarly offending, is answer complete to his claim that he has not had the benefit of due process of law. A "Due process matter produces disease. One of the definitions of "malaria" given by Webster's International Dictionary is: "2. (Med.) morbid condition produced by exhalations from decaying vegetable matter in contact with moisture, giving rise to fever and ague and many other symptoms characterized by their tendency to recur at definite and usually uniform intervals." To prevent such a condition in a populous community is one of the chief objects of municipal government, and is fully authorized by the police power conferred upon St. Louis by the proviThis leaves only for consideration the sions of the charter quoted. St. Louis v. question whether the state has conferred up- Weitzel, 130 Mo. 600, 31 S. W. 1045; St. on the city the power to pass the ordinance Louis v. Fischer, 167 Mo. 654, 67 S. W. 872. involved in this case. The Constitution Cities require many police regulations that granted to St. Louis the right to adopt a are wholly unnecessary and would be intolcharter, subject only to the limitation that erable in the country. Ex parte Cheney, 90 it should be subject to, and in harmony Cal. 617, 27 Pac. 436; Slaughter-House with, the Constitution and laws of the state. Cases, 16 Wall. 36, 21 L. ed. 394. And many Const. art. 9, §§ 20-25. Pursuant to this things are a nuisance in a city which are grant of power, St. Louis adopted its char- harmless in the country. Every man who ter, which gave it the power "to declare, selects urban life and holds city property prevent, and abate nuisances on public and necessarily incurs liabilities and gives up private property, and the causes thereof;" certain natural rights that do not pertain "to secure the general health of the inhabi- to life or property in the country. Green v. tants by any means necessary;" and "to Savannah, 6 Ga. loc. cit. 11; Ex parte pass such ordinances not inconsistent with Cheney, 90 Cal. 617, 27 Pac. 436. What the charter as may be expedient, in main- is a nuisance is a relative question, oftener taining the health and welfare of the city." than it is an abstract fact. Blackstone was Charter St. Louis, art. 3, § 26, ¶¶ 6, 14. wise in not attempting an explicit, invaSpeaking of the power conferred upon St. riable definition, and in confining himself Louis by this charter, this court, in Ferren- to general terms. He said a nuisance is back v. Turner, 86 Mo. loc. cit. 420, 56 Am. "anything that worketh hurt, inconvenience, Rep. 437, said: "None of the objects sought or damage." 3 Bl. Com. 216. 21 Am. to be secured by municipal government are & Eng. Enc. Law. 2d ed. p. 682, says: “A of more importance than the health of the nuisance is literally an annoyance, and siginhabitants, and hence, to that end, we find nifies, in law, such a use of property or such such extensive powers were conferred upon a course of conduct as, irrespective of acthe defendant." (The defendant Turner tual trespass against others, or of malicious was the street commissioner of the city, but or actual criminal intent, transgresses the the city was also a party defendant.) Of just restrictions upon use or conduct which course, even under such broad powers, it is the proximity of other persons or property not competent for the city to declare that to in civilized communities imposes upon what be a nuisance which is not, and cannot, from would otherwise be rightful freedom.” its nature, be, a nuisance in fact. St. Louis Wood, Nuisances, 3d ed. § 1, gives subv. Edward Heitzeberg Packing & Provision stantially the same definition, and adds: Co. 141 Mo. 375, 39 L. R. A. 551, 64 Am. St. "It is a part of the great social compact to Rep. 516, 42 S. W. 954. But if the object which every person is a party-a fundato be accomplished is conducive to public mental and essential principle in every civinterests and to public health, especially in ilized community-that every person yields the exercise of its public power, the courts a portion of his right of absolute dominion will accord to the city a liberal discretion, and use of his own property in recognition both as to the ends sought, and to the of and obedience to the rights of others, so means employed. Lawton v. Steele, 152 U. that others may also enjoy their property S. loc. cit. 140, 38 L. ed. 385, 14 Sup. Ct. without unreasonable hurt or hindrance. Rep. 499; Powell v. Pennsylvania, 127 U. S. This is an essential rule, a wise provision of 678, 32 L. ed. 253, 8 Sup. Ct. Rep. 992; the law, and one that is for the mutual proState v. Layton, 160 Mo. loc. cit. 497, 62 tection and benefit of every member of socieL. R. A. 163, 83 Am. St. Rep. 487, 61 S. W. ty." It is upon this principle that quaran171; Ferrenbach v. Turner, 86 Mo. loc. cit. tine laws, health regulations, and general 421, 56 Am. Rep. 437. It is a matter of welfare rules are bottomed. A man may be common knowledge that decaying vegetable'willing to run the risk of disease by per mitting his premises to be in an unsani- | provide for the general health-is as broad tary condition, but he has no right to subject as the necessity for its exercise. The orhis neighbor to such risks. He may be will-dinance in question strikes at a cause that ing to run the risk of personal inconvenience is known to operate against the public or injury by maintaining any dangerous health, and it is therefore a valid exercise agency upon his premises, but he cannot of the police power conferred upon the city lawfully subject his neighbor to such risks. of St. Louis. The notes to the text of 21 Am. & Eng. Enc. Law, 2d ed. pp. 682 et seq., contain a great firmed. number of cases illustrative, but not all comprehensive, of the principle under discus sion. The power to prevent nuisances-to The judgment of the lower court is af All concur. UNITED STATES CIRCUIT COURT OF APPEALS, NINTH CIRCUIT. Statement by the COURT: In Murray v. Bender, 48 C. C. A. 555, 109 Fed. 585, this court had before it nearly all of the facts involved in this case. The decree of the lower court in this case was also before this court in King v. Bender, 54 C. C. A. 317, 116 Fed. 813, and the judgment of this court on that appeal has disposed of one of the questions involved in the present appeal. A statement of the facts in this case appears to be necessary to a clear understanding of the law of the case, as established by the previous judgment of this court, and the remaining questions to be determined on this appeal. NOTE. For other cases in this series as to what are fixtures generally in the absence of any agreement, see Southbridge Sav. Bank v. Mason, 1 L. R. A. 350; Binkley v. Forkner, 3 L. R. A. 33, and note; Atchison, T. & S. F. R. Co. v. Morgan, 4 L. R. A. 284; Hill v. Munday, In the year 1888 the Grand Opera House Company, a corporation, was the owner of certain real property in the city of Butte, in the then territory of Montana. On September 29, 1888, the corporation conveyed the premises to one John Maguire, taking from him a note secured by a mortgage for the purchase price, amounting to $17,000. After the execution, delivery, and recording of this mortgage, Maguire undertook the erection of an opera house upon the mortgaged premises. In the construction of this building Maguire incurred considerable indebtedness for labor performed and materials furnished for the building, resulting in the creation of liens upon the property under the statute of the state. These liens were in due course of proceedings foreclosed by a decree dated January 27, 1890, and the property sold thereunder on the 19th day of May. 1890. On April 10, 1891, the appellant, Murray, who was the last of several redemptioners from such foreclosure sale, became invested with the title to the property by sheriff's deed. On May 29, 1891, the opera house company commenced an action for the foreclosure of its mortgage upon the property, executed by Maguire in 1888. In this action Murray was made a party defendant, and in a decree entered on March 12, 1895, it was adjudged that the mortgage lien upon the land was superior to the title of Murray, but, as to the building, Murray's title was adjudged to have priority over the mortgage lien. It was further adjudged and decreed that Murray might at any time after the sale of the premises, and before the expiration of the period for redemption as provided by law, remove from the said premises the building and improvements thereon; but, if he should fail to do | 4 L. R. A. 674, and note; McGorrisk v. Dwyer, 5 L. R. A. 594, and note; Hopewell Mills v. Taunton Sav. Bank, 6 L. R. A. 249; Overman v. Sasser, 10 L. R. A. 722, and note; Philadelphia Mortg. & T. Co. v. Miller, 44 L. R. A. 559; and Thomson v. Smith, 50 L. R. A. 780. so within the time prescribed, then the | the appellee in the present case, began an building and improvements should become action against the corporation upon three a part and portion of said lots, and, after causes of action, aggregating $700, and on the time for removal specified in the decree, the same day attachment was issued upon Murray should have no right to remove his complaint, and thereupon the property said improvements, or any of them. This of the opera house company was attached, decree was affirmed by the supreme court subject to the attachment of O'Rourke. The of the state on appeal. Grand Opera-House appellee obtained judgment in his action on Co. v. Maguire, 14 Mont. 558, 37 Pac. 607. May 21, 1898. On December 3, 1896, John The premises were sold, pursuant to the de- F. Forbis also began an action against the cree, on April 18, 1896, and were purchased corporation to recover $500. On the same by the Grand Opera House Company. The day he also caused a writ of attachment right to redeem from this sale expired un- to issue and the same property to be atder the law of the state on October 18, 1896, tached. His attachment was subsequent to but prior to that time negotiations were those of O'Rourke and the appellee. On had between Murray and the Grand Opera May 21, 1898, Forbis obtained a judgment House Company for either a purchase or sale against the opera house company in his acthat would vest the ownership of the entire tion. On December 27, 1898, twelve months property in one of the parties. But the ne-after the sale to King, O'Rourke, claiming gotiations failed, and Murray proceeded to to have a right of redemption upon his atremove the chairs, scenery, and other furni- tachment still subsisting for his controture from the building, and the building from the lot. The chairs, scenery, and other furniture were removed to a warehouse, and when Murray had torn down the front end of the building it was suggested to him that he could buy a controlling interest in the stock of the opera house company, which would be much better than removing the building, as the building was of brick. Murray thereupon bought 1,000 or 1,100 shares of the stock of the corporation, which gave him the controlling interest in it. He then suspended the removal of the building, and proceeded to reconstruct it. When the building was reconstructed, Murray had the chairs, scenery, and other furniture removed to the opera house. This removal was completed by December 3, 1896, and on December 10, 1896, the opera house was opened to the public. On December 3, 1896, John O'Rourke commenced an action against the Grand Opera House Company, joining in his complaint two causes of action, one upon the promissory note of the corporation for $762, the other for $585, claimed by O'Rourke to have been paid out by him for the corporation. On the same day, under writ of attachment issued in said cause for both causes of action, the property of the opera house company was attached. The corporation appeared and answered the complaint, not controverting the first cause of action, but denying the facts alleged as to the second. On September 16, 1897, judgment was rendered for O'Rourke on the first cause of action, and the case continued pending as to the other. Upon the judgment so made and entered an execution was issued, and upon December 27, 1897, the attached property was sold by the sheriff to Silas F. King. On December 3, 1896, the same day on which O'Rourke's action was begun, John O. Bender, verted cause of action, which continued pending after judgment had been entered upon his first cause of action, tendered to King the amount of the purchase money which the latter had paid, together with the statutory interest thereon, for the purpose of redeeming the property. On the same day the appellee served upon the sheriff of the proper county his notice of redemption, and under his said notice paid to the sheriff, for O'Rourke, the amount of money which O'Rourke had tendered to King, together with the amount which O'Rourke claimed to have been secured by his attachment. The apellee, then, as agent and attorney for O'Rourke, receipted to the sheriff for the money which he had tendered for O'Rourke, and as the agent for O'Rourke received the same. These redemptions were made within one year from the date of the sale under execution, that being the time allowed by the Montana law for redemption from execution sales. On January 10, 1889, and within the sixty days allowed by law to redeem from a redemptioner, Forbis, upon his judgment, redeemed from the redemption made by O'Rourke and the appellee. On January 19, 1899, notwithstanding these redemptions, the sheriff executed to the appellant, as purchaser under the O'Rourke judgment, a deed to the premises in controversy. On February 25, 1899, Forbis conveyed back to the appellee all rights which he acquired under his redemption. On April 4, 1899, J. O. Bender instituted a suit against King and McFarland in the circuit court of the United States for the district of Montana, praying that the latter be declared trustees for him as to all rights acquired under the sheriff's deed. The answer of the defendants denied that O'Rourke, at the time when he attempted to redeem said property, was a creditor of the |