#### Hecker, Inspector of Buildings, *v.*The State, ex rel. City of Cleveland.

*Municipal corporations*— Garbage *disposal plants*— Authority *to erect within or without limits*— Operation *not public nuisance, when*— Plant *later brought within another municipality*— Power *to prevent extension or enlargement.*

X. The state Legislature in the exercise of its police power has authorized the erection and operation of garbage plants 'by municipalities, within or without their limits, and any such plant so equipped and operated as to eliminate all avoidable gases, odors, and liquids cannot be abolished as a public nuisance.

2. Where, pursuant to law, a municipality has procured land outside of its corporate limits, and erected thereon a garbage disposal plant, and thereafter such location is brought within the limits of another municipality, the latter cannot thereafter arbitrarily declare such disposal plant a public nuisance, nor by refusing a building permit prevent the extension and enlargement thereof required to meet the néeds of said first named municipality, when it appears that the most efficient methods hnown for the elimination of offensive gases, odors and liquids in the reduction process have been adopted, and employed therein.

(No. 18318

Decided June 21, 1924.)

Error to the Court of Appeals of Cuyahoga county.

This is an action in mandamus and originated in the Court of Appeals. Ralph Hecker is the duly qualified and acting inspector of buildings of the village of Cuyahoga Heights. The city of Cleveland sought an order requiring Hecker, as such inspector, to approve plans of the city for *169the reconstruction of buildings and equipment constituting a garbage reduction plant on lands owned by it within the village of Cuyahoga Heights, but which was formerly .within the boundaries of New-burgh Heights. Issue was made by answer, whereby the questions hereinafter to be considered were presented, and which, by the agreement of the parties, was referred to a referee.

The substance of the pertinent facts may be stated from the findings of the referee as shown by his report to the Court of Appeals. The city of Cleveland, containing substantially 800,000 people, produces from 300 to 350 tons of garbage every 24 hours, of which some prompt disposition must be made. The village of Cuyahoga Heights, containing about 5,000 people, is located in the same county and adjacent to and on the southerly boundary of Cleveland. The territory comprising Cuyahoga Heights was detached from the village of Newburgh Heights in December, 1917. Long prior thereto, at the place in question, a private reduction plant had been privately owned and operated, and for several years prior to 1905 the city garbage was there disposed of under contract with the owners. In 1905 the plant was purchased by the city of Cleveland, and from that time to the present, under various changes and conditions, has been continually operated by the city as a garbage disposal and reduction plant..

It is found by the referee that when the original glue factory and reduction plant was located on the premises in 1888, the location then being in the Jbamlet of Newburgh, the spot was isolated and apparently the most fitting place for the location *170of a business of that character, surrounded by high lands on two sides, and by curves of the Cuyahoga river, in such a way as to make it practically surrounded by high lands on three sides; and while the heights along the river have been built up to some extent, and used for residence purposes, the valley itself, where the plant is located, has not changed in character to any appreciable extent. This tract of land, constituting such location, consists of 56 acres, and in addition to that the city owns 250 acres adjacent thereto.

On May 21, Í923, the city of Cleveland submitted to Ralph Iieoker, as inspector of buildings of the village of Cuyahoga Heights, its application in writing “for a permit to erect the foundations for and the superstructures of a municipal reduction plant so designed and to be constructed that the plant will not create a nuisance by emitting offensive, foul, nauseating, and noxious odors or gases, liquids, solids, or dust, and is described in this application and in the accompanying plans and specifications,” which application appears to have been in all respects in conformity to the building code of the village of Cuyahoga Heights; but the application was denied by the inspector, who refused to issue the permit upon the grounds that he had no jurisdiction in the matter because of the enactment of a certain ordinance by the council of the village of Cuyahoga Heights on March 14, 1923, a portion of which ordinance was re-enacted because of an error therein, so that as it now stands it was not enacted until July 25, 1923. That ordinance provided in substance that no trade, business, or occupation could be carried *171on or conducted within the village, in the conduct or prosecution of which, or in the course of any process in connection with which, noisome or offensive odors, gases or liquids or other substances were produced and permitted to emanate therefrom, and the conduct and operation thereof was declared a public nuisance which should be abated. It further provided that no building, plant, or equipment designed for or intended to be used for such purposes, and in such manner, and with such result, could be erected without first obtaining from the village a permit, the issuance of which permit should be in the form only of a resolution adopted by council, anything in the building code to the contrary notwithstanding. It was further required that the application for such permit be accompanied with plans and specifications and details of the proposed construction, and with a direct and specific agreement as a condition of the issuance of such permit, and that such building should not be so constructed or operated that any foul, noisome, offensive gases, odors, liquids or other substances should emanate therefrom, and requiring advance consent to a complete abatement of the operation or operations which contribute to the production of such odors, gases, liquids or other substances upon a finding by council in the form of a resolution that said odors, gases, liquids or other substances are being produced or emanate from such plant or equipment. To secure the performance of the agreement and stipulations contained in such application, it was provided that council may prior to the issuance of such permit, and as a condition thereof, require *172a bond, in amount and sureties as approved by council.

It is disclosed by the record that in October, 1921, the village of Cuyahoga Heights brought an action to enjoin the city of Cleveland from bringing into or depositing within the limits of that village any further garbage, and from further maintaining or operating said plant, and that after hearing the issues joined in that case the Court of Appeals, to which the case had been taken on appeal from the court of common pleas, found that such plant was not provided with modern machinery and equipment and that the maintenance and operation thereof constituted a public nuisance. That court ordered, among other things, that the maximum amount of garbage delivered to the plant should not exceed 300 tons in any one day, and prescribed certain conditions under which the operation of the plant might be continued, which need not here be recited in detail, but prohibited further treatment of digested garbage for commercial purposes after July 1, 1923, unless the city had installed by that time new machinery and equipment which prevented the escape of foul and noxious odors during the operation of digesting the garbage. It further ordered that the operation of digestors be discontinued until the various conveying lines connected therewith be placed in a steam-tight condition. The requirements of this order were in considerable detail, and closed with the requirement, in substance, that all apparatus and equipment therein provided for should be constantly kept and maintained in such condition of order and repair as to enable same *173to be operated in the most efficient manner possible, and directed that the same be so operated, and that the process of cooking and digesting garbage should not be carried on except when such apparatus and equipment were in the condition specified.

The referee found that the relator, the city of Cleveland, in order to meet the increasing demands for capacity at such plant, prepared and submitted plans and specifications, and asked for bids on a garbage reduction plant which would provide the very latest process, machinery, and equipment, and most efficient method for elimination of offensive gases, odors, and liquids known in reduction processes, and received from the Bartlett & ¡Snow Company, one of the leading manufacturers of this line of equipment and machinery, and specialists in this character of work, who guaranteed to eliminate all noxious odors, gases, and liquids to the very lowest degree possible in such reduction processes, a bid which involved the expenditure of substantially $850,000, and which if accepted, and the work completed in accordance with said plans and specifications, would bring the plant. up to the very highest standard of efficiency in machinery, equipment, operation and processes. It was this plan prepared and adopted to remedy the defects complained of by the erection of ample buildings and the installation of such machinery and equipmment on the premises, that was submitted to the inspector, who thereupon refused to issue a permit for the erection of the foundation and the super*174structure comprising the proposed addition to the plant.

From the facts found the referee concluded that the city of Cleveland had a clear legal right to a permit for the erection of foundations and superstructure, and that a peremptory writ of mandamus should issue, requiring Ealph Heoker, inspector of buildings, to issue the same.

The Court of Appeals approved and confirmed the report, expressly approving the findings of fact and conclusions of law, and entered a decree in conformity therewith. Error is prosecuted to this court to procure a reversal of that judgment and decree.

f

*Messrs.*Locher, *Green & Woods,*for plaintiff in error.

*Mr. Carl F. STmler,*director of law, for defendant in error.

Matthias, J.

The facts shown by the record present a situation where a municipality, pursuant to and in exercise of powers specifically conferred upon it by law, has made provision for the collection and disposition of garbage, has established and maintained a plant for the disposal thereof, and acquired property outside of the limits of the corporation for such purpose, whereupon regulation of the reconstruction and operation of such plant is undertaken by another municipality within the boundaries of which the location of the plant referred to has been incorporated since the establishment thereof.

It is to be observed that the referee, from the *175facts presented, found that the plans for the proposed addition and enlargement of the plant in question had been prepared, and that the proceedings for the erection and maintenance thereof in the location where the plant had been for a great many years had the approval and sanction of the Court of Appeals in the injunction case heretofore referred to, and in fact were prepared pursuant to and in accordance with the requirements of that decree. The referee concluded that the powers attempted to be exercised by the village in the ordinance in question, so far as they might be held to apply to the plant of the city, were arbitrary, unreasonable, and confiscatory, and that the village of 'Cuyahoga Heights had no power to compel the city of Cleveland to surrender to the council of the village the authority to determine its right to maintain, improve, enlarge or rebuild its garbage plant, nor power to compel the city, as a condition precedent to the continued operation of its plant, to enter into a contract whereby it would surrender to the council of the village the right and power to stop the operation of the plant at any time the manner of operation thereof should fail to meet its approval.

The finding is justified from the evidence in this case that the extension and enlargement of this plant are required to meet the needs of the city of Cleveland. And from the evidence it also seems clear from the plans adopted and sought to be put into execution that the most efficient methods known for the elimination of offensive gases, odors, and liquids in the process of reduction are to be employed. ,, •

*176It cannot be doubted that it is within the police power of the village of Cuyahoga Heights, as it is of every municipality, not only to regulate the disposal of garbage, but to prescribe reasonable and proper precautionary methods to prevent the creation and maintenance of a public nuisance; but whether such authority is committed to it by the general laws of the state, to which we have referred, or is included in the powers of local self-government, conferred by the home-rule provision of the Constitution of the state, such local sanitary regulations must be consistent with and may not be in conflict with the general laws of the state. What the general laws of the state require or authorize to be done with respect to the health and well-being of the public cannot be prevented by a local subdivision of the state, nor restricted in such manner as to prevent the maintenance and operation of an undertaking pursuant to law which is in the interest of the public health.

The rule applicable to this situation is stated in Joyce on Nuisances, Section 67, as follows:

> “It is a general rule that an act which has been authorized by a law cannot be a public nuisance, and that the state cannot prosecute as a nuisance that which it has authorized.”

Applying that rule, this court held in case of *Toledo Disposal Co.*v. *State,*89 Ohio St., 230, 106 N. E., 6, L. R. A., 1915B, 1207, that:

> “A public nuisance arises out of violation of public rights or the doing of unlawful acts; ■and if the Legislature, by a law passed within its legislative power, authorizes an act to be done, which, in the absence of the statute, would be n *177public nuisance, such act ceases to be legally a nuisance so far as the public is concerned.”

It is not our view that a thing authorized to be done by the general law of the state may be done in such manner as to produce a nuisance or cause injury; indeed ample and appropriate remedy is at hand to prevent such abuses, as is clearly disclosed by the record in this case showing the action in the Court of Appeals in the former suit instituted by the village of Cuyahoga Heights, and pursuant to the decree in which case the plans for the project now in question were prepared.

Under the facts found by the referee in this case, and approved by the Court of Appeals, the writ awarded was warranted, and the judgmeni is therefore affirmed.

*Judgment affirmed.*

Marshall, C. J., Robinson, Jones, Day, and Allen, JJ., concur.