Evening star. [volume] (Washington, D.C.) 1854-1972, 1900-05-08
Court Of Appeals Holds 1t is Consti-
tutional.
Case CARRIED UP FROM POLICE COURT
Provisions Of Act Of Congress Of
February 2, 1899.
REVIEW OF THE CASE


ten by Mr.. Justice Shepard and handed
down today holds that the smoke law, ap-
plicable to the District of Columbia, is
constitutional. The case was taken to the
Court of Appeals on writ of error from the
Police Court to review judgment of con-
vict1on under the provisions of the act of
Congress approved February ., 1899. Find
ing no error the judgment of the Police
Court is affirmed by the Court of Appeals.
The case was that of William h. Moses,
Harry C. Moses and Arthur G. Moses,
plaintiffs in error, against the United
States.
The plaintiffs in error were prosecuted in
the Police Court for violation of the act
entitled, AN act for the prevention of
smoke in the District of Columbian y and for
other purposes The sections of the act
which We're material to the consideration of
the
THAT and after six months from the
passage of this act the emission of dense
or thick black gray smoke or cinders
from any smokestack chimney used IN
connection with any stationary engine,
steam boiler or furnace of any descrip-
ton within the District of Columbia shall
be deemed aud is hereby declared. to be
a public nuisance; Provided. That nothing
in this act shall be construed as applied to
chimneys of buildings used exclusively for
private residences.
THAT the owner, agent, lessee occu-
pant of any building of any description
from the smokestack chimney of which
there shall issue be emitted thick
dense back or gray smoke or cinders with
in the District of Columbia or after the
day above named shall be deemed and held
guilty of creating a public nuisance and
f,fx 11at fl,a ,-;.;. ,,St pie
THAT any person or persons violating the
provisions of this act shall, upon convic
ton thereof before the Police Court of the
District of Columbia, be punished by fine
of not less than $40 nor more than 800 for
each and every Offense; and each and every
day wherein the provisions of this act shall
be violated shall constitute a separate Of
fense.
The Charges Made.
The information charged that the defend
ants were the occupants of certain build
ing used as a furniture store, situated
the southwest corner of 11th and streets.
to which building there is attached a smoke
stack and chimney used in connection with
a stationary engine steam boiler and fur
mace in the building; that the defendants
caused. permitted and allowed the emission
into the open air from the smokestack and
chimney of certain thick and dense black
and gray smoke which was then and there
statute, &c.
A motion to quash the information hav-
ing been overruled the defendants pleaded
not guilty and were tried by a jury Evil
dence was introduced on the part of the
government tending to prove that the de-
PENDANTS had in their building a furnace
connected with stationary steam engine,
a smokestack and steam pipe; that on the
day alleged in the information dense thick
black and gray smoke issued from the stack
at the following times: At . o'clock a.m
the emission lasting one minute and half;
at IL O'Clock am, the emission lasting
about the same length of time, and at $40
o'clock pm, the emission continuing from
two to three minutes.
At the conclusion Of the testimony on the
part of the government the defendants
moved the court to direct the jury to re-
turn verdict of not guilty. because the
government had failed to prove that Dense
thlck black or gray smoke, charged
In the information to have been emitted
from the defendants chimney, constituted
a public or common-laW nuisance which
motion was oyerruIed and an execution
taken.
The defendants thereupon offered to prove
that they had equipped their furnaces with
smoke consumer, which, while it would
not prevent the emission of thick black or
gray smoke during the process of coaling
provided soft or bituminous coal is used
was as good a device there was on the
market for the prevention of smoke. Also
that there is no known device for the pre-
vention or consumption of Dense thick
black or gray smoke when soft or bitumin-
GUS coal Is used; that from the construc-
ton OF defendants furnaces and boilers 1t
would be impossible to secure a sufficient
amount of steam for the conduct of their
business with the use of hard coal: that il
the defendants were required to use hard
coal the present plant would have to be re-
placed and another different system of boil
ers installed.
The defendants also made proffer of testi-
mony tending to prove by several nersons
whose blSfnaSS a i, oil
unity to their store that the emission of
smoke from the chimney has not been in
furious to the property or dangerous to
their lives or safety, or detrimental to their
health, or caused them any Inconvenience
or nuisance. also that at about the same
time that 1t was charged their chimney was
ing emitted from the chimneys of two
structures under the supervision of the Dis
trict Commissioners.
Refused by the Court.
These several offers of testimony were re-
fused by the court, to which defendants ex-
cepted The court gave an instruction to
the jury to which the defendants excepted
and exception was also made to the refusal
to give certain Instructions asked In their
behalf The jury found the defendants
guilty and a fine of SO in each case was
imposed, execution Of sentence being sus-
pended
The plaintiffs in error assailed the lee,sla-
tioiI III question DIS DeiUS unconstitutional
and void on four GROUNDS. In that it is re-
pugnant to the fourteenth amendment; in
that 1t is unreasonable; in that it does not
affect alike all persons similarly situated.
and in that it discrimnates against some
and favors others
A nuisance is public or private according
to the extent or scope of Its Injurious effect.
says the Court of Appeals, among other
things. That which may constitute a pri-
vate nuisance by reason of special injury to
an adjacent or neighboring proprietor may
not amount TO a general public nuisance
On the other hand that may be a puhiic
nuisance. affecting injuriously the public or
the public interests, while not operating q
perceptibly special injury to one member of
the community more than others.
May Work Discomfort.
Nor whilst the emission of ordinary smoke
from the chimneys of houses does not
amount to a nuisance per sc, says the Court
of Appeals, 1t Is nevertheless a matter OF
common knowledge, not to be ignored by
the courts, that the emission of volume
of dense, black smoke from a single smoke
stack or chimney of large furnace may
under some circumstances work physical
discomfort to the general public coming
within its circle of distribution upon public
thoroughfares and may possibly also work