The times. [volume] (Washington [D.C.]) 1897-1901, 1900-05-09
THE SMOKE LAW CASE.
The Court of Appeals Amrms n. Pre-
vious Decision.


In the case of William B. Moses. arthur
C. Moses, and Harry C. Moses. known IS
the smoke law case" the Court Of Ap-
peals yesterday in an opinion announced
by Mr.. Justice Shepard. affirmed the decis--
ion of the Police Court.
In the Police Court the defendants nam
ed were found guilty of violating the act
of Congress Of February 2, 1899. which de-
| clared it unlawful for any person or per-
sons to maintain chimney or smoke
stack, used in connection with a stationary
engine. steam boiler. or furnace. within
the District. from which dense or thick
smoke or embers" are discharged. Such act
by any person or persons. by the act, is
declared a nuisance and punishable by fine
of not less than $40, nor more than 800 for
each offence.
The defendants named were charged in
the Police Court. on January % last. with
being then and there occupants Of GER
tain building used a furniture store and
situated on the southwest corner Of Elev-
I enth and Streets northwest. TO which
building there is attached smokestack ct
chimney. used in connection with a certain
stationary engine, steam boiler and fur
mace" and that the defendants did un-
lawfully cause. permit and allow the
emission into the open air. within the Dis
trct certain thick, dense, black. and grey
smoke
When the case came on for hearing the
defendants were declared guilty of having
violated the law.
From this judgment an appeal was TAX
en-. on the ground that Congress had not
the power to declare the emission OF
smoke from chimneys nuisance in itself.
and punish the act as an offence, because
offn nf hA lsrr mi rE 70 dan
persons of their property without due pro-
cess of law. The court says: Nov. while
the emission of ordinary smoke from the
chimneys of houses does not amount to a
nuisance per Sc. it Is nevertheless mat
ter of common knowledge. not to he ig-
nored by the courts. that the emission of
a volume of dense. black smoke from
single smokestack or chimney of large
furnace. may. under some circumstances.
work physical discomfort TO the general
public coming within its circle of distri-
button upon public thoroughfares. and
may possibly also work injury TO public
interests in other respects"
In the Police Court the defendants
moved to quash the information. and
upon this being refused. went 10 trlal be-
fore jury. When the testimony ior the
Goyernmt mt had been submitted the de-
PENDANTS asked that the court direct tne
Jury TO return q NeTuICt Ia tuSi. 1870
cause of the alleged failure of the prosecu-
ticn to make out case. Inns was aiso
dcrisd The defendants offered evidence
TO show that they had equipped their fur
naces with smoke consumers. as good de-
vices rs we're on the market. The defend
ants offered to show by testimony that per-
sons who resided near them and carried
on business in the ueighborhcCd were not
in any way inconyeneuced. nor did they
suffer in health or property by the smoke
emitted from the chimneys or smokestafts
Of the defendants. The court. however,
what was offered TO be proven, Il was con-
tended by the defence that the act OF Coz
gress making 1t unlawful! TO maintain 4
chimney or smokestack connected with
stationary engine, steam boiler. Or furnace,
from which was emitted thick black Or
grey smoke was unconstitutional because
it Disseminated in favor of chimneys Of
private residences. On this point the Court
of Appeals states:
Nor can we concur in the contention
that tn. proviso excluding from the appli-
cation OF the act .chinneys of buildings
used exclusively for private residences.
renders she statute void because OF inc
quality and unjust discrimination. And
the same may he said as regards the lmi-
tation Of the prohibited smoke to its ennis
sion frCm any smokestack or chimney used
in connection with any stationary engine.
steam boiler. or furnace.
III the smoke constitutes public nui-
sance at all 1t does net matter that it may
not be constantly emitted. but only at in.
tervals, from day to day."