The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1902-01-19
ORDINANCE is UPHELD
JUDGE sTUBBS-S DECISION IN SMOKE
NUISANCE CASES.
In "a Written Opinion lie Finds for
tie City-Fincs of SO and
Costs Assessed.

Judge Stubs. OF the Police Court, before
whom they were brought. The finding in
each was for the city. and fines of SO
and costs were assessed against the D.. NJ.
Parry Manufacturing Company. p. II.
Fitzgerald and J. A. Barnard. as agent
for the ingalls, Block.
The evidence in the cases was heard
ABOUT a week ago. Yesterday Judge Stubs
gave his written opinion I'm regard TO the
questions involved. and rendered his de-
cisiOn. Most OF the persons who have been
charged with such violations of the law
have questioned the legality OF the ordi-
nance under the city charter. This question
is the one upon which Judge Stubs gave
his opinion. and settles the matter so far
as it concerns the Police Court. He states
that the city has the right TO pass and en-
force such an ordinance under the charter.
and the only questions TO be considered
are those relating to the fact as to whether
or not the ordinance has been violated.
The decision is a victory for the city at
torney. and will have considerable bear
ing on the cases which will be tried on
Jan. %. Thomas 9. WhaIlon, deputy city
attorney. IS prosecuting the cases. The
opinion OF Judge Stubs in fun follows:
THE JUDGES OPINION.
The first question to be considered is whether
the city OF indianapolis is empowered to enact
an ordinance declaring that the emission Of dense
smoke into the open air within the city limits
Is a nuisance. and II so whether such ordinance Is
reasonable in its provisions. The charter granted
10 the city OF Indianapolis by the legislature.
and under which the city II now operating. pro-
vides that the Common Council shall have power
u enact ordinances for the following purposes:
To declare what shall be a nuisance. 10 prevent
the same. require its abatement. etc Acting I'M
Ger this authority tie Council has enacted an
ordinance Tor the suppression or abatement OF
smoke. and declaring that the emission Of dense
smoke or smoke containing SCOT or other sub
stance IN such QUANTITIES as thal sucn SCOT OF
other substance shall Be deposited OF settle upon
city so as 10 discolor or otherwise injure or de-
face such property, or so as 70 interfere with the
shall be deemed and is hereby declared TO be a
nuisance.
Ind. Rep. Page AIS. the Supreme Court OF TINS
state says: 1t IS settled law that where the
Legislature In terms confers upon a municipal
snaciseS nature and cbaractsr- and with precis-
ion defines the details OF the same, and prescribes
STante5 he not In consict Min the C6nstftution.
an ordinance within the powers granted. pre-
scribing penalties within the d0ignated limits.
cannot be set aside by the coISts even II they
deem IL unreasonable or against public policy.
But where the power TO lsgislate upon a given
subject and the details Of such legislation are not
prescribed. then the ordinance passed pursuant
thereto must be a reasonable exercise of the
words says the court an ordinance expressly
authorized by specific and definite legislative au-
thorlty will be upheld unless II conflicts with the
Constitution. while an ordinance which il is
sought TO uphold under a general grant Of au-
thority viii be declared Invalid unless IL be
reasonable and not arbitrary and oppressive
Inc power 70 enact She oralhaRce n question
comes under a general grant or authority as
the charter granted BY the legislature does not
question arises IS 70 whether such ordinance Is
reasonable and fair and not arbitrary and op-
ordinances for the suppression Of smoke are
based upon the proposition that the emission OF
dense smoke In cities Is a public OF common
nuisance. Nuisance signifies anything that works
hurt, Inconvenience or damage A private nuts
ance is anything that IS suffered or permitted to
be done by one person 10 the hurt or annoyance
% another. or which works damage 10 a~nothers
fects the public and Is an Offense that annOys
the whole community. II Is the duty Of the city
and abate ali public nuisances. but its power
q do so in any given case must be reasonably
A ST. PAUL CASE.
In the case OF the city Of St. Paul vs.. Gilhllan,
IS MINI. Rep. POS. il was held by the Supreme
Court OF Minnesota that an ordinance declaring
that the emission OF dense smoke within the
limits OF 81. Paul was a nuisance was void be-
cause there was no power vested in the city
under its charter to declare what should be a
nuisance. A imilar ordinance passed by the
city OF Cleveland was held TO be void for the
same reason. These cases turned upon the point
that no grant OF power existed in the charters
or these cities 20 declare what might be a nuis-
ance. According TO the best judicial authority to
which I have bad access, II such power has been
granted BY the Legislature, the MUNICIPALITY
may, through its Common Council. say what
shall be a nuisance. such an ordinance has
been upheld IN louisiana and In other states.
J. - discharge OF dense smoke In considerable
quantities In a populous city Is held to be a
Hbate exists where the city's organic law con-
always considered a nuisance al common Jaw
where Il was allowed TO escape IN sufnclent
10 others. A distinguished law writer IN dis
cLssing this question says; 1t Il a we'll known
the general cloud OF smoke arising from the fur
Haces OF an Industrial city In thickly populated
community di1uses itself and thoroughly i'm
pregRates the atmosphere and hangs a. a dark
blanket over the city from which SCOT drops con
stantly which works its way into stores and
ClotbinS 81 persons who may be on the street or
otherwise exposed to II. and which also Injuries
certain kinds Of property and business. and IS a
fence. more or less. 10 all within the city. The
damage T. greatly increased when the air Is
heavy and moist as Is so often the case in many
While some degree OF smoke in the stmos-
phere. more or 1ess. according TO the commercial
Character and size Of the community. is an evil
unavoidably connected with life In modern times.
coal Is used FOR fuel in great quantities. yet the
law does not hesitate 70 declare smoke a nuis-
ence where Il permestes the air in unreasonable
dense volumes. or IS. for any reason. so carelesslJ
or unskilmIly disposed Of as 10 produce an in
corruption OF the comfortable enjoyment OF life
or property. Dense smoke aad the SCOT resulting
therefrom have been regarded by. the common
law and In equity procedure as detrimental 70
health and comfort. and injurious 10 certain
classes % n NENEFEaT A1AAtrH ana ENn~e-
quently a nuisance from a period anterior 10
blackstone The books TEEN with cases where
PARTIES have been restrained from discharging
or emitting dense smoke and where damages
have bean awarded as a result Of the smoke
nuisance
FUNDAMENTAL PRINCIPLE.
1T is a fundamental principle that ordinances
enacted under q general grant OF authority must
b reasonable as above shown. otherwise they
cannot be upheld. but IL is also a rule OF law
which Is supported by all well considered cases
that the power % declare an ordinance invalid
should be cautiously exercised. It has been urged
that ordinances o. this character arc unreason-
able. particularly in localities where soft coal is
used In large quantities for fuel in the steam and
manufacturing plants Of a city. and that the use
o. such coal necessarily produces dense or heavy
smoke. II Is urged that 70 enforce an ordinance OF
this character would compel these plants 10 use
aILlfecLe OF oLuet sucHrtess coal winch would
cause additional expense and produce great hard
shin. and might result in driving such plants
from the city But such reasons have been held
20 be insufficient 10 Justify a court in SETTING
aside an ordinance which has been enacted under
full authority granted by the legislature. This
proposition has been upheld by all the decisions
t. which ! have had access except iE the case OF
the city % 81. Louis IS. Heitzeberg COMPANY. %
s. W Rep, 34- where II was held that such an
ordnance was wholly unreasonable. In that
case the Supreme Court % Missouri seems 10
have overruled its own decision I'm the case Of
the state VS. Pond. % No. els The cases set
out IN IS MINI. 236. S. Mich. 2T3. and 10 III. 600
may be cited as differing from the HeitzeberS
As 10 the proof required in such cases the
case Of Marshall Field & co. vs.. Chicago. a Ill
APP. 40. is cited by the court. In that case
A. was held tzat dense smoke was detrimental
A.l.a 90 - business anH - A..