City of St. Louis v. Heitzeberg Packing & Provision Co.

• Decision Date: 16 November 1897
• Citation: 42 S.W. 954,141 Mo. 375
• Court: Missouri Supreme Court
• Parties: CITY OF ST. LOUIS v. HEITZEBERG PACKING & PROVISION CO.

42 S.W. 954

141 Mo. 375

CITY OF ST. LOUIS v. HEITZEBERG PACKING & PROVISION CO.

Supreme Court of Missouri.

November 16, 1897.

NUISANCE — SMOKE — VALIDITY OF ORDINANCE.

1. A smoke ordinance of a city which provides, "The emission into the open air of dense black or thick gray smoke within the corporate limits of the city of St. Louis is thereby declared a nuisance," exceeds the powers of the city under its charter "to declare, prevent and abate nuisances," and is unreasonable and void.

2. Smoke is not a nuisance per se, unless so declared by statute.

Error to St. Louis court of criminal correction; David Murphy, Judge.

Action by the city of St. Louis against the Edward Heitzeberg Packing & Provision Company. From a judgment for defendant, plaintiff brings error. Affirmed.

W. C. Marshall and Eugene McQuillin, for plaintiff in error. Louis Steber and Alderson & McEntire, for defendant in error.

GANTT, P. J.

The city of St. Louis instituted this action against the defendant to recover a fine of $50 for the violation of what is known as the "Smoke Ordinance." That ordinance provides that "the emission into the open air of dense black or thick gray smoke within the corporate limits of the city of St. Louis is hereby declared to be a nuisance, and the owners, occupants, managers, or agents of any establishment, locomotives, or premises from which dense black or thick gray smoke is emitted or discharged are made guilty of a misdemeanor, and subject to a fine not less than $10 nor more than $50; and each and every day wherein such smoke shall be emitted shall constitute a separate offense." The statement of the city attorney averred that defendant had violated the above ordinance, in this, — to wit: "In the city of St. Louis, and the state of Missouri, on the 4th day of September, 1895, and on divers other days and times prior thereto, the said Edward Heitzeberg Packing & Provision Company, a corporation (Charles L. Heitzeberg, president), did then and there emit and discharge into the open air, within the corporate limits of the city of St. Louis, Missouri, dense black and thick gray smoke from the smokestack or chimney of the building, being numbered 3101 North Broadway, situated on west side of said street, in said city of St. Louis, Missouri, said Edward Heitzeberg Packing & Provision Company being the occupant of said building, contrary to the ordinance in such case made and provided." Defendant filed a motion to dismiss, which was overruled, and, on trial, defendant was convicted as charged, October 30, 1895, and fined $10. On the same day, defendant perfected an appeal to the St. Louis court of criminal correction. Defendant renewed its motion to dismiss in the court of criminal correction, which was overruled, and which raised the following points: (1) The complaint does not state a cause of action against defendant. (2) The smoke ordinance is unconstitutional and void. (3) The complaint is not responsive to the ordinance.

On December 28, 1895, the cause was submitted on an agreed statement of facts, in substance as follows: That defendant is a corporation, and is the owner or operates and controls a large manufacturing plant, at No. 3101 North Broadway, corner of Branch street, in St. Louis, Mo.; that it owns, controls, and operates a furnace in connection with said plant, wherein are burned or consumed large quantities, daily, of soft or bituminous coal; that there is a smokestack or chimney connected with said furnace, which is owned and operated by defendant; that said street, known as "Broadway," on which the establishment fronts, is one of the principal thoroughfares of the city of St. Louis, and is located in a neighborhood in which there are numerous stores and dwellings and a large number of manufacturing establishments; that among the said manufacturing establishments, and most all of them using the same kind of coal, are the following (establishments enumerated); that the court may take judicial notice of the size and commercial importance of the city of St. Louis; that said city is densely populated, containing nearly 600,000 inhabitants; that on September 4, 1895, there was emitted and discharged into the open air, within the corporate limits of said city, from the stack or chimney of defendant's plant, 39½ minutes of dense black and thick gray smoke, arising from the use in the furnace of defendant corporation of common soft or bituminous coal as fuel, out of an observation of 100 minutes, from 9:55 a. m. to 11:35 a. m., conducted by three smoke inspectors, to wit, Samuel R. Fox, August Knickmeier, and W. L. Scott, of which 18½ minutes of that time said stack discharged into the open air dense black smoke, so black and dense that it was opaque, and could not be seen through, and of that time said stack discharged into the open air thick gray smoke for a period of 21 minutes, — smoke that was heavy and dense, but not perfectly black; that said dense black and thick gray smoke so emitted and discharged as aforesaid was carried for a distance of several blocks before it became very much dissipated, — that is, before it became very much scattered and diffused into the air within the corporate limits of said city; that William B. Potter would testify that he is an engineer, and at present manager and chief engineer of the St. Louis Sampling & Testing Works, and is also chairman of the smoke commission of the city of St. Louis; that for a period of eight or ten years he had made a special study of the problem of smoke abatement, with special reference to the conditions of the plants and establishments of the city of St. Louis; that during said period he has tested and reported on the varying degrees of efficiency of numerous devices designed for the abatement of smoke where large quantities of common soft or bituminous coal are used as fuel; that, in his opinion, as a result of long study, experience, and observation in the city of St. Louis, it is entirely practicable to abate smoke, or, rather, reduce it below the terms of dense black or thick gray, as used in City Ordinance No. 17,049, and at the same time use soft or bituminous coal in great quantities; that it is entirely practicable to so reduce the smoke in the various plants and establishments in the city of St. Louis so that dense black or thick gray smoke would not be emitted or discharged into the open air; that this reduction or abatement of the smoke can be accomplished without injury to the boiler plants, and without any unreasonable requirements as to skill or amount of labor on the part of those in charge of or of those operating the boilers; that dense black or thick gray smoke of the character above described, as having been emitted and discharged into the open air within the corporate limits of the city of St. Louis, from the smokestack or chimney of defendant's plant, would be damaging and detrimental to certain classes of property, and would cause inconvenience and annoyance to persons within said city; that said smoke ordinance,...