State v. Tower

• Decision Date: 22 November 1904
• Citation: 84 S.W. 10,185 Mo. 79
• Parties: STATE v. TOWER.
• Court: Missouri Supreme Court

84 S.W. 10

185 Mo. 79

STATE v. TOWER.

Supreme Court of Missouri, Division No. 2.

November 22, 1904.

ABATEMENT OF SMOKE — STATUTES — CONSTITUTIONALITY — INVASION OF PROVINCE OF JUDICIARY — CLASS LEGISLATION — CLASSIFICATION OF CITIES — POLICE POWER — REASONABLE REGULATIONS — IMPOSSIBILITY OF OBEDIENCE.

1. Laws 1901, p. 73, making the emission of dense smoke within the limits of cities "which now have or may hereafter have a population of 100,000" a public nuisance, applies to cities having more than 100,000 inhabitants, and is not limited to those having exactly that number.

2. Such statute was not unconstitutional, as invading the judicial province by declaring such act to constitute a nuisance, while at common law it was not inherently a nuisance.

3. The act was not contrary to Const. 1875, art. 4, § 53, forbidding class legislation, on the ground that it was equally a nuisance to discharge smoke in a city of less than 100,000 inhabitants, as the discharge of smoke is not equally obnoxious in small cities, and it was within the power of the Legislature to decide on the limitation as to size.

4. The classification was not an unreasonable one.

5. The act was not objectionable, as class legislation, because it contained a provision that one charged with offending against it might by way of defense show that there was no known practicable device or appliance by which the emission of dense smoke could be prevented.

6. The act did not violate the fourteenth amendment to the federal Constitution, because by implication it omitted locomotive engines and steamboats, as such omission was a reasonable classification.

7. The act was not invalid for failure to add a provision that it must be shown that the discharge of such smoke injured the property in the neighborhood, or affected the health or interfered with the comfort of citizens.

Appeal from St. Louis Court of Criminal Correction; Hiram N. Moore, Judge.

George F. Tower was convicted of violating the act for abatement of smoke, and appeals. Affirmed.

Jones, Jones & Hocker and Crigler & Kelley, for appellant. E. C. Crow, Atty. Gen., Sam B. Jeffries, D. W. Robert, and Luther E. Smith, for the State.

GANTT, P. J.

This is an appeal from the St. Louis court of criminal correction. The information charged a violation of the act of the General Assembly of this state approved March 21, 1901 (Laws Mo. 1901, pp. 73, 74), which makes "the emission or discharge into the open air of dense smoke within the corporate limits of cities of this state which now have or may hereafter have a population of one hundred thousand inhabitants" a public nuisance. The act applies to the owners, lessees, occupants, managers, or agents of any building, establishments, or premises from which dense smoke is so emitted, and makes the same a misdemeanor punishable by a fine of not less than $25 nor more than $100. All such cities are expressly empowered to enact all necessary or desirable ordinances to carry out the provisions of the act. The information, duly verified, was filed on the 3d day of April, 1903. The defendant assailed the constitutionality of the law by a motion to quash, which was overruled, and exceptions duly saved. On October 5, 1903, a plea of not guilty was entered, and the cause was tried, resulting in a verdict of guilty, and a fine of $25 assessed. From the judgment and sentence imposed in pursuance of this verdict, this appeal was taken.

The evidence on the part of the state tended quite conclusively to show that on or about the 18th day of March, 1903, the defendant was the manager of the Goodwin Manufacturing Company, and that on that day dense, opaque smoke was emitted from the manufacturing plant of the Goodwin Manufacturing Company at intervals from 2:24 p. m. to 3:23 p. m. The evidence on the part of the state further tended to establish that there were various and numerous devices in general use for the abatement of smoke, such as down-draft furnaces, automatic stokers, brick arches, and steam jets, and including smokeless fuel, such as hard coal. The coal generally used in and about St. Louis is bituminous or soft coal. The device ordinarily used to abate smoke is the steam jet. On the part of the defendant, he testified in his own behalf that he had installed various devices in the said Goodwin plant; that the boiler plant used by said company is similar to that of the ordinary boiler plant used by other manufacturing companies in St. Louis; that after using the steam jet device the smoke inspectors objected to it, and he had then tried the Ideal smoke-consuming device, and this also was objected to, and he removed it and replaced the steam jets; that he had directed his fireman and engineer to be careful in the use of said device to prevent smoke; that none of the devices will work at all times; that many of them do mitigate the discharge of smoke, but do not prevent it; that the smoke is densest immediately after firing, and when the boilers are cleaned smoke is bound to be emitted; that poor coal, containing a large amount of slack, aggravates the condition; that his engineer is a careful and competent man; that he has not found any device superior to the steam jet contrivance for abating smoke; that about the 18th of March, 1903, it was almost impossible to get good coal by reason of the coal miners' strike, and the railroad accommodations were inadequate; that he was a member of an association organized to seek relief against the stringent enforcement of the smoke act of 1901. Henry Piatt, the engineer, corroborated the testimony of Mr. Tower.

The court instructed the jury that if they believed, from the evidence, that in the city of St. Louis and state of Missouri, on the 18th day of March, 1903, the defendant, George F. Tower, Jr., was the manager of the Goodwin Manufacturing Company, and the said company was at the time a corporation in possession of and operating the building and premises described in the information, and that as such manager on the 18th day of March, 1903, he did willfully and unlawfully suffer to be emitted and discharged from the smokestack or chimney of said premises dense smoke into the open air, then they would find him guilty, and assess his punishment at a fine of not less than $25, nor more than $100. The court further instructed the jury that if they found there was no known practicable device by which the emission of such dense smoke could, at the time mentioned in the information and in the testimony, have been prevented, then they would acquit the defendant; that by "practicable device" is meant some mechanical device designed for and adopted to the abatement of smoke, and which was practicable to be used on the premises in question at the time. Other usual instructions as to credibility of witnesses, presumption of innocence, and reasonable doubt were also given.

The defendant requested the following instructions, which the court refused, and the defendant duly saved his exceptions to such refusal:

Instruction No. 1. "The court instructs the jury that by the term `practicable device' is meant some mechanical device by means of which the defendant could, without unreasonable expense, loss, or damage to his plant, or substantial alteration thereof, have effectually abated dense smoke."

Instruction No. 2. "The court instructs the jury that, before they can find the defendant guilty of the offense with which he is charged, they must believe and find from the evidence beyond a reasonable doubt that the defendant permitted dense smoke to be emitted or discharged from the premises mentioned in the information within the corporate limits of the city of St. Louis in such quantities and for such a length of time as to constitute an annoyance or injury either to the persons or property of some of the inhabitants of said city, and unless they so find from the evidence beyond a reasonable doubt the defendant should be acquitted."

Instruction No. 3. "The court instructs the jury that under the evidence in this case they must find the defendant not guilty."

Instruction No. 4. "The jury are instructed that the burden of proof in this case is upon the state, and before they can find the defendant guilty the jury must from the evidence be satisfied beyond a reasonable doubt that the defendant permitted dense smoke to be emitted or discharged from its premises, and they must further be satisfied beyond a reasonable doubt that there was no known practical device that would have prevented the emission of such smoke at the very time such smoke was supposed to be emitted."

1. While this cause is here principally upon the constitutionality of the law of 1901, there are other propositions advanced which we must meet. The first is that, granting the said act to be constitutional, it does not apply to St. Louis, which is a city of over 300,000 population, because the act on its face applies to "cities of this state which now have or may hereafter have a population of one hundred thousand inhabitants"; that is to say, it applies to those cities only which have exactly 100,000 inhabitants, no more and no less. This contention is predicated on the rule of construction of criminal statutes which requires that they be construed strictly against the state, and liberally in favor of the citizen, and that we must adhere to the strict letter of the law. While the rule of strict construction as to criminal statutes is correct, our courts adopt Lord Mansfield's view "that tenderness does not require such a construction of words as would tend to render the law nugatory and ineffectual, and destroy or evade the very end of it; nor does it require that we should give in to such nice, strained, and critical objections as are contrary to its true meaning and spirit." A city having a population of over 300,000 inhabitants is a city having a population of 100,000 inhabitants. The greater includes the less. The plain, obvious meaning of the...