Bowers v. City of Indianapolis

• Decision Date: 11 October 1907
• Docket Number: 21,053
• Citation: 81 N.E. 1097,169 Ind. 105
• Parties: Bowers v. City of Indianapolis
• Court: Indiana Supreme Court

81 N.E. 1097

169 Ind. 105

Bowers v. City of Indianapolis

No. 21,053

Supreme Court of Indiana

October 11, 1907

From Marion Circuit Court (15,615); Henry Clay Allen, Judge.

Prosecution by the City of Indianapolis against Frank Bowers. From a judgment of conviction, defendant appeals.

Affirmed.

Robert W. McBride, for appellant.

Frederick E. Matson, Crate D. Bowen and Joseph F. Cowern, for appellee.

OPINION

Gillett, J.

Appellant commenced this action to recover for the violation of an ordinance. Omitting the penalty clause, the section charged to have been violated is as follows:

"The emission of dense black or gray smoke from any smokestack or chimney used in connection with any stationary steam boiler, locomotive, or furnace of any description within the corporate limits of the city of Indianapolis, in any apartment house, office building, hotel, theater, place of public amusement, school building, institution locomotive, or any other structure in the city of Indianapolis, or in any building used as a factory, or for any purpose of trade, or for any other purpose whatever except as a private residence, shall be deemed and is hereby declared to be a public nuisance."

There was a judgment against appellant in the court below, and in this court his counsel urge the following objections to said ordinance: (1) That said section declares the emission of dense black or gray smoke a nuisance regardless of the question whether the smoke emitted does, or even can, in the particular locality, work injury, inconvenience, nuisance, or discomfort to anyone in the enjoyment of his reasonable rights of person and of property; (2) that said ordinance is void because of the exemption of private residences; (3) that the ordinance wherein said section is found relates to different subjects of legislation as they are classified in the act concerning cities. We shall consider these contentions in their order.

Both under the act of 1891 (Acts 1891, p. 137, § 23, § 3794 Burns 1901), which was in force when the ordinance was passed, and the act of 1905 (Acts 1905, p. 219, § 53, § 3477 Burns 1905), the city was given the power "to declare what shall constitute a nuisance." At the time of the passage of both of said acts cities were prohibited from making an act punishable by ordinance which constituted an offense against the State. § 1709 Burns 1901, § 1640 R. S. 1881; § 1719 Burns 1905, Acts 1905, p. 584, § 62. In view of this restriction, it is very clear that it was the purpose of the General Assembly to authorize cities to exercise a legislative power in the denouncement as public nuisances of some things which were not within the purview of the criminal legislation of the State, or, in other words, nuisances per se, for otherwise the grant of power would have been of no effect. While it is clear that cities are not authorized under such grant to condemn as a nuisance that which, from its evident character, condition and surroundings, is clearly not of such a nature, yet if that which is prohibited lies on the border line of a public nuisance, so as fairly to invoke the legislative judgment in the determination of the question as to whether the thing should be prohibited, we are of opinion that we should accord to such determination the same respect as would be due to a like conclusion, expressed in the form of law by the General Assembly. In Miller v. Town of Syracuse (1907), 168 Ind. 230, 8 L. R. A. (N. S.) 471, 80 N.E. 411, we said: "It would be manifestly difficult, if not impossible, to frame general laws dealing in detail with nuisances, and the legislature has wisely committed to the local government authority to enact, and the responsibility of enforcing, proper sanitary and health regulations. If there be any fear of oppression, that fear must be that the people invested with the right of self-government will oppress themselves, as the power is wholly in their hands. Courts should be reluctant to disturb a municipal regulation, enacted in pursuance of such a comprehensive grant of power, and designed to promote the public health and comfort, on the ground of unreasonableness, but such regulation should be upheld as valid unless it is plain that it has no real relation to its professed object, or is a palpable invasion of private rights protected by constitutional guaranties." In Baumgartner v. Hasty (1885), 100 Ind. 575, 50 Am. Rep. 830, this court quoted with approval the following language from North Chicago City R. Co. v. Town of Lake View (1883), 105 Ill. 207, 44 Am. Rep. 788: "In doubtful cases, where a thing may or may not be a nuisance, depending upon a variety of circumstances requiring judgment and discretion on the part of the town authorities in exercising their legislative functions, under a general delegation of power like the one we are considering, their action, under such circumstances, would be conclusive of the question." It was said by the court in Gregory v. Mayor, etc. (1869), 40 N.Y. 273, 279, in passing upon certain regulations looking to the conservation of the health and comfort of the inhabitants of a city: "The importance of sustaining that board, in all lawful measures, tending to secure or promote the health of the city, should make us cautious in declaring any curtailment of their authority, except upon clear grounds. On the contrary, powers conferred for so greatly needed and most useful purposes, should receive a liberal construction for the advancement of the ends for which they were bestowed." And see Fisher v. Harrisburg (1854), 2 Grant. Cas. 291; Harrison v. Mayor, etc. (1843), 1 Gill 264.

The question we have to deal with is not as to the authority to regulate the emission of dense smoke in a sparsely inhabited locality wherein the act could only result in the creation of a private nuisance, but of the right to prevent the emission of dense black or dense gray smoke (for so we construe the ordinance) within the corporate limits of a populous city wherein, if there be no regulation upon the subject, the smoke from scores of steam-plants must, in the nature of things, often cover the city as with a pall, thereby impairing the health and comfort of thousands and casting grime upon every exposed object. If there is anything in the principle of the greatest good to the greatest number, or in the declared authority of government reasonably to regulate the use of property for the common good, it must be affirmed that power exists to deal with a condition which renders life in a great manufacturing city little short of impossible. In Mr. McQuillan's article, entitled "Abatement of the Smoke Nuisance in Large Cities," 46 Cent. L. J. 147, it is said: "If there is one thing in populous cities in which there are numerous steam-plants, wherein are consumed large quantities of bituminous or soft coal for fuel, which is generally known and admitted to be a nuisance, it is what is commonly known as 'smoke nuisance.' It is a well-known fact that smoke is carried for long distances, and, mingling with the general...