City of Milwaukee v. Milbrew, Inc.

• Decision Date: 01 June 1942
• Citation: 240 Wis. 527,3 N.W.2d 386
• Parties: CITY OF MILWAUKEE v. MILBREW, Inc.
• Court: Wisconsin Supreme Court

240 Wis. 527

3 N.W.2d 386

CITY OF MILWAUKEE

v.MILBREW, Inc.

Supreme Court of Wisconsin.

April 7, 1942.

Rehearing Denied June 1, 1942.

Appeal from a judgment of the Municipal Court of Milwaukee County; Max W. Nohl, Judge.

Reversed.

Warrant issued by the District Court of Milwaukee county and returned on March 21, 1941, charging Milbrew, Inc., with having violated sec. 875 of the Milwaukee Code 1914 by permitting foul and offensive odors to emit from defendant's premises in a manner described and declared to be a nuisance by sec. 871 of the Milwaukee Code.

The district court entered judgment finding defendant guilty and an appeal was taken to the Municipal Court of Milwaukee county. A new trial was had and the municipal court entered judgment fining defendant $50 and costs. The appeal is from that judgment.

The ordinances involved read as follows:

“ Factories, shops, barns, etc., which emit offensive odors are public nuisances.

“Section 871. Any gas plant, factory, yard, store house, building or structure of any kind, tallow chandler's shop, soap factory, tannery, distillery, livery stable, cattle yard, shed, barn, packing house, slaughter house, rendering establishment, coal pile, rubbish accumulation, stagnant pool, sink hole, or other thing which shall become noxious, foul or offensive, or which shall emit foul or offensive odors, gases, effluvia or stenches, or which shall be dangerous or prejudicial to the public health, is hereby declared to be a public nuisance.”

“ Penalty.

“Section 875. Any corporation owning, occupying, in charge or control of, or maintaining or permitting any premises described in section 871, wherein a public nuisance shall exist, shall be fined in a sum not less than fifty nor more than five hundred dollars.”

Defendant's plant used for the purpose of drying brewers' yeast is located on the edge of a light manufacturing district; east, west and south the neighborhood is residential; to the north lies a heavy industry district. The location is described by Charles Senn, a sanitary engineer employed in the health department of plaintiff city, as follows:

“* * * About a half block north of Milbrew on the north side of Keefe Avenue is a purely industrial area, heavy industry. Milbrew is in a commercial and light manufacturing district which according to the zoning map is just a narrow strip paralleling the railroad tracks. The Seaman Body Company is in a heavy manufacturing district. South of Keefe straight west there are practically no industries in the immediate neighborhood except there is one just across the street where carbon dioxide gas is manufactured. Straight south there is no industry that I can recall except the dairy company south and east and stables. * * * I do know the Milwaukee Paint Works is east and the Callaway Fuel Company southeast. The Seaman Body Corporation is about six blocks away. There is a dairy north and south of the plant about 4 or 5 blocks from Milbrew. * * * There is one dairy down on Holton Street about Auer. That's a barn where they keep horses and automobiles. There is also a shipping station. The one that's north is also a complete dairy plant. There is a paint manufacturing company north of Keefe about a block from Milbrew.There is a tannery considerably north of Keefe * * * 7 or 8 average blocks. There is a brewery in the neighborhood about five blocks east and north. There is a railroad track running right through there and if you consider several blocks away, I would say through the entire neighborhood. * * * That is what is known as the old beer line. They run beer trains on that line, refrigerator cars loaded with beer. * * * I would estimate there are about 30 or 40 of these cars in a train that passes up that railroad track. * * * The odor from the Seaman Body Company is a baked enamel odor. There is a macaroni factory in there also from which an odor emanates. * * * There is a magnesium company a block and a half from Milbrew. * * *”

Wm. F. Quick and E. Ace Bernstein, both of Milwaukee, for appellant.

Walter J. Mattison, City Atty., and Mathias Schimenz and Arthur S. Ehrmann, Asst. City Attys., all of Milwaukee, for respondent.

FAIRCHILD, Justice.

Whether a nuisance exists and what remedies are provided for dealing with an existing nuisance raise questions which involve technical propositions of law and matters of public policy. It was said in Gilbert v. Showerman, 1871, 23 Mich. 448, at page 456, a suit seeking to enjoin the operation of a mill as a private nuisance, that: “We cannot shut our eyes to the obvious truth that if the running of this mill can be enjoined, almost any manufactory in any of our cities can be enjoined upon similar reasons. Some resident must be incommoded or annoyed by almost any of them. In the heaviest business quarters and among the most offensive trades of every city, will be found persons who, from motives of convenience, economy or necessity, have taken up there their abode; but in the administration of equitable police, the greater and more general interests must be regarded rather than the inferior and special. The welfare of community cannot be otherwise subserved and its necessities provided for. * * *”

That some one is annoyed by what to him is a disagreeable smell or noise is not in and of itself such evidence of a nuisance as to warrant a prosecution under an ordinance reading as do the ones here involved. The existence of a nuisance depends upon whether there is physical injury to property or occupant resulting from a use, and a municipality's interest is aroused only when the injury is substantial, the facts are weighty and important, and the public is affected. The fundamental rule, while usually stated in terms of limitation, comprehends qualifications affording necessary protection. The difficulty in defining what constitutes a nuisance so that each case as it arises can be accurately tested has not been done away with, but it may be said that a prosecution under a city ordinance ought not result in a verdict of guilty if the result is to single out a particular use by an industry as objectionable without a showing that it is detrimental or prejudicial to public health or welfare by clear and convincing evidence. The rights that may come within the court's consideration may vary from comfortable enjoyment of property to protection against a condition dangerous to health; but the judgment must be framed in a procedure affected by the municipal legislation as well as the common law.

There is no contention that the use to which this factory is being put, namely for drying brewers' yeast, is unlawful and from the evidence as it is before us the location of the business is within a zone set apart for manufacturing. The only ordinances of the city which are in evidence are sections 871 and 875 of the Milwaukee Code 1914, and when properly construed these ordinances do not outlaw the use to which appellant is devoting its property. There is no question raised as to the general power of the city to enact ordinances of the nature of those upon which the city relies for a conviction in this case and we assume that ample authority to regulate public nuisances may be found in the general welfare clause of the city charter. ¹ 3 McQuillin, Municipal Corporations, 2d Ed., 1928, pp. 106 and 120, §§ 950 and 954; 2 Dillon, Municipal Corporations, 5th Ed., 1911, pp. 1043, 1044, § 689; Dallmann v. Kluchesky, 1938, 229 Wis. 169, 282 N.W. 9;Walker v. Towle, 1901, 156 Ind. 639, 59 N.E. 20,53 L.R.A. 749. Such regulation comes within a well-recognized field of municipal control. 3 McQuillin, Municipal Corporations p. 119 et seq., §§ 954-956, inc.; 2 Dillon, Municipal Corporations p. 1043 et seq., §§ 684-689; Parker and Worthington, Public Health and Safety (1892) pp. 55, 56, §44.

Preliminary to a consideration of the specific violation complained of under the ordinance, it is important to bear in mind certain fundamental propositions underlying the right of a municipality to exercise such power. First, ordinances of this nature, as any other exercise of the police power, are subject to the safeguards and guaranties of the state and federal constitutions. Dobbins v. Los Angeles, 1904, 195 U.S. 223, 25 S.Ct. 18, 49 L.Ed. 169;Maercker v. Milwaukee, 1912, 151 Wis. 324, 139 N.W. 199, L.R.A. 1915F, 1196, Ann.Cas.1914B, 199; 3 McQuillin, Municipal Corporations, pp. 117, 118, § 953; 37 Am.Jur. p. 919, § 285. Second, it is only a public nuisance that may be punished by a municipality in the exercise of its police powers. City of McAlester v. Grand Union Tea Co., 1940, 186 Okl. 487, 98 P.2d 924. Third, a municipality, in general, has no power to declare that to be a nuisance which is not so in fact. 3 McQuillin, Municipal Corporations, pp. 125, 126, § 956. In holding invalid an ordinance of the city of Milwaukee declaring a certain wharf to be a nuisance contrary to the fact, the United States supreme court declared: “* * * It is a doctrine not to be tolerated in this country, that a municipal corporation, without any general laws either of the city or of the State, within which a given structure can be shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business, and all the property of the city, at the uncontrolled will of the temporary local authorities. * * *” Yates v. Milwaukee, 1870, 10 Wall. 497, 77 U.S. 497 at page 505,19 L.Ed. 984.

The classification of public nuisances as drawn by the Illinois court in the case of People v. City of Chicago, 1913, 260 Ill. 150 at page 152,102 N.E. 1039, at page 1040, furnishes the base upon which to examine the scope and validity of the ordinances here in question: “* * * Nuisances may be divided into three classes: First, those which in their nature are nuisances per se or are so denounced by the common law or the statute;...