City of Portland v. Lloyd A. Fry Roofing Co.
| Decision Date | 10 November 1970 |
| Citation | 472 P.2d 826,3 Or.App. 352 |
| Parties | CITY OF PORTLAND, Respondent, v. LLOYD A. FRY ROOFING COMPANY, Appellant. |
| Court | Oregon Court of Appeals |
Herbert H. Anderson, Portland, argued the cause for appellant. With him on the briefs were McColloch, Dezendorf, Spears & Lubersky and Anthony J. Barker, Portland.
William H. Breck, Deputy City Atty., Portland, argued the cause for respondent. With him on the brief was Marian C. Rushing, City Atty., Portland.
Before SCHWAB, C.J., and FOLEY and BRANCHFIELD, Judge.
Defendant was charged with two different violations of the Air Quality Control Code of the city of Portland. It was found guilty in municipal court and appealed to the circuit court for Multnomah County. Upon trial in circuit court without a jury, defendant was again found guilty in both cases.
The defendant's first assignment of error is as follows:
'The ordinance under which the defendant was convicted and fined is void because it violates the Fifth and Fourteenth Amendments to the Constitution of the United States, and Article I, Section 20 of the Constitution of the State of Oregon in that it establishes no standard of guilt ascertainable by persons of common intelligence, and makes the guilt or innocence of the accused depend upon the subjective judgment of officers of the enforcement agency.'
The Portland Air Quality Control Code in effect at the time of the offenses charged in these cases provided:
'* * *
'(a) A person shall not discharge into the atmosphere from any single source of emission whatsoever any air contaminant for a period or periods aggregating more than three minutes in any one hour, * * * which is:
'1. As dark or darker in shade as that designated as No. 2 on the Ringelmann Chart, as published by the United States Bureau of Mines, or
'2. Of such opacity as to obscure an observer's view to a degree equal to or greater than does smoke described in subsection (a) 1. of this section.
'* * *
Both of the charges here were for violation of the portion of the ordinance relating to opacity.
Air pollution has perplexed public authorities since at least 1306, when the use of 'sea-coal' (as distinguished from charcoal) was forbidden on penalty of death. See Kennedy and Porter: Air Pollution: Its Control and Abatement, 8 Vand.L.Rev. 854 (1954--55).
The only witness in the case was a former employee of the city of Portland who testified to his observation of the smoke being emitted from defendant's smoke stack on the days in which defendant was charged with violations. He explained that No. 2 on the Ringelmann Chart was equal to 40 per cent opacity. That is, if 40 per cent or more of the view of a background object sought to be viewed by the observer is obscured by the smoke, there is a violation of the ordinance. The witness stated that he was able, as the result of his training and experience, to determine the percentage of opacity without the necessity of having a Ringelmann Chart before him while making his observations. In People v. International Steel Corp., 102 Cal.App.2d Supp. 935, 938--939, 226 P.2d 587, 590--591 (1951), the court gave an excellent description of the Ringelmann Chart and its use:
The trial judge in this case prepared a carefully written opinion. We quote and adopt that portion of his opinion dealing with defendant's constitutional objections:
'Defendant contended that the ordinance was unconstitutional because it:
'(a) Established no standard of guilt ascertainable to persons of common intelligence;
'(b) Contains no standards likely or calculated to produce uniform application, and;
'(c) Makes the guilt or innocence of defendant dependent upon the whims and vagaries of opinion testimony produced by officers of the enforcing agencies.
'All of these contentions, and a number of others, have been presented to various courts. All have been firmly rejected. The cases are to be found in the annotation at 78 A.L.R.2 1305. Perhaps the most comprehensive opinion is to be found in the California case, People v. Plywood Mfrs. of Calif., (138 Cal.App.2d (Supp.) 859,) 291 P2 587 ((1955)). That opinion dealt with the Ringelmann Chart (and Test); also, it discussed the qualification of witnesses in such cases, as well as the other defenses asserted in those cases.
'The question of whether pollution control legislation violates federal constitutional principles was laid to rest more than half a century ago. The United States Supreme Court in N.W. Laundry v. Des Moines, 239 U.S. 486, (36 S.Ct. 206, 60 LEd 396 (1915)) enunciated the following rule:
...
To continue reading
Request your trial
-
Southern Illinois Asphalt Co., Inc. v. Environmental Protection Agency, 71--163
...431, aff'd, 27 N.Y.2d 212, 316 N.Y.S.2d 226, 265 N.E.2d 72; Miami v. Coral Gables, (Fla.App.) 233 So.2d 7, and Portland v. Lloyd A. Fry Roofing Co., 3 Or.App. 352, 472 P.2d 826. Appellant next contends that those sections of the Act (Secs. 33(b), 42 and 44) granting discretionary power to t......
-
City of Cleveland v. the Cleveland Electric Illuminating Co.
... ... Control Board (1975), 29 Ill. App. 3d 441, 330 N.E.2d ... 524; City of Portland v. Lloyd A. Fry Roofing Co ... (1970), 3 Ore. App. 352, 472 P.2d 826; Bortz Coal Co. v ... ...
-
State v. Lloyd A. Fry Roofing Co.
...obscures the background is known as the Ringelmann Chart, which we have previously described in detail. See, City of Portland v. Fry Roofing Co., 3 Or.App. 352, 472 P.2d 826, Sup.Ct. review denied (1970). No. 2 on the Ringelmann Chart, referred to in Section 2--2.1(a)(2), means 40 per cent ......
-
Air Pollution Variance Board of Colorado v. Western Alfalfa Corporation 8212 690
...The Ringelmann test is generally sanctioned for use in measuring air pollution. See cases collected in Portland v. Fry Roofing Co., 3 Or.App. 352, 355—358, 472 P.2d 826, 827—829. 2 Colo.Rev.Stat.Ann. § 66—29—8(2)(d) 3 The Air Pollution Variance Board, after the Division of Administration, C......
-
The Legislative History of U.S. Air Pollution Control
...86 A.2d at 1, Board of Health of Weehawken v. New York Cent. R.R., 72 A.2d 511 (N.J. 1950); City of Portland v. Lloyd A. Fry Rooing Co., 472 P.2d 826 (Or. Ct. App. 1970); Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp., 553 P.2d 811, 6 ELR 20752 (Colo. 1976). 13. See Grinder, s......
-
CHAPTER 1 THE LEGISLATIVE HISTORY OF U.S. AIR POLLUTION CONTROL
...1 (N.J. 1952), Board of Health of Weehawken v. New York Cent. R.R., 72 A.2d 511 (N.J. 1950); City of Portland v. Lloyd A. Fry Roofing Co., 472 P.2d 826 (Ore. Ct. App. 1970); Air Pollution Variance Board v. Western Alfalfa Corp., 553 P.2d 811 (Colo. 1976). [49] See Annotation, Necessity Of S......