Glucose Refining Co. v. City of Chicago

• Decision Date: 23 May 1905
• Docket Number: 27,599.
• Citation: 138 F. 209
• Parties: GLUCOSE REFINING CO. v. CITY OF CHICAGO et al.
• Court: U.S. District Court — Northern District of Illinois

138 F. 209

GLUCOSE REFINING CO. v. CITY OF CHICAGO et al.

No. 27,599.

United States Circuit Court, N.D. Illinois, Eastern Division.

May 23, 1905

Kretzinger Gallagher, Rooney & Rogers, for complainant.

Howard S. Taylor, for defendants.

KOHLSAAT Circuit Judge.

Prior to March 23, 1903, complainant was the owner of the sugar refining plant in question, situated in the city of Chicago. On that date the city passed an ordinance, section 10 of which, so far as it is pertinent herein, reads as follows:

'The emission of dense smoke from the smokestack of any boat or locomotive, or from any chimney anywhere within the city shall be deemed and is hereby declared to be, a public nuisance, but no prosecution for the emission of dense smoke shall be commenced, unless within ten days prior thereto at least three notices shall have been mailed to the offender that dense smoke has been seen emitted from his premises. The owner or owners, lessee, agent, or manager of any boat or locomotive, and the proprietor lessee or agent of any building, factory, mill, works, or other establishment having smokestacks or chimneys, who shall permit or allow dense smoke to issue or to be emitted from the smokestack of any such boat or locomotive, or the chimney of any buildings, factory, mill, works, or other establishments having smokestacks or chimneys within the corporate limits to exceed three minutes (excepting in cases where the fire box is being cleaned out or new fire built therein, in which case the limit shall be six minutes) in any hour of the day or night, shall be deemed and held guilty of creating a nuisance, and shall for every such offense be fined a sum of not less than ten dollars ($10) nor more than one hundred dollars ($100). * * * Provided, that no prosecution under this ordinance shall be commenced against the owner, or owners, lessee, agent or manager of any boat, locomotive, or the proprietor, lessee or agent of any building, factory, mill, works or other establishment having smoke stacks or chimneys, the plant of which shall have been installed prior to the passage of this ordinance, until the expiration of one year after the passage of this ordinance, within which to rebuild and re-equip the same in accordance with the provisions of this ordinance: provided further, that no such owner, owners, lessee, agent or manager shall be entitled to said one year unless he shall at once commence his plans for the rebuilding and re-equipping of such plant and shall proceed with such work to the satisfaction of the board upon inspection at intervals of three months during said period of one year.'

For violation of this ordinance, the city proceeded to prosecute complainant, and has already instituted 18 suits, and threatens to bring further suits. The bill is filed by complainant, for itself and on behalf of all persons and corporations similarly situated, to enjoin the further institution of suits, on the ground that the ordinance is obnoxious to the federal Constitution, and otherwise invalid.

The cause is now before the court on a motion for a preliminary injunction, based upon the bill of complaint, duly verified, and the affidavit of Colville, its master mechanic. The defendants present no defense papers. The matter therefore comes up upon the allegations of the bill and affidavit alone, which, in so far as they are proper to be considered as matters of fact, must for the purposes of this hearing be taken as admitted. From these it appears that complainant is a corporation of New Jersey, and that the amount involved is largely in excess of $2,000, exclusive of interest and costs. These facts alone sufficiently show jurisdiction in this court. No jurisdiction in the federal courts can be predicated upon complainant's allegation charging that in passing the ordinance in question the city of Chicago exceeded its charter powers. Where it appears from plaintiff's pleadings that such power was wanting in the city, the question becomes one for the state courts to determine. Barney v. City of New York, 193 U.S. 430, 24 Sup.Ct. 502, 48 L.Ed. 737; Arrowsmith v. Harmoning, 118 U.S. 313, 25 L.Ed. 667.

It is insisted by defendants that the bill discloses no case for jurisdiction in equity. In City of Chicago v. Collins, 175 Ill. 445, 51 N.E. 907, 49 L.R.A. 408, 67 Am.St.Rep. 224, it is held that the enforcement of a void ordinance may be enjoined to prevent a multiplicity of suits, at the instance of any person whose interests are impaired by it, where there exists a right affecting many persons. The bill alleges that not only is complainant harassed by a multiplicity of suits, but that more are threatened by defendants; that there are a large number of manufacturing plants in the city of Chicago similarly situated with complainant; and that it files the bill in its own behalf, and in behalf of all other persons and corporations in like situation, thereby bringing the case within the rule in Chicago v. Collins aforesaid, and the authorities therein cited. The rule laid down in that case is approved in Poyer v. Village of Des Plaines, 123 Ill. 111, 13 N.E. 819, 5 Am.St.Rep. 494. In Cicero Lumber Co. v. Town of Cicero, 176 Ill. 9, 51 N.E. 758, 42 L.R.A. 696, 68 Am.St.Rep. 155, the court says, 'But it is well settled that there are two exceptions to the rule that courts of equity will not interfere to restrain trespasses, whether committed under form of law or otherwise. ' These exceptions are (1) to prevent irreparable injury; (2) to prevent a multiplicity of suits. In Third Ave. R. Co. v. Mayer, 54 N.Y. 161, the court holds that the imminence of innumerable suits in a justice court, where there is no right of consolidation, as in a court of record, justifies the interference of equity. In Brewing Co. v. Superior, 93 N.W. 1120, the Supreme Court of Wisconsin lays down the rule that equity may enjoin prosecutions for misdemeanors or violations of municipal ordinances 'where they are resorted to or threatened as a means of preventing the enjoyment of property rights, and there is no other way of adequately remedying the mischief. ' The allegations of the bill at bar bring the case fairly within this principle of law. Jurisdiction of a court of equity is further sustained by the following: Mayor, etc., of Baltimore v. Radecke, 49 Md. 217, 33 Am.Rep. 239. If the allegations of the bill are to be sustained, it is evident that the remedy at law is not 'as practical and efficient to the ends of justice and its prompt administration as the remedy in equity,' to quote the language of the Supreme Court in Boyce v. Grundy, 3 Pet. 210, 7 L.Ed. 655. Here not only may the multiplicity of suits be avoided, but the validity of the ordinance may be settled once for all. The bill also charges that to comply with the ordinance would work irreparable injury. If the ordinance be void, this ground, also, would warrant the interposition of equity. Walla Walla v. Walla Walla Water Co., 172 U.S. 12, 19 Sup.Ct. 77, 43 L.Ed. 341; Springhead Spinning Co. v. Riley, L.R. 6 Eq. 558. Even though the decree of a court of equity might operate incidentally to restrain criminal proceedings, yet, where the threatened proceedings will work irreparable injury and loss of property, jurisdiction in equity will be sustained. Manhattan Iron Works v. French, 12 Abb. N.C. 446; Quint v. Board, etc., 64 Miss. 483, 4 So. 548; Atlanta v. Gate City Light Co., 71 Ga. 106; Georgia R. Co. v. City of Atlanta (Ga.) 45 S.E. 256; Port of Mobile v. R. Co., 84 Ala. 115, 4 So. 106, 5 Am.St.Rep. 342. There are cases holding suits for breach of such an ordinance to be civil proceedings-- as, for instance, Graubner v. Jacksonville, 50 Ill. 87; Oshkosh v. Schwartz (Wis.) 13 N.W. 552.

Some question is made as to the right of the federal court to grant the relief asked for, by reason of the provisions of section 720 of the Revised Statutes of the United States (U.S.. Comp. St. 1901, p. 581). While this court will not attempt to restrain the state court in a pending proceeding, the statute may not be construed to limit the power of the federal court to restrain parties from instituting proceedings in any court. Texas Ry. Co. v. Kuteman, 54 F. 547, 4 C.C.A. 503. As to suits not yet begun, this court has prior jurisdiction to the state court, and for that reason, also, the rule does not apply. French v. Hay, 22 Wall. 253, 22 L.Ed. 857; Sharon v. Terry et al. (C.C.) 36 F. 337, 1 L.R.A. 572; State of Louisiana v. La Garde et al. (C.C.) 60 F. 186. It therefore seems clear that the court has jurisdiction for the purposes of this hearing.

The ordinance declares the issuance of dense smoke within certain limits for the period named therein to be a nuisance per se and requires no proof of the actual effect of such smoke. This, the bill charges, the city council has no power to do, since smoke was not held to be a nuisance at the common law, and may or may not be a nuisance in fact. In the absence of statutory provisions the municipality would be without power so to declare it. Lake View v. Letz, 44 Ill. 81; St. Louis v. Heitzberg Brwg. Co., 141 Mo. 375, 42 S.W. 954, 39 L.R.A. 551, 64 Am.St.Rep. 516; Dillon on Municipal Corp. (4th Ed.) Secs. 95, 374; Am. & Eng. Enc. of Law, vol. 21, p. 270. Paragraph 75 of article 5, Sec. 1, of chapter 24 of the Revised Statutes of Illinois (Hurds' Rev. St. 1903, p. 294), provides that the city council in cities shall have the power 'to declare what shall be a nuisance and to abate the same and to impose fines upon parties who may create, continue or suffer nuisances to exist. ' Under this provision of the charter the ordinance aforesaid was passed. With regard to the effect of this class of legislation, Dillon, in his work on Municipal Corporations (4th Ed.) Sec. 308, says: 'It is...