Harmon v. the City of Chicago.

• Decision Date: 13 June 1884
• Citation: 51 Am.Rep. 698,110 Ill. 400,1884 WL 9896
• Parties: WILLIAM HARMONv.THE CITY OF CHICAGO.
• Court: Illinois Supreme Court

110 Ill. 400

1884 WL 9896 (Ill.)

51 Am.Rep. 698

WILLIAM HARMON

v.THE CITY OF CHICAGO.

Supreme Court of Illinois.

Filed at Ottawa Jun. 13, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Criminal Court of Cook county; the Hon. KIRK HAWES, Judge, presiding.

This suit was originally commenced by the city of Chicago, against William Harmon, in the police court of the city for the first district, for creating a nuisance, by permitting or allowing a “dense smoke” to issue from the smoke-stack of the steam tug-boat “Tom Brown,” owned by defendant, and which, at the time, he was operating in and about the Chicago river, within the corporate limits of the city, in violation of sections 1650 and 1651 of an ordinance entitled “An ordinance for revising and consolidating the general ordinances of the city of Chicago,” passed April, 1881. On the trial in the police court, defendant was found guilty, and fined in the sum of fifty dollars. A trial de novo was had in the Criminal Court, on the appeal of the defendant, where the case was submitted on an agreed statement of facts, and where the defendant was again found guilty, and a fine in the same amount imposed. That judgment was affirmed in the Appellate Court for the First District, and a majority of the judges of that court having certified the case, in their opinion, involves questions of law of such importance, on account of principal and collateral interests, as that it should be passed upon by the Supreme Court, defendant brings the case to this court on his further appeal.

Mr. WILLIAM ARMSTRONG, for the appellant:

What powers included in the police power: 4 Blackstone's Com. 162; Cooley's Const. Lim. 572, 573, 576; Thorp v. Rutland and Burlington R. R. Co. 27 Vt. 149; Railroad Co. v. Husen, 5 Otto, 470.

The ordinance is in excess of the police powers vested in the State, and an interference with inter-State commerce as well as commerce with foreign nations. Railroad Co. v. Husen, 5 Otto, 465; Salzenstein et al. v. Marvin, 91 Ill. 391; Yeazel v. Alexander, 58 Id. 254.

That the Chicago river is a navigable stream, and hence a public highway, is clear. Cooley's Const. Lim. 589. As to what are nuisances, and their kinds, counsel cited and commented upon 3 Blackstone's Com. 215; 1 Hawkins' Pleas of the Crown, 362; Commonwealth v. Howe, 13 Gray, 26; Commonwealth v. Hart, 10 Id. 465; Commonwealth v. Davis, 11 Id. 48; Commonwealth v. Floyd, Id. 52; Wood on Nuisances, secs. 24, 47, 80, 477, 607; Ely v. Supervisors, 36 N. Y. 297; The State v. Hand, 7 Iowa, 411; Commonwealth v. Van Lichts, Bright, (Pa.) 69; Attorney General v. Stewart, 20 N. J. Ch. 417; Aldrich v. Howard, 7 R. I. 87; 8 Id. 246; Burdet v. Swenson, 17 Texas, 487; Kirkman v. Handy, 11 Humph. 406; Coker v. Birge, 10 Ga. 336; Dunmuil v. Dupont, 18 B. Mon. 800.

As to the power of cities and towns to declare certain things nuisances: Winford v. The People, 14 Mich. 41; Austin v. Murray, 16 Pick. 125; Goddard v. Jacksonville, 15 Ill. 588; Roberts v. Ogle, 30 Id. 459; Town of Lake View v. Litz, 44 Id. 81; Chicago, Rock Island and Pacific R. R. Co. v. Joliet, 79 Id. 25; North Chicago City Ry. Co. v. Lake View, 105 Id. 207; The State v. Jersey City, 5 Dutch. 171.

Mr. F. S. WINSTON, Corporation Counsel, for the appellee:

The court will take judicial notice of the fact that the city of Chicago is organized under the general Incorporation act. Potwin v. Johnson, 106 Ill. 452.

Assuming the tug of appellant to be engaged in “commerce between the States,” yet the ordinance in question is a local police regulation, which the State of Illinois, and the city by authority of the State, have full power to make; and the exercise of such power is not in conflict with section 8, article 1, of the Federal constitution. Gibbons v. Ogden, 9 Wheat. 1; Conway v. Taylor, 1 Blackf. 603; License cases, 5 How. 504; Gilman v. Philadelphia, 3 Wall. 713; Crandall v. Nevada, 6 Id. 35; Railroad Co. v. Fuller, 17 Id. 560; Osborne v. Mobile, 16 Id. 479; Transportation Co. v. Chicago, 9 Otto, 643; Foster v. Port of New Orleans, 94 U. S. 248; Packet Co. v. Board of Trustees, 105 Id. 559; Escanaba Transportation Co. v. Chicago, 107 Id. 185; Chicago v. McGinn, 51 Ill. 266; Wiggins Ferry Co. v. East St. Louis, 102 Id. 560.

The power to declare what is a nuisance, and to abate the same, is a valid power. Goddard v. Jacksonville, 15 Ill. 588; Prest et al. v. Holland, 19 Id. 271; Block v. Jacksonville, 36 Id. 301; Roberts v. Ogle, 30 Id. 459; King v. Davenport, 98 Id. 305; North Chicago City Ry. Co. v. Lake View, 105 Id. 207.

Dense smoke is a nuisance per se. Wahle v. Reinbach, 76 Ill. 322; Cooper v. Randall, 53 Id. 54; Cleveland v. Citizens' Gas Light Co. 20 N. J. Eq. 205; Ross v. Butler, 19 Id. 294; Rhodes v. Dunbar,58 Pa. St. 275; Galbraith v. Oliver, 3 Pitts. 79; Catlin v. Valentine, 9 Paige, 675; Wood on Nuisances, chap. 13.

The discretionary power given to the council to declare what shall constitute a nuisance, will not be judicially interfered with unless its exercise be manifestly unreasonable and oppressive. Dillon on Mun. Corp. (3d ed.) sec. 379; North Chicago City Ry. Co. v. Lake View, 105 Ill. 207.

The ordinance in question is a valid exercise of the police power of the city. Ohio and Mississippi R. R. Co. v. McClelland, 25 Ill. 140; Galena R. R. Co. v. Appleby, 28 Id. 283; Dingman v. The People, 51 Id. 278; Northwestern Fertilizing Co. v. Hyde Park, 70 Id. 634, affirmed in 98 U. S. 659; Dillon on Mun. Corp. (3d ed.) sec. 141, et seq.; Cooley's Const. Lim. sec. 572, et seq.

As to the exception in section 1650 of the ordinance, appellee contends that that does not apply to the smoke-stack of any boat or locomotive; and even were the exception illegal, yet the balance of the section would be valid. Cooley's Const. Lim. sec. 178; Knox County v. Davis, 63 Ill. 405.

But it makes no difference whether that section was valid or not, for the reason that it prescribed no fine, and was simply a definition; and besides, the following section, 1651, was complete in itself, and under that alone was the fine imposed. Mr. GEO. MILLS ROGERS, also, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

Only two sections of the ordinance which it is alleged was violated were introduced in evidence. So far as anything appears in the record, they seem to have no necessary connection with each other. Section 1650 declares: “The emission of dense smoke from the smoke-stack 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: Provided, that the chimneys of buildings used exclusively for private residences shall not be deemed within the provision of this ordinance.” It will be perceived this section provides no penalty for any infraction of its provisions. At most it would seem to be a definition of what the common council regarded as a “public nuisance,”--nothing more. The case will be considered as though this section of the ordinance had not been introduced in evidence.

Section 1651 seems to be complete in itself, and it was under its provisions a fine was imposed on defendant. It is the only section of the ordinance in evidence that imposes any penalty for a violation of its provisions. It is as follows:

“The owner or owners of any boat or locomotive engine, and the person or persons employed, as engineer or otherwise, in the working of the engine or engines in said boat, or in operating such locomotive, and the proprietor, lessee and occupant of any building, who shall permit or allow dense smoke to issue or be emitted from the smoke-stack of any such boat or locomotive, or the chimney of any building, within the corporate limits, shall be deemed and held guilty of creating a nuisance, and shall, for every such offence, be fined in a sum not less than five dollars nor more than fifty dollars.”

Considering these sections of the ordinance as distinct and independent provisions, having no necessary connection with each other, the criticism made upon section 1650, that it excepts certain persons and property from its operation, and therefore conflicts with that provision of the constitution of the State which declares the General Assembly shall not pass any local or special laws in certain enumerated cases, among which is, “granting to any corporation, association or individual any special or exclusive privilege or immunity or franchise whatever,” and is for that reason void, can have no application to section 1651, just quoted. It is general in its provisions, and embraces all persons and property within the limits of the corporation, and imposes the same penalty upon all persons guilty of “creating a nuisance,” as therein specified.

It is said section 1651 is leveled against a private nuisance, and can not therefore be the subject of a public prosecution on behalf of the municipality, as a public nuisance might be. Conceding, as is done by the admission in the record, the effect of “dense smoke” emitted from a smoke-stack or chimney “is detrimental to certain classes of property and business within the limits of the city of Chicago, and is a personal annoyance to the public at large within the city,” it is a public nuisance, in the midst of a large and densely populated city, whether it is so declared by ordinance or not. Unless it was so in fact, the act of declaring it to be a public nuisance would not make it so. Omitting so to declare, it is none the less a public nuisance. Certainly anything that is detrimental to certain classes of property and business in a populous city, and is a personal annoyance to the public at large within the city, needs not to be defined by ordinance or by lexicographers to be known to the common mind as a public nuisance. It is so per se. The nuisance the party is forbidden by this section of the ordinance to create within the limits of the city, will be...