Huron Portland Cement Co. v. City of Detroit, 63

• Decision Date: 12 January 1959
• Docket Number: No. 63,63
• Citation: 355 Mich. 227,93 N.W.2d 888
• Parties: HURON PORTLAND CEMENT COMPANY, a Michigan corporation, Plaintiff and Appellant, v. CITY OF DETROIT, a Michigan municipal corporation, Benjamin Linsky, Chief, Bureau of Smoke Abatement, P. J. Lareau, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 888

93 N.W.2d 888

355 Mich. 227

HURON PORTLAND CEMENT COMPANY, a Michigan corporation, Plaintiff and Appellant, v. CITY OF DETROIT, a Michigan municipal corporation, Benjamin

Linsky, Chief, Bureau of Smoke Abatement, P. J.

Lareau, Defendants and Appellees.

No. 63.

Supreme Court of Michigan.

Jan. 12, 1959.

Beaumont, Smith & Harris, Detroit, for plaintiff and appellant.

Nathaniel H. Goldstick, Corp. Counsel, John F. Hathaway, Asst. Corp. Counsel, Detroit, for defendants and appellees.

Paul L. Adams, Atty. Gen., Samuel J. Torina, Solicitor Gen., Lansing, Nicholas V. Olds, Asst. Atty. Gen., by Jerome Maslowski, Asst. Atty. Gen., for the State, amicus curiae.

Hill, Lewis, Andrews, Granse & Adams, Detroit, for Great Lakes Shipowners Ass'n, amicus curiae.

Gilbert R. Johnson and Scott H. Elder, Cleveland, Ohio (Johnson, Branand & Jaeger, Cleveland, Ohio, of counsel), for Lake Carriers' Ass'n, amicus curiae.

Before the Entire Bench.

VOELKER, Justice.

The defendant city of Detroit has a comprehensive ordinance (No. 167-E) entitled 'Smoke Abatement Code' which provides that it shall be unlawful within that city to permit the emission of smoke of a density equal to or greater than that described as No. 2 Ringlemann Chart (a standard accepted way of measuring the density of smoke). This ordinance allows certain temporary exceptions which are not now relevant. It also provides that after an owner has been warned of 3 violations within a 12 month period the commissioner, a city official, shall serve notice on the owners and seal the offending equipment unless he finds that adequate corrective steps have been taken. It also provides for the inspection of equipment and for fines and imprisonment for failure to comply with the ordinance.

On December 20, 1955 the city of Detroit filed complaints in the traffic and ordinance division of the recorder's court thereof against plaintiff-appellant, owner of the steamships John W. Boardman and S. T. Crapo for allowing the emission of dense smoke at the port of Detroit contrary to the provisions of the ordinance in question.

Appellant then filed suit in circuit court to enjoin the city of Detroit and the other defendants from prosecuting the complaints, and an order was entered granting such an injunction during the pendency of this suit. Thereafter in circuit court the plaintiff claimed that the ordinance was unconstitutional as to it except in those instances where the objectionable smoke is caused by improper firing or by the improper use of the equipment on the vessel. It is conceded that the vessels operate in interstate commerce. The trial court held that the ordinance was constitutional and that it was a necessary and reasonable exercise of the local police power. From a decree to that effect plaintiff has appealed.

In the exercise of its constitutional power to control interstate commerce the Congress of the United States has provided for extensive control and inspection of American vessels on the Great Lakes. It is the contention of appellant that by such legislation Congress has pre-empted the field and that therefore the ordinance in question is invalid.

The relationship between state and congressional power to control interstate commerce is well stated in 15 C.J.S. Commerce § 11, p. 268 as follows:

'However, the constitutional grant to congress of power to regulate interstate commerce, although operating of its own force to curtail state power in some measure, does not forestall all state action affecting interstate commerce; it does not withdraw from the states power to legislate in respect of their local concerns, even though such legislation may indirectly and incidentally affect interstate commerce. Although state legislation affects interstate commerce incidentally, indirectly, or remotely, yet where it does not undertake to regulate such commerce and is no more than a bona fide, legitimate, and reasonable exercise of the reserved police power of the state in respect of a matter of local or internal concern, it is valid and * * * will stand, in the absence of conflicting and superseding legislation by congress in the exercise of its superior authority to regulate commerce among the states. * * *'

Appellant's first question on appeal thus falls naturally into 3 parts: 1: Does the ordinance conflict with any federal legislation? 2: Does it seek to regulate interstate commerce? 3: Is it a reasonable exercise of local police power?

To determine the first part of that question we must look at the scope and intent of the congressional legislation and then examine the ordinance in question to see if it pertains to the same subject matter. The federal legislation cited in appellant's brief, U.S.C.A., Title 46, Ch. 14, is, so far as we can determine, intended primarily for the protection and safety of vessels and their passengers, crew and cargo. None of the federal legislation in this filed is to our knowledge designed or enacted for the protection of persons and property on land. Appellant has cited none in its brief. (See 1951-52 OAG, p. 370 to the effect that the United States Coast Guard so interprets the applicable federal legislation.) It appears to us that the ordinance and the federal legislation deal with basically different subject matter and are thus not in such conflict that the former must bow.

A quick glance at the title of the ordinance, 'Smoke Abatement Code,' is sufficient to learn its intent. Even the most casual reading of it indicates clearly that its sole purpose is to protect the health and welfare of the residents of Detroit by preventing the emission of dense smoke into the air which the people must breathe.

Thus paragraphs 2 and 3 of the preamble to the ordinance provide:

'Whereas, the excessive emission of dense smoke within the corporate limits of the City of Detroit and the resultant effect upon the public health and welfare require the adoption of a comprehensive and integrated plan of smoke control; and

'Whereas, in conjunction with the smoke control program it is desirable to adopt appropriate regulations to reduce air pollution caused by excessive soot, cinders, fly ash, dust, noxious acids, fumes and gases, the emission of which is detrimental to the health and welfare of the residents of the City: Now, Therefore,'

We think the ordinance before us is clearly aimed at the prevention of air pollution and not at any regulation of interstate commerce. If it affects interstate commerce at all we think it is only indirect and incidental.

Little need be said on the subject of whether or not this ordinance is a reasonable exercise of local police power. We think that by now it is sufficiently clear without citation of authority that excessive air pollution by dense smoke cannot be anything but harmful to the health and welfare of a community. Indeed in 1955 Congress appropriated $5,000,000 a year for 5 years for research into and control of the increasingly vexing problem of air pollution. (We also note that the first national conference on air pollution was held in Washington, D. C. during November, 1958. The National Cancer Institute is presently studing the problem but...