State v. Chi., M. & St. P. Ry. Co.

• Decision Date: 10 March 1911
• Citation: 130 N.W. 545,114 Minn. 122
• Court: Minnesota Supreme Court
• Parties: STATE v. CHICAGO, M. & ST. P. RY. CO.

114 Minn. 122

130 N.W. 545

STATE

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Minnesota.

March 10, 1911.

Appeal from Municipal Court of Minneapolis; W. C. Leary, Judge.

The Chicago, Milwaukee & St. Paul Railway Company was convicted of violating an ordinance of the City of Minneapolis, and it appeals. Affirmed.

Syllabus by the Court

The validity of a provision in a city ordinance, expressly authorized by the Legislature, does not depend upon the expediency or public policy of its enactment, but upon its being within the legislative power of the state.

The emission of dense smoke by yard and switch engines being caused by the use of soft coal therein, a prohibition of such use within a populous city is substantially related to and directly tends to the prevention of a nuisance, the emission of dense smoke, and is an exercise of the police power of the state within constitutional limits.

Where there is a substantial difference in the condition or situation of individuals or objects with reference to the subject embraced in a law, an appropriate limitation, based on such difference, in the application of the law does not make such legislation partial.

The fact that a prohibition of the use of soft coal in locomotives does not apply to stationary engines does not make such prohibition partial legislation; there being obvious differences between the two classes of engines in respect to the tendency that burning soft coal has to cause a smoke nuisance, and other appropriate legislation having been enacted by the city to prevent the emission of dense smoke by stationary plants. F. W. Root (M. L. Countryman, of counsel), for appellant.

Daniel Fish and John A. Dahl, for respondent.

SIMPSON, J.

In the municipal court of the city of Minneapolis the defendant was adjudged guilty of violating an ordinance prohibiting the use of soft coal, except smokeless coal, in certain engines within said city, and a fine of $25 was imposed. The defendant appeals from the said judgment.

It was shown and conceded upon the trial that the specified switch engine of the defendant company was, on the day charged, engaged in switching in defendant's yards in the city of Minneapolis, and that the officers and servants of defendant having charge and control of such engine were, at the time, using soft coal therein, which was not smokeless coal, and that the engine was then emitting dense black smoke.

By a demurrer interposed to the complaint, and overruled, the defendant questioned, and now questions, by various assignments of error on this appeal, the validity of the ordinance, and urges in support of its position four objections to said ordinance: First, that the city did not have authority to declare the use of soft coal in the specified engines a nuisance, nor to prohibit such use as constituting a nuisance; second, that, if the city had power to regulate the use of soft coal, it did not have power to prohibit its use; third, that the ordinance is partial in its application and is class legislation; fourth, that the ordinance is unreasonable, and would deprive the defendant of its property without due process of law, because (a) the ordinance went into effect 27 days after its publication, and not sufficient time was given the defendant company to comply with its terms and continue carrying on its business of transportation; (b) the supply of hard coal is limited.

A consideration of the questions so raised involves not only the terms of the ordinance the defendant was charged with violating, but as well the legislative or charter power under which it was passed, and the general plan and scope of all the ordinances passed in the exercise of these powers. These different provisions, so far as here material, are before the court on this appeal; the charter of the city of Minneapolis being a public act, and the municipal court, from which this appeal is taken, having judicial notice of all ordinances of the city of Minneapolis.

The charter of the city of Minneapolis gives the city council general power and authority to pass ordinances for the government and good order of the city, and to enforce the same, and for these purposes it is given, among many other express powers, power: ‘Seventh. To regulate the movement and speed of railroad locomotives and cars; * * * to regulate and prohibit the unnecessary discharging of steam therefrom; * * * and may direct what kind of coal any yard or switch engine shall use while being run or operated for any yard or upon any railroad within the limits of said city. Thirty-second. To do any and all acts and make all regulations which may be necessary and expedient for the preservation of health. Forty-seventh. * * * It shall have authority to prohibit and prevent the erection or maintenance of any insecure or unsafe buildings, stacks, walls or chimneys and the emission of dense smoke in said city, and to declare them to be nuisances and to provide for their abatement.’

In the exercise of its charter powers, the city council at different times passed ordinances, now in force: Declaring the emission of dense smoke in the city a nuisance, prohibiting it, and providing a penalty therefor; prescribing the method of construction of chimneys and flues in buildings; requiring the submission to and approval by the smoke inspector of plans of furnaces and boilers in stationary heating and power plants in buildings to be constructed; creating the position of smoke inspector, and providing for the appointment of such officer; and in November, 1909, the ordinance which the defendant was charged with violating. The material part of this ordinance is as follows:

‘Section 1. The use of soft coal in traction engines, switching engines and locomotive engines in the city of Minneapolis is hereby declared to be a nuisance and such use of soft coal, other than smokeless coal, in the city of Minneapolis is hereby prohibited; and no person, company or corporation shall hereafter use or permit or cause to be used any soft coal, other than smokeless coal, in any traction engine, switching engine or locomotive engine in the city of Minneapolis, Minnesota.’

It is apparent that this ordinance, and the others referred to, are the outcome of a general plan on the part of the city of Minneapolis to abate the smoke nuisance, as authorized by the Legislature. The Legislature, having authorized the city council to declare the emission of dense smoke a nuisance, and to provide for its abatement, gave the council specific authority to direct, as one means to that end, the kind of coal that may be used in switch engines. Was this authorization, and an ordinance passed thereunder, if within the limits of the authority, a valid exercise of legislative power?

It is elementary that the Legislature cannot prevent a lawful use of property by declaring a certain use to be a nuisance which is not in fact a nuisance, and prohibiting such use. Lake View v. Rose Hill Cemetery Co., 70 Ill. 191, 22 Am. Rep. 71;Hutton v. City of Camden, 39 N. J. Law, 122, 23 Am. Rep. 203;People v. Rosenberg, 138 N. Y. 410, 34 N. E. 285. On the other hand, it is equally clear that acts or conditions which are detrimental to the comfort and health of the community may be effectively declared nuisances by the Legislature, and in the exercise of that power specified acts or conditions may be declared a nuisance, although not so determined at common law. And the fact that the use or value of property as existing under the common law is thereby injuriously affected does not necessarily bring such legislative action within any constitutional prohibition. St. Paul v. Gilfillan, 36 Minn. 298, 31 N. W. 49;Commonwealth v. Parks, 155 Mass. 531, 30 N. E. 174;Lawton v. Steele, 119 N. Y. 226, 23 N. E. 878, 7 L. R. A. 134, 16 Am. St. Rep. 813; State v. Tower, 185 Mo. 79, 84 S. W. 10,68 L. R. A. 402. Whether the designation of a particular subject as a nuisance is within the legislative power is a question for judicial determination. State v. Gerhardt, 145 Ind. 439, 44 N. E. 469,33 L. R. A. 313;Lake View v. Rose Hill Cemetery Co., 70 Ill. 191, 22 Am. Rep. 71. But the scope of legislative action, when invoked to promote the general welfare, is very great. Mugler v. Kansas, 123 U. S. 656,8 Sup. Ct. 273, 31 L. Ed. 205;Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 1257,32 L. Ed. 253.

The emission of dense smoke into the atmosphere in populous cities may be declared, by the legislative department, a public nuisance, and prohibited. It is an annoyance, an interference with comfort, is destructive of property, and under some conditions is injurious to health. The right of the Legislature to prohibit it is not an open question in this state, or apparently elsewhere. In St. Paul v. Gilfillan, 36 Minn. 298, 31 N. W. 49, it is said: ‘It will not be assumed that the Legislature may authorize that to be declared a nuisance which, from the nature of the case, is not and cannot become such. But the matter prohibited by this ordinance (dense smoke) may become a nuisance, and may therefore be the proper subject for regulation or restraint by the city council, under legislative sanction.’ And in St. Paul v. Haugbro, 93 Minn. 59, 100 N. W. 470, 66 L. R. A. 441, 106 Am. St. Rep. 427, it is said: ‘Nor can it be questioned that the Legislature could confer upon a municipality the right to prohibit whatever is injurious or detrimental to public health or comfort, and that whatever deprives the residents of urban communities of pure, uncontaminated, inoffensive air is a nuisance.’ Moses v. United States, 16 App. D. C. 428, 50 L. R. A. 532;Marshall Field & Co. v. Chicago, 44 Ill. App. 410;Harmon v. Chicago, 110 Ill. 400, 51 Am. Rep. 698;State v. Tower, 185 Mo. 79, 84 S. W. 10,68 L. R. A. 402;Hyatt v. Myers, 71 N. C. 271;Ross v. Butler, 19 N. J. Eq. 294, 97 Am. Dec. 654;State v. Noyes, 30 N. H. 279.

That the smoke nuisance is directly contributed to and almost wholly caused by...