State v. Mott

Decision Date08 February 1884
CourtMaryland Court of Appeals

The cause was argued before Alvey, C.J., Stone, Robinson, Irving Ritchie, and Bryan, JJ.

Wm. M. Merrick, for the appellant.

It is a matter of judicial knowledge that as far back as the time of Lord Coke, lime kilns were proceeded against as nuisances and the very first case in which jurisdiction for relief against noxious vapors was exerted, was in respect of a lime kiln, in Ric. de D. v. Richards, 4 Assize Book, fol 3, p. 6, quoted in Wood on Nuisances, sec. 470, and recognized in Aldred's Case, 9 Coke, 59. In the various Works on Nuisances, lime kilns find a place in enumeration of those offensive things which courts consider as prima facie nuisances. Wood on Nuisances, sec. 570; Slight v. Gutzlaff, 35 Wis. 676.

Now, if lime kilns have acquired that judicial notoriety which warrants the writers on text law to place them in the class of things which are prima facie nuisances, it seems difficult to understand how a court, upon demurrer to an indictment under the ordinance prohibiting their use in Baltimore, can undertake to say, that upon the face of the ordinance, it is apparent that the city has exceeded its authority by prohibiting their use, on the ground of their being either detrimental to health or nuisances. The appellant does not contend that, if upon an enquiry as to the fact, before a jury, it had been established that lime kilns were neither offensive to the senses, nor deleterious to health, it would not have been competent and proper for the court, upon such ascertainment, to declare the ordinance void. Neither is it maintained that a lime kiln is, per se, a nuisance, so as to preclude all evidence upon the subject. But a demurrer is not the proper mode of raising the question of fact, and in the total absence of proof, every presumption of law and fact is to be made in favor of the rightful exercise of municipal power. Cooley on Const. Lim. 722, and note 2; Watertown v. Mayo, 109 Mass. 319; Slaughter-House Cases, 16 Wall. 36; Coe v. Schultz, 47 Barb. 69, 70; Metropolitan Board of Health v. Heister, 37 N.Y. 661.

This court in Balto. v. Clunet, 23 Md. 450, has said that every intendment and presumption ought to be made in support of the acts of corporations, where exclusive jurisdiction and power to legislate upon a given subject, has been conferred upon them by law, and that courts of justice should never pronounce them void, unless their nullity and invalidity are placed beyond reasonable doubt. See also Baltimore v. Hughes, 1 G. & J. 492; Balto. v. Radecke, 49 Md. 229.

The language employed by this court in Woodyear v. Schaefer, 57 Md. 10, is a full demonstration of the propriety of exerting the power to prevent by ordinance, the generation and emission of the noxious vapors from lime kilns. It may be difficult to measure how far this or another kiln contributes to destroy the comfort, or impair the health of the people, but, that in some degree, each kiln does emit noxious and pestilent vapors, is notorious.

The degree of the injury and the degree of the necessity for exerting the preventive and restraining power of the municipality must be left to the exclusive judgment of the Mayor and City Council, to whom the discretion has been confided by law. Harrison v. Balto. 1 Gill, 276. It was in part to dispense individual citizens in the various localities, subject to the annoyance of nuisances, from the burden of vindicating their rights by private suits, that the Legislature made the city authorities a quasi tribunal, and clothed them with power to regulate, to prevent or to remove nuisances, and this salutary power should not be frittered away by construction. If the ordinance be really levelled against a trade, which is neither offensive nor unwholesome in point of fact, and is for that reason unwarranted and void, then how easy under the plea of "not guilty" for a jury to enquire, and, after duly weighing evidence, determine that matter by a verdict; or still more satisfactorily might the facts be ascertained, upon testimony taken in a Chancery proceeding, to restrain the enforcement of the ordinance.

But surely under the broad grant of power to the city, and in the light of common experience of the noxious capacities of lime kilns, and the long course of cases, running through three hundred years, from which it has come to be held by the text books that lime kilns are, prima facie, nuisances; it cannot be successfully urged before this court, that the ordinance in question is, upon its face, arbitrary, unreasonable and void. Such a judgment would scarcely comport with the rule of cautious interference, prescribed in Balto. v. Radecke, 49 Md. 229. It was admitted below, and will not be denied here, that if the ordinance be in other respects valid, it is not legally objectionable, because it interferes with an existing business, or stops the use of any existing structure. The law is too well settled, that offensive manufactures may be stopped; and that under changed circumstances, what was once lawful or tolerable, may become a nuisance, and as such, be forbidden in the future. Coe v. Schultz, 47 Barb. 64; Metropolitan Board of Health v. Heister, 37 N.Y. 667, 668; Cooley on Const. Lim. 585, 595, 596, and notes.

J. Alexander Preston and Robert D. Morrison, for the appellee.

As the defendant had undeniably done just that for which he has been presented and indicted, he was of necessity driven to one of two courses; either he must plead guilty or he must demur. He did the latter, and thus raised the question of the validity of the ordinance, which is the question now before the court.

It is clear, and it seems to be conceded in appellant's brief, that if the city had any power to pass this ordinance, the power is derived from the Code of Public Local Laws, Art. 4, sec. 797. "The Mayor and City Council have power to pass ordinances to preserve the health of the city; to prevent and remove nuisances * * * and may regulate the places for manufacturing soap and candles; the erection of slaughterhouses and distilleries, and where every other offensive trade is carried on."

The ordinance undertakes to do more than "regulate" the place or places for carrying on the business of burning lime. It altogether prohibits it in any place within the city limits. It seems to be well settled, that the power to regulate does not authorize entire prohibition.

Such is the doctrine expressly laid down in St. Paul v. Laidler, 2 Minn. 207, where the court say: "Under the power to regulate and license, a city cannot restrain trade." "A by-law for the regulation of trade, imposing particular restraints as to time and place, is good, but general restraints are bad." Buffalo v. Webster, 10 Wend. 100.

The same principal is laid down in Dillon on Mun. Corp. secs. 319, 323, etc.; Baltimore v. Radecke, 49 Md. 228.

Nor can the ordinance be sustained under the power "to prevent and remove nuisances." It cannot be held to be a valid exercise of this power, unless the court can assume to know that all lime kilns situated anywhere within the city limits are, per se, public nuisances. It is not true that everything that is disagreeable or offensive, or even noxious, is a nuisance per se.

Thus is has been held that a tannery is not such-- State v. Cadwalader, 7 Vroom, 283; nor a slaughter-house, 10 Bosw. 100, though both have been held to be nuisances, because carried on in improper places--so of gas works, Ottawa Gas Light Co. v. Thompson, 39 Ill. 598.

If, then, lime kilns are not nuisances at common law, and are not made such by statute, can they be made nuisances by ordinance? Dillon on Mun. Corp, sec. 374, note 5; Wood on Nuisances, 12, 14, 30, 34, 671.

In Yates v. Milwaukee, 10 Wall. 505, the Supreme Court say: "It is a doctrine not to be tolerated in this country, that a municipal corporation, without any general laws of either the city or State within which a given structure can be shown to be a nuisance, can, by its mere declaration, that it is one, subject to removal, etc., this would place every house, every business, and all the property of the city at the uncontrolled will of the temporary local authorities."

The business which this ordinance would destroy is of a most extensive character. All the great oyster packing houses burn their own shells; and it is not matter of common knowledge that lime kilns are the offensive things, destructive to comfort, health and life, as represented by the appellant. If such were true, it could hardly be the case that the records of the Criminal Court of Baltimore City should fail to show a single case of an indictment of a lime kiln as a nuisance.

Alvey C.J., delivered the opinion of the court.

Whatever power can be properly exercised by the municipal authorities of the City of Baltimore over...

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