The City of St. Louis v. Edward Heitzeberg Packing And Provision Co.

• Decision Date: 16 November 1897
• Citation: 42 S.W. 954,141 Mo. 375
• Parties: The City of St. Louis, Plaintiff in Error, v. Edward Heitzeberg Packing and Provision Company
• Court: Missouri Supreme Court

42 S.W. 954

141 Mo. 375

The City of St. Louis, Plaintiff in Error, v. Edward Heitzeberg Packing and Provision Company

Supreme Court of Missouri

November 16, 1897

Error to St. Louis Court of Criminal Correction. -- Hon. David Murphy, Judge.

Affirmed.

William C. Marshall and Eugene McQuillin for plaintiff in error.

(1) The declaration by the ordinance that "the emission into the open air of dense black or thick gray smoke within the corporate limits of the city of St. Louis is a nuisance," and the allegation in the statement and proof that such smoke was emitted from defendant's plant, and the common knowledge of the annoying and detrimental character of such smoke within a populous city, establish a prima facie case on the part of the city, and places the burden of proof on defendant to show that "dense black or thick gray smoke" so discharged is not a detriment and damage to certain classes of property and annoying and inconvenient to the public at large within the city. Kirkwood v. Cairns, 44 Mo.App. 88; St. Louis v Schnuckelberg, 7 Mo.App. 536; St. Louis v Stern, 3 Mo.App. 55; Kennedy v. Board of Health, 2 Pa. St. 366; Green v. Mayor, etc., 6 Ga. 1; Roberts v. Ogle, 30 Ill. 459; Crosby v. Warren 1 Rich. (S. C.) Law, 385; Kennedy v. Snowden, 1 McMullan (S. C.), 323. (2) Where the particular thing declared against is a nuisance per se, the action of the city authorities is conclusive. St. Louis v. Stern, 3 Mo.App. 48; St. Louis v. Steele, 12 Mo.App. 570; Kansas City v. Neal, 49 Mo.App. 72; Kansas City v. McAleer, 31 Mo.App. 436. (3) Many decisions hold that a mere declaration on the part of the city authorities that a thing is a nuisance is conclusive. Van Wormer v. Mayor, etc., 15 Wend. 262; Kennedy v. Board of Health, 2 Pa. St. 366; Green v. Mayor, etc., 6 Ga. 1; State v. Heidenhain, 42 La. Ann. 483; Roberts v. Ogle, 30 Ill. 459; Crosby v. Warren, 1 Rich. (S. C.) Law, 385; Kennedy v. Snowden, 1 McMullan (S. C.), 323; Goddard v. Jacksonville, 15 Ill. 588. (4) Dense black or thick gray smoke, i. e., heavy volumes of smoke, discharged in any considerable quantities into the atmosphere of a populous city, is per se a public nuisance. Harmon v. Chicago, 110 Ill. 400; Marshall, Field & Co. v. Chicago, 44 Ill.App. 410; Sullivan v. Royer, 72 Cal. 248; Ross v. Butler, 19 N.J.Eq. 302; Tuebner v. Railroad, 66 Cal. 174; Hurlbert v. McKone, 55 Conn. 31. (5) The city had express authority to pass the smoke ordinance, and its enactment makes out a prima facie case that it is reasonable. Morse v. City of West Port, 110 Mo. 508; State v. Inhabitants of Trenton, 20 A. (N. J.) 1076; Fisher v. Harnsberg, 2 Grant (Pa.), 291; Commonwealth v. Robertson, 5 Cush. 438. (6) Municipal corporations are prima facie the sole judges of the necessity of these ordinances, and courts will not ordinarily review their reasonableness when passed in strict pursuance of an express grant of power. Hannibal v. Tel. Co., 31 Mo.App. 23; St. Louis v. Green, 70 Mo. 562. (7) The ordinance is clear, precise and definite in its requirements and demands, uniform in its operation, since it affects all alike who come within its provisions; its classification is general, and it is neither discriminating nor oppressive. State v. Kingsley, 108 Mo. 139; State v. Addington, 77 Mo. 117; Kansas City v. Cook, 38 Mo.App. 660; Kansas City v. Sutton, 52 Mo.App. 398; State v. Bishop, 128 Mo. 373; Nicholds v. Walter, 37 Minn. 264; People v. Lewis, 86 Mich. 273.

Louis A. Steber and Alderson & McEntire for defendant in error.

(1) The law must treat all alike, under the same conditions, and in its classifications it must be within all who are under the same conditions. State v. Sheriff, 48 Minn. 240; Yick Wo v. Hopkins, 118 U.S. 356; Randolph v. Wood, 49 N. J. Law, 88; Low v. Printing Co., 41 Neb. 138; Nichols v. Walter, 37 Minn. 272; Johnson v. Railroad, 43 Minn. 224; In re Eight Hour Law, 21 Col. 32. (2) The ordinance is also in violation of the first section of the fourteenth amendment to the Constitution of the United States. It is class legislation, discriminating against some and favoring others. Yick Wo v. Hopkins, 118 U.S. 369; In re Quong Woo, 13 F. 229; Baltimore v. Radecke, 49 Md. 217. (3) Everyone has a right to demand that he be governed by general rules. Millet v. The People, 117 Ill. 301; State v. Loomis, 115 Mo. 314; St. Louis v. Bowler, 94 Mo. 635; R. R. Tax Cases, 13 F. 733. (4) Although the city has power in its charter to abate and also to declare what shall be deemed nuisances, the power to declare can not be so absolute as to be beyond the cognizance of the courts to determine whether it has been reasonably exercised in a given case or not. River Rendering Co. v. Behr, 77 Mo. 98; Corrigan v. Gage, 68 Mo. 541; Tarkio v. Cook, 120 Mo. 9; Hannibal v. M. & K. Tel. Co., 31 Mo.App. 32; Plattsburg v. Riley, 42 Mo.App. 23; State v. Morris, 47 La. Ann. 1660; 2 Wood on Nuis. [3 Ed.], sec. 745, pp. 996, 997. (5) The legislature can not declare any use of property to be a nuisance which is not injurious to the health, welfare or morals of the community, or which does not obstruct or interfere with public interests or a public right. 2 Wood on Nuis. [3 Ed.], sec. 763, p. 1098; River Rendering Co. v. Behr, 77 Mo. 91; Quintini v. Board, etc., 64 Miss. 483; Tiedeman's Lim. Pol. Pow., sec. 122a, p. 426; People v. Rosenberg, 138 N.Y. 410; Coe v. Schultz, 47 Barb. 64; Railroad v. Jacksonville, 67 Ill. 40; Lake View v. Rose Hill Cem. Co., 70 Ill. 197. (6) What is a nuisance, is a question of fact. St. Louis v. Schnuckelberg, 7 Mo.App. 541; Yates v. Milwaukee, 10 Wall. 497; Wood on Nuis. [3 Ed.], secs. 505, 532, 744. (7) The very foundation of a nuisance is injury and damage to a clear and well defined legal right. Wood on Nuis. [3 Ed.], secs. 531, 880; Paddock v. Somes, 102 Mo. 237. (8) A nuisance is public when it annoys all the members of a community, and private when it injuriously affects the lands, tenements or hereditaments of an individual. Ellis v. Railroad, 63 Mo. 131. (9) Residents of cities must submit to some inconveniences from trades and manufactories there carried on. Gibson v. Donk, 7 Mo.App. 37; Van de Vere v. Kansas City, 107 Mo. 92; Wood on Nuis. [3 Ed.], sec. 6, p. 18; Powell v. Bentley, 34 W.Va. 810; Commonwealth v. Miller, 139 Pa. St. 94.

Gantt, J. Barclay, C. J., concurs in the result. Sherwood, Macfarlane, Burgess, Robinson and Brace, JJ., concur.

OPINION

Gantt, J.

The city of St. Louis instituted this action against the defendant to recover a fine of $ 50 for the violation of what is known as "the smoke ordinance." That ordinance provides that "the emission into the open air of dense black or thick gray smoke within the corporate limits of the city of St. Louis" is thereby declared to be a nuisance, "and the owners, occupants, managers or agents of any establishment, locomotives or premises from which dense black or thick gray smoke is emitted or discharged, are made guilty of a misdemeanor and subject to a fine of not less than ten nor more than fifty dollars. And each and every day wherein such smoke shall be emitted shall constitute a separate offense."

The statement of the city attorney averred that defendant had violated the above ordinance, in this, to wit: "In the City of St. Louis and the State of Missouri, on the fourth day of September, 1895, and on divers other days and times prior thereto, the said Edward Heitzeberg Packing & Provision Company (a corporation, Charles L. Heitzeberg, President), did then and there emit and discharge into the open air within the corporate limits of the City of St. Louis, Missouri, dense black and thick gray smoke from the smokestack or chimney of the building being numbered 3101 North Broadway, situated on west side of said street, in said City of St. Louis, Missouri, said Edward Heitzeberg Packing & Provision Company being the occupant of said building, contrary to the ordinance in such case made and provided."

Defendant filed a motion to dismiss, which was overruled, and on trial defendant was convicted as charged, October 30, 1895, and fined $ 10. On the same day defendant perfected an appeal to the St. Louis Court of Criminal Correction.

Defendant renewed its motion to dismiss in the court of criminal correction, which was overruled. It raised the following points: First. The complaint does not state a cause of action against defendant. Second. The smoke ordinance is unconstitutional and void. Third. The complaint is not responsive to the ordinances.

On December 28, 1895, the cause was submitted on an agreed statement of facts, in substance as follows:

That defendant is a corporation, and is the owner, or operates and controls a large manufacturing plant at number 3101 North Broadway, corner of Branch street, in St. Louis, Missouri; that it owns, controls and operates a furnace in connection with said plant, wherein is burned or consumed large quantities daily of soft or bituminous coal; that there is a smokestack or chimney connected with said furnace, which is owned and operated by defendant; that said street, known as Broadway, on which the establishment fronts, is one of the principal thoroughfares of the city of St. Louis, and is located in a neighborhood in which there are numerous stores and dwellings and a large number of manufacturing establishments; that among the said manufacturing establishments, and most all of them using the same kind of coal, are the following [establishments enumerated].

That the court may take judicial notice of the size and commercial importance of the city of St. Louis; that said city is densely populated, containing nearly six hundred thousand inhabitants.

That on September 4, 1895, there was emitted and discharged into the open air within the corporate limits...