City of Rochester v. MacAuley-fien Milling Co.

Chase, J. At the time when this action was commenced Rochester was a city of the second class, governed by the Second Class Cities Law (Chapter 55 of the Laws of 1909), which, so far as we are now concerned, is a re-enactment of chapter 182 of the Laws of 1898. Said act of 1898 was in force when said ordinance was enacted. The common council of the city is vested with legislative power by a provision of the statute as follows: “ The legislative power of the city is vested in the common council thereof, and it has authority to enact ordinances, not inconsistent with law, for the government of the city and the management of its business, for the preservation of good order, peace and health, for the safety and welfare of its inhabitants and the protection and security of their property. * * (Second Class Cities Law, sec. 30; chap. 182, Laws of 1898, sec. 12.) This court in People ex rel. Dunn v. Ham (166 N. Y. 477), in construing the section from which we have quoted, said: “ The evident purpose of that section was to confer upon the common council entire legislative authority as to *211 matters relating to the municipal government, except as limited by that statute and others not inconsistent with its provisions. This is clearly indicated by the act itself, and was plainly avowed by the commission which reported it to the legislature. (Senate Documents, 1896, Vol. 5, No. 24.) ” (p. 481.) The common council is thus the judge as to what ordinances it will pass for the safety and welfare of the inhabitants of the city and the protection and security of their property, and unless an ordinance passed by it is wholly arbitrary and unreasonable it should be upheld. The necessity and advisability of the ordinance is for the legislative power to determine. The presumption is in favor of the ordinance. (Fifth Ave. Coach Co. v. City of New York, 194 N. Y. 19.) This court, referring to the police power in People ex rel. Wineburgh Adv. Co. v. Murphy (195 N. Y. 126), say: “ The police power, so difficult to define, but so frequently invoked, is confined to such reasonable restrictions and prohibitions as are necessary to guard public health, morals and safety, and to conserve public peace, order and the general welfare. Eegnlations and ordinances within such general definition are valid. The city may make and enforce such regulations and ordinances, although they interfere with and restrict the use of private property. Compensation for such interference with and restriction in the use of property is found in the share that the owner enjoys in the common benefit secured to all.” (p. 131.) The emission of smoke from a chimney when it includes dust, soot and cinders to such an extent that it is rendered very dark or black must materially affect the purity of the atmosphere surrounding the place where it is so emitted. The pervading substances in the smoke necessarily darken its color in proportion with the amount thereof. As soon as the impelling force is removed such substances obey the law of gravity and fall upon the adjoining property. In a city or closely populated community where persons and property cannot be removed from the effects of the disagreeable contamination it not only pollutes the air that must be breathed, but it mars *212 the appearance, destroys the cleanliness, and affects the value of the property within the circle upon which such substances from the smoke so fall. The extent of the injury is a matter to be established by evidence, to include all the facts and circumstances relating to it, although doubtless it is a matter of common knowledge of which the courts may take judicial notice that some injury must result from substance-laden smoke pervading the atmosphere in which persons and property necessarily remain. The Court of Appeals of the District of Columbia, referring to smoke as a nuisance, say : “ Now, whilst the emission of the ordinary smoke from the chimneys of houses does not amount to a nuisance per se, it is nevertheless a matter of common knowledge, not to be ignored by the courts, that the emission of a volume of dense, black smoke from a single smokestack or chimney of a large furnace, may, under some circumstances, work physical discomfort to the general public coming within its circle of distribution upon public thoroughfares, and may possibly also work injury to public interests in other respects. Whenever it may become a special source of legal injury to an individual he will have an action of damages therefor, and, in cases of continuation, equity will afford complete relief by process of injunction.” (Moses v. U. S., 16 App. Cas. D. C. 428; 50 L. R. A. 532.) The courts of this state have frequently exercised their restraining power against persons so using their property as to unreasonably interfere with the property and personal rights of others. (McCarty v. Natural Carbonic Gas Co., 189 N. Y. 40; Pritchard v. Edison Elec. Ill. Co., 179 N. Y. 364; Bly v. Edison Elec. Ill. Co., 172 N. Y. 1; Garvey v. Long Island R. R. Co., 159 N. Y. 323; Morton v. Mayor, etc., of N. Y., 140 N. Y. 207; Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18; Cogswell v. N. Y., N. H. & Hartford R. R. Co., 103 N. Y. 10; Campbell v. Seaman, 63 N. Y. 568; Yocum v. Hotel St. George Co., 18 Abb. [N. C.] 340; Beir v. Cooke, 37 Hun, 38; Hutchins v. Smith, 63 Barb. 251.) Ordinances relating to the emission of smoke have been *213 enacted in nearly every city and village. There is a great difference in the smoke, dirt and soot-producing qualities of fuel and in the furnaces where consumed and in the maimer of stoking the fires, and as the careless and unrestrained use of some fuels tends to produce and discharge into the atmosphere surrounding the places where such fuels are so carelessly used, dirt and soot-laden smoke that is disagreeable and injurious, the production .and discharge of such smoke is a proper subject for reasonable police regulation. If an ordinance so enacted is reasonable, it should be upheld, and if unreasonable, it should be declared inoperative and void. The Municipal Court by the judgment rendered in this case has, in substance, found that the ordinance is reasonable and enforceable. Such judgment was affirmed by the County Court and it has been unanimously affirmed by the Appellate Division. As a question of fact it is not open for our consideration. It is not unreasonable upon its face or as a matter of law. The judgment should be affirmed, with costs. Cullen, Ch. J., Gray, Haight, Yann, Werner and Willard Bartlett, JJ., concur. Judgment affirmed.