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this ground, also, would warrant the interposition of equity. Walla Walla v. Walla Walla Water Co., 172 U. S. 12, 19 Sup. Ct. 77, 43 L. Ed. 341; Springhead Spinning Co. v. Riley, L. R. 6 Eq. 558. Even though the decree of a court of equity might operate incidentally to restrain criminal proceedings, yet, where the threatened proceedings will work irreparable injury and loss of property, jurisdiction in equity will be sustained. Manhattan Iron Works v. French, 12 Abb. N. C. 446; Quint v. Board, etc., 64 Miss. 483, 4 South. 548; Atlanta v. Gate City Light Co., 71 Ga. 106; Georgia R. Co. v. City of Atlanta (Ga.) 45 S. E. 256; Port of Mobile v. R. Co., 84 Ala. 115, 4 South. 106, 5 Am. St. Rep. 342. There are cases holding suits for breach of such an ordinance to be civil proceedings-as, for instance, Graubner v. Jacksonville, 50 Ill. 87; Oshkosh v. Schwartz (Wis.) 13 N. W. 552.
Some question is made as to the right of the federal court to grant the relief asked for, by reason of the provisions of section 720 of the Revised Statutes of the United States [U. S. Comp. S. 1901, p. 581]. While this court will not attempt to restrain the state court in a pending proceeding, the statute may not be construed to limit the power of the federal court to restrain parties from instituting proceedings in any court. Texas Ry. Co. v. Kuteman, 54 Fed. 547, 4 C. C. A. 503. As to suits not yet begun, this court has prior jurisdiction to the state court, and for that reason, also, the rule does not apply. French v. Hay, 22 Wall. 253, 22 L. Ed. 857; Sharon v. Terry et al. (C. C.) 36 Fed. 337, 1 L. R. A. 572; State of Louisiana v. La Garde et al. (C. C.) 60 Fed. 186. It therefore seems clear that the court has jurisdiction for the purposes of this hearing.
The ordinance declares the issuance of dense smoke within certain limits for the period named therein to be a nuisance per se, and requires no proof of the actual effect of such smoke. This, the bill charges, the city council has no power to do, since smoke was not held to be a nuisance at the common law, and may or may not be a nuisance in fact. In the absence of statutory provisions the municipality would be without power so to declare it. Lake View v. Letz, 44 Ill. 81; St. Louis v. Heitzberg Brwg. Co., 141 Mo. 375, 42 S. W. 954, 39 L. R. A. 551, 64 Am. St. Rep. 516; Dillon on Municipal Corp. (4th Ed.) §§ 95, 374; Am. & Eng. Enc. of Law, vol. 21, p. 270. Paragraph 75 of article 5, § 1, of chapter 24 of the Revised Statutes of Illinois (Hurds' Rev. St. 1903, p. 294), provides that the city council in cities shall have the power "to declare what shall be a nuisance and to abate the same and to impose fines upon parties who may create, continue or suffer nuisances to exist." Under this provision of the charter the ordinance aforesaid was passed. With regard to the effect of this class of legislation, Dillon, in his work on Municipal Corporations (4th Ed.) § 308, says: "It is competent for the Legislature to delegate to municipal corporations the power to make by-laws and ordinances with appropriate sanctions, which, when authorized, have the force, in favor of the municipality and against persons bound thereby, of laws passed by the Legislature." In Mason v. Shawneetown, 77
Ill. 537, the court holds that such an ordinance "cannot be regarded otherwise than a law of and within the incorporation." At page 740 of volume 21 (2d Ed.) Am. & Eng. Enc. of Law, it is said, "In so far as the Legislature may declare nuisances, a municipality may be empowered by ordinance to declare things or acts nuisances, though they might not be such in the absence of such ordinance, subject to the cognizance of the courts as to reasonableness. To the same effect is Laugel v. Bushnell, 197 Ill. 26, 63 N. E. 1086, 58 L. R. A. 266. In this case the court proceeds to classify nuisances, and says:
"(3) Those which in their nature may be nuisances, but as to which there may be honest differences of opinion in impartial minds. The power granted by the statute to the governing bodies of municipal corporations to declare what shall be nuisances, and abate the same, etc., authorizes such bodies to conclusively denounce those things falling within the first and third of these classes to be nuisances."
In a case involving an ordinance declaring a slaughterhouse to be a nuisance under the foregoing clause of its charter, the Supreme Court of Illinois, in Harmison v. Lewiston, 153 Ill. 313, 38 N. E. 628, 46 Am. St. Rep. 893, says:
"By virtue of the statute above quoted, and in the light of the interpretations placed upon it by these decisions, we think power was conferred upon appellee to adopt the ordinance in question."
In section 379 of Dillon's work aforesaid, it is said:
"Much must necessarily be left to the discretion of the municipal authorities, and their acts will not be judicially interfered with unless they are manifestly unreasonable and oppressive, or unwarrantably invade private rights, or clearly transcend the powers granted them."
"But in doubtful cases," says the Supreme Court of Illinois in the case of N. Chicago City Ry. Co. v. Lake View, 105 Ill. 212, 44 Am. Rep. 788, "where a thing may or may not be a nuisance, depending upon a variety of circumstances, requiring judgment and discretion on the part of the town authorities in exercising their legislative functions, under a general delegation of power like the one we are considering [declaring the running of steam cars upon the streets to be a nuisance], their action under such circumstances would be conclusive." This general rule is also recognized in Roberts v. Ogle, 30 Ill. 459, 83 Am. Dec. 201; Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830; State v. Heidenhain, 42 La. Ann. 483, 7 South. 621; Walker v. Jameson, 140 Ind. 598, 37 N. E. 402, 39 N. E. 869, 28 L. R. A. 679, 683, 49 Am. St. Rep. 222; Monroe v. Gerspach, 33 La. Ann. 1011; Gundling v. Chicago, 176 Ill. 349, 52 N. E. 44, 48 L. R. A. 230; Cincinnati v. Miller, 11 Ohio Dec. 788; People v. Detroit White Lead Works, 82 Mich. 472, 46 N. W. 735, 9 L. R. A. 722; People v. Lewis, 86 Mich. 276, 49 N. W. 140. The case of St. Paul v. Gilfallin, 36 Minn. 298, 31 N. W. 49, quoted by defendants, is in fact an authority for the complainant herein. It holds that, in the absence of such legislative authority. as that under which the ordinance here involved was enacted, the city of St. Paul had no power to declare dense smoke to be a nui
sance, but conclusively intimates that such power existed in Illinois as to justify the decision in Harmon v. Chicago, 110 Ill. 400, 51 Am. Rep. 698, and North Chicago City Ry. v. Lake View, aforesaid.
It is clear that the city of Chicago is invested with the power to declare what is a nuisance, and to abate the same. Whether it has the power to declare dense smoke a public nuisance, or a nuisance per se, is raised in the case of Harmon v. Chicago, supra. The court there says it does not pass upon the power of the city to make the issuance of dense smoke a public nuisance, but sustains a fine of $50 assessed against appellant, based upon that ordinance; thereby holding the ordinance valid, since it can hardly be contended that the ordinance, which clearly makes dense smoke a nuisance per se, could be bad as such, and good when evidence is adduced to show a nuisance in fact. That case involved the issuing of dense smoke from a tug in the Chicago river. The court took judicial notice of the fact that the Chicago river is in the midst of the city. Complainant's bill shows its plant to be near the river. The court proceeds further to say:
"At common law a nuisance was anything that worked hurt or damage. A public or common nuisance was that which affected the public, or was an annoyance to the King's subjects at large. Precisely that is the character of the dense smoke emitted from defendant's tugboat."
The court says again:
"Certainly anything that is detrimental to certain classes of property and business in a populous city, and is a personal annoyance to the public at large within the city, needs not to be defined by ordinance or by lexicographers to be known to the common mind as a public nuisance. It is so per se. Nor will any subtle distinctions be indulged in as to what is meant by 'dense smoke,' as those terms are used in the ordinance. The terms will be understood as commonly employed, and this court will understand by 'dense smoke' precisely what everybody else does that has ever seen a volume of dense, dark smoke as it comes from the smokestack or chimney where common soft or bituminous coal is used for fuel in any considerable quantities."
It is true the parties had put in an agreed statement of facts in this case, showing what were the effects of dense smoke, and the decision must be considered in the light of that fact. In the case of Monroe v. Gerspach, supra, the court holds that:
"Inasmuch as the question of nuisance is one of fact, it becomes necessary in populous towns to regulate such matters by public ordinance, and public policy requires that the municipality should not be disturbed in the exercise of its powers unless it clearly transcends its authority."
In the case of Village of Des Plaines v. Poyer, 123 Ill. 348, 14 N. E. 677, 5 Am. St. Rep. 524, the court hold the ordinance invalid. upon the ground that, in their judgment, the act prohibited was not a nuisance. In like manner the court in Hoops v. Village of Ipava, 55 Ill. App. 94, hold that the act prohibited was a nuisance. Judge Gary, in Field v. Chicago, 44 Ill. App. 410, quotes Justice Caton in Munn v. Burch, 25 Ill. 35, to the effect that "courts will not pretend to be more ignorant than the rest of mankind."
From the foregoing authorities it follows that the city of Chicago was acting within its charter powers in passing the ordinance un
der consideration, and that the court should not interfere with the enforcement thereof unless there was involved an unreasonable exercise of the charter power. It is held in the case of Harmon v. Chicago, supra, that a municipality cannot by ordinance make that a public nuisance which was not in fact such. The same rule is laid down in numerous cases, and must be deemed a settled rule for the purposes of this motion. It is also well settled at common law that acts or things which (1) are prejudicial to public morals, (2) dangerous to life, and (3) injurious to public rights were nuisances per se. "Formerly," says Wood in his work on Nuisances, p. 766, "all those trades and uses of property which by experience had been demonstrated to be noxious and hurtful were held to be nuisances per se." While science has gone far to remedy the baneful effects of many of the acts and uses then condemned as per se hurtful to persons, morals, and property, it has necessarily added many which were not at that time such, or so considered. The rule above stated has often been made to bend to suit the requirements of commerce or manufacture. Practically an utter absence of factory smoke betokens an utter absence of people who might have been subjected to inconvenience or injury thereby. It seems clear that all regulations of the uses of property should be created with a reasonable reference to the necessary demands of trade and manufacture. While, of course, life, health, and morals are of primary consideration, mere inconvenience and discomfort might not be. In the former there can be no comparison of advantages with disadvantages. The welfare of the individual and the state, om every viewpoint, demands that public health, life, and morals shall not be one whit compromised. From the foregoing citations it will be seen that certain trades and uses of property were declared to be nuisances per se because they were demonstrated to be noxious and hurtful by experience. Ivonton v. Perlie, 15 Shaw & Dunlap, 775. They included tanneries, limekilns, forges, and many other enumerated uses. More recently the running of hogs in the streets, and slaughterhouses, have been so held.
As above noted, there has been some disagreement of the courts as to smoke, and questions have arisen with regard to the power of a legislature to declare the issuance of dense smoke within corporate limits to be a nuisance, without regard to the immediate surroundings. The authorities in support of this power have been cited above. The bill admits the issuance of dense smoke, and it is a matter of common knowledge, of which the court may take cognizance (State v. Tower [Mo. Sup.] 84 S. W. 12; Moses v. U. S., 16 App. D. C. 428; Field v. Chicago, supra), that smoke emitted from a tall chimney is carried over a wide territory, and that when dense it deposits soot to such an extent as to injure property and health wherever it spreads. It is doubtful whether any one of the common-law uses or trades did or could affect so large a community as does dense smoke issued from such a chimney as that of complainant. But the court is not left to this source of knowledge. There can be no stronger declaration of the character of such an act than that of the community at large. The ordinance
in question is the expression of the people's representatives in this city, which, in turn, makes it the summing up of all the judgment of all the people upon that subject. Soon Hing v. Crowley, 113 U. S. 708, 5 Sup. Ct. 730, 28 L. Ed. 1145. All things considered, it is plain that the ordinance in question was a reasonable exercise of the power given to the city in its charter, and, that being so, the court will not be warranted in holding the ordinance invalid as in excess of the power of the city.
There remains yet to be considered the allegation that the ordinance operates unequally upon complainant's plant, and is therefore unconstitutional. It does appear from the bill that prior to the passage of the ordinance, and up to the time the bill was filed, complainant's chimneys discharged smoke-one for sixteen fire boxes, and one for seven-and that it is required by the ordinance to observe the same rule as to the time during which dense smoke can be issued as is required of the chimney serving one fire box. It is therefore claimed that the ordinance, while not so upon its face, yet, when applied to conditions as they exist, operates unfairly upon complainant, and constitutes a discrimination. The ordinance deals only with chimneys, and places them all upon the same footing. It provides: (1) That the emission of dense smoke shall be a public nuisance. (2) That three notices shall be mailed ten days before prosecution is commenced. (3) The emission of dense smoke for more than three minutes, or, in case fire boxes are being cleaned or new fires started, six minutes, in any hour of the day or night, shall be deemed a nuisance, and punished by fine. (4) It further provides who shall see to its enactment. (5) No prosecution can be had against plants installed prior to the passage of the ordinance until the expiration of a year from its passage, in order to rebuild and re-equip the same, provided the owner commences at once his plans so to do. Thus it is seen complainant had a year in which to construct its plant so as to enable it to comply with the ordinance, and it nowhere appears that complainant, by some alterations in its plant, could not comply with the provisions thereof. If it is to be admitted that each fire box is to have the privilege of smoking one-twentieth of an hour, and in certain cases one-tenth of an hour, then it is manifest the ordinance would permit complainant's chimney to smoke practically all the time, which would defeat, of course, the object of the ordinance.
The case of Ho Ah Kow v. Nunan, 5 Sawy. 552, Fed. Cas. No. 6,546, cited by complainant, is not in point. The ordinance there under consideration provided that prisoners immediately upon arrival at the jail should have their hair cut off to a uniform length of one inch from the head. This required the removal of the queue from a Chinaman, and a consequent and peculiar degradation. The court holds that the passage of the ordinance exceeded the powers of the board of supervisors, and that the cutting of the hair could not be construed into a measure of discipline or health, and showed upon its face that it was done to add to the severity of the punishment of the prisoner, he being a Chinaman. There is in the ordinance in question no evidence of any attempt to deal unevenly