Opinion
Decided March 19, 1928.
Criminal law — Maintaining building for business which occasions noxious smells, and abatement thereof — Sections 12646 and 12657, General Code — Refusal of special requests to charge jury, prejudicial — Jury to consider surroundings when corporation's plant built and changed conditions — And defendant's exercise of care and effort to eliminate odors.
1. In a prosecution for a violation of Section 12646, General Code, which relates to the emission of noxious vapors, etc., it is prejudicial error for the court to refuse to give to the jury, in substance, a charge that they should consider the surroundings of the plant, when it was built, and the changed conditions since then.
2. In such a prosecution, it is prejudicial error for the court to refuse to give to the jury, in substance, a charge that if the business was legitimate, proper care exercised, and everything possible done to eliminate noxious gases, and the most scientific methods used, defendant would not be responsible.
ERROR: Court of Appeals for Cuyahoga county.
Messrs. Boyd, Cannon, Brooks Wickham and Messrs. Beckerman Felsman, for plaintiff in error.
Mr. E.C. Stanton and Mr. J.A. Persky, for defendant in error.
This cause comes into this court on a petition in error to the common pleas court of Cuyahoga county. In the court below the plaintiff in error was defendant, and was convicted of violating Section 12646, General Code, and was fined $25 and ordered to abate a nuisance by a certain time. A motion for a new trial was made and overruled, a bill of exceptions embodying all of the testimony, some 1,600 pages, was taken, and a petition in error was filed in this court to reverse the judgment. Several errors are urged why this judgment of conviction should be reversed.
The question is of much importance, and so far-reaching that we have taken considerable care to get at the facts in this case. If this judgment is sustained, it means that every industrial center of the state of Ohio will be imperiled; that industries will be in danger of being closed, and thousand and thousands of employees in danger of being thrown out of employment; that industrial centers, instead of being hives of industry, will become dreary wastes; and that grass will grow in the streets of what are now thriving cities. Any judgment which could or would have such drastic effect must necessarily bid one pause.
Bearing this in mind, we have gravely considered the questions involved in the instant case.
The indictment was framed under Section 12646, General Code, which reads:
"Whoever erects, continues, uses or maintains a building, structure, or place for the exercise of a trade, employment or business, * * * which, by occasioning noxious exhalations or noisome or offensive smells, becomes injurious to the health, comfort or property of individuals or of the public, * * * shall be fined not more than five hundred dollars."
Section 12657 provides that this law shall apply to corporations, and that when a corporation is convicted there shall be an abatement of such nuisance, and the judgment of the court in the instant case ordered an abatement of this nuisance, in addition to the fine assessed.
The history of the statute in question, Section 12646, is rather interesting. The first statute that was passed upon this subject — that is, nuisance — was passed as far back as February 11, 1832 (30 Ohio Laws, 22, Chase's Statutes of Ohio, volume 3, page 1919), and that did not cover the questions involved in this case; but the statute under which this indictment was framed was passed in 1857, and is to be found in volume 54 Ohio Laws, at page 130, and it is interesting to note that in that statute there appeared a word which does not exist in the present statute — a word which may or may not be important. The statute of 1857, which was passed on the 15th day of April of that year, was as follows:
"That the erecting, continuing, using, or maintaining any building, structure, or other place for the exercise of any trade, employment, manufacture or other business, which by occasioning noxious exhalations, noisome or offensive smells, becomes injurious and dangerous to the health, comfort, or property of individuals, or the public * * * shall be deemed nuisances; and every person or persons guilty of erecting, continuing, using or maintaining, or causing any such nuisance, shall be guilty of a violation of this act." Section 2.
Upon a comparison of this statute with the one in force at the time this indictment was returned, you will see that they are absolutely the same, with the exception that "manufacture" has been dropped out. That the Industrial Fibre Company is a manufacturing plant is beyond question, and if there was design in leaving "manufacture" out of that statute it would seem as though the law would not apply to the instant case — that there was a distinction between a business and a manufacturing plant.
From an examination of the definitions of the various terms employed in this statute, one can see that there is quite a distinction. For example:
Trade means "the business of a mechanic, as the business of a carpenter, blacksmith, silversmith, printer or the like."
Employment is "the act of employing or state of being employed; it is that which engages or occupies; that which consumes time or attention; occupation."
Business is "that which busies or occupies the time, attention or labor of one as his principal concern, whether for a long or short time; occupation; any particular occupation or employment; mercantile transactions in general; concern; right or occasion of making one's self busy; affairs; transaction."
"Business" and "employment" are synonymous terms.
All of these are distinguished from "manufacturing," which is defined as follows:
"Manufacture is the transforming or fashioning of raw materials into a change of form for use."
One will see from these definitions that there is a distinction clearly and sharply drawn between "manufacturing" and the other causes for which one might be indicted under the statute of 1857, and there must have been and undoubtedly was a purpose in dropping from the statute the word "manufacture." With this in mind, the history of the legislation is interesting.
As already stated, the first act that was passed on this subject was away back in 1832, and that did not relate to the things that are mentioned in the next statute, which was that of 1857. That statute remained in its then form until 1877, when, in volume 74 of the Ohio Laws, at page 263, the word "manufacture" was dropped from the statute, leaving the rest of it as it existed in the original statute of 1857, and as it existed when this indictment was framed. In the meantime, in 1866, in volume 63 of the Ohio Laws, there were two acts passed relating to this subject, and they throw much light upon the question under discussion, and probably account in some measure for the reason why the word "manufacture" was dropped from the statute of 1877, volume 74, Ohio Laws.
The two acts referred to relate to the establishment of certain factories and manufacturing plants within, first, a mile of Long View Asylum and any state benevolent institution. This was on page 57 of 63 Ohio Laws. On page 96, in the same volume, appears another statute relating to this same subject; that is, that certain manufacturing plants, blast furnaces or steel mills, which are liable to emit noxious gases and vapors and make noises, cannot be built within 120 rods (nearly 2,000 feet) of any state benevolent institution. Now it is interesting to notice that the word "manufacturing" was carried into this statute in 63 Ohio Laws. When the Legislature came to recodify the law in 1877, in volume 74, it undoubtedly thought that the restriction upon building manufacturing plants within a distance of 120 rods of any benevolent institution would suffice, and so the word "manufacture" was dropped from this general statute; and, after that time, could one be indicted for having a manufacturing plant, even though it created noises and emitted offensive odors, unless it came within the statute in volume 63, Ohio Laws, which statute is still in force and effect (Section 12655, General Code)? In other words, Ohio had become a manufacturing state, and it was not the intention of the Legislature to prohibit manufacturing, or make it so burdensome that a manufacturing plant could be closed and put out of existence by the growth of the community in which it had been established, but its intention was only to prevent the erection of buildings for manufacturing purposes, which might become a nuisance by reason of noises, noxious smells, and vapors, within a distance of 120 rods of a benevolent institution belonging to the state. Later, when these laws were gathered together, as they are now found in Section 12655, General Code, and various sections related thereto, leaving them practically intact, another proposition was added, and that was that no manufacturing plant described in the act could be built within 400 feet of the administration building of any benevolent, penal, or reformatory institution. It would seem, therefore, that the Legislature had sufficiently guarded against the establishment of these manufacturing plants that might become a nuisance to the institutions of the state, and, not desiring to prohibit the manufacturing business in the locations given up to industrial pursuits, the word "manufacture" was dropped out of the statute. If this be so, would there be any violation of a criminal statute in building a manufacturing plant outside of the restrictions laid down in 63 Ohio Laws, especially if located in an industrial center? If this be so, would the statute be operative against the plaintiff in error in the instant case? If not, then the conviction was wrongful, because no offense was charged in the indictment, there being, as already pointed out, a clear distinction between manufacturing and the other terms relating to occupation in the statute, and the conviction, as pointed out, would not only be contrary to the weight of the evidence, but contrary to law as well, there being no offense charged in the indictment.
Now, when this law was passed in 1857, Cleveland was hardly more than a country village. In 1850 it had 17,034 people. In 1860 it had 43,419 people, so the number of people that it had in 1857, when this act was passed, must have been somewhere between 17,000 and 43,000, which would indicate that it was not an industrial center. Since that time the city has grown to be one of the foremost industrial centers of the United States, and has become, like the ancient city of Cologne, "a city of a thousand smells," and the invoking of the law to apply under such circumstances must be carefully scrutinized before making it applicable to situations so entirely unlike they were when the law was first passed.
From this record we learn that the Industrial Fibre Company is engaged in the manufacture of artificial silk, and in 1917 located this plant on the Big Four Railroad track, at West Ninety-Eighth and Walford streets, on the north side of the four-tracked railroad, in an industrial center, and the record shows that at that time there were not more than two houses within half a mile of the location of this plant, and that the plant is now located in what is and was then an industrial center, upon a main railroad and adjacent to railroad yards. The evidence shows that it is still in the industrial center, and that industries of all kinds and characters, emitting more or less noises and smells, help to make up the 1,000 smells which made Cologne famous in olden days.
The record shows that the ground occupied by those who complain in this case was unoccupied territory at the time this plant was located at its present site, and as the industries increased and the city of Cleveland grew dwellings crept nearer and nearer the plant that had been established, and so the question arises whether a legitimate manufacturing business, that locates its plant in an industrial center, far from residences, where, by reason of the growth of the city, largely due to its industries, the residential section encroaches upon the industrial section, and dwelling houses are built nearer and nearer the plant; whether, I say, these people who thus built their homes and moved into an industrial center, knowing of the existence of the plants in that vicinity, and on a railroad, too, where they might anticipate industrial plants would build, can close and abate as a nuisance a legitimate business; whether a legitimate business can be closed and abated as a nuisance because people have seen fit to move in there and build their homes, even though such people are compelled to suffer some annoyance. If such proposition can be maintained, then, if this silk mill, which has 1,500 employees, and supports in the neighborhood of 6,000 people, by reason of said employment, is moved 10 miles from Cleveland, and is established in the midst of farm lands, far from the haunts of men, and because of the growth of the city residences advance nearer and nearer to it, when they again reach the confines of the silk mill property, as in the instant case, it (the mill) could again be closed, and a legitimate business be thus absolutely destroyed.
This discussion is important because one of the errors complained of is that the court refused to give certain requests. Personally, I think all of the requests complained of, the first, the fifth, and the fourth, were proper requests; and had it been a civil case, and had they been presented before argument and been refused, this court would have been compelled to reverse the judgment of the court for such refusal to give, but in a criminal case there is no authority which compels a court to give the requests before argument, or after argument, in the exact language as presented, but there is authority to the effect that, if these requests embody proper principles of law, and are applicable to the case in hand, and are not given substantially, there is error on the part of the court, and error of commission, too. On an examination of the general charge of the court, the fifth request was substantially given. I think it was substantially given, not in the words, but so that there would not be error; but the fourth proposition was not given at all, although there was much evidence introduced in the record to show the condition of the locality of the plaintiff's plant and surrounding territory when and before established.
In Eller v. Koehler, 68 Ohio St. 51, 67 N.E. 89 (1903), by the Supreme Court of Ohio it was held that all that can be required of men who engage in lawful business is that they shall regard the fitness of locality. In the residence sections of a city, business of no kind is desirable or welcome. On the other hand, one who becomes a resident of a trading or manufacturing neighborhood, or who remains while in the march of events a residence district gradually becomes a trading or manufacturing neighborhood, should be held bound to submit to the ordinary annoyances, discomforts and injuries which are fairly incidental to the reasonable and general conduct of such business in his chosen neighborhood. Now while the above was a civil case, this would indicate that there was a difference between a manufacturing business placed in an industrial center and one placed in a residence district. What would be proper in one case would not necessarily be proper in another. For example, it is perfectly proper, in an area given up to industrial plants, to establish a legitimate manufacturing enterprise, even though that enterprise will cause inconvenience and is deleterious in some measure to the health of the people. However, if such a plant were established in any residence district, the rule would be entirely different, and I do not anticipate that the fact that the authority cited is from a civil case makes any difference in legal effect; but if, as is argued, it does, we have direct authority in Commonwealth v. Miller, 139 Pa., 77, 21 A. 138, 23 Am. St. Rep., 170 (1891), where the Supreme Court of Pennsylvania held that a refusal to charge as to which occupied the field first was error. In that case the court charged the jury that "it is no defense to an indictment for a common nuisance that the business complained of has been in operation many years," that the size of the business made no difference, and that it was not a defense in any measure that the business was a useful one. A conviction was had in the trial court, but the judgment was reversed for these and other similar errors.
We have been cited by the defendant in error to the case of Sullivan v. Jones Laughlin Steel Co., 208 Pa., 540, 57 A. 1065, 66 L.R.A., 712, as being a case in point. We do not think that it is a case in point. In that case the Laughlin Steel Company built a plant under a bluff. On top of the bluff was a high-class residence district, and they used in the Laughlin plant a certain kind of ore, and subsequently they enlarged the plant and used what they called the Mesaba ore, which permitted a certain amount of dust and refuse to escape, and they built the plant high up, and ran the smokestacks above the top of the bluff, and so above the dwelling houses which had existed before this plant was built or enlarged, and before they used this kind of ore, the discharge from which covered the dwelling houses with fine dust, amounting to 1,200 pounds upon the roof of a single dwelling house, and practically destroyed the property of the dwelling, which was there before the construction of the plant. The noise and vapors and dust became a nuisance, and the court in that case rightly held that each man's property was held sacred, and that you could not, for the sake of enabling one man's prosperity, destroy another man's property, and in that case they issued an injunction.
I think, myself, in the interests of industrial progress, it would have been better to have had an action at law and pay damages to the property owners, rather than destroy the millions of dollars invested in the steel plant, but no doubt the court was right in issuing an injunction in that case. In that case the court refused to balance conveniences, and, even though the plaintiff's property might be of very little moment compared with the defendant's property, yet, inasmuch as the court of equity could not balance with nicety the convenience of the parties, it must give the redress asked.
But that is not the instant case. In that case the steel plant was built in the vicinity of a residence neighborhood, whereas in the instant case the plant was built in an industrial neighborhood, where there were no residences of any kind or character within half a mile or more of this plant. Now, under the authority laid down in 68 Ohio State, supra, it does make a difference as to when or where the manufacturing plant is located, and consequently the court committed error in not giving in substance the fourth request, which is as follows:
"In arriving at your verdict you are entitled to consider when defendant's plant was built and its business established, whether the land in the vicinity thereof was vacant land, or, if occupied by residences, the extent to which it was then so occupied, the length of time defendant has conducted the same business at that place, growth or lack of growth of that vicinity in residences, factories or both, the proximity of an established railroad, the nature and importance of defendant's business and its influence on the growth and prosperity of the community."
The court, as already stated, did not have to give this in the exact language of the request; but an examination of the charge will show that he nowhere gave this, or the substance, or anything approaching the substance, of this request, and we think, under the authority of 68 Ohio State, supra, this was grave error on the part of the court, and was prejudicial to the interests of the plaintiff in error.
Now another request, No. 1, was sought to be given, which was to the effect that if the business was legitimate, and the owners had exercised proper care, and had done everything they could to eliminate noxious gases, and had used the most scientific methods, they would not be responsible, or words to that effect. Of course, from the view the prosecuting attorney takes of this case, that would not be important; but I wonder whether, by reason of the authorities already cited, the view of the law as voiced by this request was not proper under the circumstances, remembering that the progress of a great city depends upon its industries, and that the livelihood of its citizens depends upon the chance of being employed. So if a business is legitimate, and placed in an industrial center, or what is likely to become an industrial center, and there are no residences about it at the time, and the neighborhood becomes an industrial center — I say, if that business is carried on with the most improved scientific methods, and everything is done to eliminate the noxious vapors which might be deleterious to the health and property of those who move into the vicinity, I wonder whether, under such circumstances, a person could be convicted of violating the statute. It seems, if it be so, that then every industrial center is in danger of losing its industries. As already stated, there are a thousand smells in the city of Cleveland. In the vicinity where this plant is located are the stockyards, which emit odors that can be smelled for miles when the wind is right. In another part of the city the Grasselli Chemical Company emits odors and smells. All along the Big Four line, all along every railroad line, are noises. Now a statute must be construed with respect to the circumstances surrounding the location of the plant that is sought to be closed. All of these things are proper to be taken into consideration, and the court in refusing to give this request, or in not covering it adequately in his charge, neglected to give the jury a proper view of the entire situation.
Now, then, it is argued by the state in this case that there was evidence to show illness, discomforts, and various things, set forth in its brief. How much of it came from this particular factory, or manufacturing plant, is rather difficult to tell. You cannot separate the odors that come from one plant from those of another. You cannot separate the noises. True, there is some evidence in this case to show that white lead paint corrodes or gets black. Well, there is evidence to show that, if zinc paint had been used, it would not have discolored. I would like to know in what part of Cleveland white lead paint will not get dark, and it is necessary in my own locality to repaint frame houses every three or four years at best, because of the gases, smokes, and fumes that seem to penetrate the air, and they must necessarily penetrate the air in such an industrial center as Cleveland.
There is evidence on both sides of the question as to the period within which the hydrogen sulphide gas in a certain concentration becomes injurious to the health; that it would almost in any quantity be a little bit offensive, but not necessarily injurious; and we think the weight of the testimony upon this proposition is against the contention of the state that the health of the people became injured by reason of this hydrogen sulphide gas.
It is further said that silverware tarnishes. Well, I would like to know in what part of Cleveland silverware does not get black, and does not require furbishing frequently to keep it bright. I do not know of any part of Cleveland, and I have lived in the east end and in the west end, where the silver will not get black. The gases seem to permeate the air, and necessarily things like silverware will become coated with black. There is no evidence in this case that it corrodes or eats silverware. The evidence is to the contrary in this respect. We think that the expert evidence is to the contrary — that the amount of the concentration of gases coming from this plant was not deleterious to the health. True, there is some evidence that it injures the property by covering the paint, and takes off the color, and makes it necessary to paint frequently; but, as already stated, that is true all over the city of Cleveland.
Thus older citizens of Cleveland, who knew the city when it was known as the Forest City, know that then on the Public Square and all the streets of Cleveland were beautiful trees; that it was known as the Forest City because of these trees. Both sides of the streets and all the public parks were covered with maple and other trees. Where are they gone, and why do not they exist today? Because of the deleterious gases, odors, and smokes that infest the air. All this is brought about by Cleveland having become a great industrial center.
It is argued by the prosecuting attorney that there had been a change of process, and that there was no complaint made until shortly before the time set forth in the indictment, and that the trouble came because there was a change of process. Now this would be important, if there was any evidence to bear it out, but there is not a bit of evidence to show that there ever was a change of process. All there is in the record is that there was some trouble in the reorganization of this business, and the writer of this opinion has knowledge of what that trouble was. A great deal of litigation grew up between one Borzykowski, who came here from Germany for the sake of establishing this business, away back in the time of the war, which litigation, with which the writer of this opinion is familiar, having had it both in the common pleas court and in the Court of Appeals, resulted in a shutdown for a period for reorganization; but that the process is the same process that the business started with is beyond question, and the evidence in this case shows that efforts have been made by the company to discover some means whereby it could control the emission of these noxious odors, but after using the best scientific methods there seems to be no way in which it can be done, and so the question resolves itself down to the proposition whether or not in the state of Ohio, in the industrial centers, the manufacture of artificial silk can be carried forward.
So, then, the question is: Whether a manufacturing plant which is carrying on a legitimate business that is affording employment to thousands of Cleveland's citizens, and is one of a thousand plants which make Cleveland great, which plants, all taken together, emit gases, fumes, and noxious vapors in a city, which plant is otherwise carrying on a legitimate business, goes into a part of the city undeveloped, so far as dwelling houses are concerned, a part uninhabited by home dwellers, in an industrial center, surrounded by industrial plants, and establishes a business involving millions upon millions of dollars, can be destroyed because of the growth of the city, because of the people coming nearer and nearer to the plant; in other words, for the sake of the convenience of those people who move into that vicinity, shall a great plant be destroyed? Shall the business be stopped, and thousands of men thrown out of employment, with all the after effects of such a disastrous happening? We do not think so. We do not think that a fair reading of this record will warrant the conviction of the plaintiff in error company.
We think that this case should be reversed on the ground that the verdict of the jury, and the judgment thereon, are not supported by sufficient evidence, and are contrary to the weight of the evidence; that the court erred in refusing to charge as requested, not in refusing to give the charge in the words of the request, but because he did not properly cover it in his general charge.
We think, therefore, that the court should have set aside the verdict, and should have granted a motion for a new trial, and the judgment is reversed for error in not doing so; and because the verdict is contrary to the weight of the evidence, and not supported by sufficient evidence; and because of error in the charge of the court; and because the verdict and judgment thereon are contrary to law.
For these reasons, the case will be reversed and remanded to the common pleas court.
Judgment reversed and cause remanded.
SULLIVAN, P.J., and LEVINE, J., concur.