Jurisdictional Statement — Huron Portland Cement Co. v. City of Detroit

Supe (a Court ofthe United tates

OCTOBER TERM, _y.

No....... shia

sdieaalainied

HURON PORTLAND CEMENT COMPANY,

a Michigan corporation, — ,

ae

CITY OF DETROIT, a Michigan municipal corporation, .-

BENJAMIN LINSKY; Chief, Bureau of Smoke

Abatement, P. J. LAREAU,

Appellees

} , a.

AECEAL,, FROM THE SUPREME. COURT OF THE STATE

OF MECHIGAN

/

+-

JURISDICTIONAL STATEMENT |

4 ; '

ALFRED E. LINDBLOOM,

Attorney for Appellant,

1100 Ford Building,

Detroit 26, Michigan. ©

’ OF Counsel:

CHARLES WRIGHT, R. ”

LAURENCE A. MASSELJNK,

1100 Ford Building, "

Detroit 26, Michigan. } “8

Interstate Briet & Record Co., 642 Beaubien S., Detroit 26, Michigan

‘QNDEX.-. ‘:\.

. ys

Reports of Opinions Below. .... J sce cghecues ; ee Ose

J urisdictional eee tcp Mee Aree SY ee aS

Questions. Presented Cy Re ceacubasaegiet

Statement of the Case... DS hat Si eC te ves

Raising the Federal Questions Below vewes paaeeaee

The Federal Questions. are Substantial ceeenweuyens

This Case is Within the Jurisdictional. Provisions

Relied on and the Cases Cited to Sustain Juris-

Gietion—mossesr icc Tet che cece <weees wauwnk ee bk 7

Conclusion ee eee eeee eobeesbecpeseccqvesNerhet 6x

APPENDIX

‘‘A”—Opinion of the incisal Court of Mié higan. .

“B"—Opinion’ of the Circuit Court for the County

‘of Wayne, Michigan. ........... esas ae¥as .

“C”—Decree of the Supreme Court of Michigan. .

“pr— Decree of the Cirenit Court forthe County of

“ W, ayne ¢ege 4 eee eeereeee weer eeee ete ee ee eeere

TABLE OF CASES

-Breard v. Alexandria, 341 U.S S, 622 ieaadeanes hea

Charlestown Federal Savings & Loan Association v.

Alderson, 324 U. S. 182.. 2 a eink eae

Fiske v. Kansas, 274 U.S. 380.............. anni

Gibbons v. Ogden, 9 Wheat. T............ eves ier

_ Jamison vi Texas, 318 U! S; 413... 0.6... cece ees

Independent Warehouse v. Scheele, 331 U, S. 70... .

2

™~ \ : } , . rn’

ght il mo a

; . : Page

Kelly v. Washington, 302 U. Sy PRS eee Pere eee “12,19.

King Manufacturing Co. v. Augusta, 277 U.S, 100.. °3,21

Morgan vy. Vi irzinia, ¢ S28: TS, . STS. jedcaaksenoee ed 17

Napier v.. Atlantic t Li ad, - he

Poulos v. New Hampshire, 4 UL S. 3905.0... Be

Service Storage and Transfer-Co. vy. Virginia, 79 S.

OR TRE cic eck enact i eee te rent ara rca Vaud tiews if

Southerh Pacifie v. Arizona, 325 v. S. 761. .......,. 18,20,

Staub v. ity of Baxley, 355 ULS “313, amau cons AES a

West Point Giroc “ery Co. v. Opelika, 334 UL S: 390. 3

Se te ee a8 ne

ik act ie _ CONSTITUTION

The Constitution of the U nited States: =,

Att. I RO isp comqesactces RIED 7

* ‘ 7 ¥, STATUTES

28 WU. B.C. 1257 (2)... :..0ccecece. eae: ae

45 U. & C., Secs. SESS. .s . as oc ccs Re oe aera ep 14

ers ne I 8 er NG ee eer A

“46 UL S. C.,-Chap. “| SERED Spee te aig nd aes a

coe See ahah Tae ee Tt a Oe es 42

DETROIT ORDINANCE

. oo. No. 167-E, Chap. 14 of the Municipal Code

of Detroit, 1954:

See, 2.2A of ; said GRGIIMIEG vise Coven cdnace Soe a

See. .2.16 of said ordinance... ......0.0.5.. . 4,14

: ‘See. 2.17 of said ordiannee................ 4,14

; * See. 2.20 of said ordinance... .. 0.0... 0... 5, 14

* Sec. 2.21 of said ordinance. ............. 4 6

. See, 3.2 of said ordinance....... . euud er ews 6

OCTOBER TERM, 1958 +

‘Supreme Court of t the United Sate

+

ue ____Huron- PORTLAND CEMENT COMPANY,

eS —— a corporation,

a. ne

_ CITY OF DETROIT, a Michigan nlite corporation, [

— LINSKY, Chief, Bureau ‘of Smoke .

Abatement, P. J. LAREAU, - )

Appellees © *

uy.

vv

APPEAL FROM THE SUPREME COURT OF ‘THE STATE.

OF MICHIGAN .

on ea

| Cate

JURISDICTIONAL.STATEMENT

a Mn

t . vv

. .

- 2

REPORTS OF OPINIONS BELOW.

, The. opinion of the Supreme C ourt of the State of Michi- .

gan is reported in 359,.Mich. 227 ‘and 93 N. W. 2d S888

(1959). A copy of that opinion is attached hereto ag Ap-

pendix ‘*A’’. The Wayne Cixcuit Court of the State of.”

Michigan, the court of first instance, renderéd an opinion

' which-is'not reported. A copy. of that opinion is attached

. hereto as Appendix’ ‘‘B’’. ° tle

to } °

~ JURISDICTIONAL GROUNDS’.

| \

1. This is an appeal from ‘a decision, of the Suprenie

Court of the-State of Michigan. Appellant brought suit

against: the City of Detroit and the -other appellees to

enjoin the enforcément of the Sindke’ Ordinane e of the Cit

oF

of Detroit (heing ordinance No. 167-E, Chapter 184 of the

_ Municipal Code of the City of Detroit, “954) against it, ex:

* eept’ when the emission of the prohibited smoke is caused

- by improper firing or by improper use of the equipment

upon. its vessels on the grounds ‘that the Smoke Ordinance

is. repugnant to the: Constitution and laws of the United

States.

The bidieae in controversy , through: its inspection and

" penalty clauses; prohibits the’ use .6f appellant's vessels:

with their present equipment, although such vessels are en-

, gaged in interstate commerce and are inspected: and li-

-censed by tlie United States Coast. Guard and are enrolled

with the Bureau of Customs of the *nited States. Trea-.

. sury Department and licensed by i to engage in the coast- . °

ing and: foreign trade,

2. The opinion’ and deeree of the Supreme Court of

the State of Michigan was rendered and entered on the -

12th day of January, 1959,

A notice-of appeal to this Courk was filed by. the | ap-

pellant with the Clerk of the Circuit Court for the County

of Wi ayne, Michigan (that being’ the Court possessed of

- the record) on April 9, 1959,.

Be The jurisdiction of this Court upon’ appeal is con-

ferred by 28 U:S.C., See, 1257 (2). Appellant challenges

the validity of an sais of the City of Detroit, Michi-

gan, ‘‘a Ltaagg ed of the state’ within the meaning of ° 28

U.S.C. 1257 (2), on the ground that as applied to appel-

"

**« ¢

3

lant’s activities it is repugnant to the Constitution and-

laws of the Uniied States and the eoeke of the highest

state court to which an appe al could-have been taken was

in favor of validity.

\

4. Cases helieved ’ to sustain the jurisdiction of this

Court. on Appeal are:

‘

King Manufacturing Co. v. Augusta, 207 U.S

100 (1928) ; ve

Jamison v. Veins, 318 U. 8.413 (1943);

~ Poulos.v. New Hampshire, 345 U.S. 395 (1953) ;

West Point Grocery VOmgeny. v. puto: 354

U. S..390 (1956); ;

Independent Warehouse u. Scheele, 331 U.S. 70

(1947);

Staub v. City of ba. rley, 355 U. Ss: 313 (1958);

Breard v. Alexandria, 341 U. S. 622 (1951); >

Fiske v. Kdnsas, 274 U.S. 380 (1927):

5. The ordinance here inv rolved, is ordinance No. 167- Ke

and is Chapter 184 of. the “Munie ipal Code, City of De-

troit, 1954. This is a comprehensive ordinance seeking to .

prohibit the emission of the kinds of smoke; dust, fumes,

ete, defined in the ordinance.. The ordinarice is: lengthy

and most of its provisions are not questioned in this suit. .

_ The provisions that are: inyolved are hereinafter set forth:

Section 2.2A of the ordinance, p. 514, of the Detroit Mu-

“nicipal Cade, 1954, proy ides:

**It shall be unlawful within the City of Detroit

for any person, firm or corporation to permit the

emission of any smoke from any source whatever of

‘a density equal to or greatér than that density de-

_seribed as No. 2 of the Ringlemann Chart; Provid

That the folowing exceptions to the provisions of |,

this section shall be permitted:

,

**(a) Smoke, the shade or appearaace of which is.

equal ¢o but not darker than No. 2 ofthe Ringle-

mann Chart fora period, or periods, agsregating

four mimites in any 30 minutes ; omy

“*(b) Smoke, the shade or Appearance of .which

* is equal to but not darker than. No, 3 of the Ringle-

mann: Chart for a: ‘period, or periods, aggregating

three minutes in any 15 minutes, when building a

new fire or when breakdown of ‘equipment oceurs

- such.as to make it evident that the emission was not

reasonably preventable.”’

Seetion 2.16 of the same.ordinance, p. 518 of said Code, :

provides: m

**Tt shall. be unlawful for any person, firm or cor=.

_ poration to use or operate any furnace of other com-

bustion equipment or. device which is subject to.an-

_nnal inspection, as hereinafter. set forth, without a

certificate of operation; provided, however, that if |

_ application. for such certificate of operation has heen

- made and the required inspection fee Paid, it shall

-be lawful to use such furnace or other fuél-burning

equipment or device until receipt of such certificate

or until. notifieation hy the Bureau of its refusal to:

grant such certificate.”

Section 2.17 of the same ordinance, p * p: lSof said Code,

/ provides: |

** Every furnace or aibee combustion ‘equipment or

device shall be inspected annually and a report and

Bureau except the following:

a (1) Furnaces or other combustion equipment or

devices installed to heat buildings used ex-

‘ -elusively for private residences containing

less than three dwelling units or flats; and

(2) Combustion equipment. or devicés used ex-

clusively for private residenges. which do not

contain a central heating plant. ”

ea ]

permanent record made of such inspection by the

a

Section 2.20 of the same. -ordinane e, Pp. ats of . the De-

troit Municipal Code, provides: -

“After any owner, agent, occupant, manager’ or

lessee of any preinises e las heen previously notified”

of three or more violations of this Ordinance within

any consecutive 12-month period, in respect to the

emission of smoke, soot, cinders, noxious: acids, _

‘fumes, gases, fly ash or industrial dusts, thie owner, ©

agent, occupant, manager or area of said premises -

shall be notified to show cause\before the Comnis-

-sioner not less than ten days fro

why the equipment causing such violation should

not be sealed. "

**(a) The notice -herein provi .for may be .

given by mail directed to the last known. ad-

dress of the party to be notified, or if said -

party or his whereabouts is unknown, then

by posting a notice on or-near the premises

~ at which the-violations shall have occurred. -

Upon said date said violator may. appear

-and be heard. ‘Upon such: hearing, if the

_ *Commissioner finds that adequate corrective

é means and methods have not: heen employed

trect the cuuse of. such condition then it -

‘the date of notice,

shall be his duty to seal said equipment until .—

— Be such time @s a permit and certifieate as here-

in provided have been — for and issued, .

> for-said plant.

4 “(b) It shall be unlawful for any person to bevak

a seal of any refuse burning equipment, any

boiler or'any equipment .or device producing.

heat or power, that has been duly sealed by »

the Commissioner or his authorized mepee-

sentative.’ ~ gid Rane aay ae ;

° :*.

i \: ; \ ‘ : é A f .

. * % 5 6 . : % : a

- Section 2.21 of the same ordinance, p. 519 ; the Detroit :

Municipal Code,. provides: | _ 4 ee)

_. **Whena certificate of operation is refused i in the

case of an original inspection or a‘case of an annual:

inspection, the Commissioner is authorized to seal,

~immnediatey, the furnace or other’ combustion equip-

ment until the owner, lessee or other person required,

to procure the certificate of operation shall have :

‘complied with - ee of this Ordinance.”

Section 3.2 of the same’ ordinance, p. 521 of the Detroit

“Municipal Code, provides: ‘

er

ie: “Any p person, persons, ‘ira, partnership, associa- —

tion or corporation or any one ‘acting in behalf-of | -

said person, ' persons, firm, partnership, association

.or corporation violating any of the provisiorts: of:

this Ordinance shall upon conviction. thereof be sub- .

ject to a fine or not more than ore hundred dollars

($100.00) or to imprisonment in-the Detroit House

_.of Correction for a period of not more than thirty

. (30) days, or to both such fine and imprisonment in

the discretion of ‘the eourt. “Each‘day that a viola--

tion of this Ordinance is continued ‘or permitted to ~~

' exist without compliance shall constitute a separate’.

offense punishable upon conviction in| the manner

. . prescribed i in this section.”

QUESTIONS PRESENTED

. The following questions are’pr esented by. this samuel: ae

1. Where Congress has by’ Statute 46 ULS.C.,- Chapter

14, provided for the inspection and licensing of vessels o

engaged -in interstate and foreign commerce on the Great .

Lakes and appellant’s vessels, which are engaged in inter-

__ State commerce, have heen inspected by the United States

Coast Guard and have been granted permission to’ navi-

.» . gate on the Great’ Lakes and have been enrolled- and li-

\

‘lant’s vessels when the prohibit

_. be prevented by the boilers inspected, approved ‘and’ >

_ ® eae

ees. . -4

comet by the Picadien Department of the U nited States

te carry.. on coasting and foreign trade; is the Smoke Ordi- =

" nance of the City of’ Detroit, Michigan valid as to. said |

vessels, when such ordinance ¥ royides for the inspection

: ‘of the boilers on the,vessels and prohibits their use, and are \

the penalty provisions of said ordin a Valid as to appel- |

censed by. the United States?

2. Where the Smoke Ordinance of the City of Detroit,

Michigan provides: for.the i inspection of combustion equip- 4

ment and prohibits use - ‘of. certain kinds of boilers and

equipment on vessels engaged in interstate and foreign

- ecommerce on: the Great Lakes, and prohibits the emis-—

: sion of smoke “‘which* cannot . be prevented at all ‘times

with boilers and equipment commonly used ‘on the Great

Lakes, does such ordinance unduly’ burden interstate and

foreign commerce .in matters where uniformity is neces-

: sary under the. Commerce Clause of the United States Con-

stitution, Atticle a3 Section 8, Cl. 3b ,

on ‘ wae’ : ,

STATE NT OF THE CASE »

The bill of complaint, filed i in this case, sought to {niin

the appellees. from prosec uting two criminal cases brought —

against appellant under the Smoke Ordinance and to en-

join the: enforcement of said; ordinance against appellant,

except when the emission of the pr ohibited smoke is caused,

by iproper firing or by the improper use of. the equip-

ment upon appellant’s vessels. The bill claimed that the

Commerce clause of the Constitution of the United States

gave Congress full and complete authority to regulate and

control foreign’ and interstate commerce and that C'on-

gress had exercised stich control j in respect: to steam vessels -

engaged in interstate commerce on the Great Lakes:

‘smoke cannot always —

§ :. oe t

It was further alleged that appellant's = fleet consisted of,

four steamships eqiupped: with daind fired ‘scotch marine

boliers “arichone niotor vessel, which is diesel powered, and

that the emission of the kind of smoke prohibited by the

Si6ke Ordinance could: not at all times be prevented on

the y vessels equipped with hand fired scoteh marine boilers.

The. ples udings and the. testimoriy. disclosed tliat, ‘at. the

“time of trial, appellant had. acquired one more stenimship

equipped with hand fired scotel’ marine-boilers and that all

of said vessels ‘were per iodice ally inspected. by the United .

States Coast Guard. There w as introduced in evidence as,

Plaintiff's Exhibit ‘*2” a Certificate of Inspection issued .

by the United States Coast Guard in respect to appellant’ S

steam ship, S. T. Crapo, which Certific ‘ate, Ae deserib-

ng

ing the vessel, contained the. following language : The

— said vessel is permitted to k navigated for one year on”

the Gréat. Lakes."*. The testimony disclosed that there

was such Certift * + for each vessel.

There was’ also fitroduced as ‘Plaintiff’s Exhibit “*A’’ a,

Consolidated Certificate of nrollment ‘and License issued

by: the Treasury Department of the United States, Bureau

of Customs, in /respect, to appellant’s steamship-John’ W.

Boardman, This Certifteate and License contained the fol-

Jowing language: ‘License is hereby granted for said

vessel to be employed in carrying on the COASTING AND-

FOREIGN TRADE:for ONE YEAR from the date hereof

and no longer,”’ Subh: Certificate and ‘License had been

issued” for each vessel. oa

The Supreme Court of Michigan in its opinion states:

“Tt is éonceded that.the vessels operate in interstate ecom-

merece” (App. A; p. 2a). The said vessels are used to

transport bulk cement from appellant’s mill at Alpena,

Michigan to its distributing plants in various cities on the

4

/

2?

9

— Great Lakes in Michigan, Ohio, New York, Minnesota and

Wisconsin. The trial. court in its opinion says: ‘It is

agreed it is impossible Ao prevent emission of the kind of.

». smoke prohibited by the smoke ordinance if the vessel is

equipped with hand fired scotch marine boilers” ( App. B.

p. 12a).

The. testimony shows that all of the eppellant’s s vessels’

are self-unloaders and that it is necessary to unload bulk

cement with these self- unloaders; otherwise, an excessive

amount of dust is caused, It also appeared that it is neces-

sary to keep up full steam during the unloading operations

and that when the fire is cleaned it is impossible to prevent

the kind of smoke prohibited by the ‘Ordinance.

One of the criminal cases sought to .be enjoined was

~-against the appellant, the-captain and chief engineer of .

the John W. Boardman and the other was against the ap-

pellant, the captain and chief engineer of the S. TC rapo.

In’ both of the criminal cases’ the appellees claim that the

Smoke Ordinance was violated While the. vessels ‘wert

doe ked and unloading.

‘In its bill of: complaint, appellant alleges that ‘at. that

time the firing was proper and the emission of the smoke

complained of could not have been prevented with. the

equipment on the vessels. Appellees, in their answer (par.

9) admit that at the ‘time of the violation on Steamship

John W Boardman it was found that the equipment was

" properlyvused. In respect to Steamship S. T.‘Ctapo, ap-

_zpeHee LL freau was refused access to the vessel and could

not state whether or not the equipment on said vessel was

| properly used: during the period of violation.

<

/ Claim that the Smoke Ordinance is applicable .to its fleet

‘ and that appellees have threatened to enforce the ordi-

Appellant, in its bill: of complaint, alleges that appellees ’

10 mee ee

nance even when the objectionable smoke cannot ‘be pre-

vented with the present equipment. The testimony indi-.

cated that the ordinance could be complied with if oil burn-

ing ‘equipment is /substituted for thé hand fired - scotch

marine boilers or‘in all likelihood if-a well designed. under-

feed stoker is added. The testimony showed that it would

cost roughly $70,000 to equip either the Steamship Board-

man or the Steamship. Crapo .with stokers and at ee.

$100,000 each to equip t them with oil burning equipment.

At the trial, appellant urged that its equipment had heen

-approved by the United States Coast Guard under the

Acts of Congress and ‘had been licensed to engage in the

coasting ‘and foreign trade upon the Great Lakes ‘and that

‘the City of Detroit could not constitutionally enforce

against it, the Smoke Ordinance’ which could be complied -

‘with only if appellant substituted other equipment. Ap-

' pellant contended that Congress had pre-empted the field

through the enactment of statutes governing the ‘inspection’

and licensing of steamships engaged in interstate com-

merce’on the Great Lakes and that the Smoke Ordinanee

- unduly burdened interstate commerce in matters where

uniformity is necessary and that the Ordinanee was uncon-

stitutional under the Commerce Clause even if Congress -

had not expressly pre- -empted the field. i

After trial of the matter, the trial court filed a written,

opinion which is attached hereto as, Appendix “B’’ and

entered a decree disinissing the bill/of complaint. Upon .

- appeal to the Supreme Court of Michigan (the court of last’

resort), that Court affirmed the degision of the trial court :

and its opinion is annexed hereto as’ Appendix *‘A”’.

9

aa =

RAISING ‘THE FEDERAL QUESTIONS BELOW

The constitutional points which appellant raisés on this

| appeal, were initially raised by the pleadings. Appellant

: attacked the validity of the-ordinance in question in its

bill of complaint as being repugnant to the Commerce

Clause of the United States and the laws, of the United '

States. The court of first instance, dismissed’ the: bill of

a. *s

“The fact that the Federal questions were adequately

and properly raised was recognized by the Supreme Court .

of Michigan in its Opinion. It said: 9! . ~

“In the exercise of its constitutional, power to

control interstate commerce the Congtess of the-— :

- United States has provided for extensive control

and inspection of American vessels on the Great

Lakes. It is the contention of: appellant that by

such. legislation Congress his pre-empted the field

and that therefore the- ordinance in question is in--

valid.” (App. A, P- 2a.) ;

The Saprenne Court of M ichigan also said:

‘Appellant also-argues that w hether or not Con-

gress has expressly pre-empted the field of -smoke

abatement, tlie Detroit-ordinanee unduly burdens in-

terstate and foreign commerce in matters where uni-

formity is necessary.’’ (App. A, p. 6a.)

| . :

This Court will accept the recognition by the state court

that the Federal’ questions were properly raised in that

court. Charlestown, Federal Savings and Loan Associa-

tion v. Alderson, 324 U.S; 182: Sere -

Wee oe

—

S ;

“THE FEDERAL QUESTIONS ARE SUBSTANTIAL

- Appellant here attacked the validity of the ordinance.

on the grounds that, as to appellant’s fleét, it Is repugnant

_ to the Commerce_(‘lause.of the Censtitition of the United.~

States and the laws of tlie United’ States.

Kelly v. Washington,-302 U.S. 1,4 (1937). In speaking

of the Congressional regulations of navigation, it’.was

said: : | & :

_ ©The federal acts and -regulations with respect to.

"vessels on the navigable waters of the United States

are elaborate. They were w ‘ell deseribed in the ar-

gument. of tlfe Assistant Solicitor General as a maze

of regulation, Provisions with respect to steam ves-

sels are extremely detailed.”’

46 US.C., ee 399 provides that thp Coast Guard shall:

inspect each year the boilers, unfxed pressure vessels |

* * * equipment, ete. of vessels subject*to inspection, other |

than passenger vessels, This Act was ainended by Act of |

June 4, 1956, 70 St. 224, to provide for the bi-annual in- |

spection of vessels and the tast sentence of Subsection (c)

of this section is as follows:

***No boiler, unfired pressure: vessel or appurte-

“nance. thereof shall be allowed to be used if con-

structed in whole or in part. of defective material or

which because of its form, design, workmanship,

age, use, or for any nee reason is unsafe.”

The United States Co = Guard after nepecting appel-

lant’s fleet, granted each vessel a Certificate of. Inspection,

which included the. following: ‘‘The said vessel is per-

mitted to be navigated for one year on the Great Lakes.”’

Kach vessel was enrolled with -the Bureau of Customs,

Treasury Department of the United States and was granted.

?

i8.-

a Consolidated Certificate-of Enrollment and License, which

included: ‘‘License is hereby granted: for the said: vessel

to be employed on the COASTING AND FORKIGN—

TRADE _for-ONE-¥EAR trom hc ohae and_no

SK SCa tied

_longer.”’ ;

Nee Sarie’ Gibbons ¢. Ogden, 9 Wheat i (1894) :

**The word ‘license’ means permission; or author-

ity; and a license té-do any particular thing, is a

permission or authority to do that thing; and if

. granted by a person having power to grant it, trans-

fers to the grantee the right to do whatever it pur-

‘ports to authorize. It certainly transfers to him all |

. the rights which the grantor can transfer, to do what

is within the terms of the license.”’

.

“

‘Admittedly, ‘Congress under the Commerce Clause has au-

‘thority to control interstate commerce and the two licenses,

_. above referred to, under the Gibbons case transfer to ap-

oe _ pellant’s vessels the right to navigate the Great Lakes.

The licenses include the right.to use fhe vessels as equip-

ped when inspected and when enrolled, .

Can a municipality, through an erdinance, even thougli-

designed to prevent excessive smoke, subject the equip-

ment-on: these same vessels to inspection and forbid their

use untila certificate of operation is issued; and may a mu-

nicipality punish criminally thé ewnér of such vessels for

the emission of smoke which cannot be prevented with-the

equipment upon the vessel when lic ensed?

t

‘It is clear that the Detroit ordinance can i complied

. with by most of appellant’s fleet only if the equipment on

— those vessels is changed. . The penalty provision of. this

ordinance is, eertainly, in conflict with the licenses because

_ the jicensee is,. and ean be punished for doing. that which

cannot be. prev ented with the license equipment.

@

14

The City of Detroit has not so far attempted to enforce

_——~the inspection: provisions, Sec. 2.16. and 2.17 of the ordi-

-' nance against vessels, However, if the ordinance is held

valid, the City will,no doubt, insist that vessels he inspected

and inasmuch as it is conceded that the prohibited smoke —

| cannot he prevented by the equipment on the: vessels, it fol-

~ Jows that the Certificate of Operation provided for in See,

2.16 would’ not issue. Heneé,- the vessels could not be’

_ operated at all, although granted permission by the United

States to-engage in navigation upon the Great Lakes..

Under ‘See. 2.20 of the ordinance, if the owner has heen

‘notified of. three or more violations of the ordinance in

any eonsecutive twelve month period, the equipment must

_ be sealed, unless it is found that adequate corrective means

_and methods have been employed to correct the cause of

the condition.” Here, again, if this provision is enforced

-and it, undoubtedly, will be if the ordinance is held valid,

the .vessels could not be used even though licensed by the

United States. 7 |

Serrice Storage and Transfer Co. v. Commonwealth of —

Virginia, 79 S. Ct. 714 (1959). Petitioner had been granted °

a certificate by the Interstate Commerce Commission to

| engage as a motor carrier hétween certain points. Freight

». from and to. points in Virginia was routed through West

| Virginia. Virginia claimed: that this was.a sham and, —

_ that, the petitioner was guilty of engaging in intrastate

freight business without permission and fined the peti-

tioner $3,000. Held: . ae —_

*.

“To uphold the ¢ riminal fine here assessed w ould

be tantamount to a partial suspension of petitioner's

fe derally” granted certificate.”

This Court has had occasion to pass upon the Boiler ine

speetion Act, Sees. 22-34 of Title AS, U.S.C., which proviies

a - we = 0 oe ee ont ~~ we Ps —

- os ~ +4 ~ ae ie ee

——— <

18;

for inspection of railroad locomotives. That Act is quite

‘similar to the Act rove ring the inspection of steamships.

It was there held that Congress had pre-empted the fied.

_and states cannot validly énact statutes requiring certain

equipment, even though the Interstate Commeree C ‘om- d

mission had niade no order in respect to this equipment.

Napier v. Atlantic Coast Line Railroad, 272 U.S. 605

(1926). In Georgia a statute was passed ‘requiring auto-

matie fire doors on locomotives and in Wisconsin another

statute Was passed requiring eab curtains during the win-

ter. It was held-that both -of these statutes were void even -

if the Interstate Commerce Commission had made no ‘order

requiring a particular type of fire door or cab curtain, :

holding that the Boiler Inspection Act conferred ‘upon the .

Interstate Commerce Commission the exclusive power ta

specify the sort of eyetperent to be used on locomotives.

The Court said: t Saree.

Pp. G12: ‘Did Congress intend that there. might.

still be state regulation of locomotives, if the mea-

stire was directed: primarily to the promotion of

health and comfort and a ffected safety, if at all, only

iheidentally?

"The federal and state statutes are directed ‘to the

sane subject—the equipment of locomotives.” They

operate upon the same subject. It-is suggested that.

the power delegated to the Commission ha‘s .been

exerted .onky in respect’ to minor changes or addi-

tions, But this, if true, is-not. of legak significance.

It is also” urged that, even if the Commission has |

power to prescribe an automatic firebox door and a

cab curtain, if has not done so; and that it has made

no other requirement inconsistent. with the state

legislation. This, also, if true,.is without legal sig- |

nificance. , The fact that the Commission. ‘has not

seen fit to exercise its authority to the full extent

conferred, has no bearing upon the ‘constructii of

S 16

the Act delegating the power,- We hold that _ of

legislation is precluded, because the Boiler I

tion Act, as we construe it, was intended t seaaie

the field. . The broad scope of the authority con-.-— 7

ferred ‘upon the Commission leads to that econclu-

sion. Because the standards set by the Commission

must prevail, requirements of the states are pre-

cluded, however commendable or however different

their purpose. ” (Emphasis added.)

Phere has been discussed so far the question. of. whether

Cunaeins under the Commerce Clause has by. its acts con- |

cerning. navigation and. steamships pre-empted the field

fo the extent of precluding a municipality from enacting

.an ordinance which indirectly regulates the equipment

which may be used on steamships. There has also been —

discussed the question of whether a municipality may ‘in- -

directly prevent the use, in interstate commerce and navi-

‘gation, of a steamship licensed by Congress to engage in

interstate commerce. Both of these questions are gubstan-

tial and are of extreme importance to vessels engaged in

navigation upon ‘the Great: Lakes.

tn the Supreme Court of Michigan, in this case, there

were several amicus curiae briefs filed. One was filed on

behalf of Lake Carriers’ Association. In this brief, it was

stated in a footnote: **At the close of the 1957 navigation

season the combined Canadian (282 versels) and United ™

States (415 vessels) Great Lakes cominercial fleet totaled

697 vessels, jicluding carferries and passenger steamiis.

While the wecurate figures are not available, it is estimated

that of the total fleet, 463 burned coal for fuel, 277 being

hand fired, of which 256 have hand fired seoteh marine

boilers.”’ Undoubtedly,.a great-many of these vessels dock

at Detroit or pass through waters | within the boundary

‘of the City of Detroit, to-wit; the Detroit River. Hence, -

the validity of this ordinance, as applied to steam vessels

17

engaged in interstate commerce, is extreinely important as .

the cost of converting those vessels to eqpipment required

to comply with the Detroit ordinance is almost fantastie.

There’ still remains one ather Federal question which is

also substantial. Assuming that Congress Jias not pre-

- empted the field 40 the extent of precluding this ordinance,

and if the City of Detroit may enforce the provisions of

‘this ordinance in. spite of the licenses above referred: to,

‘there still remains the question ‘of whether this ordinance

unduly burdens interstate commerce in matters where

‘uniformity is necessary.” ms

‘It is-apparent that if this ordinance is valid, other mu-

nicipalities or states along the G reat Lakes could pass dif-

ferent and. varying smoke ordinances. Thus, a_ vessel

might have equipment which would enable it to’ comply

with the ordinance of the City of Detroit, but Chicago,

| Toledo or some other city could pass an ordinance with

diffe rent requirements. It ‘is no practical answer to say

that a vessel should install’ the —— which will

enable it to comply with the ae sev ere. ordinance, since

it could then comply with all, because if one complies with

the most severe ordinance at a given tine, one more‘severe

may be passed. There is included. in. this thought the

belief, that one is safe hecause if a more\severe ordinance

is passed, the courts ‘would hold the Iyter one unreason-

‘able, but, of. course, that does not follow, eourts can and do

differ, so while one court might hold the ater ordinance

unreasonable, another. might not, all of which goes to show

that this: is a question which — uniformity of treat-

_ment. : é' ,

visions. of the Virginia Code required separation of white_

and: colored passengers on botlr. interstate and a

’ : . . 4 ae

» \

Morgan v. Virginia, 398 U.'S. 373; 377 (1945). The pro-.

18.

‘motor carriers: The claim wds made that this statute

burdened interstate commerce, contrary to the Commerce

clatise even if Congress had enacted ho legislation on the -

subject; The state claimed that this statute was passed:

under the police power to avoid friction between the races.

The Court held the statute unconstitutional as applied to

interstate passengers or vehicles moving in interstate and ink

said:

_ ‘*There is a recognized | shitenin principle, how-

ever, that may. be taken as a postulate for testing. —

‘whether particular state legislation i in-the absence of ©

action by Congress is beyond ‘state power. This

is that the state legislation is invalid if it unduly

_ burdens that commerce in matters where uniformity

is necessary—necessary in the Constitutional sense

of useful in accomplishing a’ permitted purpose.

Where uniformity is essential for the functioning of

- commerce a state may not interpose its local regula-

tion.” (Emphasis added.) oar ne

Southern Pac. v. Arizona, 325 U. S. 761 (1945). ‘Arizona

~ statute limited passenger trains to fourteen cars, freight

trains to seventy cars. -The Court said, p. 773:.

—

_ “Enforcement of the law in Arizona,.while train

lengths remain ‘unregulated or are regulated by

vary ing standards in other states, must inevitably

result in an impairment: of uniforinity- of efficient

jected to regulation which is not unifoym in its

railroad operation because the. railroads, are sub-

— '

Page 775: ‘“‘If one eke ‘may cieilte train

lengths, so may all thé others, and they need not

prese tribe the same. maximum limitation, .

ing it Seiice of the necessity: of breaki g up and

reassembling ag trains at. the nearest terminal

OP

:

‘

points before entering and after leaving the sited.

ing state. Tne’serious impediment to the free flow

of commerce by the local regulation of train lengths.

and the practical necessity. that such regulation, if

= any, must be prescribed by a. single body having a

nation-w ide authority are apparent. ”

Kelly v. Washington, 302 U. S.1 (1937). Here the State

of W ashington passed a comprehensive and complete Code

‘of Inspection and Régulation of every vessel operated by __

machinery ‘‘which is not subject to inspection’ under the - |

laws of the United Statés.’”” The Court said, p. 14:

“Third. The. remaining question is whether the

state law must fall in its entirety, not because of

inconsisteney with federal action, but because tlie

subject i is one as to which uniformity of regulation.

is required and. hence, whether or not Congress has

acted, “the State is without authority. Cooley v.

Board of Wardens, 12 How. 299, 319; Minnesota

Rate Cases, 230 U.S. 352, 399, 400, .

‘The ‘state law is a comprehensive code, While .

-- excepts vessels which are subject to inspection -

“under the laws of the United: States, it: has. pro- |

visions which may be deemed to fall within the class

of regulations which Congress alone can provide.

For example, Congress may establish standards and

designs for the structure and equipment of vessels,

and may prescribe rules for their operation, w hich

- could not properly be left to the diverse action of

the States. The State of Washington might pre- -

_ seribe standards, designs, equipment-and rules of

one sort, Oregon another, California: another, and —

_ so on,” (Emphasis added. )

- The burden on interstate commerce in fhe three cases:

above cited is less severe than the burden upon interstate .

commerce inthe ease at bar. The. burden on interstate

we in this case is extremely ‘severe since it is un-’

\

\

20 7

disputed that it will cost f rom-about $70,000 to $100,000 per

vessel to supply the equipment-needed to comply with the .

Detroit ordinance. If it-is remembered that other cities

or ‘governmental units may pass other statutes or ordi-

tive.

The Detroit ordinance here’ involv ed is certainly a divest

, burden on interstate commerce because it says, in effett,

through’ its penalty and inspection clauses that a vessel»

_ May aot-be used in interstate commerce unless and until

such vessel has that equipment which will enable it to meet

the requirements of the Detroit ordinance. To argue that

the Detroit ordinance only incidentally or indirectly affects

interstate commerce and navigation is to lose sight of the

_ fact that the ordinance ‘as effectively prohibits the use of a

_vessel equipped with hand fired scotch marine boilers as if

nances requiring ‘different equipment, the cost is prohibi-

* it directly provided ‘that no -vessel engaged in interstate, ,

~ ecommerce shall ‘pass Shrough the Detroit River if it is

equipped with a hand’ fired seotch marine:boiler. The De-

troit ordinance affects interstate commerce beyond the, ~

-houndaries of Detroit also, -because, if equipment is in-

stalled in vessels ‘to comply with the Detroit ordinance,

that same equipment must be used at all times by the vessel

since the ¢quipment cannot practically : be removed when

\

the vessel leaves Detroit. This is one of-the, points made °

in. the case of Southern Pacific v, Arizona, 325 Uv. S. 761

(1945). | | | oe fi |

The degision of the Supreme ‘ous of Michigan sus-

- taining the validity of the Detroit Smoke Ordinance should

“not be permitted to*stand in open defiance of:.the existing

pronouncements of this Court. The effect of that’ decision

' is to prohibit the use in interstate commerce of a large per- .

, centage of the steamships navigating the Great Lakes. The

; effect of that. decision is also to .render practically worth

Wy

21 ;

‘less the ne nzes granted by the Federal Government and,

it takes from Congress the right to control the vessels °

engaged in interstate commerce. fe

_ ° THIS CASE IS WITHIN THE JURISDICTIONAL

‘PROVISIONS RELIED ON AND THE

es | CASES CITED TO SUSTAIN

ve. sf * . JURISDICTION = -

/

This appeal is taken pursuant to 8 U. $.C., hen, 1957 2)

which confers appellate jurisdiction upon this Court to-re-.

view final Judgments by .the highest court of a state in

which a decision’ could be had when. there is drawn in °

Aquestion the validi itv of a state statute on the grounds of it

being repugnant to the Constitution and the laws of the

United: States and the decision of the. state court is in

. favor of: validity. see el) ate vote

This Court has many times held that a “statute” within: :

the ambit of 28 U.S.C., See, 4257 (2) means moré than% a

state law enatced by the general legislative authority and ,

* that: it encompasses municipal ordinances, municipalities

being political subdivisions of ne state. “Ning. Manufuae-

turing Co, v. Augusta, 277 US. 100 (1928); Jamison v.

Texas, 318 U.S. 413 (1943) ; ais vw. New Hampshire,

345: U. Sr 395 (1953). = ros

There can be no question that the, judement of the Su-

preme Court of Michigan is a ‘final judgment. ~The de-

erce in favor of the. appellee i in-the trial court entered after

a trial upholding the validity of the ordinance was affirmed

‘by the Supreme Court’ of Michigan, the highest Court i in

lt

” a

Michigan in which a decision.can be-had. © ao

?

te.

- CONCLUSION

+ Appellant respectfully suggests that.'this appeal brings

hefore the Cotrt federal questions under the Constitution

and laws of the United States, which are far reaching and

| important in terms of legal principle and ‘practical impact

on navigation, interstate commerce and the control thereof

and the questions presented are fe substantial as to ‘re-

quire plenary consideration with briefs on.the merits and

oral argument for the resolution.

— Respectfully submitted,

ALERED F. LINDBLOOM,.

or Attorney for Appellant,

Pe ce -» * 1100 Ford Building, “-

. Detroit: 26, Michigan.

OF C ounsel:

CHARLES WRIGHT, JR,

LAURENCE A. MASSEL INK,

1100 Ford Building, +

_ Detroit 26, | seca

APPENDIX “A”.

é..

-

State or Micrican—Svupreme Court

OPINION OF THE SUPREME COURT

<. OF MICHIGAN. —

(Filed January 12, 19559)

BEFORE: THE Entire Bencu.

‘VoELKER, J.

The defendant city of Detroit has a comprehensive ordi-”

-° nanee (No. 167-E)- entitled ‘*Smoke Abatement Code”

which provides that it shall be unlawful within that city

to permit the emission of smoke of. a density equal to cr

greater than that described as No, 2 Ringlemann Chart

(a standard. accepted way of measuring the density of |

sinoke). ‘This ordinance allows certain temporary excep-

‘tions: which are not now relevant. It also provides that

after an owner has been warned of 3 violations within a

12-month period the commissioner, a city official, shall

serve notice on the owners and seal the offending equip-

ment unless he finds that. adequate corrective steps have

heen taken. It also provides for the inspection of edquip-

ment. and for fines and imprisomuent for failure to com-

ply with the ordinance.

On December 20, 1955 -the ‘city of Detroit filed eom-

plaints’ in the traflie and ‘ordinance division ‘of the re-

corder’s court thereof against.-plaintiff-appellant, owner

of the steamships John W. Boardman and S, T. Crapo

for allowing the emission of dense smoke at.the port of

Detroit contrary to the provisions of the ordinante in

question.

Appellant then filed suit in circuit court to enjoin the

~ eity of Detroit and the other defendants from prosecuting

_ - . * *

' . . . .

° : . . s : of

»* . e .

2a Opinion of the Supreme Court of Michigan

. 8 y « eas 7 :

re pe ‘ . ne . ~ ‘ 4

‘the complaints, and an grder wak entered granting stich

an injunction during the pendeney. of this suit. There-

after in circuit court the plaintiff claimed that the. ordi-

“nance was unconstiiutional as to it except in th6se. in-

stances where the object tionable smoke is caused ‘hy im-

proper | firing or by the improper. use of the equipment

on the vessel. It is eéneeded that the vessels operate in

interstate commerce. The trial-court held that the. ordi-

nance Was constitutional and that it was a necessary, and

reasonable exercise of the local. police power. From a.

decree to that. etTect plaintil has appealed.

In the exercise of its constitutional power to control.

interstate commerce the Congress of the United States

has provided for .extensive control and * inspection of

~ Amercian vessels on the Great Lakes. It is the contention

-of appellant that by such legislation Congress has pre-

empted the field and that therefore the erdinanee in ques-

tion is invalid: ?

The relationship between state and congressional power

to control interstate commerce is well stated in 15 C.J. 58.,

Commerce §11,"p. 268 as follows:

** However, the constitutional grant to congress of

power to regulate interstate commerce, although

operating of its own foree to curtail state power, in-

some’ measure, does. not forestall all state aétion

‘alfecting interstate commerce; it does not w ithdraw

from the states: power to legislate in respect, of

their loeal coneerns, even though such legislation

may indirectly and incidentally affect interstate

commerce, Al yough state legislation. affects inter-:

state commerce incidentally, indirestly, or remotely,

yet where it does not undertake to regulate such

“commerce and is no more than a bora fide, legiti-

mate, and reasonable exercise of the reserved police

power of the state in. respect of a matter of-local or

internal concern, it is valid and * * * will stand;

+.

~

Opinion of the Supreme Court of Mich igan - Ba

in the absence of, conflicting: _ superseding legisla-

tio by congress in the exercise of its superior au-

thority to regulate commerce ajwong. - the _sfates. °

* Je “9

? Appellant’ s first question on appeal thys falls natarally

. into.3 parts:: 1: Does the ordinance conflict with any fed-

eral legislation? 2: Does it seek to regulate interstate .-

commerce ? 3: Is it i a reasonable exercise of local police

. power?

. To determine the first part of that question we must

ae at the scope and intent of the congressional Tegisla-

tion and then examine the ordinance in question to see if

it pertains to the same subject matter. The federal legis-

lation cited in appellant’s brief, U.S.C. A., Title 46, Ch. -

14, is, so far as we can determine, intended primarily for

_the-protection and safety of vessels and their passengers,

-erew and cargo. None of the federal legislation in, this

- field is to our knowledge designed or enacted. for the pro-

tection. of persons and property on land. Appellant has

cited none-in. its brief. (See 1951-52 0. A. -G., p. 370 to

the effect that. tlie United States Coast Guard so. inter-

prets the applicable federal legislation.) It appears to us

that the ordinance and the federal. legislation deal with

hasically different subject matter and are thus not in such

conflict that the foriner must bow. |

A quick glance at the .title 6f the ‘ordinance, **Smoke

Abatement Code,” 4s sufficient to learn its intent. ‘Even

the eoeny te ltt of it indicates clearly that its sole

' purpose is to. protect wll acs and welfare of. the resi- °

dents of Detroit. by preventing the emission of dense

smoke into the air which the people must breathe.

Thus paragraphs 2 2. and 3 of the preamble to the ord.

nance provide:

ta Opinion of the Supreme Court of Michigan

“Whereas, the excessive emission of dense smoke -

within the corporate limits of the City of Detroit

and the resultant effect upon the public health and

welfare require the adoption of a_camprehensive

and integrated plan of smoke control ; and

‘Whereas, in conjunction with the steoke control

program it is desirable to adopt appropriate regula-

tions to reduce air pollution caused by excessive

Boot, cinders, fly ash, dust, noxious acids, fumes and

‘gases, the emission of which is detrimental ‘to the

health and welfare of the residents of the City; > now,

therefore,”’ in

We think the ordinance het us is, clearly ‘aimed at

thé prevention of air pollution and not at any regulation

of interstate commerce. If it affects interstate commerce

at all we think it is only indireet’ and accidental.

Little need he said on the subject of whethe ror not this

ordinance is a reasonable exercise of. local police. ‘power.

We think that by now it is sufficiently clear without cita-

tion of authority that excessive air ‘pollution ‘by dense

smoke eannot: he anything but harmful to the health. and

welfare of a community. Indeed in 1955 Congress. ap-

propriated $5,000,000 a year for 5 years for. research:

into and control of the, increasingly vexing problem of air,

pollution. (We also note that the first national confer-

ence on air pollution was held in Washington, D. C. dur-

ing November, L958. — The National Csincer Institute is

presently. studying the problem but as of this writing has.

announced no results, See science section of Saturday Re-—

view for November 8, 1958). - ee

We note’ further that ‘the preamble to the above men-

tioned congressional appropriation statute says in part:

‘<* #4

-* it is detlared to he the policy of Congress .

to preserve and protect the primary responsibilities

Opinion of the Supreme Court of Michigan ia |

vand rights of the Siates and lecal governments in

controlling air pollution, to support and aid tech-

nieal research to devise and develop methods of

abating such pollution, and to provide Federal tech- .

nical services and financial. aid to State and local

~ government air pollution control agenc ies and other

public or private agecies and instifations in the for-

. anulation and execution of their air pollution ‘ahate-

ment research programs..* * *” USCA, Title 42,

Ch. 15B, §1857. . .

\

.

Regarding this appropriation statute appellant pane

states.in its reply brief:

“* © °* In that Act Congress was not attempting

to give up its inspection of vessels, locomotives, mo-.

tor carriers and: other things that might conceivably

cause or he involved in smoke pollution. ""

-That however is not the witiien before us. "The point

is that: the ordinance does not seek to supersede or re-

place any existing provisions of Congress either in the

realm of air. pollution or for the inspection’ of - vessels,

as already noted.. Its purpose is simply to control to some

extent the emission of unnecessary smoke in a community

so as to protect the health and welfare of its inhabitants.

The portion of the statute quoted above indicates to this

‘ Court that the ordinance in question is not only a reason-

“able exercise of local. police power but that such actions

by local authorities have the recent blessing and financial

encouragement of Congress:itself.

On the other hand we reluctantly realize that the pas-

toral pine-scented days of yore are gone forever, and that

our society has become dependent upon vast conglomerates

of power of which smoke is all to frequently an unwanted

hy-product. Thus the elusive question of the reasonable-

ness of- such local legislation boils down to one of rela-

Ga Opinion of the Supreme Court of Michigan

tivity. An ordinance of this type may be said to be rea-

sonable only if it does not unduly hamper industry and

our continual need for power. It does not follow, however,

that if we cannot have sinokeless cities that men must

compose themselves and dwell in an ever-deepening pall

of smoke. If this ordinance sought to prevent. the emis-

sion of all smoke, or if adequate méans of smoke control

-were not available, -then aalifferent question might be

before us. But this ordinance concededly seeks to out-

law only the emission of smoke of such density that can

‘readily be prevented hy the use of modern smoke eontrol

equipment. All it eests is money. We find -and hold that.

the ordinance in- question is a reasonable exercise of the

local police power and as such does not unduly interfere °-

with interstate commerce.

Appellant also argues that whefher or not Congress has

expressly pre-empted. the field of smoke abatement, the”

Detroit ordinance unduly burdens: interstate and foreign

commerce in matters where uniformity is necessary. Ap-

‘pellant bases its arguments on this score primarily on. the

fear that local legislation might ‘be ‘inconsistent, that ix,

that upon meeting Detroit’s ordinance it may in the future

have to change its equipment again to meet even stkicter

requirements at some other port. This is a clear possi-

bility we ‘certainly do ‘hot deny.” We do not see however

why this ordinance should be held invalid simply because

of the possibility that another ordinance might another

day be enacted in another place that is even more. string:

ent. -Sufficient. unto the day is the evil thereof; we will

endeavor to cross that siioke-fogged bridge when we come

to it. We do not discern it in this ease.

As noted, if appellant meets only the minimum. require-

ment of this ordinance it might very well become a burden

on it to meet more stringent future requirements as they

J*

Opinion of the Supreme Court of Michigan” 7a

are enacted, Because of this possibility it would have

us strike down the present ordinance. We suggest that

such a burden might be avoided. if ‘ippellant ‘sought to

meet the spirit rather than the lettér of this present ordi-

nance, This eould centededly be done by installing mod-

“erm equipment and available processes of firi ing that would

reduce smoke to the least possible density. If. some future |

ordinance goes beyond this appellant or someone in its.

shoes might have a better and a more persuasive hasis

for a claim of unreasonable burdensomeness, ,

In an eaalegous case ‘involving a Georgia statute that

required the use of a certain type.of headlight on railroad

engines, the United States supreme court spoke as follows

in answer t6 arguments strikingly similar to those pre-

sented in this case -( Atlantic €,.L. R. Co. v. Georgia, 25

UL S. 280): ce

‘In thus deciding, the court applied the settled -

principle that, in the absence of legislation by Con-

gress, the states are not denied the exercise of ‘their

power to secure safety in the physical operation of

- railroad trains within their territory, even though

such trains are used in’interstate commerce, That

chas. been the law since the beginning of. railroad

transportation, . It was not intended that, pending .

. Federal action, the use of such agencies, whith, un-

less Carefully guarded, wax franght with danger to

the community, should go unregulated, and that the

states should be without authority to secure needed

local protection, The requirements of a state, of

course, must not be arbitrary, 6r pass heyond the

limits of a fair judgme nt as to what the exigency

Aemafids, but they. are not invalid, because another

Ftate, in the exereise of a-similar power, may not

impose the same regulation, * * *

“If there is a conflict in such local regulations, by

which interstate commerce may be inconvenienced,—

3

Sa Opinion of the Supreme Court of Michigan

if there appears to be need of standardization of

safety appliances, and’ of providing rules. of opera-

. tion whieh will govern the entire inte rstate road,

irrespective of state boundaries,—thtre is a ‘simple

remedy; and it cannot be assumed that it will not be

readily applied if there he real occasion for it.. That.

remedy does not rest in a denial to the state, in the

whsence of conflicting Federal action, of its power

to protect life and property within its borders, but:

it does lie in the exercise of the paramount authority

of Congress, in its control of- interstate commerce, to

establish such regulations as, in its Judgment, may

he, deemed. appropriate and. sufficient. Congress,

when it. pleases, may give the rule and make the

standard to be observed on the interstate highway.”’

We -concede that this subject is one that might. well call

for uniform legishition “of, federal scape, but until “that

happens we are not persuaded. that our citizens must:

patriotically gag,‘choke aad grope with obedient’ resigna-

‘tion until that happy day arrives. Nor are. we persuaded

that cae of any such uniform legislation that local gov--

-ermments are in the meantime powerless to make a- proper

exercise of their police. power, ee A.

~ Appellant cites MeMorran vy. Cleveland- Cliffs Tron Co.,

253 Mich, 65, where this Court reversed that -portion of

the chancellor's decree below restraining as a nuisance the |

_ smoke from the stacks of certain coal-burning lake vessels

while tied up at a/eoaling dock at Port Huron. No smoke

ordinance was there involved; the opinion does not eel

cate that further smoke abatement was there readily

available; the plaintiff householders there had moved into

the area after these ¢onditions had already long existed 3)

and. the smoke from the lake vessels was but a fraction

of the general smoke, soot, dust and. noise which had

long existed, emanating mostly from stationary industrial

\ e ; e:«, : . .

_Opinion of the Supreme Court of atk ‘ i 2

installations. Our opinion there indicates that the smoke

from the vessels was but € reasonable incident of naviga-.

tion. That case and others cited by appellant are not

controlling of our decision here.

The judgment below is iMimied, but pa costs, both

a public question and public legislation being inv olved.

’ P , | ; : sa 16 |

z.

10a Opinion of the Circuit Court »

APPENDIX “B”

Cincvit Court For THE COUNTY OF WAYNE,

i: In CHANCERY

OPINION OF THE CIRCUIT COURT FOR THE

- COUNTY OF WAYNE, MICHIGAN

(Filed April 18, 1957)

Plaintiff manufactures and sells cement, with a mill at

Alpena, Michigan, and distributing plants at Detroit, Sagi-

naw and Muskegon, Mie ‘higan, Toledo and Clev eland, Ohio,

~ Buffalo and Oswego, New York; Duluth, Minnesota and

Milw aukee and Green Bay, Wi isconsin. It maintains a ‘fleet

of vessels to\transport bulk cement from the Alpena mill

to the.distributing plants, the fleet eonsisting of the steam-

ships John: W. Boardman, S. T. Crapo, Samuel Mitchell,

Ki. M. Ford, and the motor vessel Paul H. Townsend. An

additional stearnship), Kk. C. Collins, will be added to its fleet

within a year or two. \All of the vessels with the exception’

of the motor vessel Paul iI. Townsend, which is diesel

powered, are equipped \with hand- fired scotch > marine

boilers. \ eA ate .

Steamships Joln W. Boatin an and S. T. — are self

unloaders, the power being-stpplhied by boilers; the Samuel

Mitchell has its unloading equip rent operated by’ elec-

tricity from shore installations; only\three docks have sue ‘h

shore installations so the Samuel Mite hell calls only at

these ports.. The FE. M. Ford has a diesel motor which

powers the unloading equipment. ~

The C ity of Detroit's amoke dheatennenit \ardinanes, No.

167: an provides that it: shall be valaw rut within the city

Opinion of the Cireutt Court 7 lla

for ' any person,. firm or corporation to. permit the emission

of smoke of a density equal to or greater than density de-

scribed as No; 2 on the Ringlemann, Chart, with the excep-

‘tion that smoke equal: to No, 2 is permitted for a period or .

-periods aggregating four minutes in any 30 minutes, and

smoke equal to No. 3 on the Ringlemann Chart is permitted.

-for a period or periods aggregating three minutes in any

15 minutes when building a new fire or the like. \

¢

The ordinance provides for annual inspection of combus-

tion equipment or furnace used, with some exceptions, and

makes it unlawful in Section 2.16 to use such equipment

without a certificate of operation which issues only after

inspeetion.. Section.2.20 provides that after any owner has a

been previously notified of three or more violations within ~

any consecutive twelve-month period, the’ commissioner

shall serve a notice upon the owner and sliall seal the equip-

ment unless the coimmissioner finds that adequate correc-

tive means have been employed to correct the unlawful

emission, A- fine of $100. or imprisonment in the Detroit’

House of Correction for a period of not more. than ‘thirty

days, or both, stich fine and imprisonment, are provided. :

Each day that a violation of. the ordinance ‘is continued or

; permitted shal constitute a separate offense.

,

~ Or Decetnber 20, 195 »), two suits were sued} in the Re-

corder’s Court for the City of Detroit, Traffic and Ordi-

nance Division, naming the company as defendant ‘as well,

“as Kenneth Sanehagrin, Captain, and Arthur Johnson,

~ Chief Engineer, of the SS. Crapo; J. Burke, Captain of

the S. S. John W. Boardman; Edward Pugh, Chief kingi-

neer, of the Boardman, Suit K 996-600 charged that the

‘John W. Boardman emitted smoke from tts stack for a

period of nine minutes between 10:42 A, M. and 11:02 A.

M., on Decemlier 12, 1935, while docked at the foot of Rio-,

pelle Street in the City of Detroit, and suit No. K: 996-601, -

~ charged the S. S. vr emitted dense smoke. for a period ; 3

‘

12a ie Opinion of the Circuit Court.

of 934 minutes between 11:49 A. M. and 12.03 P, M., ‘the

‘same day at the same location. .

Plaintiff herein brought suit to enjoin the City of De- —

troit from prosecution of its two suits in Recorder’s Court

and an order was entered against the city to ‘desist and -

refrain from.the further prosecution of the two cases now

pending against plaintiff and otliers” and: ‘from issuing

‘any tickets. or warrants for arrest or in any manner at-

tempting ‘to. enforce said ordinance No. 167-E”’ against ©

“plaintiff, the officers, members of the' crews. of its vessels,

unless the emission of said smoke be caused by improper

firing or by j improper use of the equipment upon said ves-

‘sel. ” >

It is conceded that the equipment on the John W. Board-.

~ man was properly used but the City can not state whether |

~ the. equipment. was: properly used on the S, T. Crapo since

representatives of the City were refused admission to

board this vessel, ¥ ys

It is agreed it is impossible to, prevent emission of the

kind. of sntoke prohibited by sinoke ordiriance if the. vessel

“js equipped. with hand-fired scotch inarine. boilers. The .

‘ Boardman has two boilers each with two doors and one

"steam air jet over each door. The Crapo has three boilers,

each with two doors and one steam air jet over each door.”

The steam jets being installed at the suggestion of Ben-

jainin Linsky, former Chief. of the Bure ‘au of Smoke Abate

ment for the City. |

. Testimony showed also that the plaintiff used a chemical

- in an attempt to reduce the smoke, Plaintiff urges it has ,

done everything that it could possibly do with the équip-

ment it has to prevent the emission! of smoke, It was

shown on trial that the fleet is subject to periodic i inspec-

_ tion by the coast’ guard, which issues a search of inspection.

¢

_ Opinion of the Circuit Court rin

~The Crapo in-1955, fled Kked: sé Detroit twenty-two times for:

an average docking ‘time of 23.9 hours and the Boardman

docked at Detroit 25 times that year with an average stay:

of. 16.2 hours, . Both vessels were constantly engaged in

interstate and foreign commerce during this period,

Plaintiff claims that the smoke abatement. ordinance is

unconstitutional as to it’ except in those instances |W here

‘the objectionable smoke is caused! by improper firing or by

the i improper use of the equipnient, on the vessel.

HAS CONGRESS pas EMPTED THE FIELD? |

Plaintiff argues that Congress has’ p pre-¢mpted the field’

through the enactment. of elaborate: and detailed regula-

_tions of steam vessels, “46 U.S. € ode Annotated, Sec. 932

Sup., provides that the coast guard shall inspect, before

‘such vessels are put into service and_at least once every:

two years thereafter, the boilers on unfired pressure vessels

and ; -appurtenatices thereto; the propelling and auxiliary

machinery, electrical apparatus and equipment of all ves-)

sels are subject to inspection. r

‘Tt is argued that since Congress has validly'enacted such

statutes and regulations, a’state or municipality may. not

pass a Statute or ordinance covering the same field... Kelly

v.. Washington, 1937, 302 U. S. p. 1. Hand-fired seoteh

‘marine boilers have been approvéd by: the coast guard.

Smoke of the kind prohibited. by the ordinance can not he —

avoided, hence the ordinance prohibits the use. of a hand-—

A fired scotch marine boiler. .

.

_ The City, it urges, requires a certain kind of equipnient |

to comply with its ordinance, other and different equipment

than that which the Congres ss has prov ided 1 may be used,

\ -

o

Ifa li a of the slate ch

Re ference is sail also by, analogy to the Boiler Inspec:

tion Act, Sees, 22-34 of Title 35, U.S, Code Annotated,

tvlating to ‘the inspection of railroad locomotives. “Napier

Atlantic Coastline Railroad, 1928, 272 U.S, 605.

The. City, on the other hand, urges that the Congress,

has not endcted laws which provide for the protection of

persons and property on land, induding regulations of fuél

and smoke-producing characteristics of equipiient as a

result’ of its use, and that, therefore, there is no conflict

with federal regulations and the otdinance, There are

~ devices-and appliances w hich, if installed, would enable.the

plaintiff to comply, and this compliance. may be required, -

Under the Home Rule Act, M.S. A. 5.20782 and 5.2083,

the police power of Detroit as a home rule city is’ of the

same general scope and nature as that of the State and the

ordinance is not directed, as are the federal regulations,

to the protection of the vessels, its passengers, crew and

freight. Morgan v. Virginia, Law Kd. —, 165 A, L. Ro

S74. This is 2 case, it is urged, where Congress has not

acted, and although the ordinance affects interstate com-

merece it is 4 valid. Boy : :

COURT'S HOLDING |

The Court has reviewed the authorities cited in the ex-

¢ellent briefs of the parties, and. it is our holding that the

federal Congress has. not-pre-empted this particular field,

The constitutional’grant to, Congress of the power to regu-

late interstate commerce, it has frequently been held, does

not forestall all state action and d6es not prevent a state

from legislating on a matter of lo¢al.concern, even though

interstate commerce may be indirectly and-incidentally af-

fected, provided the’ Congress has not seen fit to enact

superseding legislation, 15 C.-8,-Comunerce, See. 11, p.

Opinion of the Circuit Court — - 15a

268 ; Cheboygan Lumber Co. v. De lta Transpértation Co.,

100 Mich, 16; Burrows v, Delta Transportation Co., 106

Mich. 582; Smith v. Alabama, 124 U.S. 465; Nashville, C. &

St.- Louis Rail ay Co. v, Alabama, 128 U.S, 96, 177 ULS:

O84; H. P. Welch & Co, v, State of New rs 306

UsS. 79.

- These cases are constructions. of scatutes and ordinances

affecting railroads and motor vehicles and are in point, the

‘ Court believes, as authority for’ the validity of the ordi-

nance so far as the doctrine’ ‘of federal pre- -emption is con-

cerned.

The language of. the United States Supreme Court in the

Welch case, which involved a New Hampshire statute de-

‘claring unlawful the operation on state highways of motor

vehicles for specified transportation by. drivers who have

been continuously on duty for more than twelve hours, is

persuasive, | CF

It can not be inferred that Congress intended to super-

sede any state safety measure prior to the taking effect of

a federal ameasure found suitable to put in its place. Its

“purpose to displace the local law must be definitely ex-

pressed. In construing federal statutes enacted tmder the’

power conferred by the commerce law of the Constitution,

it should never be held that Congress intends to supersede

or suspend the exercise of the reserve powers of the state,

even Where that may be done, unless and except so far as

its purpose to do so is clearly manifested.

. Congress has not seen fit to regulate the emission of

~ smoke by vessel-in interstate commerce s6 far as such emis-

sion affects’ persons and property on land. Congress,

therefore, has not pre-empted this createed ficld so as to

exclude siute regulation.

\ ,

16a ‘ Opinion of the Circuit Court

DOES THE COMMERCE CLAUSE OF THE UNITED STATES

CONSTITUTION ITSELF PRECLUDE THE

ENACTMENT OF DETROIT’S SMOKE ©

ABATEMENT ORDINANCE? |

Plaintitt argues that a city other than Detroit vould pass,

a smoke ordinance which would prohibit the use of even oil

equipment, and other municipalities could pass even differ-

ent and conflicting ordinances with which it would be im-

possible for plaintiff to comply. It is a field, therefore, it

is urged, where uniformity is necessary in a constitutional

sense in accomplishing a’ permitted. purpose. Morgan v.

Virginia, supra. Where uniformity is necessary, it is said,

even though Congress has not acted, the Constitutional

clause, or the power given by that clause to C ongress, pre-

empts or occupies the field and precludes a state or munici-

pality from legislating in respect to anything requiring

uniformity. ;

*

It would cost roughly $70,000 to equip either the Bo ard-

“man or the Crapo with stokers, and at least $100,000 each’

to.equip them with oil burning equipment. So the burden

upon interstate commerce is very substantial and it is pro-

hibitive if other cities pass ‘conflicting or different ordi- -

: nances. Southern Pacific v. Arizona, 1945, 325 U.S... 761;

Nelly v. Washington, supra. | ?

Plaintiff has cited a portion of the Supreme Court. apin-

ion in the Kelly case which represents a sood statement of

its position :

“The state law is a comprehensive code. While

it excepts vessels which are subject to inspection

under the laws of the United States, it has provi-

sions which may be déemed. to fall within the class

of regulations which Congress alone can. provide.

For example, Congress may establish standards and

designs for the structure and equipment of vessels,

Opinion of the Circuit Court : +» 3a

‘and. may prescribe rules for their operation, which

~ could not properly be left to the diversé action of

the States. The State of W ashington might pre-.

scribe standards, designs, equipment and rules of

one sort, Oregon another, California another, and so

on. But it does not ;follow that in all respects, the

stute act must fall.

+@ . * pees

**Tf, however, the State goes farther and attempts

to impose partic ular standards as to structure, de-

sign, equipment and operation which in the judg-

ment of its authorities: may be desirable but pass

beyond what is plainly essential to safety and sez

worthiness, the State. will encounter the etiabinle

» that sich. requirements, if imposed at all, must be |

through the action of Congress which can establish

- a,uniform rule. Whether the State’in a’ particular. .

matter goes too far must be left, to be. determined

when the precise question arises.’ . |

Plaintiff urges that the congressional regulation of mo-

. tor driven vessels is much less complete than that’ of—a

steam vessel; that even though the regulation of motor

driven tugs was very incomplete, the. Supreme Court indi-

‘ated a state could not impose: particular standards was to

design, equipment and ,operation because those require: ba

ments, if imposed at all, must be through the action of Con-

“‘Sress, which can establish a. uniform rule.

The City of Detroit argues, ‘on the dither hand, that the

smoke abatement code is not such a law as,requires uni-

formity of regulation. Reference is made to Publie ‘Act

159, enacted by the Federal Congress in 1955, wherein it is

provided.1 inSectionl: — |

a

‘That in recognition’ of the danger ‘to public

health and welfare, injury to/agricultural crops and

livestock, danger to, and danger of property and

hazards to air and ground transportation, from air

ex

18a Opinion of the Circuit Court

pollution, it is hereby declared to be the policy of

‘Congress to preserve and protect the primary re-

sponsibilities and rights of the states and local .gov-

ernments in controlling air pollution.”

Reference is also made to V olume 2. U.S. Code? ¢ Jon-

gressional News, 1955, pp. 2459 and 2461, states:

eee “The Dill does not propose any exercise of police

' power by the Federal Government and no provision

‘init invades the sovereignty ‘of States, counties, or

cities. There is no attempt to impose standards of

purity, ©. Sa ? ne es

. : * * *. *. * °

‘*Moreover, unlike the water-pollution field in

which a similar board now exists, instances of

troublesome interstate air pollution are few in num: ;

ber and no federal Jegal control over interstate air

pollution i is curren tly proposed. et ee

. Reliance is placed upon Atlantic Coastline Railroad Ve.

Georgia, 254 U.S. 200, construing a Georgia law requiring

railroad locomotive operating on -the main lines. to be

equipped with electrie headlights of 300 watt power and —

-to have reflectors of a certain ‘dimension, w herein the Su-

preme Court stated i in upholding the law said:

‘The requirements of a state, of course, must not

be arbitr ary or pass beyond the limits of a fair judg-

: ment as to what the éxigeney demands, but they are

not invalid. because another state in the exercise of

‘a similar power may Rot impose the same regula-

- tion.”

¢

Here a pram See Act had provided for leomative

brakes, ladders, grab i irons and other safety requirements.

. Reliance was -simailarly placed on certain motor vehicle.

eases; ps9 v. Duby, 274 U.S. 135; Maurer v. Hamilton,

' 309 L.S..598, as well as state regulations of seagoing ves-

sels, Kelly ue W ashington, a |

. -

il

Opinion of the Cirewt Court 9a

Summarizing these cases the C ity, argues that the Su-

preme Court will not hold a state or local law invalid: be-

cause (1) different states would require different devices,

or (2) the fact that a state may change the law requiring

further changes in equipment, or (3) because the Federal

Government has entered the field, unless the local law i is

_ proved to be in direct conflict with the federal regulations.

*

COURT'S HOLDING

. The Court has reviewed the ‘authorities cited by the par-

ties and concludes that the constitutional control by the_

Federal Government of interstate commerce does not pre-'

clude a smoke abatement ordinance such as here .involved

where the Federal Congress has not seen. fit to pass spe-

cifie legislation calculated to protect property and persons

on land, as opposed to regulations for the protection: of

crews and passengers as well as ‘vessels and freight on

vessels in interstate commerce, :

‘While. it is. conceivable that uniformity of regulation

through an act of Congress might be desirable, it is not a

subject on which local authority may not legislate to meet

local needs, It is readily conceivable that local situations

require different and particular provisions depending upon

the needs and the problems encountered by the local an-

’ thorities.

The state regulatory measures apheld. as to vessels in

interstate commerce and as to railroads and motor. ‘vehi-

cles in interstate commerce incline the. Court to such a

view: Smoke abatement does not, at this stage of scientific

development, admit of only one system or: plan of regula-

tion but is a> subject, it is believed, which requires di-_

versity of tre atment to meet local’ exigencies.

Or

‘ea ©

20a Opinion of the C ireut Court

‘IS THE SMOKE. ABATEMENT ORDINANCE A VALID

EXERCISE BY THE CITY OF DETROIT

OF ITS POLICE POWER?

It is.well established that a considerable diseretion is

vested in Jegislative authority to determine not only what

the interests of the publie require but. what measures are

necessary for the protection of these interests... New sub-

jects may be embraced within the police power as chang-

ing conditions require. People v. Sell, 310 Mich, 305, 316.

- Considerable latitude is allowed for differences of view

and possible peculiar conditions. Safee v. City of Buffalo,

© ISN. Y.S. p. 649; Cddy v. City of Detroit, supra.

‘*The court is required, if it can consistently do

so, to give to the provisions such a reasonable con-

struction as will sustain it: ‘It has no right to in-—

‘ ~ wade the legality province. Its power is confined to

those cases in which a municipal ordinance is clearly

and manifestly made to appear to be unreasonable

or oppressive in its operation. (Building Comm. rv,

Kunin, 181 Mich. 611.) .

The Court may concern itself only with’the question of

whether the legislative authority, assuming it has the —

power to enact a regulation, has so arbitrarily and ca

"priciously exercised that -:power as to make the regula-

tion unreasonable,- in deprivation of the censtitutienal

rights of the complaining parties. -Red Star Motor Drivers’

Assn. v. Detroit, 234 Mich, 398... - .

The emission of smoke has been subject to lawful regu-

lations for many years. People v. The Detroit White Lead.

Works, et al., 82 Mieh. 471; People v. Lewis, 86 Mich. 273;

~. People v. Detroit, Bell@Nsle & Windsor Ferry Co., 187 .

Mich, 177. | | i

/

Opinion of. the Circuit Court 2a

- The general subject matter having been regulated Taw-

-fully, the question. here is whether the particular regula-

tion, establishing a standard of proscribed smoke emis--

sion, namely, ‘density equal to or greater than the density —

of No, 2” of the Ringlemann Chart is permissible, and

reasonably related to the purposes of the ‘ordinance, This

standard has been sustained in the State of New Jersey. |

Atlantic City-v. France, 65 “Atl. 894, affirmed, 70 Atl. 163 3.

This, case on appeal, however restated the old law that .a~

common law nuisance must still -” proved to convict under

the ordinance. yer

‘The case of Board of Health of Ccchawbon Twp. %.

New York Central R. Roe Co,, 9) Atl. 2d, 729, recognized. |

the proposition that it is not necessary. to- prove that air.

pollution results in a publie nuisance in order to have it

prohibited by ordinance, and upheld the standard of No.

2 of the Ringlemann Chart-as a reasonable standard for:

proseribed smoke,.even though the partic ‘ular activity does

not result in a publée nuisance, :

COURT'S HOLDING.

It is the view of this Court ‘that: the ordinance here,

making unlawful the emission of. smoke. of -a- certain

density is necessary and reasonable, and a valid ‘exercise

of loeal police power... = se :

Scientific, development in the field of sinoke abatement,.

it is believed, has reached that point where a legislative

author ity may determine that smoke of a particular. density.

‘should he. prohibited in the interests of the safety, health

and welfare of the general: publi. This exercise of legis-

lative judgment should not be subject to judicial. super-.

Vision unless plainly beyond the legitimate exercise of

police power. We do not believe that Detroit’s smoke

22a Opinion of the: Cireuit Court.

abatement ordinance Js an arbitrary or unreasonable eX-

ercise of police power.

That conformity to ‘the reqniretiients established i the

City will require the discontinuance by plaintiff of some |

of its present equipment does not render the ordinance

constitutionally offensive, Pe ~ . Consolidated Edison

Co. of New York, 116 NYS ad, nad: Northwestern -

Laundry v. Des Moines, 239 U. S. 486, 60 Law Ed. 396;

Burrows v. Delta Transportation Co. . Supra,

it. is, tlie refore, held-that Ordinance | 16%- Kk, of the City

of Detroit is constitutional. |

"h pram injunction is denied.

7 George E. Bowles:

Circuit Judge.

]

Dated: April 17, 1957.

e .

Decree of the Supreme Court of Michigan — . 28a

gy .

APPENDIX “C”

ap.

vv

Th THE Stree Court OF ae:

| _ DECREE OF THE SUPREME COURT OF MICHIGAN -

| ; (Filed January 12 » 1999)

This cause having been brought to this C ourt hy appeal

- from the Cireuit Court for *the County of. Wayne, in

“Chancery,- and having been ariued by. counsel; and due.

deliberation. had thereon, it is now ordered, adjudged and’

deereed hy the Court, that the decree of the Cireuit Court

for the County of Wayne, in Chancery; be and the same

ischereby in'all things AFFIRMED. And it is. further or-

dered, adjudged and decreed that no costs. be awarded

_ herein.

24a ~=Decree and Order Dismissing Bill of Complaint

APPENDIX “D”

dé...

bs

In tue Circurr Court ror tHe County or Wayne,

In, CHANCERY

eat ae DECREE , AND ORDER DISMISSING BILL

| OF COMPLAINT

3 At a session of said Court held in the City County’

Building in the City of, Detroit, County of wagm, ‘State

of Michigan, on May 1, 1957. °

’ Present: Honorable George FE. Bowles, -Cireuit Judge.

This. cause having coine on to be heard upon the hill of

complaint and answer thereto and proofs taken therein |

in open Court and the matters in_issue having been argued

by counsel for. the respective parties andthe Court being

fully advised in the premises, and the’Court having filed

an opinion which’ by reference is made’ a part: hereof,

finding that the plaintiff. is not entitled to the relief

prayed, for in its: bill aise and that Ordenanee

167-l is constitutional, Pe

ee

Theref ore, upon mati

1 of the ‘attorneys for defendants,

It. ix. ordered, ad judge 1 and decreed that. the bill of

complaint filed’ in said cauke en behalf of plaintiff be dis-

' tissed and plaintiff's prayr for permanent injunction be —

denied, with costs to the dekendants to be taxed. |

George Kk. Bowles,

_ Cireuit Judge.

- A true Copy:. ‘ ¢

Edgar M. a Clerk.

By Barney ‘Barthowiak, Deputy Clerk.