# Jurisdictional Statement — Huron Portland Cement Co. v. City of Detroit > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0244%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1960 - **Citation:** 362 U.S. 440 ## Text 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 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. 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: ‘ 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0244%3A2. Public record. Not legal advice.