Cincinnati v. Board of City Affairs.

The plaintiff complains with respect to these contracts, that unless restrained by the court the officials of the city will execute them and pay for the same out of the city treasury, and that such action will be illegal for the reason that there is no money in the tresury of the city to the credit of the waterworks fund not appropriated for other purposes than that required for the said contracts.

The defendant has filed an answer admitting the execution of the contracts but denying that there is no money in the treasury appropriated for the payment of such contracts.

The appropriation ordinance to defray the salaries and current expenses of the city of Cincinnati for the six months ending December 31, 1899, provides for a special fund known as the waterworks fund, aud it is conceded by counsel for defendants that these contracts cannot be paid out of said fund unless from that part of the fund designated as follows:

The contention of plaintiff is that no payment can be made from these appropriations in payment of a contract made to do the labor and furnish the material in the laying of water mains, unless such contract is a contract to pay for the labor by paying either a salary or wages and to pay for the materials and supplies by a direct and independent contract of purchase of them; that the payment of a contractor who agrees to do the work at a certain fixed price is not the payment of either salary or wages.

In the decision of Ampt v. Cincinnati, 8 Dec., 475, and Stem v. Cincinnati, 9 Dec., 45, I had occasion to examine the statutes with respect to the necessity of all expenditures of the city being preceded by a proper appropriation, and it is not necessary to repeat what was there said.

It is well settled too now, that a strict construction is placed upon these statutes, which require appropriations to precede expenditures as well as those known as the Burns and Worthington laws, which require that before any contract is entered into, there shall be attached a certificate of the city auditor that there is money in the treasury which may be used for the specific purpose designed: Secs. 2699 and 2703, Rev. Stat.; The city of Lancaster v. Miller, 58 Ohio St., 575; Buchanan Bridge Co. v. Campbell, 60 Obio St., 406.

The execution of these contracts would not be the expenditure of money for wages, or salary for the reason that money paid to a contractor who undertakes to do a certain amount of work for a fixed sum over

Superior Court of Cincinnati.

which the person contracting has no power except to see that the terms of the contract are complied with is not money paid either for wages or salary.

The principle is clearly stated in 12 Am. and Eng. Enc. Law, 136, where it is stated that "By the weight of authority these items (wages and salaries) mean the compensation due or paid to a hired person for his services and cover any earnings of mere servants or employes, but they do not cover the earnings of independent contractors or persons carrying on an independent business for themselves. See also Lang v. Simmons, 64 Wisc., 525; Hurd v. Krumer, 73 Miss., 177, 55 Am. St. Rep. 520; Riley v. Warden, 2 Ed., Ch. 58; Steeman v. Barrett, 2 H. & C., 934; Kampfield v. Lang, 25 Fed. Rep., 128; In Re Thomas H. Rose, before L. F. Hunter, Referee in Bankruptcy, 1 Bankruptcy Cas., 000.

The other item of the contract is claimed to be the purchase of material.

It will be observed, however, that the contract does not provide any rate for material as material but only a rate for "Material in laying, etc."

It seems to me the criticism of the corporation counsel is sound when he says "The iron' castings used in laying water mains are not bought by the city under this contract as castings, nor are they as castings paid for by the city. They are paid for as pipe laid in the street. It is apparent that under this contract the title to these castings does not pass to the city as they lie in bulk, but only after they have been placed in position and can be measured there by the lineal foot. It is evident that this is not a contract for the purchase of those materials, but is a contract for the payment for a completed job and an attempt to divide that payment speciously to produce an apparent conformity to the appropriations."

For the reasons stated I am of the opinion that these contracts cannot be paid from the appropriations contained in the appropriating ordinance and designated under the head of waterworks fund as "Salaries and Wages" or "Material and Supplies" and, therefore, that they cannot be paid at all and the temporary injunction heretofore issued with respect to them must be made permanent.

The city officials state that by the adoption of the method of contracting for the work which they followed, a saving to the city is effected. And that they have had in mind in making these contracts only the best interests of the city.

I have no doubt that the city officials had at heart only the best interests of the city, but good intentions cannot make an act valid which the law declares is invalid, and if it is desired in the future to do work of this character by the contract system, the appropriating ordinances must be drawn in such a way as not to forbid it.

E. G. Kinkead, corporation counsel, for plaintiff.

Otto Renner, for defendant.

Shaw v. Forging Co.

NUISANCES INJUNCTIONS.

[Superior Court of Cincinnati, General Term, March, 1900.]
Dempsey, Smith, and Jackson, JJ.

GEORGE SHAW V. QUEEN CITY FORGING CO.

1. RULE WITH REGARD TO ALL NUISANCES.

The rule with regard to all nuisances is, that the injury occasioned thereby must be real and substantial, and such as impairs the ordinary enjoyment, physically, of the property within its sphere. Thus, where the effect of vibrations, caused by the use of drop hammers in a factory, when it reaches residences in the neighborhood, is so slight as to be almost imperceptible, no action lies therefor.

2. TEST AS TO WHETHER NOISES CONSTITUte a Nuisance.

In deciding whether noises constitute a nuisance, the test is whether the noise is of such a character as would be likely to be physically annoying to a person of ordinary sensibilities, or whether the trade out of which such noise arises, is carried on at such unreasonable hours as to disturb the repose of persons dwelling within its sphere; and regard must also be had to the quality as well as to the quantity of the noise.

3. OPERATION OF DROP-Hammers—a NUISANCE.

The operation of drop-hammers in a factory in a residence neighborhood results in a degree and kind of noise that would be productive of actual physical discomfort and anoyance to a person of ordinary sensibilities.

4. OPERATION OF FACTORY AT NIGHT-A NUISANCE.

There is a time for work and a time for rest and where one seeks to work all the time, to the discomfort and disquietude of his neighbor and to a deprivation of the natural rest to which the neighbor is entitled, as by the operation of a factory, in a residence district, both night and day, there is a material interference with the neighbor's rights, for which he is entitled to a remedy. b. INJUNCTION MAY BE APPLIED for at ONCE.

Where a nuisance is sought to be enjoined, and the injury complained of is the destruction of the comfortable use and enjoyment of plaintiffs' homes, by reason of noises resulting from the operation of machinery by defendant, it is not necessary that the plaintiff, before applying for equitable relief, should establish his right by an action at law.

6. ACTION TO ENJOIN A NUISANCE-DEFENSE.

In an action to enjoin a nuisance, the defendant cannot avail itself of the fact that the plaintiff located in the vicinity subsequent to the establishment and operation of defendant's plant, when it appears that the nuisance complained of is caused by increased noises caused by a change of methods in operating the plant and made subsequent to plaintiff's location.

7. INVASION Of a Substantial Legal Right.

Where a substantial legal right has been invaded, the court, in considering whether an injunction should issue, will not balance inconveniences, as to smallness of the damage on one side, or the magnitude on the other. This question is not, in such cases, a matter of special weight, and an injunction will issue regardless of consequences.

8. ISSUING OF AN INJUNCTION RESTRAINING A NUISANCE.

An injunction restraining a nuisance should be withheld for a reasonable time to give the defendant an opportunity to abate the nuisance if he so desires.

DEMPSEY, J.

Both of the cases of George Shaw v. Queen City Forging Co., and Stephen S. Mears v. Queen City Forging Co., being founded upon the same facts and seeking the same relief against the same defendant, are

Superior Court of Cincinnati.

here on reservation from the court at special term for decision upon the law and facts. Both cases were tried together at special term upon the same evidence, and the decision upon that evidence and the law applicable thereto is to form the basis for the judgment of the court in each

case.

The actions are for an injunction to restrain the continuation of an alleged nuisance. The petitions set forth that the defendant is a corporation doing business in Cincinnati, Ohio; that the plaintiffs are the owners, respectively, of certain real estate in said city of Cincinnati, known as Nos. 3844 and 3846 Dumont street, which real estate they now occupy and for a long period of time anterior to the suits have occupied as resi. dences for themselves and families; that in the neighborhood of these dwelling houses there are a large number of other dwelling houses and there are no factories save the factory of the defendant hereinafter mentioned; that the defendant is the owner and operator, at the southwest corner of Dumont and Tennyson streets of said city, of a factory in which it carries on and has carried on the business of manufacturing carriage hardware and forgings; that said business has been carried on by the said defendant in such manner as not to be offensive or annoying to plaintiffs until January 30, 1899; that beginning on and ever since January 30, 1899, the defendant has changed its manner of doing business and its conducting its business of manufacturing carriage hardware and forgings by the use of heavy hammers and other noisy machinery which are used with great violence and frequency, and thereby has caused vibrations of the earth to take place and sundry great noises to continue and be kept up ever since that date, and has continued the same night and day without intermission except on Saturday nights, Sundays and Sunday nights, and thereby has done great damage to the dwelling houses of said plaintiffs, etc., which damage is estimated in each case at $500. It is further alleged that the noises and vibrations aforesaid have interfered with the comfort of plaintiffs and their familes in the occupation of said dwelling houses, making it difficult for the occupants of such houses to sleep, and making it uncomfortable and disagreeable to enjoy the ordinary use of said premises as dwelling houses and to pursue the ordinary occupations for which such residences are used, therein. An injunction is prayed perpetually enjoining defendant from operating its said factory at night, and that it may be enjoined from so conducting its business as to cause vibrations such as to injure the dwelling houses of plaintiffs, and that it may be perpetually enjoined from making suchnoises as to interfere with the comfort of plaintiffs in the occupancy of their dwelling houses or to annoy or interfere with them in the use thereof; and then follows a prayer for damages.

The defendant answers admitting the plaintiffs' respective ownership and occupancy of their dwellings; that there are a large number of dwellings in the neighborhood, and that it maintains and operates, as

Shaw v. Forging Co.

alleged, the factory for manufacturing carriage hardware and forgings. Defendant avers affirmatively that its conduct of its factory is such as not to be offensive or annoying to plaintiffs or any one else in that neighborhood, and then denies each and every allegation in the petition not specifically admitted. The defendant further avers that the site of its plant was, prior to 1879, for probably ten years, occupied as a planing mill, and since 1879 has been occupied and operated as a forge; that plaintiffs' houses are located on the opposite side of the Pennsylvania Railroad from defendant's forge and have been built since said forge; that there are other factories in the neighborhood, and that the same is a manufacturing neighborhood.

While the answer contains the averments last set out, most of which were admitted or sustained by the evidence, not much reliance or stress was placed upon them as matters of defense by counsel, for the reason most probably that the questions of law presented by them are now no longer mooted, and the adjudications have been invariably against the validity of the contentions implied in or to be inferred from the aver

ments.

On the direct issues of fact in the cases a voluminous mass of evidence was taken, more than fifty witnesses having been sworn on both sides of the case. It is utterly impossible, and it very likely would be an unprofitable task to attempt to dissect or analyze this testimony in this opinion for the purpose of showing the basis upon which the court. founds its conclusions as to the facts.

In addition to a careful consideration of the evidence all the members of the court made a personal visit to and inspection of all the properties involved in this controversy. After a review of the whole case the court has reached the following conclusions upon the facts:

1. That since January 30, 1899, the defendant has at times when the necessities of its business required it, operated its plant during the night-time, as set forth in the petitions, and that such operation has been to the material discomfort of the plaintiffs as well as others residing in the neighborhood of this plant. And from the testimony of defendant's officers it is a fair inference that hereafter, should the necessity arise, the operations of the plant at night would be repeated.

2. That in the operation of the plant, and especially in consequence of the manipulation of the drop-hammers employed therein, certain vibrations of the surrounding earth are produced which cause in turn a jarring and shaking of plaintiffs' premises; but in the opinion of the court the effect of these vibrations, when they reach the premises of plaintiffs, is so slight and almost imperceptible that they may be regarded as practically unsubstantial.

3. That by the like operations of the plant and manipulation of the drop-hammers, continuous, recurring noises are produced which materially interfere with the comfort and enjoyment of the plaintiffs in the