Iloilo Ice and Cold Storage Co. vs. Municipal Council of Iloilo

A municipal council empowered to declare and abate nuisances cannot, by mere resolution, declare a legitimate industry like an ice plant a nuisance and order its closure where the thing is not a nuisance per se; the existence of the nuisance must be determined by the ordinary courts after a fair and impartial hearing.

The Iloilo Ice and Cold Storage Company was a corporation organized under Philippine law, and the Municipal Council of Iloilo was the local municipal corporation. Section 39(j) of the Municipal Code specifically empowered the municipal council "to declare and abate nuisances."

The Iloilo Ice and Cold Storage Company constructed an ice and cold storage plant in the City of Iloilo upon authority granted by the Municipal Council of Iloilo. After the plant had been completed and was in operation, nearby residents complained to the municipal council that smoke from the plant was very injurious to their health and comfort. The municipal council appointed a committee to investigate and report on the complaints, and the committee reported that the complaints were well-founded. The municipal council then passed a resolution providing that, after approval by the provincial board, the company would be given one month to elevate its smokestacks; if it did not do so, the municipal president would execute the order requiring the closing or suspension of the establishment.

Upon receipt of the resolution and order, the company commenced an action in the Court of First Instance to enjoin the municipal council from carrying the resolution into effect. In the fifth paragraph of its complaint, the company alleged that the defendants intended and threatened to require compliance with the resolution administratively and without the intervention of the court, and by force to compel the closing and suspension of the plant's machinery and consequently of the entire plant if the company did not raise the smokestacks to one hundred feet, which the company maintained it was not obliged to do and would not do.

After notice and hearing, a preliminary injunction was issued. The municipal council answered, admitting paragraphs 1 and 4 of the complaint and denying the other allegations. As a special defense, it alleged that the factory stood in a central and populated district of the municipality; that the quantity of smoke discharged from the smokestacks was so great and dense that it penetrated nearby dwelling houses, causing great annoyance to residents and prejudice to their health; that the municipal board of health had reported that the smoke was prejudicial and injurious to public health; and that the company had no right to maintain and operate its machinery under existing conditions without complying with the regulations imposed when the license for its installation was granted, because it thereby violated the ordinances of the city then in force.

The municipal council prayed that it be absolved from the complaint, that the company be declared to have no right to the remedy asked, and that the preliminary injunction be set aside, with costs against the company. The company demurred to the answer on the grounds that the facts alleged did not constitute a defense and that the answer was vague and ambiguous and contained arguments and conclusions of law instead of facts.

• Administrative Enforcement Without Judicial Proceedings: Petitioner argued that the municipal council intended and threatened to require compliance with the resolution administratively and without the intervention of the court, and by force to compel the closing and suspension of the plant if the smokestacks were not raised to one hundred feet; it maintained that it was not obliged to raise the smokestacks and would not do so.
• Insufficiency and Vagueness of the Answer: Petitioner demurred to the answer on the ground that the facts alleged did not constitute a defense and that the answer was vague and ambiguous and contained arguments and conclusions of law instead of facts.

• Public Health and Smoke: Respondent countered that the factory stood in a central and populated district; the smoke was great and dense, penetrated nearby dwelling houses, caused annoyance, and prejudiced health; the municipal board of health had reported the smoke prejudicial and injurious to public health.
• Violation of License Regulations and Ordinances: Respondent argued that the company had no right to maintain and operate its machinery under existing conditions without complying with the regulations imposed when the license for installation was granted, because it violated the city ordinances then in force.
• No Intent to Proceed Arbitrarily: Respondent denied that it intended or threatened to close the plant by force and without the intervention of the courts, thereby joining issue on whether it would proceed by arbitrary administrative action.

• Power to Declare and Abate Nuisance: Whether the Municipal Council of Iloilo, empowered under section 39(j) of the Municipal Code "to declare and abate nuisances," may by mere resolution declare the ice and cold storage plant a nuisance as operated and order its closure or suspension without judicial determination.
• Nuisance Per Se: Whether the ice and cold storage plant is a nuisance per se.
• Sufficiency of the Answer: Whether the municipal council's answer alleged facts sufficient to constitute a defense to the complaint for injunction.
• Scope of Injunction: Whether the preliminary injunction should be made permanent, limited to prohibiting closure by administrative action, or dissolved if the municipal officials intended to proceed in an orderly and legal manner.

• Power to Declare and Abate Nuisance: No. The municipal council could declare and abate nuisances, but it could not by mere resolution declare a thing a nuisance when it was not a nuisance per se or authorize extrajudicial condemnation and destruction; the fact had to be determined by the ordinary courts.
• Nuisance Per Se: No. The ice factory was a legitimate industry, beneficial to the people and conducive to health and comfort; it was not a nuisance per se.
• Sufficiency of the Answer: Yes. The answer denied any intent to proceed by arbitrary administrative action and joined issue on the nuisance and method of abatement; the demurrer should not have been sustained.
• Scope of Injunction: Limited. The injunction, if maintained, had to be limited to prohibiting closure by administrative action; it would be dissolved if the municipal officials intended to proceed with abatement in an orderly and legal manner.

• Power to Declare and Abate Nuisance: Section 39(j) of the Municipal Code specifically empowered the municipal council "to declare and abate nuisances." A nuisance is "Any thing that worketh hurt, inconvenience, or damages." Nuisances are either per se or per accidens; the greater number are per accidens because of particular facts and circumstances, so whether a particular thing is a nuisance is generally a question of fact. The power did not commit to the unrestrained will of the council the absolute power of declaring anything a nuisance; the council's decision could not be final where it might proceed from animosity, prejudice, partisan zeal, enmity, favoritism, or other improper motives. The SC relied on Rutton vs. City of Camden for the rule that authority to decide when a nuisance exists is authority to find facts and apply law, a judicial function, and that the finding of a sanitary committee or municipal council cannot conclusively establish nuisance. In Yates vs. Milwaukee, the leading case, the SC quoted that the mere declaration by the city council that a structure was an encroachment or obstruction did not make it so, nor could such declaration make it a nuisance unless it in fact had that character; a municipal corporation could not by mere declaration subject property to removal. Denver vs. Mullen held that a city may by general ordinance define nuisances but cannot by mere resolution declare a particular thing a nuisance not previously pronounced by law or adjudged. The other authorities cited by the SC applied the same rule: general power to declare nuisances does not authorize extrajudicial condemnation of a non-nuisance per se; notice and hearing are required, and summary abatement is reserved for clear nuisances per se or emergencies. The SC concluded that the council could not by resolution declare the ice plant a nuisance and order its closure; the matter had to be determined in the ordinary courts.
• Nuisance Per Se: The SC defined nuisances per se as those unquestionably and under all circumstances nuisances, such as gambling houses and houses of ill fame; the number is limited. The ice factory is a legitimate industry, beneficial to the people, and conducive to their health and comfort. It is not a nuisance per se. If it is in fact a nuisance due to the manner of its operation, that question cannot be determined by a mere resolution of the board; the petitioner is entitled to a fair and impartial hearing before a judicial tribunal.
• Sufficiency of the Answer: The municipal council's answer admitted paragraphs 1 and 4 of the complaint but denied the allegation that it intended to close the plant by force and without the intervention of the courts. The SC said the respondent joined issue by denying that it was intending to proceed with the abatement of the alleged nuisance by arbitrary administrative proceedings. That issue determined whether the injunction should be made permanent, limited to prohibiting closure by administrative action, or dissolved if the municipal officials intended to proceed in an orderly and legal manner. The answer also alleged facts about the smoke, public health, and violation of ordinances. Because the answer raised that issue and denied arbitrary action, the demurrer should not have been sustained; the case had to proceed to trial.
• Scope of Injunction: The SC said that upon the determination of the issue whether the municipal officials intended to proceed by arbitrary administrative action, the injunction should either be made permanent but limited in scope to prohibiting the closing of petitioner's factory by administrative action, or dissolved if it be shown that the municipal officials intended to proceed with the abatement of the alleged nuisance in an orderly and legal manner. The SC did not grant a permanent injunction; it reversed the order sustaining the demurrer and remanded for trial.

• Nuisance per se vs. nuisance per accidens — Nuisances per se are those unquestionably and under all circumstances nuisances, such as gambling houses and houses of ill fame; nuisances per accidens arise from particular facts and circumstances. Whether a legitimate industry like an ice plant is a nuisance is generally a question of fact. The SC held the ice plant was not a nuisance per se.
• Municipal power to declare and abate nuisances — Section 39(j) of the Municipal Code gave the municipal council power "to declare and abate nuisances," but this did not authorize it to declare by mere resolution that a non-nuisance per se was a nuisance. The council could not extrajudicially condemn or destroy property as a nuisance when it was not such in nature, situation, or use.
• Judicial determination of nuisance — The authority to decide whether a nuisance exists is a judicial function; a municipal council's finding is not conclusive. The owner is entitled to a fair and impartial hearing before a judicial tribunal before property is condemned or closed as a nuisance.
• Summary abatement — Only clear nuisances per se, or cases affecting health or safety or tangible obstructions under emergency, may be abated summarily. For a non-nuisance per se, the fact of nuisance must first be judicially determined.
• Police power and licenses — If a charter or license does not expressly subject a business to the police power, a reservation is implied to the extent reasonably necessary for the public welfare. The SC stated that even if the plant was built under municipal authority, it remained subject to reasonable police-power regulation.

• "It is clear that municipal councils have, under the code, the power to declare and abate nuisances, but it is equally clear that they do not have the power to find as a fact that a particular thing is a nuisance when such thing is not a nuisance per se; nor can they authorize the extrajudicial condemnation and destruction of that as a nuisance which in its nature, situation, or use is not such. These things must be determined in the ordinary courts of law." — The SC states the core limit on municipal power: the council may declare and abate nuisances but cannot conclusively find a non-nuisance per se to be a nuisance without judicial determination.
• "In the present case it is certain that the ice factory of the plaintiff is not a nuisance per se. It is a legitimate industry, beneficial to the people, and conducive to their health and comfort. If it be in fact a nuisance due to the manner of its operation, that question cannot de determined by a mere resolution of the board. The petitioner is entitled to a fair and impartial hearing before a judicial tribunal." — The SC applies the rule to the ice plant and holds that any nuisance from its operation must be established before a judicial tribunal, not by board resolution.
• "The respondent has, we think, joined issued by its answer denying that it was intending to proceed with the abatement of the alleged nuisance by arbitrary administrative proceedings. This is the issue of the present case, and upon its determination depends whether the injunction should be made permanent (but limited in its scope to prohibiting the closing of petitioner's factory by administrative action), or whether the injunction should be dissolved, which will be done in case it be shown that the municipal officials intend to proceed with the abatement of the alleged nuisance in an orderly and legal manner." — The SC frames the issue created by the answer and limits any injunction to barring administrative closure, not lawful judicial abatement.
• "If the charter or license does not expressly subject the business or industry to the exercise of the police power by the State, it is conceded by the great preponderance of authority that such a reservation is implied to the extent that may be reasonably necessary for the public welfare." — The SC states that municipal authority to construct or license a business does not remove it from reasonable police-power regulation.

• Yates vs. Milwaukee, 10 Wall., 497; 19 L. ed., 984 — Leading case relied on; a city council's mere declaration that a structure is a nuisance does not make it so and cannot subject it to removal without judicial determination.
• Denver vs. Mullen, 7 Colo., 345 — Leading case relied on; a city may by general ordinance define nuisances but cannot by mere resolution declare a particular thing a nuisance not previously pronounced by law or adjudged.
• Rutton vs. City of Camden, 39 N.J.L., 122; 23 Am. Rep., 203 — Relied on for the rule that authority to decide whether a nuisance exists is a judicial function and a municipal finding cannot conclusively establish nuisance.
• Cole vs. Kegler, 64 la., 59 — Relied on; the legislature did not confer power to determine nuisance finally and conclusively without notice or hearing; a city abates at its peril.
• Grossman vs. City of Oakland, 30 Ore., 478 — Relied on; an ordinance cannot declare a particular use a nuisance unless it comes within the common-law or statutory idea of nuisance.
• Western & Atlantic R. Co. vs. Atlanta, 113 Ga., 537 — Relied on; reasonable notice and hearing are required before abatement, except for clear nuisances per se or emergencies.
• Everett vs. City of Council Bluffs, 46 Ia., 66 — Relied on; a general grant to declare nuisances does not authorize declaring anything a nuisance that is not such at common law or by statute.
• Joyce vs. Woods, 78 Ky., 386 — Relied on; the owner is entitled to a hearing before property is burdened with the cost of removal; no necessity for precipitate action.

• Section 39(j), Municipal Code — Specifically empowered the municipal council "to declare and abate nuisances." The SC construed this grant as authorizing the council to declare and abate nuisances but not to find conclusively, by mere resolution, that a non-nuisance per se is a nuisance; that fact must be determined in the ordinary courts.

• Justice Johnson (Dissenting) — Separate opinion; its text is not included.