by Gena Terre



he plaintiff, upon authority granted by the defendant, constructed an ice and cold storage plant in the city of Iloilo.

after the plant had been completed and was in operation, nearby residents made complaints to... the defendant that the smoke from the plant was very injurious to their health and comfort... the defendant appointed a committee  to investigate and report upon the matters contained in said complaints

The committee reported that the complaints were... well founded.  The defendant council then passed a resolution... a period of one month will be granted to the said entity, The Iloilo Ice and Cold Storage Company, in which to proceed with the elevation of said smokestacks, and if not done, the... municipal president will execute the order requiring the  closing or suspension of operations of said establishment.

the plaintiff commenced this action in the Court of First Instance to enjoin the defendant from carrying into effect the said resolution.

That the defendants intend and threaten to require compliance with  said resolution administratively and without the intervention of the court, and by force to compel the closing and suspension of operations of the plaintiff's machinery and  consequently... of the entire  plant... he defendant answered, admitting paragraphs 1 and 4 and denying all the other allegations in the complaint, and as a special defense alleged

That the factory of the plaintiff company stands in a central  and populated district of the municipality

That the quantity of smoke discharged from the smokestacks of said factory is so great and so dense that it penetrates into the dwelling houses situated near it and causes great annoyance to the residents and prejudice to their health

That the municipal board of health of the city has reported that the smoke discharged from the smokestacks of said factory is prejudicial and injurious to the public health

That the plaintiff company has no right to maintain and operate machinery in its factory under the conditions which it is at present operating the same, without complying with the regulations which were imposed upon it when the license for its installation was granted,... because it thereby violates the ordinances of the city now in force upon the matter.

The plaintiff demurred to this answer upon the following grounds:

"1. That the facts alleged in the answer do not constitute a defense; and

"2. That the answer is vague and ambiguous and contains arguments and conclusions of law instead of facts."

This demurrer was sustained

To this order the defendant excepted and, not desiring to amend its answer, appealed to this court.


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 municipal council is, under section 39 (j) of the Municipal Code, specifically empowered "to declare and abate nuisances."

They arise from pursuing particular trades or industries in populous neighborhoods; from acts of public indecency, keeping disorderly houses, and houses of ill fame, gambling houses, etc.

Nuisances have been... divided into two,classes: Nuisances per se, and nuisances per accidens.  To the first belong those which are unquestionably and under all circumstances nuisances, such as gambling houses, houses of ill fame, etc.

a particular thing is a nuisance is generally a... question of fact, to be determined in the first instance before the term nuisance can be applied to it.

This is certainly true of a legritimate calling, trade, or business such as an ice plant.  Does the power delegated to a municipal council under section 39

(j) of the Municipal Code commit to the unrestrained will of that body the absolute power of declaring anything to be a nuisance?

Upon principle and authority, we think it does not.

To say to a man... that he shall not use his property as he pleases, under certain conditions, is to deprive him pro tanto of the enjoyment of such property.

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 right to use property is as much under the protection of... the law as the property itself,... The right to abate public nuisances,... 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 be determined by a mere resolution of the board.  The petitioner is entitled to a fair and impartial hearing before a judicial tribunal.

is akin to the right of destroying property for the public safety,... The respondent... denying that it was intending to proceed with the abatement of the alleged  nuisance by arbitrary administrative proceedings.

But the... necessity must be present to justify the exercise of the right, and whether present or not, must be submitted to a jury under the guidance of a court.

It is said that the plaintiff cannot be compelled to build its smokestack higher if said stack is in fact a nuisance, for the  reason that the stack was built under authority granted by the defendant, and in accordance with the prescribed requirements.  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 question of nuisance can conclusively be decided, for all legal uses, by the... established  courts of law or equity alone, and that the resolutions of officers, or of boards organized by force of municipal charters, cannot, to any degree, control such decision."... the order sustaining the plaintiff's demurrer to the defendant's answer is reversed.  The record will be returned to the court whence it came with instructions to proceed with the trial of the cause in accordance with this opinion.