Appeal from the Municipal Court of Chicago; the Hon. JOSEPH A.
POWER, Judge, presiding. Affirmed.
JUDGE BRYANT DELIVERED THE OPINION OF THE COURT.
This appeal is from a judgment entered against defendant for an alleged violation of an ordinance of the city of Chicago and the imposition of a fine of $100 and costs by the court without a jury.
The defendant claims that there was error of law in the construction of the ordinance; that there was a fatal variance between the complaint and the evidence as to the date of the alleged violation, and that the judgment is not supported by a clear preponderance of the evidence.
The ordinance which it is alleged was violated and the provisions for the punishment of the violation are as follows:
"Chapter 99, Section 4 and Section 74 Municipal Code of Chicago
99-4. No building, vehicle, structure, receptacle, yard, lot, premises, or part thereof, shall be made, used, kept, maintained, or operated in the city, if such use, keeping, maintaining, or operating shall be the occasion of any nuisance, or shall be dangerous to life or detrimental to health.
Every building or structure constructed or maintained in violation of the building provisions of this code, or which is in an unsanitary condition, or in an unsafe or dangerous condition, or which in any manner endangers the health or safety of any person or persons, is hereby declared to be a public nuisance. Every building or part thereof which is in an unsanitary condition by reason of the basement or cellar being covered with stagnant water, or by reason of the presence of sewer gas, or by reason of any portion of a building being infected with disease or being unfit for human habitation, or which by reason of any other unsanitary condition, is a source of sickness, or which endangers the public health, is hereby declared to be a public nuisance. (Amend. Coun. J. 12-1-50, p. 7234; 6-30-54, p. 7829.)
99-74. Any person violating any of the provisions of this chapter shall be fined not less than five dollars and not more than two hundred dollars for each offense, except where otherwise specifically provided. A separate and distinct offense shall be held to have been committed each day any person continues to violate any of the provisions hereof. (Amend. Coun. J. 6-11-47, p. 308; 6-30-54, p. 7829.)" (Italics ours.)
The complaint as originally filed was amended in accordance with an order of court granting leave to amend said complaint on October 10, 1956, and on that date the court ordered a non-suit as to count 2. The case thereafter went to trial and the judgment rests upon count 1 of the complaint as amended, as follows:
"COUNT 1 Defendant did on or about January 30, 1956, own or was in charge of and did unlawfully maintain, operate or control the building or premises at 3939 S. Union Ave., Chicago, Cook County, Illinois, in that said defendant did not abate nuisance of odors to neighbors and emanating from drying operations carried on in space used as work space, in violation of Section 99-4."
The evidence indicates that the defendant makes animal feed, and in processing the feed it uses a fish solution and in drying of the feed this is condensed and is discharged into the atmosphere through a stack. The defendant has been located at 3939 S. Union Avenue for about ten years, and although it carries on other operations, the operation above referred to is the major one carried on by the defendant. The process involves the mixing of soy bean meal and a product known as fish soluble. The water soluble product is mixed, roughly 50-50, with the soy bean mix. The dehydrating process is removal of the moisture application by heat. Seventeen per cent of moisture is evaporated and the dehydrated product is carried along by a fan and then by gravity through a vapor collector and the vapors are sent off into the air. The greater frequency of the odor occurs when this is heated.
The plant is located in a district which is zoned for industrial use. On the east, south and west of the plant site the area is occupied by other industrial plants. On the north there is an area occupied by residences.
The ventilating inspector of the city of Chicago first testified that he inspected the premises on July 22, 1956 and that he smelled a strong fishy odor in the neighborhood, and that he again inspected the place on September 29, 1956 and smelled the odor in the neighborhood. Later he testified that he was in error; that his inspection had been made on January 30th, and the complaint was amended to set forth that date as the date of violation. On the hearing on the amended complaint he testified that on January 30th he inspected the neighborhood and noticed a fishy odor in the neighborhood. He also testified that from the first inspection of the premises the defendant had been co-operative in trying to rid the plant and the neighborhood of the odor and had taken certain steps to do that, but that there were other steps which could be taken which had not as yet been done.
Three additional witnesses testified in corroboration of the existence of the odor on January 30, 1956. Two of them testified as to the continuing nature of the odor, and particularly in the summer months, and two additional witnesses testified, over objection, as their testimony was not connected with January 30, 1956, as to the continuing nature of the odor in the summer months. All five of these neighborhood witnesses testified either that they became nauseated as a result of the ...