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MARINE LAW. OPINION OF JUDGE SCOTT ON THE SMOKE OR- DINANCE, The following is the conclusion of tke opinion of the Supreme Court in the case of William Harman vs. the City of Chicago, known as the smoke-ordinance case. ‘The case being considered has many features in common with the North Chicago Railway Company, vs, Lake View, 105 Il., 207, In that case it was clearly conceded that under a general grant of power over a nuisance, like the one in question, the town or mu- nicipal authorities have no power to pass an ordinance declaring a thing a nuieance which, in tact, is clearly not one, but it was said in doubtful cases when a thing may or may not be a nuisance, depending upon a variety of circumstances requiring judg- ment and discretion, on the part of town au- thorities, in exercising legislative functions under a delegation of power like the one we are considering, their action under such cir- cumstances would be conclusive of the ques- tion. Accordingly, it was held the use of steam by the North Chicago Railway Com pany as motive power in operating its rail- wiy along the public streets of Lake View, contrary to the provisions of the ordinance of the town, was a nuisance. In. the case being considered the effect of what defend- ant did in running his steam tugboat in the river within the,corporate limits of the city is admitted, and.what was done did create a nuisance in the language of the ordinance. | At common law a nuisance was anything that works the least inconvenience or damage. A public or common nuisance was that which aftected the public or is annoyance to the king’s subjects at large. Precisely, that is the character of the ‘‘dense smoke’’ emitted from the defendant’s steam tugboat. Its effect was detrimental to some classes of property and business within the city, and was a personal annoyance to the publie at large. Defendant was, therefore, properly held to have been guilty ot creating a“nui- sance’? and was subject to the penalty: of fine imposed by the ordinance. It is stipu- lated this court may take rotice of the size and commercial importance of the city of Chicago, and the court may, of its own mo- tive, take judicial notice.of what is genérally known, that is, that the city of Chicago is situated near the great coal fields of the State, and that much of the fuel used by the multitude manufactories in the city which produces the ‘‘dense smoke”’ of which com- plaint is made, is the common soft coal. In view of the magnitude of the interests in- volved, it is suggested it will not do to allow the. common council to place an embargo on all the interests that have to use this coal. It may be some, and perhaps a very great, in- eonvenience would be experienced by a rigid enforcement of the provisions of this ordi- nance. How that may be this court cannot know. What powers the city council may exercise under the general law under its po- dce powers is a question of law to be deter- mined by the courts, but when the city coun- cil will exercise the powers with which itis clo hed reatsin its legislative discretion. And the consequence that may flow from the en- forcement of ordinances enacted within powers conterred rest also iipon the body enacting them, and with which the courts can have no concern. ‘The judgment of the Appellate Court will bea firmed. Judgmen affirmed. THE EMPIRE—LIBEL FOR DAMAGES,t District Court, Eastern District Michigan. In Admiralty. On Motion fora new trial. This was a libel for damages suffered by the barge James F’. Joy, while in tow of the steambarge Empire, and by reason of her » alleged negligence. The case was tried by a jury, pursuant to Rev. St. §566, and a ver- dict returned for the libelant inthe sum of $200. Motion was made for a new trial up- on the ground that there was no evidence to justify the jury in rendering a verdict for so smallan amount. H. H. Swan, for the motion; James J. At- kinaon, contra, Brown, J. By Kev. St. § 566, “in causes of admiralty and maritime jurisdiction re- lating to any matter of contract or tort aris- ing upon or concerning any vessel of twenty tons burden or upward, enrolled and licensed for the coasting trade, and at the time em- ployed in the business of commerce and nay- igation between places in different states | and territories upon the lakes and navigable waters connecting the lakes, the trial of is- sues of fact shall be by jury when either party requires it.’ This somewhat unfor- tunate clause was introduced by the revisors Into the statutes from a somewhat hasty dictum of Mr. Justice Nelson in the case of the Eagle, 8 Wall. 25. In delivering the opinion of the gourt he remarked “that we must therefore regard it (the act of 1845) as obsolete and of no effect, with the exception of the clause which gives to either party the right of trial by a jury when requested, which is rather a mode of exercising juris- diction than any substantial partof it.” ‘The history of the incorporation of this dictum into the Revised Statutes is tully given in the case of Gillett v. Pierce, 1 Brown, Adm. 5538. But, whatever be the origin of the clause in question, there is no doubt that it is the law of the land and must be respected as such. There has been great difliculty, however, in determining in what cases and in what manner it is to be given effect. It creates what'appears to be a very unjust discrimination in favor of the particular classes of vessels und causes of action enum- erated in the act.. Why it should be yiven in actions of contract and tort, and denied in those of salvage, general average, and prize, and why it should be limited to Amer ican vessels plying between domestic ports, and denied to all foreign vessels, atid to American vessels.engaged in foreign trade, it is impossible to conceive. ‘The Eagle, su- pra. A still more serious objection to the clause as it now stands arises from the fact that no provision is made for. a review ‘of cages so tried. Ifthe same weight is to be given to the verdict of a jury impaneled under this act thatis given to a verdict in a common-. law case, then it clearly falls within the in- hibition contained in the seventh smend- ment to the constitution, that ‘‘no fact tried by a jury shall be otherwise re-examined in any court of the United States than accord- ing to. the rules of common law.’’ As there is no opinion for a writ of error in this class ot cases, the defeated party would be reme- diless. This question was, however, passed upon in the case of Boyd v. Clark, 18 Fed. Rep. 908, in. which the defeated party took both an appeal and writ of error to the cir- cult court. Mr. Justice Matthews, before whom the case was argued, dismissed the writ of error and allowed the appeal, hold- ing that the fact that the case was tried by a jury made no difference in determining the remedy to which the deteated party was en- titled. Hefurther observed that the pro- visions requiring trials by jury, in the sev- enth amendment, applies only to common law juries, and that, upon appeal, admiralty cases tried by a jury in the district court stand for trial in the circuit court precisely as if they had been tried by the district judge in person. ‘These objections to the act as it now stands, and the further one that there is probably no class of cases which a jury, as ordinarily constituted, is so unfitted to deal with az actions for torts upon navigable waters, have been deemed so serious that the practice ot trying admiralty causes by a jury bas not obtained in the district court to any extent. This case and that of Boyd vy. Ciark, supra, are, so fur as I am informed, the only actions of tort tried by jury in this district during the almost forty years in which the act has been in force. In lieu of this meth- od of procedure, we have for several years past, in analogy to the trinity master system obtaining in the English court of admiralty, adopted the practice of calling to the assist- ance of the court, in all difficult cases in- volving negligence, two experienced ship- masters, who sit with the judge during the argument and give their advice upon the questions of seatnanship or the weight of testimony. I believe a somewhat similar practice has obtained in some of the other district courts. The Emily Olcott, 132. The Rival, 1 Spr.128. The practice appears also to have received the sanction of the supreme court. The Hypodame, 6 Wall, 219 224: the City of Washington, 92 U.S. 31-38. I have trequently derived great sssistance from the advice of nautical assessors myself, and have found this 1 most satisfactory and expedi- tions method of trying these cases, The question still remains to be decided, however, what weight we shall give to the verdict of a jury impaneled under seetion THE MARINE RECORD. | 566, ‘lhe question bas never been directly decided; but in view of the opinion in Boyd v. Clark, supra, that their verdict is not binding upon the circuit court upon appeal, it seems to be a logical inference that it ought to be regarded in this court only as advisory. There is no reason for giving it greater weight in one court than in the other. In chancery cases the province of the jury is said to be tu “enlighten the conaclence of the court,” and as the court of admiralty is but the chancery of the seas, I see no reason why we should not give it the same eftect here. In the case of Lee v. Thompson, 6 Woods, 167, a supplemental libel was filed in the district court, upon which there arose a question-as to the validity of a certain assign- ment. ‘Ibe court made an order that the matter be tried by a jury, and it was tried accordingly. Upon appeal to the circuit court, Mr. Justice Bradley held that, al- though thefe was no power in the court of admiralty to try causes by jury, it was nev- ertheless ‘proper co submit a question of fact to them for their opinion and advice ; but that their decision was after all not con- elusive, und the matter must finally be sub- mitted to the judge of the court; citing Dun- phey v. Kleinsmith, 11 Wall, 610. {t abolishes consular fees for. services to vessels, and provides for the payment of cousuls from the ‘lreasury for such services, It nbolishes the tonnage tax as now im. posed, ard provides in lieu of the same for a duty of three cents per.ton at each entry on vessels trading with any port in North or Central America and the aevant islands, including the Sandwich Islands; and six cents per ton at erch entry on all vessels {rom any other foreign trade; but requires the President to suspend the collection of so much of this tax on vessels from any foreign port in North or Central America as may be in excess of the tonnage and lighthouse dues imposed on American vessels by the laws of the country in which such port is situated. As Canada imposses no taxes on American vessels, the bill abolished the ton- nage tax on vessels trading with Canada after July 1, [t abolishes the marine hospital tax for seamen in both coustwise and foreign trade, and provides that the hospital service shall be.detrayed from the tonnage, It largely reduces the tonnage tax.. It provides that supplies for American vessels in the foreign trade may be imported in bond. free of duty, It provides that the drawbacks, 90 per cent of the dues on imported materials for the con. struction of vessels on foreign account, on’ reexportation shall be allowed where vessels are partly constructed of imported materials in the sume manner as when ‘wholly-con- structed. It limits the individual liability of a ship owner to the proportion. which his interests bears to the whole. It provides for the engagment of aseaman to serve ona voyage to arly port or for a definite time, In Basey v. Gallagher, 20 Wall. 670, a pro-;and exempts vessels making regular and vision In x statute of Montana, declaring | stated trips from paying fees or reshipping that an issue of fact“shall be tried by a jury, unless a jury trial-is waived,” was ‘held not to require the court in equity cages to re- gard the findings of the jury as conclusive, though no application to vacate the findings be made by the parties, if, in the judgment of the court, such findings are not supported by the evidence. In delivering the opinion of the court Mr. Justice Field observed that “if the remedy sought be a legal one, a jury is essential, unless waived by the stipulation of the parties; but if the remedy sought be equitable, the court. is not bound to calla jury; and if it does call one, it is only for the purpose of enlightening its conscience, and not to control its judgment. °«.* * * Ordinarily, where there has been an exam- ination before a jury of a disputed fact, and a special finding made, the court will follow it. But whether it does so or not must de- pend upon the question whether it is satis- fied with the verdict. regard the findings of the jury may undoubt- Its discretion to dis- | edly be qualified by statute; but we do not find anything in the statute of Montana, regulating proceedings in civil cases, which affects this discretion.’’ ‘ While the language of the section (566) is peremptory, that either party is entitled to a jury trial, it is no more so than was the statute of Montana; and yet, notwithstand- ing the absolute right of a jury trial given by this statute, it was held that the jury was merely advisory. See, also, Dunn v. Dunn, 11 Mich. 284. In the case under consideration the ver- dict of the jury was not consonant with any theory upon which the case was tried. If the jury had tound there was no negligence, it was their duty to have returned a verdict for the detendant. If they found the tug was in fault, they should have returned a verdict for the damages suffered by the li- belants, which the testimony showed were not less than $800; and if demurrage were included, were nearly $1,500. ‘There was no evidencé in the case to justify a verdict of $200; and it must be set aside. THE SHIPPING BILL. The shipping bill, as reported by the con- ference committee and passed by the Senate and House, ix composed of thirty sections, and the substance of those provisions is as follows: It allows an American vessel on a toreign voyage and till she returns home to fill vacancies in offices below captain by ap- pointment of an alien. It abolishes three months’ extra wages, and provides that one month’s extra wages only shall be paid in cases of injury in the service of a vessel. Unnecessary and willful prolongation of voyage, willful sending of a ship to sea in an unseaworthy condition, sale of a vessel ina foreign country, and cruel treatment are prohibited. It increases the amount to be paid by the government for transporta tion of seamen in case of long voyages. It prohibited the payment of advance wages to seamen, but provides for allotinents of wages to’a seamen’s relatives. It requires vessels in the foreign trade to carry shop chests, with supplies of clothing, etc., excluding, however, vessels in trade with the countries and islands of North and Central America from this obligation, seamen, and also authorizes the shipment of seamen ina foreign port for a definite time or voyage, and provides that seamen 30 shipped shall not be required to be reshipped. It allows the’ painting on the stern of a ves- sel of the name of the port of registry or the place in the same district where any of-the owners live. It exempts vessels in trade with Canada and Mexico trom the obligation to pay a tax on passengers so long as no tax is exacted on passengers coming from those countiies by ‘land carrage. It repeals all compulsory laws that oblige American ves- sels to carry the mails to or from the United States arbitrarily. Such repeal not to take effect until April 1, 1885. It gives sailing ves- sels the same privileges in unloading cargo that is given to steamships. It provides that shipping cowmissioners shall hereafter be, appointed by the Secretary of the Treasury, instead of the circuit court, and shall be subject to regulations prescribed by him. It reduces the fees for inspection of steam ves- sels from $25 to $10 for the first 100 tons. It allows vessels arriving at a port of entry, laden with bulky - articles. like salt, ete., to proceed to places within that collection dis- trict to unload under certain conditions. The act awaits the President’s signature, and is to go into effect July 1. NAUTICAL NOTES. There has been $8,000 appropriated for the improvement of the lake front off the marine hospital at Chicago. The steam. yacht J. H. Welch, of Erie, Captain Wm. Stanton, will run excursions from Ashtabula Hurbor to Red Brook and other points. The schooner W. B. Taylor, loads iron ore at Kingston for Cleveland, at Cleveland she loads coal for Sarnia, and at Sarnia she Ne one on a load of timber for Garden sland. ‘The owners of the Manitoba and the com- panies in which she is insured cannot come to terms, ‘The steamer has been temporarily patched up and floated out of the drydock at Detroit. The owners of the schooner H.C. Rich- ards refuse to be represented in the survey on the schooner America, which was in col- lision with the Richards, and un ex parte survey was held, Captain P. A. Lindquist has again been placed in command of the tug Goldsmith, while her former commander, Captain Johu Gilbraith, is engaged in fitting out the large scow recently purchased by the ‘I'wo Rivers manutacturing company. The tugs John Gordon and Commodore have had smaller wheels put on, because the larger ones were too cumbersome and too expensive to keep. With the smaller wheels the boats run faster and tow better. Until further notice two red lantern lights will be exhibitec, one on each end of the crib, which isto form the substructure of the new lighthouse and fog signal to be erected at the mouth of the Detroit river. An instrument was filed in the Chicago Custon House showing that Aaron I’. Leopold sold to Charles F. A. Spencer, the vessel agent, a three twelfths interest in the propeller Jay Gould for $8,750. The pur- chase makes Mr. Spencer ahalf owner of the Gould. The steambarge Daisy Day, Captain John Anderson, which has been plying between Milwankee and other west shore ports for several seasons, is being furnished with a new steel boiler anda full length cabin, ‘The Day will in future engage in the passenger business, making Milwaukee the base of her operations and will touch at several west and east shore ports. As in the past she will run as olten during the winter as the ice will permit,