#### City of Chicago, Defendant in Error, v. Barrett Manufacturing Company, Plaintiff in Error.

Gen. No. 19,728.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.

Reversed.

Opinion filed April 28, 1915.

Statement of the Case.

Action by the City of Chicago against the Barrett Manufacturing Company, a corporation, to recover a penalty for the alleged violation by plaintiff of sections 1425, 1426 and 1430 of the Municipal Code of the City of Chicago.

Defendant is engaged in the manufacture of roofing and paving materials and coal tar products, and oper*461ates an extensive plant located at 2900 Sacramento avenne. The district in which the plant is located is essentially a manufacturing district, wherein are located the plants of the Liquid Carbonic Company, the McCormick branch of the International Harvester Company, the National Malleable Castings Company, the Pilsen Brewing Company, the C. F. Massey Company and other extensive manufacturing plants. To the east and immediately across Sacramento avenue are located the Bridewell and the dog pound. On the south the plant runs to the west fork of the south branch of the Chicago Biver. There are some dwelling houses one or two blocks west on Whipple street and Albany avenue and northeast on Sacramento avenue. The plant of the Pilsen Brewing Company is north and west.

In the process of distillation of crude coal tar the tar is pumped into a horizontal still where it is heated until it commences to vaporize, and heat is continued to be applied until sufficient vapor has been formed to leave a residue of thin liquid pitch in the still. The vapor is drawn from the still through condensers, where it is transformed into a liquid known as ordinary creosote oil. When distillation is complete the temperature of the pitch in the still is between 500 and 600 degrees Fahrenheit. The pitch is then transferred by steam pressure from the still into coolers where the temperature of the pitch is lowered to about 350 deg’rees Fahrenheit, when it is permitted to run into concrete receptacles known as “pitch bays.” In the last process mentioned some vapor and fumes arise from the pitch as it leaves the coolers and flows into the “pitch bays.” The presence of these vapors and fumes in the atmosphere constitutes the alleged violation by defendant of the section of the ordinance in question.

*462Abstract of the Decision.

1. Municipal corporations, § 864 * —what evidence necessary in action for penalty. In an action to recover a penalty for the violation of an ordinance, a municipality must prove the violation by a clear preponderance of evidence; a mere preponderance of evidence is not sufficient.

2. Nuisance, § 64*—when vapors and fumes not. A conviction imposing a fine for the violation of an ordinance with reference to “Matters and things detrimental to health” will be reversed where it appears from the evidence that the vapors and fumes complained of could not be noticed outside of the defendant’s plant and were not deleterious to health.

Joseph B. Fleming, for plaintiff in error.

William H. Sexton and James S. McInerney, for defendant in error; U. S. Schwartz, of counsel.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Baume

delivered the opinion of the court.