Sullivan v. Jones & Laughlin Steel Co.

Equity — Equity practice — Violation of decree — Contempt—Evidence. When those enjoined by a decree in.equity are charged with having violated it, its violation must be made to clearly and satisfactorily appear by the petitioner asking for its enforcement. Until its violation so appears there can be no finding of contempt, and a fine will not be imposed, nor an order of commitment made. The procedure by rule for contempt should not be exercised unless a case is presented of actual disobedience. The entry of an order of injunction is, in some respects, analogous to the publication of a penal statute. It is a notice to the party that certain things must be done or not done, under a penalty to be fixed by the court. The language of such notice should not be stretched to cover acts not fairly and reasonably within its meaning. Equity — Injunction—Decree—Nuisance—Dust from steel works — Violation of decree — Contempt of court — Attachment—Evidence. On a bill in equity by owners of property in a residential neighborhood against a steel company, an injunction was issued because the defendant so operated its furnaces as to destroy the trees and shrubbery of the plaintiffs, to drive tenants from their houses and to blacken, disfigure and practically destroy and confiscate their whole property. On a petition for an attachment for contempt for violating the decree, the evidence showed that ore dust escaped from time to time from the defendant’s furnace, and especially during the time while changes and experiments were being made to prevent the escape of "such dust. It also appeared that the escape of such dust was not only annoying but injurious to plaintiffs’ properties, in that it choked rain conductors upon houses, discolored fabrics and paints and injured carpets and curtains, and was of a greasy nature and difficult to remove from both garments and paints. The evidence also showed that defendants had made an honest effort at great expense to lessen the evil, and that they had so far succeeded that between the date of the decree and the time of the filing of the petition for contempt, the trees and shrubbery were not destroyed nor were tenants driven from houses, nor were the properties longer being practically destroyed and confiscated. Held, that the evidence was not sufficient to justify the issuing of an attachment against the defendant for contempt. Mestrezat, J., - dissents.

Appeal, No. 140, Oct. T., 1907, by defendants, from decree of O. P. No. 2, Allegheny Co., Oct. Term, 1902, No. 620, awarding an attachment for contempt of court in case of E. R. Sullivan and Jennie P. A. Sullivan, his wife, v. Jones & Laughlin Steel Company et al. Petition for attachment for contempt. The trial court, Young, J., found the defendants guilty of contempt in the following opinion : This cause comes before us now upon the petition of the plaintiffs reciting that on April 19, 1904, at the above number and term of this court, a decree was entered by this court, among other things, perpetually enjoining and restraining the defendant “from such operation of its furnaces, situated in Fourteenth W ard of the City of Pittsburg, and described in the bill, as to cause to" be emitted therefrom, clouds of ore dust, working and causing the injury to the property of the plaintiffs, as in the bill described and found by the Court; ” and that, notwithstanding said decree, the defendants “ have persistently and at intervals, daily and frequently, manytin.es during the day and night, since the day when said decree was entered, so operated its furnaces as to cause to be emitted therefrom clouds of ore dust, working and causing the injury to plaintiffs’ property, as in said bill described, and found by this Honorable Court, and in open and deliberate violation of the terms of said decree and injunction, and against the oft-repeated protests of your said petitioners,” and that the petitioners are “advised, believe and charge that the defendant, its officers, agents and employees are each and all in contempt of this Honorable Court,” and prays that Benjamin F. Jones, Jr., Willis L. King, William L. Jones, Henry S. Kiehl, W. W. Willock, William C. Moreland, James B. Laughlin and George M. Laughlin, who are the directors of the Jones & Laughlin Steel Company, of whom Benjamin F. Jones, Jr., is president, Willis L. King, vice-president, James B. Laughlin, treasurer, William C. Moreland, secretary, William L. Jones, general manager, and E L. Messier, superintendent of the Eliza Furnaces of said'Jones & Laughlin Steel Company, be adjudged to be in contempt of this court, and that attachment be issued against them for failure to comply with the aforesaid terms of said decree. To this petition, presented to the court upon January 10,1907, the defendants, on January 19, filed an answer, admitting that the defendants are the officers, agents and servants of the defendant company, and that they were duly notified of the entry of the decree at the time of its entry ; but denying “ that the defendant, the Jones & Laughlin Steel Company, has persistently and at intervals, daily and frequently, many times during the day and night, since the day when said decree was entered, so operated its furnaces as to cause the injury to plaintiffs’ property, as in said bill described, and found by this court, and in open and deliberate violation of the terms of said decree and injunction, and against the oft-repeated protests of the said petitioners.” The answer also admits that <£ there have been at different times since April 19,1904, escapes of ore dust from the Eliza furnaces, but not at ail in character, extent or effect such escapes of ore dust as were enjoined by the decree of this honorable court, and most of these escapes occurred during the time that new and very extensive appliances— adopted to do away with the escape of ore dust — were being attached to said furnaces and were due to this cause, said new appliances being so extensive as not only greatly to disarrange and disturb the operation of the furnaces while the work of putting them up and attaching them was going on, but to render necessary the disconnecting and opening of certain pipes and parts of the furnaces, which contributed to the escape of ore dust.” The answer also denies “that they have violated said injunction in letter or spirit, but beginning even before the entry of said injunction, and continuing to this time, they have been unceasing in their efforts to prevent the escape of ore dust from the furnaces in question,” and avers that “ they have been watchful and careful in the operation of their furnaces ; they have analyzed and selected all the ingredients used theréin, ore, coke and limestone; they have made important changes in their furnaces ; they have adopted and used new and costly appliances, and, without stopping to consider cost, they have in many other ways, done that which to them or to their engineers gave promise of good results in furtherance of their efforts to remove entirety every cause of annoyance, or even inconvenience from escaping ore dust. And they are willing and ready in time to come, in' the operation of said furnaces there, to do any and everything further in this behalf, which will prevent entirety, or still further reduce the escape of ore dust;” and that “ speaking from their own observations, from what the changes in the furnaces and the new appliances themselves show; from the expressed opinions and beliefs of their engineers, superintendents and persons in charge of said furnaces; from what they have learned, and heard from many persons living in the Oakland district, and even nearer to the site of said furnaces, they are enabled to say, and do say, that great progress and advancement have been made towards preventing the escape of ore dust from the said furnaces, or at least reducing it to such an extent that no inconvenience or annoyance will be suffered therefrom; ” and denying “that the defendants, its officers, agents, servants and employees are each, and all, or any of them, in contempt of this honorable court, and théy pray, therefore, that the rule for an attachment entered in this case, may be discharged.” Upon this petition and answer being filed, this court, upon February 7, began taking the testimony to determine the question as to whether said defendants, its officers and agents, should be adjudged guilty of contempt of this court, and an attachment be issued against them for failure to comply with the terms of the decree; and the court continued to take testimony submitted, taking-in all 1,962 pages of testimony, and finally having heard counsel both in oral argument and by written brief, we come now to determine the question whether the defendants in this case, its officers, agents and employees, are in contempt of this court and have violated its decree. The sole inquiry, then, before the court, is whether the Jones & Laughlin Steel Company, the defendant, or the persons named as its officers, employees and agents, have since April 19,1904, refused or failed to comply with the.decree of this court in enjoining and restraining them “ from such operation of its furnaces, situated in the Fourteenth ward of the city of Pittsburg, and described in the bill, as to cause to be emitted therefrom, clouds of ore dust, working and causing the injury to the property of the plaintiffs, as in the bill described and found by this court.” There lies at the very foundation of this inquiry the question as to the meaning of this injunction, because, until we shall have determined exactly its meaning, we shall not be able to determine whether or not the defendants have disobeyed it. Ordinarily the meaning of a decree and the purpose to be accomplished by it are easily determined from the words of the order or decree, but where there may be any doubt concerning either the meaning of the decree or the purpose of the court in making it, we are entitled to hare such light from proper sources as to make it clear beyond question, and especially is this true when the proceeding is one for the punishment of persons for its violation, the proceeding becoming a quasi criminal proceeding, and we are required to examine and strictly construe the order disobeyed as though it were a criminal statute. It is especially important in the case at bar to determine these things accurately and definitely because of the magnitude of the operations on the one hand and the great alleged injury on the other hand, arising out of conditions in a great manufacturing city, subject- to many injuries and annoyances by reason of its being a manufacturing city that would not occur elsewhere, aside from the duty of the court to compel obedience to its decree. In seeking the meaning of the decree and the objects of the court in making it, the decree naturally falls into two propositions, or inquiries: first, what is meant by such operation of its furnaces as to cause to be emitted therefrom clouds of ore dust; and, second, what injury to plaintiffs’ property is described in the bill and found by the court; and to the answer to these two propositions, or inquiries, we must first apply ourselves. To determine this, we must look to the findings of fact by the learned judge of the court below on the original trial of the case and to the opinion of the Supreme Court. Such operation of the furnaces must include therein rebuilding, improving or enlarging, as found in the ninth finding of fact, in these words : “ That between March, 1898, and May, 1901, the three furnaces at that time constituting the Eliza furnaces were rebuilt, improved and enlarged upon the site then and now occupied by them, and a fourth furnace added upon that site. The first of the rebuilt furnaces was ‘ blown in ’ September 1, 1899 ; the second, May 13, 1900 ; the third, January 21, 1901, and the fourth on May 8, 1901. These furnaces as rebuilt, improved and enlarged, are constructed in accordance with modern and approved plans, and in their construction are in every respect equipped with modern appliances and improvements, and are equal, in many respects supérior, to other furnaces in this locality in which pig iron is manufactured, andaré among the largest known in the iron business, having a capacity each of about 500 tons daily production, and consuming together about 4,000 tons of ore daily.” And again in the fifteenth finding of fact: “ The ores known as the Mesaba ores are mined in the state of Minnesota, and in their.physical structure are finer than the Old Kange ores. Mesaba ores have been used in all furnaces in this district, in making pig iron since the year 1892, in increasing quantities, until the year 1902, when the relative quantities of Old Eange and Mesaba ores brought to Lake Erie ports was about 50$ of each; that the amount of Mesaba ores brought to lake ports had increased from 5,000 tons in 1892 to 12,000,000 tons in 1902. That the defendant company now uses in its furnaces, and has been using for the past seven or eight years, a portion of Mesaba ores known as Adams, Lincoln and Duluth, which are among the best in quality of all Mesaba ores. The amount of Mesaba ores used by the defendant company in its furnaces in the past seven or eight years has averaged 30$ of the total ore used, which is a less proportion than is used generally in blast furnaces in this district. That at the present time the percentage of Mesaba ore used at the Eliza furnace is about 23$.” And again in the sixteenth finding of fact: “ That the escape of ore dust due to ‘ slips ’ in the furnace is a financial loss to the operator, both in the matter of production and in the loss of ore ; that the defendant has been diligent in its efforts to find means, or to adopt appliances or inventions which will prevent the escape of dust from its furnaces; that up to the present time no appliance has been found which will effectually prevent, or reasonably diminish, the escape of the ore dust from blast furnaces, when ‘ slips ’ occur. That the use of Old Eange ores exclusively would not materially lessen the number of ‘ slips ’ occurring in furnaces, but would, to a considerable extent, decrease the amount of ore dust discharged into the air at each explosion.” As found by the court below, the operation complained of was the building and enlarging of the furnaces, the use therein of large quantities of Mesaba ore and the emission into the atmosphere of unconsumed portions of that ore in great quantities, carried by currents of air in heavy clouds. An examination of the opinion of Mr. Justice Brown in the case when it was in the appellate court, in 208 Pa., at p. 549, shows that the court had these findings of fact in mind. There the learned justice says: “ Their complaint is that the appellee, in tearing down the three furnaces and replacing them with the four new ones, of immense size and several times the capacity of the old, and in using in them the fine £ Mesaba’ ore dust, without so operating them as to prevent the escape of the dust from £ slips,’ causing admitted devastation, is practically confiscating their properties. . . . Here the furnaces were artifically brought by appellee on to its lands by being built there by it, and the £ Mesaba ’ ore converted by the furnaces into iron is also artificially brought there by it. It knew, when about to erect these new furnaces, of immense size and great capacity, that, in their operation, the rights of others, among them those of the appellants, to the use and enjoyment of their property, situated in what, for years, had been a portion of the city given up to residences, were not to be utterly disregarded; and when it began to use the fine ore dust, which has manifestly caused the serious injury to the property of the appellants, it was again bound to consider the effect of the use of this ore upon the nearby residences.” "We must, therefore, conclude that the words, “ such operation of its furnaces as to cause to be emitted therefrom clouds of ore dust,” mean the building, the enlargement and the use of its furnaces and the use of Mesaba ore in the furnaces in such a way as to cause clouds of ore dust to be cast from them into the atmosphere. As said by the Supreme Court, it is not the enlargement of their furnaces and the use of Mesaba ore in the furnaces, but it is the enlargement of the furnaces and the use of Mesaba ore in the furnaces they being so operated as to cause slips and explosions and the emission into the air of clouds of ore dust, that makes the injury of a new kind and not one of degree, when compared with the operations of other furnaces within this manufacturing district. The complainant, then, having alleged this new kind of injury, the court below having found the nature of the act and the Supreme court having distinguished it as differing in kind, we have no difficulty in understanding that the final decree of the court, which was made in the identical language used by the learned justice at the close of his opinion, meant that what was perpetually enjoined was that operation of the furnaces, that use of Mesaba ore in the furnaces so that the slips and explosions occur and so that clouds of dust are emitted from them. We next turn to the second inquiry, what is meant in the decree by clouds of ore dust working and causing the injury to the property of the plaintiffs as in the bill described and found by the court below. This is defined by the learned judge of the court below in the seventeenth finding of fact: “ That ore dust was first noticed settling upon properties in the neighborhood of defendant’s furnaces as early as 1899, but that deposit did not become serious until about July, 1901. Since that time, dust, in greater or less quantities, has been carried from defendant’s furnaces and deposited upon and about plaintiffs’ premises. That the effect of the dust is not only annoying, but injurious to property; that it chokes rain conductors upon the houses, discolors fabrics and paints and injures carpets and curtains; that it is of a greasy nature and difficult to remove from both garments and paints; that it has also been destructive to fruit and shade trees and vegetation generally, and has depreciated the value of plaintiffs’ properties from twenty-five per cent to fifty per cent.” Turning now to the opinion of Mr. Justice Brown, as found on page 550, we find this expression : “ When, however, as the result of the improvements voluntarily made by the appellee, and its use of a new ore, the annoyance, inconvenience and injury to which appellants are now subjected do not differ merely in degree from those to which they formerly submitted as part of their lot as citizens of the £ Iron City, ’ but in kind, and practical destruction and confiscation of their properties confront them, a very different situation is presented to a chancellor from those cases in which the rule is laid down that people who live in such a city, or within its sphere of usefulness, do so of choice, and, therefore, voluntarily submit themselves to its peculiarities and its discomforts. That very rule, as announced in Huckenstine’s Appeal, supra, recognizes their right to live and have their homes there; and a case cannot be found as authority for the right of any manufacturing company, located in a manufacturing district of a city to so rebuild and operate its furnaces as to actually destroy homes and other property in a residential portion of the same city. That this is what the appellee is doing, is an irresistible conclusion, and the only relief is by injunction. If it is to be permitted to so operate its furnaces that the burning and corroding dust emitted from its stacks is borne by the winds and scattered over the properties of the appellant with destroying effect, simply because of the plea that it cannot be helped, for the same reason it might ask a chancellor to stay his arm from arresting the descent of showers of fire from the same stacks down on the same nearby homes. If the appellee possessed the right of eminent domain, it might take the properties of the appellants and do with them what it pleases, but, not having such high right, it cannot do so, even indirectly. It has a right to the use and enjoyment of its own property, but so have the appellants to theirs, for whom the law says to the former, ‘ sic utere tuo ut alienum non lsedas.’ ” We must conclude, therefore, that the injury which it was intended to prevent by this decree under the words, “ working and causing the injury to the property of the plaintiffs, as in the bill described and found by this court,” means the injury resulting from the casting of ore dust upon the complainants’ property, and that, “ the effect of the dust is not only annoying, but injurious to property; that it chokes rain conductors upon the houses, discolors fabrics and paints and injures carpets and curtains; that it is of a greasy nature and difficult to remove from both garments and paints; that it has also been destructive to fruit and shade trees and vegetation generally, and has depreciated the value of plaintiffs’ properties from twenty-five per cent to fifty per cent.” We turn, then, to the evidence in this case to determine, in the first place, if the defendant since the granting of the injunction on April 19, 1904, has been, operating its furnaces, using the finely pulverized Mesaba ore and thereby allowing slips and explosions to occur, throwing out clouds from which the ore dust settles upon the property of complainants, causing not only an annoying but an injurious effect to the property in the manner found by the court below. From the admissions of the answer and the evidence, we must conclude that ore dust does from time to time escape from the Eliza furnaces. We must also conclude that large quantities of ore dust escaped while changes and experiments were being made in an honest effort to prevent the escape of ore dust in the operation of the furnaces, but the evidence shows that frequently when changes and experiments were not being made, but when the furnaces were being operated in the ordinary and usual way, there have been escapes of clouds of ore dust from the furnaces. All of plaintiffs’ and many of defendants’ witnesses testified that clouds of ore dust came from the furnaces. The evidence conclusively shows that defendants have persistently and frequently, both day and night, so operated their four old furnaces and a fifth furnace built since the granting of the injunction as to be emitted therefrom clouds of ore dust. The evidence shows conclusively that ore dust from the furnaces has been deposited upon and about plaintiffs’ premises frequently since the making of the decree. The evidence also shows conclusively that the effect of the ore dust is not only annoying but injurious to property; that it chokes rain conductors upon the houses, discolors fabrics and paints and injures carpets and curtains; that it is of a greasy nature and difficult to remove from both garments and paints. The evidence does not satisfy us that it has been destructive of fruit and shade trees and vegetation generally since April 19, 1904. Neither does the evidence satisfy us that there has been any further depreciation of the value of petitioners’ property since the granting of the injunction, but it is nevertheless true that there has been no substantial improvement in values since that time, although real estate values elsewhere in the city not subjected to similar injury have greatly increased. But the evidence shows just as conclusively that the frequency of the clouds of ore dust and the quantity escaping from defendants’ furnaces and depositing upon plaintiffs’ property, is not in such quantities as prior to the making of the decree. A careful consideration of the evidence produced by both plaintiffs and defendants irresistibly leads to the conclusion that the clouds are not so frequent and the quantities of ore dust escaping not so great. The defendants’ witnesses, especially those of the defendants in charge of the furnaces, including the general manager, the general superintendent and the president of the company, estimate that the escape of ore dust has been lessened eighty per cent. This does not indicate what quantity escapes and is only evidence that the quantity escaping is much less than formerly. This is the sole defense of the defendants. They say in answer to the petition asking for an attachment that the escapes of ore dust were not of such character, extent or effect as were enjoined by the decree. They deny that they violated the injunction in letter or spirit, but say that beginning before the entry of the injunction and continuing to the present they have been unceasing in their efforts to prevent the escape of ore dust from the furnaces ; that they have been watchful and careful in the operation of their furnaces ; have analyzed and selected all the ingredients used therein, ore, coke and limestone ; that they have made important changes in their furnaces; they have adopted and used new and costly appliances, without considering cost, in their efforts to remove entirely every cause of annoyance or even inconvenience from escaping ore dust; and that they are now willing and ready at all times to come, in the operation of said furnaces, to do any and everything which will prevent entirely or still further reduce the escape of ore dust; and they say they have made great progress and advancement towards preventing the escape of ore dust, or at least have decreased it so that no inconvenience or annoyance will be suffered in the future. The evidence in this case shows most conclusively that neither trouble nor expense has been spared by the defendants to prevent the escape of ore dust from their furnaces, and the consequent injury to plaintiffs’ property. Every known method of operation, every experiment, however costly, has been carefully investigated and thoroughly tried to prevent the escape of ore dust. The defendants have expended for this purpose alone $285,000. The defendants, in addition to expending these large sums of money, have suffered great loss, estimated at over $200,000, in their output by shutting down their furnaces to make experiments, in reducing the capacity of their furnaces, and in the selection of coal, limestone and other material. "We are satisfied that the defendants have made every effort to comply with the decree, and there can be nowhere found in the evidence anything which could be regarded as evidence of the obstinate refusal to obey the decree of the court, except in so far as their operation of the furnaces at all has been a violation of the decree. These defendants, we are satisfied, have done everjThing human ingenuity could suggest, or human experience indicate, to prevent their furnaces from emitting ore dust. It is insisted by counsel for defendants that these efforts upon the part of defendants are conclusive evidence that the defendants have not violated the spirit of the decree, and, therefore, that they should not be attached for contempt. We cannot agree with the position of the defendants that this is a good answer to the charge that defendants have violated the decree. The decree in plain words forbade the emission of clouds of ore dust, working the injury found by the court as injurious to property in the way described by the court, and the defendants have since the granting of that decree so operated their furnaces as to frequently cause to be emitted clouds of ore dust causing the same kind of injury, although the emission of clouds is not so frequent, the amount of ore dust cast upon plaintiffs’ property, and the consequent injury, not so great as when the decree was granted. We cannot understand that this decree was intended to enjoin the defendants from causing their furnaces to emit a certain number of clouds, or that such clouds should contain less than a certain quantity of ore dust, or that they must not deposit more than a certain quantity of ore .dust upon plaintiffs’ property, or that the injury must not exceed a certain percentage of the value of the property. We understand that decree to mean in the light of the findings of fact, as interpreted by the Supreme Court, that the injury differed in kind from the ordinary injury suffered by residents of a manufacturing city, in that the defendants had enlarged their furnaces, brought there fine Mesaba ore, and so operated their furnaces as to permit this ore to be cast upon plaintiffs’ property, thereby causing the injury found by the court. As the defendants are still causing their furnaces to be operated so as to cause to be emitted from them clouds of ore dust, which is cast upon plaintiffs’ property, causing substantially the same kind of injury, though not as great in extent, they have been guilty of refusing to obey the decree of the court, and are to be adjudged guilty of contempt in doing so. Whatever views we might hold upon an original hearing of the case as now presented, however we may be inclined by the facts as presented by the defendants to the belief that they have done the best they could, and, however we may be affected by the belief that the defendants did not intend to disobey the decree, we are sure that it is our duty to enforce the decree. ■We have no discretion in deciding this question. The appellate court has determined the question, it has defined the duty of defendants, and by its decree declared that these defendants should not do the things which they had theretofore done, and which the evidence shows conclusively they are still doing. If they cannot obey the decree and operate their works, they must cease to operate them until they can obtain a modification of the decree. The defendants must be adjudged to be in contempt of this court, and an attachment must issue against them for failure to comply with the terms of its decree. Error assigned was decree awarding an attachment for contempt.