partners in the firm which had polluted the stream.

In Greene v. Nunnemacher (1874) 36 Wis. 50, where both damages and an injunction were claimed, by reason of pollution from a distillery, it was held that while the plaintiff, who conducted an inn, had sufficiently alleged, as special damage to enable him to abate the nuisance, loss of profits and sickness of members of his family, he had improperly united several causes of action in the complaint, since he claimed not only from the owners, but from several other defendants who had conducted the distillery at various times.

r. Miscellaneous.

In addition to the more common defenses, as set out in the preceding subdivisions, a number of others have been interposed at times upon the theory that they would preclude the granting of the injunction to restrain the pollution of the stream.

Express reservation of right to pollute.

In reply to the contention that the right to pollute the stream at the point where plaintiffs' unoccupied land was located was expressly reserved to defendants by deed, it was said in Crossley & Sons v. Lightowler (1866) L. R. 3 Eq. (Eng.) 279, affirmed with variations in (1867) L. R. 2 Ch. 478, that it was "not competent for a person to sell property in front of a river, thereby constituting the person to whom he sells it the riparian proprietor, and then so to affect and damage the river as to make it useless for the ordinary and legitimate purposes to which the water may be applied; unless, indeed, there be reserved in the instrument conveying the land an express right to that user." And the court said, further, that in the case at bar, so far from such a right being reserved, the right of user which was reserved was for another and a different purpose, and declared: "It certainly does seem to me preposterous to say that a person can convey land to a riparian proprietor, and then claim the right of pouring his dirty water into it, if he pleases, when he has saved to himself the right of using a particular goit for another particular purpose."

Alleged pollution beneficial.

One of the defenses which was overruled in State ex rel. Health Dept. v. Chemical Co. of America (1919) 90 N. J. Eq. 425, 107 Atl. 164, was that the obnoxious matter was sometimes used by bakers and confectioners in their wares. And see Holsman v. Boiling Spring Bleaching Co. (1862) 14 N. J. Eq. 335, where defendant claimed that the bleaching materials were largely healthful disinfectants.

A suggestion that fish offal which was thrown into a river was eaten by organisms which in turn were eaten by salmon, and that therefore the alleged pollution was beneficial to the fish, was characterized as a theory without any satisfactory foundation in Atty. Gen. v. Ewen (1895) 3 B. C. 468. Worse nuisance created if injunction granted.

The contention was urged in Atty. Gen. v. Bradford Canal (1866) L. R. 2 Eq. (Eng.) 71, that the result of enjoining the pollution of the canal would be the creation of a worse nuisance in the brook, into which the whole of the filth would be thrown, but the court doubted whether this would be so, in view of the fact that the water flowed more rapidly in the brook, and said that it was enough that the persons who were represented by the attorney general were annoyed.

The defense that the opening up of the bed of the stream which had been covered by the defendants would itself make a nuisance, was overruled in Fahnestock v. Feldner (1904) 98 Md. 335, 56 Atl. 785.

Improper motive.

The contention that plaintiff's motive in purchasing his land was bad was said to be immaterial in Townsend v. Bell (1891) 62 Hun, 306, 17 N. Y. Supp. 210,-a decision on other grounds, upon a subsequent appeal in (1899) 42 App. Div. 409, 59 N. Y. Supp. 203, being reversed in (1901) 167 N. Y. 462, 60 N. E. 757.

(In Jacobs v. Allard (1869) 42 Vt. 303, 1 Am. Rep. 331, where the complaint charged defendant with a wrongful intent, the court said that no such intent was shown.)

Plaintiff able to procure water elsewhere.

In Durham v. Eno Cotton Mills (1906) 141 N. C. 615, 7 L.R.A. (N.S.) 321, 54 S. E. 453, the court remarked that it was, of course, no defense that the city could obtain pure and wholesome water from other sources. And

this point seems to have been incidentally raised in other cases, without any particular reply to it having been made.

Injunction would not prevent recurrence of pollution.

In reply to the contention that the sand bar in the river, if removed by defendants, would reform, it was said in Houston Transp. Co. v. San Jacinto Rice Co. (1914) Tex. Civ. App. —, 163 S. W. 1023, that this fact could be no reason why the plaintiff should not have the injunction for the time intervening between the time of removal and the time the bar should reform.

Natural flow of pollution.

In reply to the contention that the seepage and surplus water flowed naturally into plaintiff's ditch or canal, the court in North Point Consol. Irrig. Co. v. Utah & S. L. Canal Co. (1898) 16 Utah, 246, 40 L.R.A. 851, 67 Am. St. Rep. 607, 52 Pac. 168, observing that it came from irrigated lands above, pointed out that, while at some places higher up the defendant discharged similar water into the river, which was the natural source of supply, it failed to do so immediately above plaintiff's ditch, but discharged the foul water into such ditch, although it appeared to be practicable to discharge it into the river at that place in the same way as it did further

up.

Property sold by defendant.

A defense was interposed in Neubauer v. Overlea Realty Co. 1923, 142 Md. 87, 120 Atl. 69, that the defendant realty concern was powerless to remedy the pollution from the sewage, since it had sold the houses, including the bed of the streets in which it had installed the sewerage system; but it was shown that it had not parted with the title to the street, and further that it proposed to extend the same system

to some other streets, as yet undeveloped. And see the reported case (CARETTI V. BORING BLDG. Co. ante, 1) where the defendant sought to escape being enjoined upon the ground that it had sold all of the occupied houses upon its tract.

Statute of Limitations.

The defense that the suit was barred by the Statute of Limitations, because it was not brought within five years from the time when the cause of action accrued, was overruled in McKinney v. Emory & H. College (1915) 117 Va. 763, 86 S. E. 115, upon the ground that the cause did not accrue until the sewage was discharged in sufficient quantities to pollute the stream and constitute a nuisance, where it appeared that, except for a negligible discharge of sewage from the house of one professor, there was no discharge within the five-year period, although water-closets had been installed before that time in a building which was not used until later, and also that plaintiff did not know anything about the sewers until within the statutory period.

Custom.

The fact that it was the custom of defendant as, of other manufacturers on the stream, to dam the polluted water during the week and discharge it only on Saturday afternoons, and that plaintiff was aware of this, was held to constitute no defense in Blair v. Deakin (1887) 57 L. T. N. S. (Eng.) 522.

Sanitary authority alone concerned.

In Wallace v. M'Cartan [1917] 1 Ir. R. 377, defendant's contention, in addition to other defenses, that, as the sewer which emptied into plaintiff's stream belonged to the sanitary authority, the latter alone was concerned with the disposal of the sewage which the defendant emptied into it, was overruled by the granting of an injunction restraining the discharge into the sewer of sewage from defendant's premises, the court observing that so long as the sewage was on his premises it remained under his control. E. W. H.

Messrs. Philip B. Perlman, Wirt A. Duvall, Jr., and George E. Kieffner for appellee.

Walsh, J., delivered the opinion of the court:

This appeal involves the question of the constitutionality of Ordinance No. 522 of the mayor and city council of Baltimore, which ordinance undertakes to regulate the issuance of "use" permits in Baltimore city for structures to be used for other than residential purposes.

A case between the same parties

was before this court at the October term (see Tighe v. Osborne, 148 Md., 43 A.L.R. 819, 131 Atl. 801), and we then decided that the ordinance involved in that case, which dealt with the same matter, was unconstitutional, and the case was remanded for further proceedings. Mrs. Tighe, the appellant in both cases, thereupon renewed her application for a building permit to erect a stable for thirty horses on Cokesbury avenue in Baltimore, and, upon her application being refused because of her failure to apply for and secure a "use" permit, she again filed a petition in the Baltimore city court asking that a mandamus issue compelling the inspector of buildings for Baltimore city, the appellee, to give her a building permit. The answer of the inspector set up as a defense the failure of Mrs. Tighe to comply with the provisions of Ordinance No. 522, regulating "use" permits, which was approved by the mayor and city council of Baltimore on December 14, 1925, just four days after the first case of Tighe v. Osborne, supra, was decided, and to this answer the petitioner demurred on the ground that the ordinance was unconstitutional and void. The lower court overruled the demurrer, and, upon Mrs. Tighe declining to plead further, judgment was rendered in favor of the defendant, the inspec

46 A.L.R.-6.

the

tor of buildings, and from this judgment the petitioner has appealed. As the only difference between the present case and the first case between these parties is to be found in the two ordinances, we think the foregoing statement of the facts and circumstances sufficient, and we will accordingly proceed to a consideration of these ordinances. The known as Ordinance No. 334, and ordinance in the first case was its chief provisions will be found set out in the opinion in that case. It was Tighe v. Osborne, supra. held invalid because of the provisions attempting to give the zoning commissioner the power to refuse to grant a permit for a building to be used for any purpose other than a residence, where, in his judgment, the use to which such building was to be put or its location "would, in any way, menace the public welfare." In the course of the opinion, which was delivered by Judge Offutt, the court, after discussing generally the police power, and calling attention to the use of the phrase "general welfare," in many definitions of the power, said: "But the police power, even as thus defined, vague and vast as it is, has its limitations, and it cannot justify any act which violates the prohibitions, express or implied, of the state or federal Constitutions. Byrne v. Maryland Realty Co. 129 Md. 210, L.R.A.1917A, 1216, 98 Atl. 547; Goldman v. Crowther, 147 Md. 293, 38 A.L.R. 1455, 128 Atl. 55. If this were not so, and if the police power were superior to the Constitution, and if it extended to all objects. which could be embraced within the meaning of the words 'general welfare,' as defined by the lexicographers, the Constitutions would be so much waste paper, because no right of the individual would be beyond its reach, and every property right and personal privilege and immunity of the citizen could be invaded at the will of the state, whenever in its judgment the convenience, prosperity, or mental or physical comfort of the public required."

And further on it was said that "such a grant of power is in our opinion arbitrary and in conflict with both of the constitutional guaranties referred to above [article 23, Bill of Rights, and § 40 of article 3 of the Constitution of Maryland], because it commits to the arbitrary discretion of subordinate officials the power of depriving the citizen of his property without compensation by taking from him the beneficial use thereof, regardless of whether such deprivation is required for the protection of the public order, security, health, or morals."

It was accordingly decided in that case that Ordinance No. 334 under which the zoning commissioner could refuse to issue permits, if “in his judgment, after investigation, the proposed buildings or structures, use or changes of use, would create hazards from fire or disease, or would in any way menace the public welfare, security, health, or morals," was invalid, because the attempted delegation of the power to determine what structures or uses of them might affect the "public welfare" was, standing by itself, too broad and indefinite. The ordinance in the present case contains no reference to "public welfare;" it omits entirely subsection E of § 3, to which special objection was found by the court in the previous case, and there are several other changes which will be adverted to later on in this opinion. The part with which we are now concerned provides that the zoning commissioner can refuse to issue permits, if "the proposed buildings or structures, use or changes of use, would create hazards from fire or disease, or would menace the public welfare, security, health, or morals, and the chief question to be determined in this appeal is whether this delegation or power by the mayor and city council of Baltimore to the zoning commissioner is valid. Tighe v. Osborne, supra, after discussing generally the police power and the frequency with which the

. .

courts have had to deal with it, we said: "While that mass of litigation has resulted in no single comprehensive definition of the power so far as it is applicable to cases like this one, which has been universally accepted, by the weight of authority it has been given a meaning narrower than that first stated, which is, we think, fairly expressed by the following formula, which is that the police power is the power inherent in the state to prescribe within the limits of the Federal and state Constitutions reasonable regulations necessary to preserve the public order, health, safety, or morals."

Applying this formula to the delegation of power contained in the ordinance now before us, we find that we are not required to pass upon any novel or doubtful application of the police power. In fact, the language of this part of the ordinance ("aside from the words 'hazards from fire or disease' which are really covered by the terms 'public security and health'") is almost identical with the language of the formula, and it cannot now be doubted that this language correctly designates objects to which it is universally conceded the police power applies. Boehm v. Baltimore, 61 Md. 259; Deems v. Baltimore, 80 Md. 164, 26 L.R.A. 541, 45 Am. St. Rep. 339, 30 Atl. 648; State v. Broadbelt, 89 Md. 565, 45 L.R.A. 433, 73 Am. St. Rep. 201, 43 Atl. 771; State v. Hyman, 98 Md. 596, 64 L.R.A. 637, 57 Atl. 6, 1 Ann. Cas. 742; Bostock v. Sams, 95 Md. 400, 59 L.R.A. 282, 93 Am. St. Rep. 394, 52 Atl. 665; Brown v. Stubbs, 128 Md. 129, 97 Atl. 227; Byrne v. Maryland Realty Co.; Goldman v. Crowther; and Tighe v. Osborne, supra; 12 C. J. 913, 916, 918. And, as Baltimore city, under its charter, has the right to exercise within the limits of the municipality the full police power of the state, no doubt can municipal be entertained as to the authority of the city to pass an ordinance prohibiting the erection

Buildingspolice power.