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THE MARINE RECORD. MARINE LAW,' OPWION OP JUDOE SCOTT ON THE 8.MOKK Oil- D1NANCI'.. The following Is tlio conclusion of the opinion of the Supreme Court in the ease of Wllllnra Ilnrmmr vs. tlio City of Chicago, known ns the smoke-ordliinnce due. The esse helhg considered has ninny features In common with tlio North Chicago Railway Company, vs. Lake View, 105 III., 207. -In that: case It was clearly conceded that under a general grant of power over a nulsancej llko the one in question, the town or mu¬ nicipal authorities have no power to puss an ordinance declaring a thing a nulsaiicfl which, ln.t«fct. lsoleitrlyjnotone, but it was said la doubtful 'cases when a thing Tuny dr may not be a nuisance, depending upon a variety of circumstances lequlring Judg¬ ment and discretion, on theiiart of town mi— tlimitles, In exercising legislative funotiiins iimler u delegation of power like the one wu are i*onslderlng, their action under suclieir,- ciiinstancos would be conclusive of the ques¬ tion. Accordingly, it was held the use of steam by the North Chicago Bull way Com- [uiiy as motive power in operating Its nil 1- w-iy along the public. Streets of Lake View, cmimiry to the provisions of the ordinance ol the town, was a nuisance. In the case belng.cpflsldered tlio effect of what ddund- aut did In running his stejim tugboat in the river within the corporate limits of the city Is admitted, und.whnt was done did cieate a nuisance in the language of the ordinance A't common law a nuisance was anything that works the least Inconvenience or damage A public or common nuisance was that which affected the public or is annoyance to the king's subjects at large. Precisely, that Is the character of tile "dense smoke" emitted from the deleudant'ssteam tugboat. }U etl'ect was detrimental to some classes ot property and business within the city, mid was a' personal annoyance to the public at large. Defendant w'as, therefore, properly held to havo been guilty ot creating a"nui sauce" and was subject to the penalty of line imposed by the ordinance. It Is stipu¬ lated this court may take rotlce of the ski! and commeulal importance of the city of Chicago, ami the court may, ot if* ow n mo¬ tive, take judicial notice ot what is generally known, that is. that the city of Chicago Is situated near the great coal liclds ol the State, and that much ot the fuel- used by the /multitude nmnufaclorles In the city which produces tjie "dense Smoke" ol which cum 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- convenience would be experienced by a ilgH enforcement of the provisions of this ordi¬ nance. How that may bo this court cannot know. What powors the city council may exercise under tlie general law lindei Its po- ice powers is a question of law to be deter mined by tlio courts, but when the city coun. oil will exercise the powers with which itjs do hed rests In lis legislative discretion. And the consequence that may How from the en lon-ement ot ordinances .enacted within powers -conter'red rest also upon the body enacting them, and with which the courts can have no concern. The judgment-of the Appellate Court will ben Dinned. Judgmcn ulllrmod. TOE EMPIRE— I.IBEL 1-0R DAMAOES.t District Couit, Eautern District Michujan III Admiralty. On Motion lora new tiin] This was a libel for damages sullered by the bnrgo James F. Joy, while in tow o: the stoambarge Kinplre, and by reason of her alleged negligence. Tlio case was tiled by u jury, pursuant to Rev. St. §.'>i>U, and a ver¬ dict returnod-for the libelant in the sum of .^200. Motion was miidufor a new trial up¬ on the ground that there was no evidence to justify tlio fury In rendering a verdict for so "smallan amount. II. II. Swan, for tlio motion-; James J. At¬ kinson, contra. ^. Brown, J. Hy Kev. M. t, fxiij, "In causes of admiralty aud maritime jurisdiction re¬ lating to any matter ol conduct or tott ails- 'ing upon or concerning any vessel ol twenty toiislmrden or up<vard,eniolled and licensed for the equaling trade, and at the time.rin- ployed in tho business of commerce titKl^nnv- igatlou between places in different states and territories upon iliclakes and navigable watois connecting the lakos, the trial of Is- sues o( fijet shall be\v Jury iWhen cither, party requires It." 'Thlssiomowbat unfor¬ tunate clause was Introducetr-bv tlio revisers Into the statutes from aiSOtnWhat hasty dictum of Mr. Justice Nelson In 'the- cine of the Eagle, 8 Wall. 2.">. In delivering the opinion of the court he remarked "that wo must therefore regard It (the not of 1840) as obsolete and of no effect, w Ith (lie exception of i.hoclauso which gives to either party tho right of trial by a Jury wheli requested, which Is rnthera mode of exorcising juris¬ diction than any substantial part of It." The history of the Incorporation of this dictum into the Revised Statutes Is lullv given in tho case of Glllott v. Pierce, 1 Brown, Adm. uu,'l. But, .whatever be the origin of the clause In question, theie is no doubt that It Is the law of the land and must be respected as such. There has been great difficulty, however, In determining In What cases and In what manner It is to ho given effect. It creates what appears to be a vory unjust discrimination In favor of the particular classes pf vessels mid causes or action enum¬ erated In die act. ..Why it should be given in notions of contract and ton, and denied In fliose of salvage, general average, and prize, and why it should be limited to Amer lean vessels plying between domestic ports, and denied to all foreign vessejs, and to American vessels engaged In foreign trade, It Is Impossible l-ojjmrelve. The Eagle, sm- l*ui. ' - A still more serious objection to the clause as it now stands arises Ir.im the fact that no provision Is made for n review of cases so tiled. If the same weight Is to be given to ilie verdict ol a jury impaneled under this act Ihatls given to a verdict In a common- law case, then it deal ly falls within the in¬ hibition contained in the seventh amend¬ ment to the constitution, Unit "no fact tried hy a jury shall he otherwise re.<mnnlneil in any court of the United States than accord¬ ing to the rules of common law." As there Is no opinion for n writ of error In this class ot cases, the defeated party would be reme¬ diless. Tills question was, hov*i've>, passed Upon In the care ot Boyd v. Clark, 13 Fed. Rep. 1108, III which the defeated party took botli an appeal mid writ of error to the cir¬ cuit court. Mr. Justice Matthews, before whom the case was arguod, dismissed the writ of error and allowed the appeal, hold¬ ing Unit the fact that the case was. tried by a jury made no difference in deteimining the remedy to which tliodeieated party was en- tltle*k—He>urthcr 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 trfal 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 furlliei one Unit theie Is piobably no cluss of cases which ii |iuy, as oidlnarlly constituted, Is so unlltteil to deal with as actions foi tons upon navigable wateis, have been deemed so seilons that the practice ot trjing ndmlialty cause bv a Jurv has not obtained in the dlstiict comt to any extent. This case and that ol Boyd v. Clink, aiunu, arc, so far as I am informed, the only actions ot tort tried hy jury in ibis dlstiict during tlie almost forty yenis In which the act has been In lorcc. In lieu of this metli od of pioceduiv, we have for scvciul years past, in analngy to the tilnlty muster systom obtaining In tlie English courtof admiralty, adopted the practice of calling to the assist¬ ance of the cuuit, In all difficult cases In¬ volving negligence, two experienced ship¬ master, who sit with the Judge during the argument and give their advice upon tlie questions of seamanship oi the Height of testimony. I bollevo a somewhat slmllnr 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 tho sanction of the supremo court. The Ilypodanie, Ii Wall, 211) 221;; the City ol Washington, 1)2 U. S. 31-3(1 I have trequmitly derived great assistance liom the advice of nautical assessors myself, and have lound this a most satisfactory alid expedi¬ tious method ot tiyiug tliesocimes. The question still leumlns to be decided, however, what weight we shall glvo to tlie verdict ot a jury Impaneled under section fiflfl. The q'n'estion has novor'been directly decRled; but In view of tlio opinion In Boyd v. Clark, supra, (hat their vordlot Is lint, binding upon the circuit ennrfupon appeal, It seems to bo a logloal Inferonco that It ought to be regarded In this court only as advisory. There is no reason for giving It greater weight In one c'outt than in the oilier, In chancery cases llui province of the jurv is said to be to "enlighten tho conscience of the court," and as the court ol admiralty is but the chancery of tho seas, I see no reason why wo should not give It the same effect here. ■ In the case of Lee v. Thompson, 8 Woods, 107, a supplemental libel.was tiled In tlio district court, upon which there aroso a question as to-the validity of a certain assign. merit. The court made an order that the matter be tried by a iury, and it was tried accordingly. Upon appeal to tho oh cult court, Mr. Justice Bradley held that, al¬ though there was no power In the court of admiralty to try causes by Jury,"it was nev¬ ertheless proper to submit a question of lact to them for their opinion and advice; but that their decision was alter all not con¬ clusive, and tlie matter must Anally he sub¬ mitted to the judge of the court; filing Dun> phey v.'Klelnsinlth, 11 Wall. 010. . In Bnsey v. Gallagher, 20 WaM. 070, a pro¬ vision In a statute of Montana, declaring' ilint an Issue ot facf'slmJl be tried by a juiy^ uilless a jury trial Is waived," was held nol to require the court in equity cases to re¬ gard the llndings of the jury as conclusive, though no application to vacate the findings be made by ihe parties, If, In the judgment of thecouit, such llndings 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 tho st'pulutlon of the parties; but If the remedy sought be equitable, the couit is not bound to call a jury; atuHf It does call-onrrltrh only-for the purpose of enlightening its conscience, and not to control Its judgment. * * * Oidlnarlly, where there has been an exam¬ ination befoie a Jury ol a disputed fact, and a special Hiidlug made, the court will follow it. But »liether It does'so or not must de¬ pend upon the question whether it is satis- lied wltli ihe verdict. Its discretion lo dis¬ regard the llndings ol the Jury may undoubt cdly bo qualified hy statute; but wc do not Unci anything in the statute of Montana, regulating proceedings in civil cases, which allccts this discretion." While tho language of the section (COO) 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 u jury trial glvon by tills statute, it was held that the jury was merely advisory. See, also, Dunn v. Dunn, 11 Mich. 264. In the case under consideration tho ver¬ dict of the jury was not consonant v. ith any theory upon which tho case was tried. If the jury had touild there was no negligence, It was their duty to have returned a veVdlct lor the tleleiidaut If they found thulug was In limit, thev should have returned a verdict for the daiuiigeB sullered hy tlie li¬ belants, which tljn testimony shqwed wefu not less than $bt)0; and If demurrage were Included, were neatly $1,500. There was no evidence In the case to justify a verdict of $'200; and It in list ho set aside. THE SHUTING BILL. The shipping bill, as reported by the con¬ ference committee and passed by tho Senate and House, Is composed of thirty sections, and tho-substance of thoso provisions Is as follows: It allows an American vessol on a torelgn voyage and (ill she returns homo to till vacancies in offices bolow captain by ap¬ pointment of an alien. It abolishes three months' extra wages, and provides that one month's exMa wages only shall be paid in cases of Injury In the service ol a vessel.' Unnecessary and willful prolongation of voyage, willful sending of a ship to sea In an unseaworthy condition, sale of a vessel In a foreign cuuntry, and cruel tieatment are prohibited. It ineieases the amount to be paid by the government for tiunsportn lion of seamen In case of long voyages. It prohibited (he payment of advanco wages to seamen, but provides lor allotments of wages ton seamen's .relatives. Hiequlrcs vessels In the foreign trade to carrv shop chests, with supplies of clothing, etc., exoludlng, however, vessels In trade with the countries and Islands of North and Central America Iroui this obligation. ' It abolishes consular fees for services to V08b0|8,.iiih1 provides for the payment ol consuls from tlie Treasury for such sorvlcnn, It, abolishes tho tonnage tax as. now lm. posod, nr.U provides In lion .or tho inme for a diiiy of three cents per ton at' each entry tin vessels trading with any port In North oc Central America and tho .adjacent Islands; Inoludlng the Sandwich Inland*; nnd six cents per ton at each.entry on all vesaels Irotn any other foreign trade; but requires tho President to suspond tho oolloctlpn of so much of this tax on vesaolsfrora any foreign port In North-or Central America as may bo In excess Of the tonnage and lighthouse dues Imposed on American vessels hy tlie laws of the country in which such port Is situated. As Canada imponaea no taxes on American vessels, the bill abolished the ton¬ nage tax on vessels tradlrrg with Canada after July 1. It abolishes the marine hospital tax for seamen In both cotistwitosand foreign trade, and provides that the hospital service ahull be delrnyed from the tonnage. It largely reduces the1 tonnage tax. It provides that supplies for American vessels in the foreign trade may be Imported In bond free of duty, It provides that tlie drawbacks, 1)0 per centof the dues on Imported nintorlals for the con- structhin rif vessels on foreign account, on icuxportatlon shall ho allowed where vobbcIj tiro partly constructed of imported materials In tho same manner as ivhen wholly con¬ structed. It limits the individual liability of a ship owner to the prmiprtlou which his interests hears to the whore. It provides for the eugagment of a seaman to servo on a voyage to any port or for a definite time, and exempts vessels making regular and stated trips from paying Ices or roshipplng sen men; and also authorizes the shipment of seamen in a foreign port for a definite time or voyage, and provides that seamen so shipped shall not-be required to bo reshlpped. It allows the painting on the stern of a ves¬ sel of the name ol I he port of registry or the place In tho same dKtiict where any of tho owners live. It exempts vessels in trndowltli Canada aud Mexico trom the obligation to pay a tax on passengers so long as no tux is exacted on passengers coming from those couutiies by land carrage. It repeals all compulsory laws that oblljre American' ves¬ sels to carry the uialls'to or from tho United Stales arbitrarily. Such repeal not to ttike effect .until April 1,1885. It gives sailing ves- jelsthe same prlvilugeaJn wiloadliig-carg- tlnitTiTglve'h to steamships. It provides that shipping eoipmlssioners shall hereafter he appointed by the Secretary of the Ttea«uiy, Instead of the ciicuit court, and shall be subject to regulations prescribed by him. It, reduces the tecs for inspection ot steam ves¬ sels from *2o to $10 lm the first 100 tons. It allows Missels arriving at a port ot entiv, laden with bulky articles like salt, etc., to proceed to places within that collection (Ha¬ irier to unload under certain conditions. The act awaits the President's signature, and Is to go Into efl'ect. July 1. NAUTICAL NOTES. Tliore has been f)8,000' appropriated tor the Improvement of the lake trout off the marine hospital at Chicago. The steam yacht J. H. Welch, of Erie, Captain Wm. Stanton, will run excursions from Ashtabula Harbor to Red Brook anil other points. The schooner W. B. Taylor, loads iron ore at Kingston for Cleveland, at Cleveland she/loads coal for Sarnla, and at Sarnia alie will take on a.load ol timber for Garden Island. Tlie owners of the Manitoba and the coin panics In which she Is insured cannot come to terms. The steamer has been temporarily patched up and Hosted out of the ilrydoek at Delioit. Tlie owners ol the schoonei II. C. Rich¬ ard* rctuso to be represented in the survey on the schooner Ameilca, whlubrwas In col¬ lision with tho Richards, and/Wi e», pacte surVey was held, " f \ / Captain 1'. A, Llndqulst has againTJoeii placed in command of the tug Goldsmith, while her former commander, Captain John Gllbralth, Is engaged in fitting out the large scow recently purchased by the Two Riven manulacturlDg company. The tugs John Gordon and Commodoiu have had smaller wheels put on, because tlie larger ones were too cumbersome and too expensive to keep. Wlth.the smaller wheels the bonis run Castor and "tow better. Uiltll further-uotlco two red lantern lights will bo-exhlbltec, one on each end of the orlb, which is to form the substructure ol the now lighthouse and fog signal to be erectod at the mouth of the Detroit rlve'f. An Instrument was filed In the Chicago .Cusion House showing that Aaron F. Leopoldpsold to Charles F. A. Spencer, tho vessel agem, a three twelfths Interest In the' propeller Jay'Gould for 18,760. The pur¬ chase makes Mr. Spencer a half owner of tlio Gould. The Btoambargo Daisy Day, Captain John Anderson, which has been plying between Milwaukee and other west shore ports tor several seasons, Is being furnished, with a now steol boiler and a full length cabin. Tin! Day will In future engage in tho passengci business, making Milwaukee tho huso of liei operations and will touch at several west ami cast shore ports. As in 'the past she will run as olten during the winter as tlie Ice will permit,