(concurring). I concur with Mr. Justice Manning for the reason that so far as plaintiff’s action is based upon allegations that defendant’s storage gas tank and plant constitute a nuisance dangerous to life or detrimental to health, and that its maintenance is in violation of section 174 or 175 of the ordinance of February, 1923, the learned trial justice has found as matter of fact upon competent evidence that defendant’s gas holder and plant do not constitute a nuisance. A permit from the board of health is required when a manufactory or place of business is conducted which is “ dangerous to life or detrimental to health, or where unwholesome, offensive or deleterious odors, gas, smoke, deposit or exhalations are generated.” -How a board of health could in any case issue a permit to carry on such a public nuisance as is described in the ordinance is not very clear, but the trial justice has found that these offensive conditions do not exist. As to the second cause of action set out in the complaint under the ordinance adopted in March, 1924, and having in mind the findings *275of fact already referred to, the defendant having erected its gas holder and plant," at an expenditure of many thousands of dollars, its structure being substantially completed prior to the adoption of the ordinance, I cannot see how the town board by this ex post facto legislation can prohibit the defendant from carrying on its business. Gas companies have carried on business for a generation and are carrying on business in the cities as well as "in the suburban districts in this State. The supply of gas for light and heat is one of the necessities of the people in the city and the country. Conducted in a proper manner it cannot be said to be a nuisance. If improperly or negligently conducted it may become a nuisance, but the same is true of many other industries. That a gas holder may not be a welcome structure in a given neighborhood from the aesthetic point of view, hardly justifies an ordinance prohibiting the defendant from carrying on an established business otherwise lawful.
Final judgment affirmed, with costs.