184 Mich. 688 | Mich. | 1915
The bill of complaint in this case is filed by the board of health of the city of Grand Rapids against Benjamin Vink for the purpose of enjoining said Vink from engaging in the business of a scavenger in the city of Grand Rapids and—
“from the removing of garbage, and such garbage as is described herein in this bill of complaint and from in any manner violating the said ordinances or amendments .thereof.”
It appears that the city of Grand Rapids, on the 18th day of July, 1898, passed an ordinance, which was amended on April 28, 1904, relative to the regulation, collection, removal, and cremation of garbage, etc. This ordinance authorized the board of health to enter into a contract with a suitable person—
“for the purpose of furnishing proper vessels or tanks for the reception of garbage, offal and all other unsanitary matter, and for furnishing the necessary vehicles for collecting and removing the same in the manner directed by said board, or the said city of Grand Rapids, or said board of health under the rules and regulations of said board may collect the garbage, offal and all other unsanitary matter, or collect and
Section 7 of said ordinance provides that upon the conviction of, and failure to comply with, the conditions of the ordinance, the offending person may be—
“subject to a fine of not less than $1.00 nor more than $25.00 and costs of prosecution, or by imprisonment at hard labor in the common jail of the county of Kent, or in any penitentiary, jail, workhouse or house of correction of said city, in the discretion of the court or magistrate before whom a conviction may be had, for a period of not less than five days nor more than ninety days.”
On February 10, 1913, the city of Grand Rapids entered into a contract with the Grand Rapids Garbage Holding Company, of Grand Rapids, Mich., by the terms of which the city undertook the task of the collection of all the garbage and the delivery of the
“in consideration of the delivery of such substances by the said party of the first part to said second party, said second party hereby agrees to pay to said party of the first part fifty (50) cents per ton, payable monthly, during the time that this contract shall be in force.”
Further:
“Said first party hereby agrees to diligently prosecute all persons unlawfully collecting or removing garbage within said city of Grand Rapids at any and all times, and particularly upon thirty days’ notice by said second party to said first party, in writing, or any person unlawfully collecting or removing garbage within said city.”
Further:
“Said first party hereby agrees that if the quality or quantity of garbage within said city, is at any time during the life of this contract, materially reduced by unlawful collection or removal, to proportionately reduce the price per ton of said garbage to be paid by said second party to said first party hereunder, while said reduction in quality or quantity continues.”
The bill sets out the ordinance and contract, and avers that the defendant, without license, proceeded upon a day certain to collect garbage from certain hotels, boarding houses, and other places contrary to the provisions of said ordinance. It describes the character of the refuse, and states:
To this bill of complaint the defendant filed an answer admitting the fact that he had collected the garbage without a license, but denied that the matter collected had in part, or at all, begun fermentation, or that it gave forth a bad or disagreeable odor, or that it was in any way injurious to the public health. He further averred that the method employed by him for the removal of said material was more sanitary and more satisfactory to the owners of said material than the method employed by the city.
The cause was heard in open court, and evidence introduced on behalf of the complainant tending to show that upon the day in question the defendant was engaged in collecting garbage in said city. Upon the particular occasion in question the defendant had upon his wagon some eight or nine cans and one barrel, filled or partially filled with garbage. The substance was described by one witness “as soft and mushy like.”
“A. I don’t think there was one of them had á lid on that morning.
“Q. Whether or not you are positive that there were some cans, or the barrel, that had garbage in it as you have described it that did not have a tight cover?
“A. Yes, sir.
“Q. You are positive of that, are you?
“A. Yes, sir.
“Q. What have you to say in reference to the cleanliness of this barrel and cans; whether or not there was any odor?
“A. Well, there was some odor from them.
“Q. Was it a good odor?
“A. Pretty fair.
“Q. What have you to say in reference to the odor?
“A. There was a bad smell to it — sour.
“Q. Disagreeable, was it?
“A. A sour, disagreeable smell to it; yes.
■ “QWhat have you to say in reference to the cleanliness of the barrel and cans?
“A. They were not very clean — more or less greasy.
“Q. On the outside?
“A. The outside and inside, too.
“Q. Greasy and dirty from the garbage that had been thrown upon them?
“A. Grease and dust had settled on them.”
A decree passed as prayed for by the complainant perpetually enjoining the defendant from engaging in the business of a scavenger and from the removing of garbage and of such garbage as is described, and from in any manner violating the ordinances of the city of Grand Rapids with reference to garbage or removal thereof.
The right of a city, in the reasonable exercise of its police power, to enact an ordinance' covering the collection and disposal of garbage is not, as we understand it, questioned by counsel for appellant. Indeed, in view of the decisions of this and other courts, such right could not well be questioned. People v. Gardner, 136 Mich. 693 (100 N. W. 126); Id., 143 Mich. 104
On behalf of appellant, however, it is strenuously contended that a court of equity is without jurisdiction to entertain the bill in this case for the purpose of enjoining a breach of a municipal ordinance. Many cases are cited in support of this position, and, among them, the following: Village of St. Johns v. McFarlan, 33 Mich. 72 (20 Am. Rep. 671); City of Grand Rapids v. De Vries, 123 Mich. 570 (82 N. W. 269); Micks v. Mason, 145 Mich. 212 (108 N. W. 707, 11 L. R. A. [N. S.] 653, 9 Am. & Eng. Ann. Cas. 291); Dequeen v. Fenton, 98 Ark. 521; Lyric Theater v. State, 98 Ark. 437 (136 S. W. 174, 33 L. R. A. [N. S.] 325); Mayor v. Thorne, 7 Paige (N. Y.), 261; Davis v. American Society, etc., 75 N. Y. 362; Village of New Rochelle v. Lang, 75 Hun (N. Y.), 608 (27 N. Y. Supp. 600); Mayor v. Smyth, 64 N. H. 380 (10 Atl. 700); Rochester v. Walters, 27 Ind. App. 194 (60 N. E. 1101); Waupun v. Moore, 34 Wis. 450 (17 Am. Rep. 446); and Houlton v. Titcomb, 102 Me. 272 (66 Atl. 733, 10 L. R. A. [N. S.] 580, 120 Am. St. Rep. 492). Many other cases are cited, but the foregoing will be found sufficient to demonstrate the fact that usually courts of equity will not interfere ‘ and enjoin the breach of a penal ordinance. Most of the cases cited, however, will be found on examination to refer to ordinances prohibiting the erection of buildings of a certain character within certain prescribed fire limits. The fact is emphasized in many of the decisions that the erection of such a structure is not in itself a nuisance, and, as was said in the case of Mayor v. Thorne, supra:
“It is no part of the business of this court [chancery] to enforce the penal laws of the State, or the by-laws of a corporation, by injunction, unless the act sought to be restrained is a nuisance.”
In the case of Detroit Realty Co. v. Barnett, 156 Mich. 385 (120 N. W. 804, 21 L. R. A. [N. S.] 585), this court held that equity has jurisdiction to abate a saloon, if a private nuisance, although the nuisance is also a breach of the criminal law, citing cases. Very lately, in the case of Detroit Building Commission v. Kunin, 181 Mich. 604 (148 N. W. 207), the equitable jurisdiction of the court was invoked to enjoin a threatened violation of a municipal ordinance relating to the erection of a building. We there held that, though the ordinance did not in terms declare a building erected in violation of its provisions a nuisance, by virtue of the provision in the ordinance providing for injunctive relief, the court would exercise equity jurisdiction.
A case upon its facts very much like the case at bar is that of California Reduction Company v. Sanitary Works, 199 U. S. 306, 26 Sup. Ct. 100. In that case the board of supervisors of the city and county of San
In the case of In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, injunctive relief was given. The following head-notes indicate the holding of the opinion:
“A court of equity has power to interfere by injunction in cases of public nuisance.
“The jurisdiction of a court of equity to enjoin interferences with property rights is not destroyed by the fact that they are accompanied by or are violations of the criminal law.”
In the case at bar the averments of the bill, without using the word “nuisance,” set out facts which, if proven, would be sufficient upon which to predicate a finding that the method of collection adopted by the appellant was in itself such as to constitute a public nuisance. The evidence as to that method is quoted sufra. It is claimed on behalf of appellant that his method was quite as sanitary and free from objection
The record discloses the fact that, besides defendant and appellant, several others in the city of Grand Rapids were engaged in an enterprise similar to his own. The difficulty of maintaining a constant surveillance over unlicensed and irresponsible collectors must be obvious to all. It is perhaps, however, not necessary to base determination upon this phase of the case. The bill avers, and the evidence shows, that the city had a direct' financial interest in the garbage in question. Its right to compel delivery thereof to its own collectors and to receive pay therefor from the Garbage Holding Company cannot be questioned. The activity of the appellant and others in collecting the garbage prevented the city from receiving the agreed price for so much thereof as appellant and the other unlicensed collectors secured. It is easy to believe that the continued collection of garbage by appellant and others might so reduce the amount collected by the city and delivered to the Garbage Holding Company under its contract as to render it impossible for the contract to receive practical performance. Nor can it be said that a prosecution under the penal clause of the ordinance would afford the city an adequate remedy. The offending party is entitled to appeal after conviction from court to court and thus cause delay. In the meantime the city is subjected to
For both reasons stated, we are of opinion that the decree of the court below perpetually enjoining defendant from collecting garbage within the city of Grand Rapids should be, and it is, affirmed.