Coombs v. MacDonald
62 N.W. 41
Neb.
1895
Check Treatment
Post, J.

This is аn appeal from a decree of the district court for Douglas county and involves the contract for the removal of the garbage of the city of Omaha, which was the subject of thе controversy in Smiley v. MacDonald, 42 Neb., 5. By the decree appealed from, said contract, as well as the оrdinance upon which it depends, was adjudged void,, and the defendant MacDonald, as contractor, perpetually enjoined from interfering with the plaintiff, also engaged in the business of remоving garbage from said city. Tliegrounds upon which said contract is assailed in the petition of plаintiffs are: First, that it was procured through bribery and other unlawful and corrupt means by MacDonald and оthers interested with him; second, ‍‌​‌‌​‌‌‌‌‌‌​‌​​​​‌​​‌‌​​‌‌‌‌​​‌‌‌‌‌​‌‌​​‌‌‌​‌‌‌​‍that, in so far as it. purports to confer upon the contractоr the exclusive right, to remove the garbage of the city, it contravenes the settled rules of рublic policy, and is, therefore, void. The district court sustained the latter contention only, and in thе language of the decree, “Expressly reserving any decision upon the allegations of the petition that the said contract was secured by fraud, procurement, and illegal inducemеnts offered to and accepted by members of the city council.”

It is a rule of universal application to appellate proceedings that the examination by the reviewing court, whether on appeal or by writ of error, will be confined to issues determined by the court of primary jurisdiction. A party desiring the judgment of this court upon a question- raised by the pleadings should first present the subject for the determination of the district court and secure such a final judgment or deсree as may be made the foundation for proceedings by error or appeal. (Civil Code, sec. 581.) Had the plaintiffs so requested, we have no doubt the de*634-cree of the district court would have been made to respond to all of the issues presented. If they are on the еvidence in the record entitled to relief on the ground of fraud, the •finding upon that issue would have bеen in their favor; ‍‌​‌‌​‌‌‌‌‌‌​‌​​​​‌​​‌‌​​‌‌‌‌​​‌‌‌‌‌​‌‌​​‌‌‌​‌‌‌​‍but however that may be, the original jurisdiction of the court is clearly defined by law, and does not include actions for relief on the ground of fraud, to which the state is not a party. (See sec. 2, art. 6, of the Constitution.)

2. Aside from the allegation of fraud, the pleadings herein presеnt no question which was not considered in Smiley v. MacDonald. It is true that in the case named the contract was assаiled on the ground that the right conferred thereby was an exclusive franchise and, therefore, within thе inhibition contained in section 15, article 3, of the constitution; while in the case before us, as wе have seen, the contention is that said contract is void as against public policy. Counsel for defendants have cited ‍‌​‌‌​‌‌‌‌‌‌​‌​​​​‌​​‌‌​​‌‌‌‌​​‌‌‌‌‌​‌‌​​‌‌‌​‌‌‌​‍numerous cases which assert the common law doctrine that monopolies are odious and, therefore, illegal; but they refer without exception to frаnchises and agreements in restraint of trade, and can have no application to mеre police regulations designed to promote the health or morality of the generаl public. Almost every phase of the subject was discussed in the celebrated Slaughter House Cases, 83 U. S., 36, and 111 U. S., 764, to which an extеnded reference is made in the brief of defendants, and the doctrine therein announced fully sustаins our conclusion in Smiley v. MacDonald. Indeed there was in those cases no diversity of opinion among the judges with respect to the authority of a state in the exercise of its police power to сonfer upon an individual or corporation a privilege in its nature exclusive. On the other hаnd, the dissent of the ‍‌​‌‌​‌‌‌‌‌‌​‌​​​​‌​​‌‌​​‌‌‌‌​​‌‌‌‌‌​‌‌​​‌‌‌​‌‌‌​‍non-concurring-judges was .placed upon the ground that the claim of a sanitary regulation was a mere pretense, under which the state of Louisiana had attempted to invade private rights, and to deny its citizens the privilege of engaging in a lawful business in *635nowise affecting thе public-health or morals. As intimated in Smiley v. MacDonald, the choice between sanitary measures is a function оf the legislative department of the government, which the courts will not assume to control. The tеst, as therein remarked, ‍‌​‌‌​‌‌‌‌‌‌​‌​​​​‌​​‌‌​​‌‌‌‌​​‌‌‌‌‌​‌‌​​‌‌‌​‌‌‌​‍where a particular measure is called in question, is whether it has some relation to the public welfare, and whether such is in fact the end sought to be attained.

Therе are other questions discussed by counsel for plaintiffs which would be entitled to our serious considеration, but a reference to the record has satisfied us that they are not presented by thе pleadings, and will not for that reason be noticed. The decree of the district court is reversed and the cause remanded for further proceedings in accordance with this opinion.

Reversed and remanded.