64 Neb. 710 | Neb. | 1902
The defendants in error, relators in the court below, sued out a writ of habeas corpus for the purpose of regaining their liberty from imprisonment in the city jail, where they were committed for the alleged violation of one of the ordinances of the city of Omaha; it being alleged as a ground for the issuance of the writ and contended at the trial that the section of the ordinance authorizing their conviction and imprisonment was null and void, and their detention, therefore, unlawful. A trial in the district court resulted in a judgment holding the section of the city ordinance under which the conviction was had void, and discharging the relators from custody. The respondent, as custodian of the prisoners under the
The question determined in the lower court, and the only one of a substantial character involved in the controversy, is with relation to the validity of an ordinance numbered 4462, of the' city of Omaha, entitled “An ordinance regulating the collection and removal of dead animals, garbage, manure, ashes, filth, offal, night soil and oilier refuse matter, providing penalties for the violation of the provisions hereof, and repealing ordinances numbered 3735, 3S69, 4008, and 4080.” Section 1 of said ordinance, which is the one directly bearing on the subject, and which it is contended is void, provides that any person who shall collect or remove any dead animals, garbage, ashes, filth, offal, night soil or other refuse matter within the corporate limits of the city of Omaha, not having a contract with said city so to do, shall be deemed guilty of misdemeanor and upon conviction thereof shall be fined in any sum not less than $5 nor more than $20. The relators were charged and convicted of unlawfully collecting and removing garbage, ashes, filth and other refuse matter without having a contract with the city, contrary to the provisions of said section 1. The object of the ordinance, which is rendered obvious from a reading of the whole of it, is to empower the city to enter into an exclusive contract with some individual, association or corporation to collect and remove within the corporate limits of the city all of the substances, materials and objects mentioned in section 1, which, if allowed to accumulate in a city, would become a nuisance; to provide maximum charges therefor, to be paid by the owner or occupant of the premises from which removed; to regulate the collection and removal; and to punish any one engaging in such business without having a contract with the city therefor.
If the city is empowered to enact an ordinance provid
This is the only issue adjudicated in the trial court, and as it involves the substantial merits of the controversy, arid goes to the very core of the subject of the litigation, we arc disposed to confine ourselves in the consideration of the cause to this question alone, to the exclusion of all collateral matters. The only exception contained in section 1 as to the right of any person save the contractor therein provided for to remove "any of the substances spoken of, is a proviso that the act shall not apply to anyone hauling their own stable manure from their own premises with their own' team or teams, and also a proviso regarding the use of manure for lawns, gardens, etc., under certain regulations, not necessary to mention. By section 11 the word “garbage,” as used in the act, is defined to mean all refuse matter, animal or vegetable. It will thus be observed that the act is most sweeping in its character, and in effect, if valid, prohibits any resident of the city himself, or by the employment of another, from undertaking the collection- or removal of any or either of the substances mentioned from his own premises, save the one exception noted as to the removal of stable manure by the owner or occupant from his own premises with his own team. All waste material, all accumulation of rubbish of whatsoever character, which, in time, if allowed to accumulate in large quantities, would doubtless become a nuisance, to abate which the city might employ any lawful means, can be collected and removed only by the contractor of the city at the expense of the private owner or occupant of the premises, at charges not exceeding the maximum rate allowed by the ordinance. Can such sweeping powers be justified as a valid exercise of the police powers of the city under its, charter authority? By section 54 of the city charter act, the corporation is empowered “to make and enforce all police regulations for the good government, general welfare, health, safety
The principle on which rests the right of a city to grant an exclusive privthege to collect and remove those noxious and unwholesome substances which menace the public health and endanger the welfare of the citizens seems to be that not only the prevention and abatement of those accumulations of substances which are in themselves nuisances and dangerous to the health of a community is necessary and essential for the preservation of health; but also because of their unwholesome and noxious character the proper and safe removal and disposition of such substances must for the benefit of the public welfare, be in such manner and methods, at such times, and over shell particular routes of travel as will best subserve the public interests, and that this may best be accomplished rvhen such removal is under the direct control and immediate supervision of the city authorities, or with an agency of its own selection, with whom it may contract for such purpose. It is as necessary that the abatement or removal of the nuisance shall be accomplished speedily, in a particular manner, and by certain fixed agencies, ever ready to act, and at all times under the control of the municipality, as it is that such nuisance shall not be permitted to exist in the first instance. It would, therefore, seem that as to those things which are calculated to menace the public health if not promptly and in a particular manner disposed of, and are in their nature regarded as nuisances within themselves, it is within the power of a city, for the benefit of the public health, and as a police regulation, not only to provide for the removal of such substances, but also, and as incident of the power of regulation, to grant an exclusive privthege to an individual or corporation by contract entered into for that purpose to perform
But in the exercise of police powers conferred upon cities for the benefit of the health of the inhabitants and to preserve the public Avelfare and comfort, and conceding the right to take possession and remove through its OAvn agencies or by granting the exclusive privthege to one with whom they may contract for that purpose those substances which are inevitably and intrinsically nuisances and injurious and unAvliolesome, can an ordinance be upheld and' justified as broad and of so sweeping a character as the one under consideration, which includes all accumulations of ashes, stable manure, rubbish, debris, etc., many different kinds of which may properly be regarded of some utility to the owner or others and which are not per so noxious and harmful? Is a city empowered to contract with one individual, and authorize him exclusively to go upon the private premises of the inhabitants, collect and remove at the OAvner’s expense all such substances, and to make it a penal offense for another to engage in the performance of the same kind of labor? Can the city, merely by its fiat, declare all and every substance of the kind mentioned nuisances, and direct their abatement and removal through the agency of an exclusive contractor? The personal rights and property interests of the citizens have, with an unvarying rule, in all the author
The ordinance is likewise invalid because it creates a monopoly. It is not competent for the city to grant an exclusive privthege to one individual to gather and remove those substances which are not per se nuisances. There can be, in the nature of things, no reasonable necessity for the city to gather and remove from the private premises of the inhabitants the accumulations of rubbish and
The judgment of the district court is therefore accordingly
Affirmed.