264 P. 281 | Cal. Ct. App. | 1928
The petitioner was tried and convicted of unlawfully transporting garbage through the streets of the city of Sacramento in violation of Ordinance No. 146, fourth series, of said city, and filed his application herein for a writ of habeascorpus, and as a reason for his discharge alleges that section one of said ordinance is unconstitutional in that it deprives a private person of his property without due process of law.
[1] The ordinance in question provides for the disposal of garbage and its transportation through the streets of the city of Sacramento only by duly authorized persons. The different provisions of the ordinance specify the containers in which garbage shall be kept and also the manner of its transportation through the streets of the city of Sacramento to insure against the escape of noxious odors or fumes.
We need consider only section 1 of the act in question, as all the other provisions are merely regulatory. That section reads:
"Section 1. Garbage, as the said word is made use of in this ordinance, consists of dead animals, of not more than ten pounds weight each, and of every accumulation of animal, vegetable and other matter that attend the preparation, consumption, decay or dealing in, or storage of, meats, fish, fowls, birds, fruits or vegetables. The term `garbage' does not include dish water or waste water."
While not in the exact language of the ordinance under consideration in the case of In re Zhizhuzza,
"Garbage shall be held to include and mean kitchen and table refuse and offal, swill, and also every accumulation of animals, vegetable and other matter that attends the preparation, consumption, decay or dealing in, or storage of, meats, fish, fowls, birds, fruits or vegetables."
It does appear, however, that in the upholding of the Oakland ordinance the supreme court did not in its opinion expressly pass upon the question as to whether the ordinance did or did not deprive a person of private property without compensation, and therefore unconstitutional. That question does not appear to have been urged upon the attention of the court. However, notwithstanding there has been some divergence of opinion upon the question presented for our consideration, we will cite leading cases where ordinances almost word for word with that adopted by the city of Sacramento have been upheld and the constitutional question directly passed upon.
In the case of Pantlind v. City of Grand Rapids,
In the case of Wheeler v. Boston,
These citations are sufficient to show that the term "garbage," as used in section 1 of the Sacramento Ordinance No. 146, fourth series, is to all intents and purposes the same as usually employed in ordinances dealing with the subject of garbage.
In Valley Springs Hog Ranch Co. v. Plagmann, 282 Mo. 1 [15 A.L.R. 266,
In the case of California Reduction Works Co. v. SanitaryReduction Works,
In State v. Orr,
In the case of Valley Springs Hog Ranch Co. v. Plagmann,supra, the opinion of the supreme court in reversing the judgment of the trial court on the question of taking private property without compensation, held as follows: "It is next urged that the ordinance is destructive of property rights. It is true that there may be an ownership of garbage from the kitchen, but the value of the owner's rights therein is so inconsequential that they are absorbed and lost in the greater rights of the state to protect such owner and the public at large from the dire effects of improper methods in the handling and disposition of the same. Garbage, if allowed to accumulate and decompose, becomes a public nuisance. . . . But a short time is required to convert the harmless table scrap into a pestilence-breeding nuisance, when it is intermingled with other refuse from the kitchen." And then cites a number of authorities to the following point: "The Constitutional guaranties that no person shall be deprived of life, liberty or property without *696 due process of law, and that no state shall deny to any person within its jurisdiction the equal protection of the laws, were not intended to limit the subjects upon which the police power of a state may lawfully be exerted."
In Barbier v. Connolly,
[3] That the garbage in question may have some value as food for hogs does not in anywise limit the police power of municipalities. The following statement, which we take from the notes in 14 A.L.R., page 301, is supported by numerous authorities there cited, to wit: "In spite of the fact that garbage, after it has been discarded as food for human consumption, has a certain value as food for hogs or for rendering purposes, its value for such purposes is so slight as compared with the danger to the public health, if the owner is allowed to dispose of it without restriction, that the courts have unanimously held that a requirement of the destruction of garbage cannot be regarded as a taking of private property for public use without compensation." Among the authorities cited are the cases decided by the *697
United States supreme court to which we have heretofore referred. In one of the cases cited in the notes to which we have referred we find the following which is applicable: "The mere fact that the defendant was willing to buy garbage and use it for those purposes (feeding to hogs), is not sufficient to remove it from the category of nuisances and settle its character as property. Whilst money value is evidence, and sometimes very strong evidence to that end, it is not of itself sufficient to make a case of unreasonableness or oppression against the law and the regulations under consideration. Some members of the community may be willing to expose their own health to danger through the use of noisome manures, and to eat the flesh of animals fed upon garbage, to sell such flesh for food to others who may be unaware of its character, but their practices cannot make a rule of community observances. It is against the ignorance, the indifference, the selfishness, the avarice, the wilful disregard of just and intelligent public opinion, that the police power must be constantly invoked on behalf of the common safety and advantage." It is this very fact that makes the regulation of the keeping of containers or receptacles in which garbage shall be placed, and the manner of its collection and disposal, a subject of necessary police regulation. In every city there is more or less ignorance, more or less wilful disregard of all health laws and much avarice which renders police regulations, such as we are here considering, absolutely indispensable, against which the so-called property right must yield to the general good. That such ordinances are not unconstitutional as violating any property rights is distinctly held by the United States supreme court in the case of California Reduction Co. v. SanitaryReduction Co.,
A few cases decided prior to population becoming so congested in our municipalities took into consideration the slight property value of the garbage involved, but the overwhelming weight of authority is now to the effect that the police power in relation to the question of the collection and disposal of garbage is not limited by any such minor or inconsequential considerations. We find no modern authority *698 which would justify our holding that section 1 of Ordinance No. 146, fourth series, of the city of Sacramento, is invalid either as invading any property right or for any other reason suggested upon this hearing.
The writ is denied and the petitioner remanded.
Hart, J., and Finch, P.J., concurred.