Nash v. District of Columbia

28 App. D.C. 598 | D.C. | 1907

Mr. Justice McComas

delivered the opinion of the Court:

1. It is a rule that a municipal corporation has no power to treat a thing as a nuisance which cannot be one; but it is equally settled that it has the power to treat as a nuisance a thing that, from its character, location, and surroundings, may become such. In doubtful cases, where a thing may or not be a nuisance, depending upon a variety of circumstances requiring judgment and discretion on the part of the town authorities in exercising their legislative functions under a general delegation of power like the one we are considering, their action under .snob circumstances would be conclusive of the question. Walker v. Jameson, 140 Ind. 598. See also Grand Rapids v. De Vries, 123 Mich. 570; Ex parte Vandine, 6 Pick. 187, and State v. Payssan, 47 La. Ann. 1029.

2. The question in the case at bar is whether or not the material which the defendant was conveying was susceptible of putrefaction or decomposition. If it had been refined to such an extent as to prevent further decomposition, then it is conceded that the appellant’s contention would have been well founded; but he relies upon the fact that this matter had undergone, according to the testimony in the case, a process which, at best, only diminished its noxious properties. The testimony brought out by the appellant’s questions with respect to the effect of heat, etc., on the contents of the cart, show an assumption on his part that this matter was susceptible of further decomposition. The testimony of the officers is convincing that it was, in fact, putrid. It is submitted that the judgment of "the court below, on the evidence, could not have been otherwise, .and should be affirmed.

The law is well settled respecting garbage regulations. Every intendment is to be made in favor of the lawfulness of the exercise of municipal power reposed in municipal corporations to make regulations to protect the public health and promote the welfare of the people in the community, and the officers having charge of the execution of such regulations should be sustained in the proper enforcement of reasonable regulations. The cremation of garbage as a means for the protection •of the public health, when proceeding upon reasonable grounds, cannot be regarded as the taking of private property for public use without compensation, simply because such garbage and house refuse may have had at the time some element of value for certain purposes. The scavenger receives that which, if separated, might have value and be harmless, mingled with that' which is in itself not only worthless, but noxious. The commingled substances could not be separated by the authorities, which promptly and properly convey them away to be destroyed by fire. It is a controlling obligation of the District authorities, which they could not properly ignore, to protect the health of its people in all lawful ways; and in the fair and reasonable exercise of the police power they may rightfully require the destruction of garbage and refuse, even when containing some elements of value; and these authorities may regulate the removal and disposition of such substances, and designate the agents who may rightfully remove and dispose of the same, and may lawfully prohibit all other persons except the District contractor ■or his agents from carrying through the streets such substances. See California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306, 50 L. ed. 204, 26 Sup. Ct. Rep. 100; Gardner v. Michigan, 199 U. S. 325, 50 L. ed. 212, 26 Sup. Ct. Rep. 106; Dupont v. District of Columbia, 20 App. D. C. 477; Campbell v. District of Columbia, 19 App. D. C. 131; Mann v. District of Columbia, 22 App. D. C. 138. These cases show that the regulations we are here considering are a valid exercise of the police power; yet, as Justice Shepard well said in the Dupont Case, supra, each case arising under these regulations must depend upon its own peculiar circumstances. “We are not to be understood as holding that all matter which may be laid aside, •merely, in the preparation of dishes for the table, is necessarily garbage, and therefore subject to the same regulation in all respects. We agree with the supreme court of Connecticut in the case before cited (State v. Orr, 68 Conn. 101, 112, 34 L.R.A. 279, 35 Atl. 770), that there may be some things as, for example, meat trimmings, fruit and vegetable parings, and the like, that are capable of unobjectionable uses. These the owner could not be compelled to throw away, but might make any reasonable use of before they could become offensive.” And, as was said in State v. Orr: “Whatever of this description is not abandoned as worthless remains property, which, so long as it does not constitute a nuisance, may be sold or otherwise disposed of at the will of the owner. If the evidence had shown both that the contents of the defendant’s cart, while they had been rejected for table use, were not offensive, and that they were in his possession as the agent or vendee of the original owners, he might have been entitled to a verdict, for he could not then have been engaged in the business for which a license was required.” The proof in this case brings it within the exception so clearly recognized by Justice Shepard, speaking for this court, and by Justice Baldwin speaking for the supreme court of Connecticut.

The two police officers agree that the contents of the two cans looked as if the grease had been rendered from the frying of fat, and bits of meat appeared which had not been wholly rendered. One officer said the cans emitted no smell until the lids were taken off, and, though he first said the contents were grease and rotten meat, he later qualified this statement, saying the contents were grease and bits of meat that had been rendered, and that it was offensive; the other officer said it was grease and meat, that part of the meat was not wholly rendered and smelled “a little offensive like.” On the part of the defendant, however, Norton testified that he employed the driver Nash to buy from the hotels grease from animal fats, and never to buy decomposed meats, and that grease and cracklings have no noxious smell, while Pfaff, the chef at the New Willard Hotel, testified that he has charge of all the foodstuffs and of the kitchen, and that the grease which he had sold for 2 cents per pound and put into these cans had first been placed ip a large grease kettle, and that it contained only the rendering's of such fat and the cracklings, while at the same time he had caused all rotten, décomposed, or stale meats to be put into separate cans for garbage. The evidence is convincing that the contents of these two cans was simply clean grease and cracklings, which after the cooking process emitted no offensive odor, and that all of this material had been cooked •within twenty-four hours. It is not disputed that the garbage of the hotel was placed in garbage cans and carried away by the city contractor’s agents, and it is clear that the grease and cracklings purchased by Nash and then being hauled away to the factory of the Norton company was property which did not constitute a nuisance, which Pfaff had a right to sell, which Nash had a right to buy and haul away in the two galvanized, air-tight, iron cans. In our opinion, such grease and cracklings rendered from tbe fat of fresb meat, cooked and carried away within twenty-four hours, was not garbage within the meaning of these regulations, and Nash should have been acquitted. We need not further discuss this matter. The case before us is somewhat similar to St. Louis v. Robinson, 135 Mo. 460, 37 S. W. 110, and see Grand Rapids v. De Vries, 123 Mich. 580, 82 N. W. 269, where it was said of a similar regulation that the ordinance does not attempt to regulate in any manner whatever the disposition of wholesome substances by the householder. It is aimed only at refuse, and the householder is at liberty to consume or sell or give away such leavings of the kitchen. The judgment in this case must be reversed with, costs, and this cause remanded, with directions to vacate its judgment and to discharge the defendant, and it is so ordered. Reversed.