The opinion of the court was delivered by
The city of Hutchinson adopted an ordinance for the disposal of garbage, providing among other things that no person except one designated by the municipal authorities should remove it through the streets, and that a contract for its removal should be let to the highest responsible bidder. The persons who were awarded the contract brought an action to restrain others from engaging in the business. A demurrer to the petition was sustаined, and the plaintiffs appeal.
The sole question presented is the validity of the ordinance. The defendants maintain that the city has no power to create a monopoly of the occupation of removing garbage, which the ordinance defines as “all rejected waste food, offal.” They rely largely upon a decision of this court declaring that any regulation by the city of the business of scavengers “must leаve a way open to every person who will comply with the requirements of the ordinance to engage, at least, in so much of the business of scavengers as relates to entering on private property and removing filth and garbage therefrom.” (In re
“All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.”
That clause had already, however, after careful consideration, been construed as referring solely to political privileges, and not to those relating to property rights. (Atchison Street Rly. Co. v. Mo. Pac. Rly. Co.,
The decision in the Lowе case was also based upon the theory that the ordinance was void because it attempted to create a monopoly of a lawful calling and was in restraint of trade. There is some difference of judicial opinion on the subject, but the decided weight of authority supports the right of a municipality either itself to take over the conduct of a business, the manner of operating which may affect the public wеlfare, or to put it entirely in the hands of a single individual or company. (28 Cyc. 717; 20 A. & E. Encycl. of L. 867; 3 McQuillin on Municipal Corporations, § 914; Notes, 9 L. R. A., n. s., 1197; 21 L. R. A., n. s., 830; 4 Ann. Cas. 281; 19 Ann. Cas. 1221;
“The removal and disposal of garbage, offal, and other refuse matter*341 is recognized as a proper subject for the exercise of- the power of a municipality to pass ordinances to promote the public health, сomfort, and safety. The natural scope of an ordinance on this subject is confined to discarded and rejected matter, i. e., to such as is no longer of value to the owner for ordinary purposes of domestic. consumption. If the matter in question hаs not been rejected or abandoned as worthless and is not offensive in any way to the public health, it does not come within the natural scope of such an ordinance. Garbage matter and refuse are regarded by the decisions as inhеrently of such a nature as to be either actual or potential nuisances. By reason, of the inherent nature of the substance, it is therefore not a valid objection to an ordinance requiring disposal in a specified manner that garbage has some value for purposes of disposal, and that the effect of the ordinance is to deprive the owner or householder of such value. That the owner suffers some loss by destruction or removal without compensation is justified by the fact that the loss is occasioned through the exercise of the police power of the State, and the loss sustained by the individual is presumed to be сompensated in the common benefit secured to the public.
“Founded upon the foregoing considerations, it is therefore within the power of the city not only to impose reasonable restrictions and regulations upon- the manner of removing garbage, but also, if it sees fit, to assume the exclusive control of the subject, and to provide that garbage and refuse matter shall only be removed by the officers of the city, or by a contractor hired by the city, or by some single individual to whom an exclusive license is granted for the purpose'. An exclusive right so created is not open to the objection that it is a monopoly.” (2 Dillon on Municipal Corporations, 6th ed., § 678.)
The present case might in some aspects be distinguished from a part of those cited in support of the majority doctrine, but after making due allowance for differences in decisions arising from differences in circumstances it is clear that the prevailing view favors the validity of such ordinances as that here involved. Inasmuch as the Lowe case was based, at least in part, on a misconception of the effect of a clausе in the Kansas constitution, its force as an authority is greatly diminished. So far as concerns the question of an invasion of the provisions of the fourteenth amendment, the matter is practically set at rest by a decision оf the federal supreme court. {Reduction Company v. Sanitary Works,
The statute empowers the city—
“To make regulations to secure the general health of the city; to prevent and remove nuisances; . . . and prescribe and enforce regulations for . . . the cleaning and keeping in order of warehouses, stables, alleys, yards, private ways and grounds, outhouses, and*342 other places where offensive matter is kept or allowed to accumulate, and to compel and regulate the removal of garbage and filth beyond the city limits.” (Gen. Stat. 1909, § 1278.)
The power so granted to adopt and enforce sanitary regulations is almost as broad as that of the state. It is conceded that the city may regulatе the disposition of garbage, and impose rigorous rules as to the time and manner in which it shall be moved, because of the offensive and unwholesome odors arising from it. But it is argued that any one has a right, of which he can not lawfully be deprived, to haul it through the streets, so long as he conforms to the prescribed regulations — that the conferring of a monopoly in that respect is not necessary to enforce them, that it sustains no relation to their enforcement, and is not reasonably adapted to promote that end. But manifestly obedience to the rules laid down for the handling of garbage may be more easily compelled — the method аdopted may be made more efficient — if it is all handled by one concern. In the special opinions in the Slaughter-House Cases (
It will be noted that the exclusive contract under consideration is required to be let to the highest bidder, implying that there is a margin of profit in the business. This feature has been held to render void a similar ordinance, on the theory that it shows conclusively that revenue and not sanitation furnished the motive for its adoption. (Dreyfus v. Boone,
The defendants urge that the ordinance is prohibited by the statute forbidding the granting of contracts or franchises for the use of the streets, except under certain conditions. (Gen. Stat. 1909, § 1330.) We regard that statute, however, as referring only* to the public utilities specifically named, or to those of a similar nature. The ordinance in quеstion forbids the streets to be used for hauling garbage by any one not designated for the purpose by the city authorities, but it doe's not grant a right to use the streets, in the sense in which that phrase is employed in the statute. It forbids unauthоrized persons to haul garbage on the streets, as a means to place that business in the control of a single concern.
The judgment is reversed and the cause remanded with directions to overrule the demurer to the petition.