| Me. | Apr 14, 1905
Complaint for violation of section 17 of an ordinance of the City of Portland. The ordinance in question provides that:
“Sect. 14. All house offal, whether consisting of animal or vegetable substances, shall be deposited in convenient vessels, and be kept in some convenient place, to be taken away by such person or persons as shall be appointed by the Sanitary Committee for that purpose.
Sect. 15. All persons shall promptly deliver the offal so accumulated on their premises to the person appointed as aforesaid to receive the same. And if any person shall neglect to provide suit*182 able vessels for the deposit of house offal, or shall in any way hinder or delay the person so appointed to receive it, in the performance of his duty aforesaid, he shall forfeit and pay a sum not less than two nor more than twenty dollars for each and every offense.
Sect. 16. The collection of house and fish offal, and the disposal of the same; and the cleansing of street culverts and catch basins; shall be under the charge of a committee consisting of three members of the board of mayor and aldermen, to be known as the sanitary committee; but all matters relating to privy vaults and the collection and disposal of night soil shall be under the direction of the board of health.
Sect. 17. No person shall go about collecting any house offal, consisting of animal, or vegetable substances, or carry the same through any of the streets, lanes or courts of the city, except the person appointed as aforesaid, or his deputy, under a penalty of not less than two nor more than twenty dollars for each and every offense.
The case comes up upon an agreed statement of facts which shows that the respondent “at die time of the complaint was proprietor of the Chadwick House and part of the Chase House in said Portland, and daily removed therefrom and on the day alleged in said complaint did remove therefrom to his home in South Portland, the refuse food and discarded victuals. He prepared himself with proper vessels and made proper sanitary arrangements so that in removing the same to his home there was no occasion to complain against the manner in which the removing was made or the services rendered. He was the keeper of many hogs in South Portland, probably thirty hogs and a flock .of hens for which he carried the so called swill or offal. He gathered swill also from the Dairy'Lunch in Portland and from the Columbia and on an average would remove four barrels in a day. All the work was done in a workmanlike manner. The swill consisted of refuse from the table including bread, meat, vegetables and broken victuals none in any decayed condition. He had been engaged in this business during about four years prior to the complaint, and was conducting said business on the day alleged therein, and prior to the time of this complaint he made application*183 to the Board of Health or Sanitary Committee for a license to remove the offal and also made application to the City Government of the City of Portland stating in the petition that the business was done in a workmanlike manner and subject to sanitary rules. No license was granted him. The offal was probably worth $8.00 a morith. ■Mr. Robb paid $65.00 a year for the offal of the Columbia and $35.00 for the offal of the Dairy Lunch. Mr. Robb had men working for him who attended to the details of the work. The offal was removed in covered barrels placed on wagons and hauled out of the city. No scatterings were allowed on the road. The removal was made daily and in the summer time often twice a day. The offal was used in feeding the hogs and hens and was all used up on Mr. Robb’s home place. The removal was generally in a covered cart.
Respondent has never consented to allow any other person than the one in his employ to enter his premises for the removal of house offal and those from whom he received house offal, so called, forbade others gathering house offal on their premises.
It is further agreed that a Sanitary Committee for the City of Portland was duly appointed and constituted as provided by section sixteen of the City Ordinances hereinbefore set forth and that the said William F. Robb was not on the day when said offense was alleged in said complaint to have been committed the person appointed by said Sanitary Committee for the purpose of taking away house offal, and- never has been appointed or authorized so to do by said Committee and that he was not the agent or deputy of any person so authorized and appointed as aforesaid, but that one Samuel D. Plummer was on the fifth day of June, 1903, duly appointed and authorized as the person to take away house offal as provided for in sections fourteen and fifteen of the City Ordinances of Portland hereinafter set forth, and has ever since held that position.” It is stipulated that “if according to this statement the respondent has violated the city ordinances, and if the city .ordinances are constitutional, then respondent shall be adjudged guilty, otherwise not guilty.”
I. Upon the first proposition there can be no difficulty. The ordinance prohibits all persons, except the regularly appointed
II. But the respondent contends that these ordinances are unconstitutional in that, they are in restraint of trade, they create a monopoly, and they constitute an unwarrantable interference with the rights of the owners of private property.
The state on the other hand says that they are a proper exercise of the police power of the state as delegated by statute to the city of Portland. The constitution of the state, Art. IV, part 3rd, sec. 1, provides that the legislature shall have full power to make and establish all reasonable laws and regulations for the defense and benefit of the people of this state. The legislature in R. S., c. 4, sect. 93, clause 3, has provided that towns, cities and village corporations may make and enforce ordinances, “respecting infectious diseases and health.” And it is not contended here but that under this statutory authority the city of Portland had the power to enact reasonable
The constitutional guaranties that no person shall be deprived of life, liberty or property, without 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. Minneapolis Railway Co. v. Beckwith, 129 U.S. 26" court="SCOTUS" date_filed="1889-01-07" href="https://app.midpage.ai/document/minneapolis--st-louis-railway-co-v-beckwith-92379?utm_source=webapp" opinion_id="92379">129 U. S. 26; Jones v. Brim, 165 U.S. 180" court="SCOTUS" date_filed="1897-02-01" href="https://app.midpage.ai/document/jones-v-brim-94594?utm_source=webapp" opinion_id="94594">165 U. S. 180. In Barbier v. Connolly, 113 U.S. 27" court="SCOTUS" date_filed="1884-10-01" href="https://app.midpage.ai/document/barbier-v-connolly-91255?utm_source=webapp" opinion_id="91255">113 U. S. 27, the court used this language: “But neither the amendment [XIVth],— broad as it is — nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe
The preservation of the health of the inhabitants is one of the most important purposes of municipal governments, so important that in England, reasonable by-laws in relation thereto have always been sustained as within the incidental authority of municipal corporations to ordain. 1 Dillon on Municipal Corp. sect. 369. And reasonable regulations for the purpose of promoting the health of the citizens are clearly within the police power of the state. Such is the law everywhere. See 1 Dillon on Municipal Corp. sects. 144, 369; cases cited in 22 Am. & Eng. Ency. of Law, 922; Cooley on Constitutional Limitations, 244. It may therefore be regarded as settled that reasonable municipal health regulations, under the authority of
But the regulations must be reasonable. They must be reasonable as to particular subject matter, and as to method of enforcement. Jones v. Sanford, 66 Maine, 585; Austin v. Murray, 16 Pick. 121. To arrive at a correct decision whether a by-law be reasonable or not, regal’d must be had to its object and necessity. In re Vandine, 6 Pick. 187. That some regulation of the collection and removal of refuse and offal in thickly populated cities is not denied. It needs no argument to show that if the disposal of matter of that sort already decayed or which will forthwith decay, be left to the will or whim or negligence, or ignorance of its owner, or of those to whom the owner may commit it for removal, the health, to say nothing of the comfort, of the public, will be seriously endangered. Ordinances or other regulations with respect to the collection and disposal of offal and garbage have frequently been before the courts, and in no'case has the power anu propriety of regulation been questioned, though in some cases objectionable features in the method of regulation 0 have been discovered. To some of these cases which have been collected by the diligence of counsel reference will be made hereafter.
The question now reverts to whether the regulation adopted in this case was reasonable and lawful. By its terms it gives the exclusive privilege of collecting and removing all refuse matter constituting house offal or swill, within the city of Portland, to a person or persons specially appointed, and prohibits all other persons from engaging in that business. It even prohibits the owners upon whose premises the refuse is made, from carrying it through the streets,-— no matter how carefully and safely, — to uses of their own outside of the city. That house offal has some appreciable value, we think, may be assumed, but as we have already seen, that fact does not save it from police regulation, if it is already noxious, or is in such condition as to require prompt intervention to prevent its becoming noxious and dangerous to health. Harrington v. Board of Aldermen, 20 R. I. 233, 38 L. R. A. 305. The state may even direct its destruction. Lawton v. Steele, 152 U.S. 133" court="SCOTUS" date_filed="1894-03-05" href="https://app.midpage.ai/document/lawton-v-steele-93817?utm_source=webapp" opinion_id="93817">152 U. S. 133; Preston v. Drew, supra; Fisher v. McGirr, supra.
1. Upon the first point by far the greater weight of authority supports the ordinance. In the Slaughter House eases, 16 Wall. 36" court="SCOTUS" date_filed="1873-04-14" href="https://app.midpage.ai/document/butchers-benevolent-assn-v-crescent-city-live-stock-landing--slaughter-house-co-88661?utm_source=webapp" opinion_id="88661">16 Wall. 36, it was held that the grant of an exclusive right or privilege in pursuance of the exercise of the police power of the state, in the promotion of health and comfort, was not only not forbidden by the Fourteenth Amendment to the Constitution, but was clearly within the power of a state legislature and was not a monopoly at common law. The prohibition of the common law against monopolies extended only to such franchises and agreements as tended to restrict trade, and had no application to mere police regulations in the interest of public health or morality. 20. Am. & Eng. Ency. of Law, 851, and cases cited.
Of cases having direct reference to offal and garbage, and similar substances, that of In re Vandine, 6 Pick. 187, is a leading one. It was decided in 1828. It involved the validity of a by-law of Boston which provided that “no person shall remove, cart or Carry through any of the streets .... of the city, any house dirt, refuse, offal, filth or' animal or vegetable substance from any of the dwelling houses .... in any cart, .... or other vehicle, unless . . . duly licensed .... by the mayor and aldermen upon such terms and conditions as they shall ,deem the health, comfort, convenience or interest of the city require.” Van-dine engaged in the business without being licensed. It would seem that the city had made an exclusive contract with some person or persons to do the work, for one of the instructions excepted to was
In State v. Orr, 68 Conn. 101" court="Conn." date_filed="1896-06-25" href="https://app.midpage.ai/document/state-v-orr-6583767?utm_source=webapp" opinion_id="6583767">68 Conn. 101, it appeared that the common council of Bridgeport had authority to regulate the collection and removal of garbage and offal. They ordained that the board of health might contract with one or more persons for the rempval, among other things, “of such refuse matter as accumulates in the preparation of food for the table,” — a good definition of “house offal” as used in the Portland ordinance. All other persons were forbidden to collect and transport such refuse, without a permit from the board. The defendant offered to show that he had been formerly engaged in the business of collecting and removing garbage in Bridgeport, in carts so constructed as to meet the requirements of the ordinance, that he had applied for a permit and had been refused, and that all the garbage collected by him came from certain restaurants, with the proprietors of which he had contracts for its removal, all of which was held to have been properly excluded.. The court; after stating that “refuse matter” as the term was used in the ordinance, can embrace nothing which has not been refused or rejected as unsuitable for table use, that it may be thus rejected because it has little or no value for human food, that it must in its nature be perishable, and can include little which is not liable to become decomposed or offensive, if left where it falls, decided that by the granting of an exclusive privilege for the removal of such matter, “no monopoly was created by which the common law rights of citizenship would be infringed upon.” And further: “It was a violation of the ordinance to collect and transport the kitchen refuse which was its subject, whether such of it was being transported at the time of the act complained of was noxious or innoxious. It was enough that it was “such refuse matter as accumulates in the preparation of food for the table. There is so much of this kind of matter that is offensive and dangerous to the health of the community, that all may be properly made the subject of public supervision aud control . Any occupation comes within the range of the police power which is such as to be naturally liable to create a nuisance, unless
In Grand Rapids v. DeVries, 123 Mich. 570" court="Mich." date_filed="1900-04-03" href="https://app.midpage.ai/document/city-of-grand-rapids-v-de-vries-7940592?utm_source=webapp" opinion_id="7940592">123 Mich. 570, under an ordinance authorizing it, the city had contracted with one person, giving him an exclusive right to collect and remove garbage and offal. The ordinance denied the right to all others. The defendant engaged in the business of collecting garbage in violation of the ordinance. He objected that the ordinance created a monopoly and tended to restrain trade. The court said: — “ The gathering of garbage is not a trade, business or occupation in any proper sense, and such employment does not come under the doctrine in reference to monopolies, or in reference to legislation in restraint of trade. It is a matter in which the public agencies are authorized to pursue the best means to protect the public health’! .... “The ordinance is one of the police regulations of the city for the benefit of the public health.”
In Walker v. Jameson, 140 Ind. 591" court="Ind." date_filed="1894-05-09" href="https://app.midpage.ai/document/walker-v-jameson-7052366?utm_source=webapp" opinion_id="7052366">140 Ind. 591, the court held that an ordinance under which an exclusive contract was made for the collection and removal of garbage was a mere sanitary regulation, and not an attempt to create a monopoly. Among other things, the court said: “ We recognize the rule that a municipal corporation has no power to treat a thing as a nuisance which cannot be one, but it is equally well settled that it has the power to treat as a nuisance a thing which from its character, location and surroundings, may or does become such.” . . . . “It may be that the hotel and restaurant keepers will lose money on their garbage under the workings of this contract, where they before derived a revenue, but if, under this plan, the sources of contagion and disease will be more speedily and effectively removed, the city was empowered to make this contract.”
To the same effect are Smiley v. MacDonald, 42 Nebraska, 5; 27 L. R. A. 540; Coombs v. MacDonald, 43 Nebraska, 632; Louisville v. Wibble, 84 Ky. 290" court="Ky. Ct. App." date_filed="1886-09-30" href="https://app.midpage.ai/document/city-of-louisville-v-wible-7131749?utm_source=webapp" opinion_id="7131749">84 Ky. 290 ; State v. Payssan, 47 La. Ann. 1029" court="La." date_filed="1895-05-06" href="https://app.midpage.ai/document/state-v-payssan-7196498?utm_source=webapp" opinion_id="7196498">47 La. Ann. 1029 ; Ouray v. Corson, 14 Colo. App. 345" court="Colo. Ct. App." date_filed="1900-01-15" href="https://app.midpage.ai/document/city-of-ouray-v-corson-7835070?utm_source=webapp" opinion_id="7835070">14 Colo. App. 345; Morgan v. Cincinnati, 9 Ohio Dec. 280; State v. Lowery, 49 N. J. Law, 391; Swift v. New York, 83
Our attention has been called to only two cases which may fairly be said to be to the contrary. All the other cases cited by the defendant are distinguishable. In the case of In re Lowe, 54 Kansas, 757, 27 L. R. A. 545, while it was admitted that monopolies may be upheld when deemed necessary in executing a duty incumbent on the city authorities or the legislature for the protection of the public health, t[ie court held that an ordinance which gave to scavengers the exclusive privilege of cleaning privy vaults and cesspools, and of removing garbage, not only from the streets, but from the private premises of the citizens, and which in terms prohibited the owners from performing these services for themselves, created an unlawful monopoly and was invalid. In River Rendering Co. v. Behr, 77 Mo. 91" court="Mo." date_filed="1882-10-15" href="https://app.midpage.ai/document/river-rendering-co-v-behr-8007265?utm_source=webapp" opinion_id="8007265">77 Mo. 91, an ordinance which undertook to confer upon one person the right to remove and convert to his own use the carcasses of all dead animals, not slain for food, found in the city, to the exclusion of the right of the owners to remove and use them before they became á nusiance, was declared to be invalid, as authorizing the taking of private property for private use, and as depriving the owner of property without due process of law.
2. But the respondent contends that the ordinance in terms is so comprehensive as to prohibit the owner of premises upon which is created offal, consisting of “table refuse and discarded victuals” not then in a decayed or noisome condition, from removing it through the streets, and out of the city, and that such offal is property, and, that in such quantities at least as are produced in hotels such as the respondent’s, it has considerable pecuniary value. He urges that no necessity is shown which justifies any such interference with the rights of property, and hence that the ordinance is, in this respect, unreasonable and destructive of constitutional property lights.
But that question does not arise in this case. The respondent is not charged with having carried through the streets offal made upon his own premises, but with having gone about “collecting certain
Now, if it were true as claimed, concerning which we express no opinion, that the ordinance is invalid in respect to the removal of . house offal by the respondent from his own premises, still, %we think it can be enforced as to the offal purchased from others and removed by him. A by-law or ordinance, like a statute, may be valid in part and void in part. Where it consists of several distinct or separable parts or provisions, the invalidity of one or more of these will not render the entire ordinance void. 21 Am. & Eng. Ency. of Law, 993. Thus where an ordinance contains two separate prohibitions of different acts, or a prohibition applying to different classes of objects, it may be valid as to one, and invalid as to the other. Such was Iler v. Ross, supra, where an ordinance was held valid as to garbage and offal, and invalid as to ashes and rubbish. So where two distinct penalties are affixed, one of which is invalid, the other may be applied. Dillon on Municipal Corporations, sect. 421. Com. v. Dow, 10 Met. 382. If the part of a by-law or statute which is valid can be separated from that which is void, and carried into effect, it may be. Amesbury v. Bowditch M. F. Ins. Co., 6 Gray, 596. But it is necessary that the good and bad parts be so distinct and independent that the invalid parts may be eliminated, and what remains constitute the essential elements of a complete ordinance. Passaic Water Co. v. Paterson, 65 N. J. Law, 472; State v. Hoboken, 38 N. J. Law, 110; State v. Webber, 107 N.C. 962" court="N.C." date_filed="1890-09-05" href="https://app.midpage.ai/document/state-v--webber-3646076?utm_source=webapp" opinion_id="3646076">107 N. C. 962. See note to Eureka City v. Wilson, (Utah), 62 Am. St. Rep. 910; Fisher v. McGirr, 1 Gray, 1; Warren v. Charlestown, 2 Gray, 84.
In Cooley on Const. Lim. the author says, “Where therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning, that it cannot be presumed the legislature would have
In the case at bar the second clause in sect. 17 of the ordinance, “Or carry the same through any of the streets” etc., is in the alternative. If this clause be stricken out as invalid on the ground that it is an unreasonable interference with property rights, that which remains is complete in itself. It is the remaining provision which is found in rhe complaint, and it is independent of the provision omitted from the complaint. We think it should be sustained. In accordance with the stipulation, the entry will be
Judgment for the State.