94 Neb. 642 | Neb. | 1913
The defendant, the City Garbage Company, appeals from a judgment' for costs in the district court for Douglas county. In that court there was a finding in favor of the plaintiff to the effect that at the commencement of the suit the plaintiff was entitled to an injunction against the defendants as prayed for in the petition; but, the contract upon which the suit was brought having expired, the injunction was denied for that reason only. Judgment was entered against the defendant, the City Garbage Company, for costs.
The plaintiff alleged that he was a citizen and resident
The agreement entered into Avas by an ordinance whereby the plaintiff for a term of three years received from the city of Omaha the sole and exclusive right to haul and remove all dead animals (not slain for human food) Avherever found in said city.
The City Garbage Company answered that it was engaged in the removal and disposal of the carcasses of dead animals since the 10th of May, 1908, and for some time prior thereto, and that the said carcasses were the prop: erty of the defendant, the City Garbarge Company; that the carcasses were removed within 10 to 20 hours from the death of the animals and before they became a nuisance or detrimental to public health, and that they were removed in a sanitary Avay; that, if the defendant had
It is seemingly claimed by the plaintiff that he should recover a judgment and be held to be entitled to the ownership of all the dead animals that die in the city, and to have the right to remove the same in order to be able to maintain himself in the business of hauling dead animals for the city. Inferentially this is a contention that the property of one man may be taken for the benefit of another, that is, that the fat dead horse or cow of one man may be taken by the contractor so as to enable him to remove the lean, mangy, dead horse of another man, and the lean, hidebound, tallowless cow of still another, as also dead cats and dead dogs having no Amine. It would seem to be contended that the business of the plaintiff as a contractor Avith the city may not be carried on because of the danger of his financial failure and the failure of the business, unless he is given the exclusive right to take all the dead animals which die in the city and to become the OAvner of the same. If A should lose by death a fat, well-conditioned GalloAvay or Polled-Angus coaa', her hide when removed might have a value of $10 to $20, possibly more. The body of the animal alone might be worth nearly or quite as much. The theory of the plaintiff is that under the ordinance he should be held to have A’s cow, including the valuable robe which might be made from her hide, and without any compensation to A, and so as to enable him to remove B’s dead cow that is lean, hidebound, talloAvless; and of little or no value. It must be conceded that, if the owner of the dead animal does not remove the body within a reasonable time, the safety of the public being endangered by the presence of the same, the city has a right to direct that the body shall
An examination of the authorities cited shows, as it was specifically held in Knauer v. City of Louisville, supra, that the municipality cannot, under the claim that the carcass of the dead animal is a menace to the public health, authorize its contractor to take possession of it and to convert it to his own use, and, if lie does so, it is confiscation. It was held in the same case that the owner’s rights did not cease at the death of the animal, but that the municipality might prescribe a time in which the owners should be permitted to remove the dead carcasses or cause them to be removed. In State v. Morris, supra, it was said: “If the property is not a nuisance, the owner should not be prevented from obtaining its value and should not be denied the right to make any disposition of it (however innocent and useful).” The court also said: “It is not possible, under .police regulation, to take property from one man and give it to another. The city might, as a sanitary measure, after having given the owner an opportunity to dispose of his dead animals, authorize a contractor to cart them away and appropriate them to his own use.” In Yates v. Milwaukee, supra, it was held that it could never be necessary to take from one man his property and give it to another until the property was in such condition that it was about to become a nuisance, and that an opportunity should be given the
■It is clearly within the police power of the state by ordinance of its towns and cities, and within the limits
The city authorities may, without doubt, under the police power, regulate and control the removal of dead animals, and, to that end, may provide for and appoint a suitable person, under proper restrictions and regulations, to manage and control such removal, and make it his exclusive duty so to do. Smiley v. MacDonald, 42 Neb. 5. Iler v. Ross, 64 Neb. 710, must not be construed to overrule the former case. The officers of the city must be allowed'a large discretion in determining when and how such garbage must be disposed of, but the rights of property in the individual must not be unnecessarily violated. The defendant, the City Garbage Company, a corporation organized for that purpose, assumed the right to engage in a general garbage removal business in the city of Omaha, and there is no doubt of the authority of the city, in the exercise of the police power, to prevent the defendant from interfering with the city’s duly authorized official in the discharge of his duty. The plaintiff’s right to an injunction to protect- his property interest in the garbage to be removed is not so clear, but it is not necessary to further investigate that question in this case, since his contract had expired before the trial of the case in the district court, and that court was not clearly wrong in refusing him an injunction for that reason.
The decree of the district court is
Affirmed.