458
FEDERAL REPORTER,
vol. 48.
NATIONAL FERTILIZER CO.
v.
LAMBERTet
al.
(O£rcu(C Court, N. D.
December 1,1891.)
The ordinance of San Francisco granting to Charles Alpars. exclusive right to remove from the cit:!' limits all such dead animals, not slam for human food, as shall not be removed by the owner in person, or by his immediate servant or empIOIa. within 12 hours alter the death thereof, and requirhlg the owner. if not inteniilng to so l'emove it himself. to immediatelY deposit a notice of the death In a box provided (or that purpose by ,AlperS, is a valid eX.ercise of the police power, and Is not open to objection ascreati\1ga monopoly, or as depriving persons of their property without due process of law; . S. B.um, . . the ordinance In term" RlVAsthe l'ight to remove the carcasses "from \jie 'city limits. " the f8.!lt .that the factory, where. the bodies are converted il1to commercial .products, is situated il1 "ButehetW""Il." within the city ; Umits; is no objeetiontoliis exclusive right,' as the purpose cif the ordinance is substantially elfectedb.v disposing of tbe carcasses so as to prevent the creation of a Duisance.
L CONSTITUTIOIUL LA.W-POLIOB POWER-MONOPOLIES.
".SAP. . .
The Ucensee's right, asaga,inst ever,. person but the owuer, attaches immediately on the death of the 8nimal, and ia not postponed until the expiration of the 19 hours.
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In Equity. Suit ;National Fertilizer Compll-ny to restrain W. P. Lambert and others Irom interfering with its rights under the "dead animal contract" of San Francisco, .Injunction granted. Langlwrne <Ie MiUer 1 "., R. Ha/rruon and Lloyd <Ie Wood, for responqen1;s.
a.
HAWLEY, J.,(orally.) This is a suit in equity to restrain respondents from infringing upon the exclusive rights and privileges of complainant under what is commonly known and designated as the "dead animal contract." The board of supervisors of the city and county of San Franciscoj on December 11, 1882, passed the following resolution, viz.: "Resolved. that for the period of twenty years from and after the 1st day of December. A. D. 1882, Charles Alpel's,the assignee of Gustav Wetzlar of the contract with the city; a'nd county for the removal of dead animals from the city limit,. bearing date May 29, 1866. or the assigns of said Alpers, shall have and enjoy the exclusive l'ight and privilege of remOVing from the city .limits all carcasses of such dead animals, not slain for human food. as shall not be removed and .so disposed of as not'in anr manner to become a nuisance, within twelve' hOU1'S next after the death of the same. by the owner thereof, or the person in whose possession such animal may· be at the time of ita death. or by the immediate servant or employe of such owner or person; "ResolVed, that for the. purposes hereof the said Cbarles Alpers or his assigns shall keep up a?dmaintain order boxes.forthe receipt Of notices for the removal of such,carcaslles of. dll8d in conspicuous at the new city hall and health city and county; and the same shall be labeled. 'Ordets 1'or the Rem6valof Dead' Animals.' ... the.owrlersof any RniiiJal that slum die within the city within, the said periOd of twenty)'earsfrom and after the 1st day of December, A. D. 1882, save such as shall be killed. for human food. or the person in whose possession such animal shall be at the time of es death, shall, immediately upon such death. notify the said Charles Alpers or his as-
NATIONALFEll.T1LIZER CO.
11.
LAMBERT.
459
signs of such death, and of the place where such carcass may be found, by depositing written notice in one of the bOxes above provided for, or by personal notification, unless such owner or person shall hImself, or by his immediate servant or employe, and not otherwise, remove and dispose of the same, in such manner as not to become a nuisance, within twelve hours next after such death shall occur: provided, that t,he term 'servant or employe,' herein employed, shall in no manner be construed so as to include a contractor 01" other person not actually employed by and under the direct supervision and control of such owner or pel"son. "Resolved, that said Charles Alpers or his assigns shall receive no compen. sation whatever from the city and county for any such removals; but said city and county, in full consideration thereof, Shall protect the said Charles Alpers and his assigns in the exclusi ve rights and pt'ivileges to make all sucb removals by all such orders and resolutions as may be lawfully made in that. behalf. "Resolved, that it shall be the duty of all health and police officers of city and county, upon being informed of any such death, to immediately no. tify said Charles Alpers or his assigns personally, or by depositing a notice thereof, as herein provided." And on December 26, 1882, in pursuance of said resolution, enacted the following order, viz.: "Concerning the removal of dead animals from the city limits. "Whereas, on the 11th day of December, A. D. 1882, the board ofsupervisors of the city and county of San Francisco passed resolution No. 16,(118i, (New Series,) giving to Charles Alpers and his Assigns the exclusive privi. lege of removing the CArcasses of r1ead animals from the city limits, so that the same may not become a nuisance, for the period of twenty years from and after the 1st day of December, A. D. 1l:ll:l2, which resolution was duly approved on the 15th day of Dl'celllber, 1882: Now, therefore, the people of the city and county of San Francisco do ordain as follows: "Section 1. Whenever any horse, ass, or mule, swine, sheep, goat, or cattle of any kind. save such as shall be killl·d for human food, shall die within the limits of the city and county of San Francisco, the oWner thElreof, in person or by his immediate servllnt or t'mploye, And not otherWise, or the pl'rson in whose possession surh animlll shall be at the time of its death, shall remove and dispose the same, insueh manner as not to become a nuisance, within twelve hours next after such· death shall occur, or immediately upon sucb death shall notify said Charles Alpers or his assigns, in person, therl'of, and the pla"e where sucb carcaSses may be found, or by depositing a written'notice thElreof in one of the boxes lalwled, 'Orders for the Hemoval of Dead Animals,' set up by the said Charles Alpers or his assigns at the new city hall or health office, in said city and county. Any person who Shall violate any of the provisions of this section shall be de£>med gnilty of a misdemeaUtlr, and upon eonviction thereof shall be punished by a fine of not less than ten dollars, nor more than fifty dollArs. 2. Any person other than the said Charles Alpers or his assigns, or the owner, hy himself or his immediate servant or employt", or the person having P9SSE'ssiolJ of any animal mentionl'd in the precl'ding section at the time of its death. who shall remove or dIspose of thA carcass of such animal, unless .said Alpers or his shall fail to do so within twenty-four hours after notice thereof, as hereinbl'fore provided, shaUbe deemed guilty of a misdemeanor, and upon conviction. thereof shall be punished by a fine of not less than ten dollars nor more than fifty dollars: prOVided, term' servant or whenever herein expressed, shall in no manlIer be Construed
4;60
FEDERAL
include. a contractor or other person not actually employed by and ,direct supervision, control,and directioll of such owner or person. peraon who shall obstruct, hinder, .01' in any manner interfere w,ith ,toe said Oharles Alpers or bis assigns in the removal or d,isposition of the carcass of any animal mentioned in section 1 of this order, by interceptinK any notice herein mentioned, or by putting up or maintaining any box fOl" the receipt of· any notices for the removal of lIuch carcasses, or by soliciting in person, by agent. or by advertising, or by maintaining any stands or trucks or drays used for the purpose of such removal, or otherwise, shall be deemed guilt,y of a llIisdemeanor, and, upon conviction thereof, shall be punished by a fine of not less than twenty dollars, nor more than one hundred dollars,or by imprisonment in the county jail not more than three months, 0.1' by both fine and ','Se,c.':4. It shallbe the duty of the keeper of the public pounds of said city and county to notify Alpers or his assigns to remove the carcassses of all lmilllals ,hilD, and of all the health and 'police officers of .pitY and county to give the notices provided for in section 1 hereof, the death of. any animal tberein named shall come to their knowl-
"Sec. 5. The said Charles Alpers or his assigns Shall give to the people of the:cityand call nty of San Francisco a guod and sufficient· bond, iIi the sum, of one thousand dollars, with two or more sufficient securities, for the due and faithful performance by him or them, without compensation from or excity and coupty. of alI the .conditions imposed upon him <>1' them and the re,sQll,ltion abovesaid. ' , 6. This order shall take effect imme4iately upon its approval. "Ju,;J30ard of San Francisco, December 26,1882. After having beE:\ri puhlished for fiye, successive days, according' to law, taken up aud the following vote." AlporS! accepted the said resolution and order, executed the bond, and entered upon the perfotrlianceof the duties. required of him, and thereby acquired all the rights and privileges grl1nted thereunder. The rights oJ Alpers have been assigned to complainant. A provisional injunction was issued against all the respondents. The respondents, other than Lambert; made default, and a decree has been regularly entered against them. The casp, is now presented,upon final hearing, upon its merits, as against the respondent Lainbert. As thus presElnted, it involves the question of the constitutionality of the resolution and ordinance, and a construction of the contract created b,y their passage and acceptance. It may be admitted, as claimed by respondents' counsel, that there are several features of the contract that do not commend themselves to pub, lie favor; but they are such as relate to the wisdom, policy, or expediericy of making such contracts. The court, however, has. only to deal with the question as. to the power of the board of supervisors to pass the and ordinance, and determine whether they are valid, and, if valld"io, construe their provisions. The.constitutionality of the contract is:assailed upon three grounds: (1) That sllldcontraCt attempts to create 'a monopoly , and is for that renson.in violation of Election 21 of article'lof the constitution of the state of Calilornia;. (2) that the. contract atteII1pts to deprive persons of their property without due process of law; (3) that the contract is in restraint oftrade.
"
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NATIONAL FERTILIZER CO.". LAMBERT.
461
It is the duty of every government, whether state or municipal, to pass laws or ordinances for preserving the public health, protecting the good order and peace of society, and providing for the abatement of nuisances. Such laws, if they contain nothing more than the necessary restrictions and limitations for the accomplishment of such purposes, are not unconstitutional on the ground that they deprive persons of their property without due process of law. Quarantine regulations, for instance, materially interfere with the free and unobstructed use of private property, and for the time being restrain, to a certain extent, the liberty of individuals. Yet the health, safety, and welfare of the community oftendemanrl their enforcement; and such laws have always been upheld as necessary police regulations. Several other instances might be cited where laws of a similar character are sustained; but the authorities are too numerous, and the general principles of law too well settled, to requite any extended reference or review. No person has an inalienable'right to produce disease, or trade in that which is noxious; and in every community, large or small, some minor rights of individuals must be surrendered for the benefit, protection, health, and general good of all. In Alper8 v. Oity and Ootmty of San Franci8co,32 Fed. Rep. 503, the constitutionality of this "dead animal contract" was involved; and it waS sustained and declared valid as a legitimate e:x:ercise of the police power of the state. FIELD, J., in delivering the opinion of the court, said: "There lsno doubt that the contract between the plaintiff and the city and county.of San Francisco is one within the competency of the lIlunicipality to make. It is within the power of all such bodies to provide for the health of their inhabitants by causing the removal from their limits of all deab animals not slain fQr humun food, which otherwise would soon decay. and, by corrupting the air. engender disease. And provisions for sue\! removal may be made by contract. as well as the performance of any other duty touching the health comfort of the city; its authorities always preserVing such control over the matter as to secure an observance of proper sanitary regulations. In addition to this general power, the constitution of the state of O:uifornia which was in force when the contract with the plaintiff was renewed, de. clares that ·any county, city, or township may make and enforce within its limits all .such local police, sanitary, and other regulations as are n{)t in filet with general laws.' Article 11, § 11. .And the consolidation act of 1863, still in force, provides that the board of supervisors shall have power · to authorize the summary abatement of nuisances; to make all regulations which may be necessary or expedient for the preservation of the public health, and the prevention of contagious di'seases; to provide by regulation for the prevention and sutnmary removal of all. nuisances and obstructions in the alleys, highways, and pUblic grounds of said city and connty; and to prevent the running at large of dogs, and to authorize the destruction of the slune when atIarge. contrary to ordinance.'"
The rea.soning of the <murt in tha.t case, and of the supreme court of the United States in the Slaughter-House Ca8e8, 16 Wall. 86, and of the state courts in Weible v. Struss, (Ky.) 1 S. W. Rep. 606; State v. F'isher, 52 Mo. 177; and many other cases cited in the complainant's decisive of the question under review. The contract does not deprive
, FEPERAJ,
,
11leQwnera ()f their property, '1lS .1,V1lS the case ,of Rendering Co.:v. Behr, 7.7 Mo. 91. It simply prqvides for, the removal of all dead animals, slain for, human food, from within the city limits, in such 'manner as not to become nuisancel;!. AUJlle provisions of the a,nd ordinance are framed for the sole pqrpose of carrying out this objeCt. The contract is not, in mY <lpinion, subject to any of the constitutional objections urged against ,it. What is the proper construction of the contract? Respondent conto Alpers is-First, to retends that the only exclusive right move the carcasses beyond or outside of the city limits; and, second, that exclusive right does not. attach until the expiration of 12 hours after,fhedeath of any animal, and that any person is, authorized removals within said 12 hours. It appears from the evidence to has been engaged in removing the carcasses of dead that anhnals,,1Jnder the contract, from within, the limits of .thE" city and county of San Francisco, and transporting the same to Butchertown, Francisco,) which is within said limits, where its factory is (South located, and there converting the same into useful and profitable commercial products, such as leather, oils, bones,and fertilizers. The respondeqt Lambert, as an independentcoQtractor, has also been engaged in removing all carcasses whic1;l he could obtain, and conveying the same ,to hie factory, also situated at Butchertown. He claims that all the carcasses transported by him were removed within 12 hours after the death of the animals, and that he has never removed any carcass beyond, pr outside of the 'city limits. After a careful exaipination of the resolution and ordinance in their entirety, my con,elusion is that the objeet,intent, and purpose of the contract was, as before stated, to prevent and abate nuisances within the limits of the city and county of San Francisco ; that this could be done, under the contract, hy the removaland disposal ofthecarcassesof all dead animals ata point within the- city limits, as well if they were conveyed to outside of and beyond the city limits, providing such dispositioll made without committing a nuisance; the essential essence of the contract being that all the carcasses should be removed and disposed of in such Q manner os would avoid'jfnd prevent the commission of any nuisance. Respondents' first contention cannot, tIJerefore, be sustained. The ,seeond point fs equally untenable, The,resolution pe;rnlits the owner, within 12hpurs al.ter the death of any animal, to remove and dispose of the carcass. It also provides that such removal. may be made by any person in whose possession the animal maybe at the time of its de/Uh, houra thereafter. The removal nlayalso be made within that time by the immediate servant or of such owner or person; but it is expressl)' provided that the tern:1 "servant or employe" "shall jn no manner be construed so as toincludl:i a contractor or other: . person not actually employed by, and under the direction, supervision, and control of, such owner·, or person." If 'the owner does not desire to remove the carcass. himself, he must,: under other provig.;; ions'jgive .AJperi! notice immediately alter the death of the animal; and
.'tIiE em.ES. LOBDlQ.
'{68
"Alpers'
carcasses attaoh6$ in all suoh cases within hours' after the deatnot the animal. All removals must be made either by the owner or person in whose possession the animal is at the time its dea.th, .or,by their immediate serva,nts, and employes, or by Alpert!. If made by the owner or person possession, it must be 12 hpurs after death. In no event can such removalsbe.mada by independent cOntractors. ' Complainant is entitled to .$ decree enjoining respondent Lambert from infringing upon its exclu$ive rights under the contract.
of
in
THE GILES LORIN'G. SWANZyet oJ. v. WEBSTER et
et al.
tI. SWANZY
eta!.
OOUTt, D. Maine. .April 10, 1890.) 1. LIBEL-LoBS 011' CARGo-CRoss·LIBEL-VALUE OJ' VESSBL-WIIEN MAINTAI1UDLB.
2.
,.'..1\ :brig .1;lUilt in
and extensively repaired in 1884. was chartered for a voyage to the coast of AfrIca. She encountered no severe weather on the outward voyage, or during the four months she remained on the coast, but before leaVing thero she was foull<l to be leaking badly, and to be. considerablywQrmed. and was· imperfectly repaired by on lead sheets. She sailed for Marseilles with a oargo not excessive for a seaworthy vessel, and shortly after ·enCountered a squall of no great severity. Almost immediately afterwards she was found to be leaking badly, and at once returned to the coast, where, after a surveYt she was condemnedl and 'tlO1 ....d... She was shortl.yafterwards broken up, and founa to be weak, rottelij and and with seams and open. Bew" suftloieJltto show that she when she left the coast. Injury to a vessel by worms is not a peril of the sea. OI!'THESEA.·
1J.
4.
SUIB-MASTER AND CREW·
. Seaworthiness includes competent master, and crew, and upon chartering avesselfor a voyage to the gOld· coast of Africa., it is the duty of the owners, not onl, to furnish a competent master, but also a ll1ate. competent to succeed him in, case of his·death Qr disability., . DuTY OF MASTER-ExCESSIV,E CARGO., . . ... Although a charter-party provides 'that the whole of a vessel shall be a.t the chat'terer's dISPO.sal, with the right to put on: ·board·a full cargQ, it is still the master'. duty. to determine when the .limit of safe loading is reached, and, if an e.XC6ssive cargo i,put on board, the fault is that of the,owners, and not of the charterers. worins; 'it is tile master'lI duty to put oli additional copper if it can be procured. If a full carl<"o will submerge the copper on a vessel so as to expose the hull to TO WORMS: .
a
·
:ene master of a vessel, being l\Qout to die On the gold coast of Africa, an,d haTcompetent.to.BHcqeedhim, request94 the of anothe! Wils,sel, l)elongtti4':to the saD;le ,; owners, to supply1.,some ; . ' to take.:!charge, ThlS was done, on.e · ': .. " "" ' '.1_'_ ." ... ' '. ;
