SANITARY REDUCTION WORKS V. CALIFORNIA REDUCTION CO.

693

railroad company under a grant from congress was involved, the land in controversy being within the limits of the grant as fixed by the definite location of the company's line. These cases are not in point here, for the reason that the lands involved in this case were not granted by act of congress to the Northern Pacific Railroad Company, and therefore are not within the terms of the sixth section, which provides for surveying a strip 40 miles in width on both sides of entire line after the general route shall be fixed, but says nothing about restricting sales or entries of odd-numbered sections within 40-mile limits. The restricting clause refers only to land granted by the act, and cannot by any rule of construction be extended so as to inter'fere with the sale by the government of lands not granted. "Any other interpretation wouldde'feat the evident purpose. of congress in excepting from railroad grants lands upon, which claims existed of record at the time the road to be aided was definitely located." Railroad Co. v. Sanders, 166 U. S. 630,17 Sup. Ct. 674; Menotti v. Dillon, 167 1'. S. 720, 17 Sup. Ct. 945. The whole case may be summed up in a few words: Kennedy's cash ('TItry was made in good faith in accordance with the laws existing at the time it was made, and the government has reeeived and retained his money. Naught appears to affect the validity of the entry, except the order canceling it, made upon no other ground than an assumption that it conflicted with the rights of the Korthern Paeific Railroad Company under its congressional grant. The entry does not conflict with the grant to the Northern Pacific Railroad Company, because the land istmtside of the limits of the grant, and the entry does not even conflict with any regulation or order of the land department in force at the time it was made or at the time the cancellation was ordered. I must therefore conclude that the plaintiffs have established their claims as equitable owners of the land in controversy, and they are entitled to have a decree requiring the Riddle to convey to them the legal title, and declaring the mortgage held by the defendant Krutz to be void in so far as it affects the land in controversy, and to have an injunetion forbidding any proceedings to foreclose said mortgage or to enforce any rights thereunder.

SA;\ITARY REDUCTION WORKS OF SAX FRAXCISCO v. CALIFORNIA REDUCTIOX CO. et al. (Circuit Court, l\'. D. California.
1'\0.12,714.

:\fay 25, 1899.)

1.

PHELIMINARY INJUNCTION-NATURE OF EVTDENCE BEFORE GRANTING.

The granting of a provisional injunction rests in the sound discretion of the trial court, and it is not necessary that the court should, before granting It, be satisfied, from the evidence before it, that the plaintiff should certainly prevail upon the final hearing of the cause.

2.

MUNICIPAL CORPORATIONS-MoDE OF GRANTING FRANCIIISES A::-<D PRIVILEGES -STA'fUTES OF CAJ,IFOHNIA.

St. Cal. 1893, p. 2!Y,J,. § 1, prescribing the manner in which franchises an,d privileges shall be granted by illunicipalities, and providing that they

; . r

in the manner ;provided;' ii'liliil tlbfr' i applleablEl' to the, aale ot,the franchise in thislcasel ',' ;.,'
Mi\XE;8ANITARY TION OF GARBAG!Jl" ",' '"

:Is

'Hi

j

8;

. Under and the ,1?<,>ard, of sl1per c VIsors of :the city and county of san Ftilllclsco has' power 'to provide for the rem()valatlddisp()sition Of glit-l:lage and: materials about to become Contract ,giving· the, .exclusiyeprivilege of nuisances, receiving and a a single per?,r the of a charge" t here 4. PRELrMrl"ARY IN-tERFElt'ENOE , 'll'he'holder of· a cOl1tract from a inunicipality giving it the right to receive 1and reduce all tM .garbage :,therefrom fm\ a term of years, at a therefor" oJil ,a showing, that in compliance, with such contract it J;laSbuilt acrematory''at iargeexplmse, is entitled to a:preliminary injuncti(jn against parties, re$traililng them from collecting and removing' garbage to ollie!' places, ,in Violation of its 'contract rights, pending a beariIjg on its :for. the recovery Of damages and for a permanent injunction. "

",

'

"

.' "'"

,',"

"

OnOrderlto<Sbow not Issue- f !'

"'" .1

Why lrii injunction' Penden,te Lite should
",. " " ,

Willia;W: M.Bierwn3f,ld ChaJ:les t.) 4,lfreq" ,Blll,Ck, fO, SPQnden,!{!O,
oth.;r

rn,ialleduction ,CQr, McEnerney, R. T. .na,rding,; ,and Mich. Mullaney, for .

order to show eause why an issue. Oomplainant's bill is brought'to an injunction restraiAing ret!:pondents from carrying awaiY,outside city and .of eflll Francisco, certain garbage enjiiPerated materials therein, of which c0J:11I1h1i:¥itAt e:l(clusive right JO dispqse; /llso, for the sum of ,.l,lapll,tgeE;! .for infringemenJ,qf'eomplainant's rights. Complain\l.At 13 ,bin alleges that it is .aCofporation duly organized under the ,laws ',o( .Oalifornia, that :tp,<txespondent corporation is organized under the laws of Colorado, and tbatthe other respondents aliens, residents of the city and county of San Francisco; that a certain order, kn{)wn as "0l.'der No. 2,965," was duly and finally passed, adopted, and enacted by the board of supervisors of the city and county of San Francisco on February 17, 1896; that another ortiler; 'known as "Order No. '12" (second series); and one known as "Resolution No. 903" (fourth were also regularly enacted in order to cfll;ry out .the provisi()ns of Q['der NQ. 2,965 the more effectively; that by virtue of order No. 2,965 a valid contract was entered into between the city and county of San Francisco and one F. E. Sharon,under the terms of which the said F. E. Sharon was to have for the period of 50 years from February of garbage and other specified materials collected in the city and. of· Francisco, at a maximum, charge of 20 cents per cub.ic and the said F. E., 8haroIJ" on, his part, was to erect a crematory of ,the capacity of at least 300 tonsa'day, to'reduce the ,euumeratE1lsubstances within 24 houl'8 of and in such a manner'as t'oavoid the emission of nox-

is\n

san

SANITARY REDUCTION WORKS V. CALIFORNIA REDUCTION CO.

695

ious gases; that this contract was assigned by F. E. Sharon to com· plainant on September 18, 1896; that complainant has carried out the provisions of the contract, having erected a crematory at a cost exceeding $200,000, and notified the board of supervisors of its readi· ness to receive garbage for redl/ction, and ,that, unless complainant can have the exclusive right of cremating and destroying the materials mentioned, the contract and franchise so entered into will be rendered worthless; that complainant has faithfully discharged the obligations imposed upon it by the contract; that the respondents other than the respondent corporation have hindered complainant in carrying out its contract by diverting large quantities of garbage and other materials from complainant's crematory, and depositing them upon lands in the city and county of San Francisco, and that some of them have been arrested and fined for so doing; that the respondent corporation was organized under the laws of Colorado for the express purpose of depriving complainant of its lawful gains by preventing large quantities of garbage from reaching the crematories of complainant, and shipping it away and depositing it on lands in the county of San Mateo and elsewhere, outside of this city and county; that in pursuance of the same object the other respondents ,have conspired with the respondent corporation to deliver daily to it large quantities of garbage, thus diverting it from the cremator,Y of complainant, and that in pursuance of this conspiracy the respondent co,rporation has hired two barges, capable of canying more than 500 tons, for the purpose of transporting garbage and such materials and other places outside of this city to the county of San and county; that, by reason of these acts of respondents, complainant's contract and franchise have been depreciated, and damages have been infiict,ed upon it to the amount of .$25,000; that many of the enumerated nlaterials, when. reduced, are of value as articles of commerce, and that the acts of respondents are depriving complainant of just gains and profits to an amount which it is impossible to that· cOmpla,inant is under a contract with the city and county of San Francisco to incinerate all the garbage acticles, if respondents are allowed t{). divert material from complainant, for breach of contract, .andwill complainant will be rendered, thereby suffer great and injury; that complainant has frequently requested respondents. to desist, but they. have not done so, and, if they continue to upon compl;linant's rights, c.omplainant will suffer irreparable injury, without any plain, adequate, aI\d complete remeQy,at law; that respondents have not yet begun to, engage in ,any bUEliness except the lliring of barges for respondents' the purpose of diverting garbage fgom acts are contrary to equity; and that corn,plaina,nt has no remedy at. law.· Complainant therefore asks. that an injl;lDction provisional and perpetual issue, and for damages to. the amount of $25,000. A restraining order was issued upon the filing of the bill. . A several answer ,filed by the respondent California Reduction Company, and a joint and several answer by the other respondents. Respondents deny the validity of the Order No. 2,965, and that it ever "duly and finally passed, adopted, and epacted."

69B

. 94 FEDERAL REPORTER.

terials within 24 hours, in such away as to"creaoo"uo nuisance, but aver th\1t [Ii nuisance has been created by c0tnPiainant.· Deny that the resp6ndeIif corporation was organized for the purpose of diverting garbage from complainant; that respondents have been and fined for violation,' Oi the "ordinances na,med; tlili!' any confederacy or conspiracy has 'been' f.ormed for the purpose of interfering with complainant in ciitrying out the te:hns of its alleged franchise; that complain/mt' is .entitled to all the garbage, etc., collected iwthe city and county of San Francisco, but 3,verthat it is only entitled'to so much as is voluntarily taken to its crematory. Deny that complainant has suffered damage to an extent which it is impossible to estimate; 'that complainant is bound by, any franchis.e to cremate all the garbage collected in the city aI).d county of San Francisco, and that it will be liable for Violation, of the alleged franchise if it does not do so; that they unlawfully combined, confederated, and conspired as charged in. thebilI. Admit that they 4ave not yet begun to engage in any business, other than the hiring of barges, as stated in the bill, but deny thafthis is being done in pursuance of any contract. Respondentsalso'offer vari0lls affirmative defenses, by which respondent corporation a':versthatit is engaged in a lawful occupation, from which it would be deriving large profits, were it not for the stay order issued herein; that complainant can claim nothing under the franchise, as, not having complied with the requirement that no nuisance shall be created in the reducti,on of the materials named; and beca'use complainant has charged a sum in excess of 20 cents per cubic yard for the cremation of such materials. Respondents other than respondent corporation also offer affirmative defenses, in which they state that the; Order 2,965 is null and void, in that the franchise was not granted to the highest bidder; that complainant has no rights under the franchise,' because it has not complied with the con'ditionsrequiring the cremation of the specified materials withOut' creating a nuisance, and has charged in excess of cents per cubic yard of garbage brought for reduction; that respondents are scavengers, and were engaged in delivering materials to respondent corporlltion, lind 'that they are prevented from lawfUl gains by the staY'order granted herein; that the respondents are householders. and create large quantities of the materials emimerated;that thes,e materials are of value to them, and they claim the right to dispose of them in such a way as not to cause a. nuisance. , Respondents ask for a dissolution of the stay order, and that no inj ,mction', be i,ssued. The argument of counsel. ha.S followed the wide range of the affirmative set· up in the respondents' answers. To determine' these, now, in effect, dispose, of the case upon its.merits,-a result not by the r111es governing courts of equity in grantirig, preliminary injUnctions. "The order for such an injunction does not finally determine the rights of the parties to the action, and 'its only purpose' and effect are to preserve the eXisting state of things until the' case has' been fUlly

Deny, tliatth'ecoDlpiainlint 'haSctem'ated the garbagei'andothei' mao

SANITARY REDUCTION' WORKS V. CALU'ORNIA REDUCTION CO.

697

heard by the court, and the entry of a final decree therein. And it is equally well settled that the granting of a provisional injunction rests in the sound discretion of the trial court, and that it is not necessary that the court should, before granting it, be satisfied from the evidence before it that the plaintiff will certainly prevail upon the final hearing of the cause. On the contrary, to adopt the llwgunge of the court in Georgia v. Brailsford, 2 Dall. 402, 'a probable right, and a probable danger that such right will be defeated, without the special interposition of the court,' is all that need be shown as a basis for such an order. See, also, Blount v. Societe Anonyme du Filtre Chamberland Systeme Pasteur, 3 C. C. A. 455, 53 Fed. 98, and cases therein cited." Southern Pac. Co. v. Earl, 27 C. C. A. 185, 82 Fed. 691. rnder these circumstances, the affirmative defenses set up by respondents cannot be considered as factors in determining this oJ;der to show cause. Complainant's claims to an injunction are based upon the franchise alleged to have been granted by the terms of the order known as "Order Xo. 2,965 of the Board of Supervisors of the City and County of San Francisco," and in accordance with the provisions of an act of the legislature entitled an "Act providing for the sale of railroad and other franchises in municipalities and relative to g-ranting of franchise," approved March 23, 1893. St. Cal. 1893, p. 288. The first section of this act reads:
"Every franchise or privilege to erect or lay telegraph or telephone wires, to eonstruct or operate railroads along or upon any public street or highway, 01' to exercise any other public privilege whatever hereafter proposed to be granted by the board of supervisors, common council, or other governing or legislative body of lIny county, city or county, city, town or district, within this state, shall be granted upon the conditions in the act provided, and not otherwise."

Hespondents maintain that the franchise alleged to have been granted to complainant is invalid, because it was not granted according to the provisions of the consolidation act of the city and county of San Francisco (St. Cal. 1856, p. 164), section 68 of which provides that every ordinance or resolution of the board of supervisors granting any privilege, or involving the lease or appropriation of public property or the expenditure of public moneys (except for sums less than $500), must be published, with the a;yes and nays, in a city daily newspaper for five sllccessive days before the board take final action, and every such ordinance must be presented to the president of the board f.or his approval. If he approve, he shall sign it; and, if not, he shall return it to the board, with suggestions in writing, within 10 days. The board shall then nter the objections on the journals, and publish them in some city newspaper. If at any stated meeting thereafter two-thirds of the board-changed to three-quarters (St. Cal. 1867-68, p.702)vote for such ordinance or resolution, it shall then, despite the objections of the president, become valid. The consolidation act, it is argued by respondents, was not superseded by the act of 1893, and the franchise claimed by complainant should have been g-ranted in accordance with its terms. The aet of lR93, however. provides vel''y clearly that such franchises as are specified, and "any

698

94

FEDERAL'REPORTER.

other p#blic privilege whatever hereafter to 'be granted by the board of supervisors,. * * * shall be granted upon the conditiohs: in the act provide9',' and not in the case of Peo:t51e't':. Board of Sup'rs of' Contra Costa Co.; 122 Cal. 421, 55 131; it was decided by the'silpreme court Of this state that a franchise fO,r the construction and maintenance "ofa wharf should have been granted under this act of 1893. The c6rirtsaid, speaking of the act quoted above:
. "This language Is brolid In Its ted:l1s.1t Imagine language broader in' its 'significance; and more explicit upon the sUbject with which the act Is deallng'. It includes the .frarrchiseherebefore that, ,the ;board of franchise unGer certain provisions of the PolitIcal Code, and therefore It is, claimed .that ·tlle act of the legislature passed in 1898 'cannot furnish a rest upon Which to base a decision rcise of jUdiclalfunctlon on tbe part of. the board as to ail "exercise or nonex ingratiting the francnise. ,This PosJtjc;'lIiH1annot,. be lI).ajntaip.ed.Tbis fran, cnifji!! navebeen grlj.nted by thei supervisors under the provisions of the

HIt ,is, dnsisted

Arid,

,

,

.'

act of'1893."·,

" '. . rt""

.'.

,,' "'"

'I

.

In face of this decision, .of the aup;lieme respolldents' conten, tiOD in' regard to the i;J;lvalidi'ty i .of ,lS'o. 2,965, solely upon'the act of 1893, aannot be $lli3:tained. In the constitution of 1849 it was provided, in. article H, § 5:
the ell;)ctiOllof a bqard and t!;lefle supervisors snall joindy and Individuallyperfp;lI1lsnch duties as.may be prescrlbed):lY law.'" , , .

ot super:visors. In eac:b

"

vided that:

:aYJl1kac.t ,of

April

' ....

1863' (St,"ClJ.k1863,p.'549); it was

. , ';:' , , '

. .

'..

pro.c '

"The board of supervisors of the city and county of San Francisco shall have power, by regulation. or order; .,* :: to authorize and direct the summarY.ahatement Of lllpsanQes; to Il1ake all regulations W:bieh may be necessary or expedient for the preservation of ,tpe health and the prevention for the prevention and sumof contagious diseases; to' 'IJrbvlde, mary removal of 'all nulsallces and obstructions itIthe streets, alleys, highways, and public grounds of said city and county." "

And#i, the Gons!titutio'n' Of '1879 that,: .. ,..' . '. .

it \V3.S proV'lded, in article

., ,

11, § 11,

. "AllY town, or' may make and enforce within its limits all such)ocal, police, sanitary and other regulations as are not in conflict with gene'tilllaws." . ' "

In the case of Alpers ry. City and Conntyof San FranCL'lCO, 32 Fed. 503, Mr. Justice Field, in I;lpeaking j).f.the power of the municipality of San Francisco to make provision ,for the removal of nuisances, said:,
"There is no doubt that the between the plaintiff and the city and C<fUnty of San Francisco Is one within the competency of the municipality to make. It is within the power of all such bodies to provide for the health of their inhabitd:i:rtsby causing the removal from their lhnits of all dead animals not slain for human food, which otherwise would soon decay, and, 'by corrupting the air, engender disease. And provisions for such removal may be made contract, as well its the performance of any other duty touching tbe 'health and comfort of the. city; its authorities always preserving such control over the matter as to secure an observance of proper sanitary regulations.

REDVCTION, WORKS V. CALIFORNIA REDUCTION CO.

BUH

• *" *
  

"Uilstion '!oes to be to. any serious objectIon. None IS alleged against. ItS prOVISIOns. It imposes no burden upon the municipality. The 'removalOf' the is be made without 'any' expetlse, to it. The compensation of the party: making the removal is to be f01Jnd in the uses to which the animals are or may be put. 'fheir .hides are converted into leather, from son}e. of which shoes, from others gloves, are made. Of their pones, buttons or han,dles. for knives may be manufactured; from their flesh and fat, various oils may bedistmed for use' in the arts. And, in case of horned' animals, glue from 'Their hoofs and combs fr5m their horns may be made. Indeed, all parts of theailimals may be useful purpose. It requ,ires, however, for such uses, special and somewbat expensive machinery, and also, it is said, the employment of hands trained to the business. All these facilities, tl:iebill alleges, have been provided by the plaintiff."

to

Co. v. Lambert, 48 }i'ed. 458, was a suit brought by the assignees of the above Alpers to restrain respondents from infringing upon the exclusive right of complainant under the contract. Judge Hawley quoted the language of Justice Pield in the Alpers Case, and gave the complainant the injunction asked for. These 3.1lthorities establish the doctrine that the board of supervisors has the power to provide for the removal of garbage and materials about to become nuisances. The decision of the bOiird of supervisors that various enumerated materials are nuisances is conclusive of the fact. In Ex parte Lacey, 108 Cal. 326, 41 Pac. 411, the petitioner had been convicted and imprisoned for violating a city ordinance of the -city of Los Angeles which provided:
Ql'

person or persons shall establish or conduct any steam shoddy machine, steam carpet-beating machine, within one hundred feet of any church, schOolhouse, residence or dwelling-house."

It was contended that the, ordinance was void on the ground that it interfered with cel'tainof the petitioner's inalienable rights, vouch-

safed tohim by the constitution. On the part of the city it was claimed that the passage and enforcement of the ordinance was but the exercise ofa police power granted to it by the constitution of the state, in terms. The supreme court passed upon the question in controversy as follows: .
"Conceding the business covered by the provisions of this ordinance not to constitute a nuisance per se, and to stand upon different grounds from powder factories, street obstl1lctions, and the like, still the case is made no better for petitioner. This is not a question of nuisance, per se, and the power to regulate is in no way dependent upon such couditions. Indeed, as to nuisances per se. the geperallaws of the state are ample to deal with them. But the bmliness here involved may properly be classed ,,,ith livery stables, laundries, soap and glue faeiorles, etc.,--a dass of business undertakings in the conduct of which police and sanitary regulations are made to a greater or less degree by every city in the country. And in this class of cases it is no defense to the validity of regulation ordinances to say, 'I am committing no nuisance, and I insist upon of being heard before a court or jury upon that question of fact.' In this cases a defendant has no sueh right. To the extent that it was material in creating a valid ordinance, we must assume that such question was decided by the ll1unieipal authorities, and decided agaiust petitioner and all others similarly situated."

See, also, Ex parte Casinello, 62 Cal. 538; Chic-ago City Ry. Co. v. 'l'own of Lake View, 105 Ill. 207. The charge of 20 cents per cubic yard of garbage brought for re-

700

94 FEDERAI./ REPORTER.

crematory cl:\Jlnotberegarded ltf3 nature of or as a charge Which the board of supervisors has no right to impose. This question was, before the court in the case of Walker v.Jameson, 140 Ind. 591, 37 N. E. 402, and 39 N. E. 869. An, ordinance :was ,there under consideration providing that garbage s40uld becollecteq only by the cHy's licensed agent, and that the parties producing garbage should place it iil boxes for removal provided by such agent at-their expense, and a contract empowering the contractor, to coUectsuch garbage arid to, charge, a specified price per pound for its removal. It was contended,tnaf'the provision for paj'ment by the householder for the removal of the garbage was an assessment against bim or his property, and, as the charter did not confer the power to make an assessment of this kind, it could not be made. The court said:
"Whatever else it may be, it is certainly not an assessment. It has not a single element of an asseSSl'nent, for the reasons-:B'irst, that, except by the voluntary act of the householder, nothing Is to be paid at all; second,no definite amount, in any event, is to be paid; third; 110thing is made a charge upon the property.· ', The whole arrangement is slfuply' a provision 'by the ordinanceFirst;' that garbage shall be collected and catted through the streets only by the licenselra.gent of the city; second, that parties producing the garbage needing to be thus carted away shall place the same in proper vessels, convenient for the removl;llpy such agent; and, third, that such agent shall charge not exceeding the price named for removing the siune. ,It is no more an assessment than is the provision of the ordinance fiXing the rate of payment for gas or water, or street-car fare." .

a

The'lttw as established by the Slaughter-House Cases, 16 Wall. 36, is'clearly decisive as to the question of the right of a municipality ,to impose a reasonable charge for the removal of a nuisance, and it is neW Claimed in me present case that the charge imposed by the ordina.nce is excessive. The court in that case said:
"Unless, 'therefore, it can be maintained that the exclusive privilege granted by this charter to the corporation is beyond the power of the legislature of Louisiana,' there can be no just exception to the validity of the statute. And in resJ,lect we are unable to see that these privileges are especially odious or objectionable. The duty imposed as a consideration for the privilege Is weil defined, and its enforcement well guarded. The prices or charges to be made by the company are limited by the-statute, and we are not advised that they are, on the Whole, e,xorbitant or unjust."

Respondents maintain that their !lds .do not injure the complainant; but, if complainantis entitled to the whole of the garbage createdinthecity and county of San Francisco,-and sueh is its claim,it is obvious that the continual shipment of it must necessarily be injurious to its interests, and to a degree which would render an injunction pendente lite appropriate, under the circumstances. Let a preliminary injunction issue in accordance with the prayer of the bill ¢complaint.