♦CALIFORNIA REDUCTION COMPANY

et al., Petitioners, v.

SANITARY REDUCTION WORKS OF SAN FRANCISCO.

(See S. C. Reporter’s ed. 306-325.)-

regulations — disposal of garbage. —

The adoption of ordinances granting an ex¬ clusive privilege for fifty years to dispose of garbage and refuse matter by cremat.ior or reduction, and requiring the delivery of all such material at the crematory or reduction plant, there to be destroyed at the expense of the person, company, or corporation con¬ veying the same, was within the authority of the board of supervisors of the city and county of San Francisco — under Cal. Const.

1879, art. 11, § 11, Cal. Stat. 1863, p. 540,

Cal. Stat. 1893, p. 288 — to make and enforce, within the city and county, all such reason¬ able sanitary and other regulations as are not in conflict with any general statute Or with the Constitution, and which have for their object the preservation of the public health.

law — municipal disposal of garbage.—

Municipal ordinances requiring all garbage and other refuse matter to be delivered at a specified crematory or reduction plant, there to be cremated or destroyed at the expense

Note. — On municipal power over nuisances affecting highways and waters — see note to Hagerstown v. Witmer, 39 L.R.A. 649.

As to what constitutes due process of law — see Kuntz v. Sumption, 2 L.R.A. 655, and note; Re Gannon, 5 L.R.A. 359, and note ; Ulman v. Baltimore, 11 L.R.A. 224, and note ; and Gilman v. Tucker, 13 L.R.A. 304, and note. And see notes to People v. O’Brien, 2 L.R.A. 255 ; Pearson v. Yewdall, 24 L. ed. U. S. 436 ; and Wilson v. North Carolina, 42 L. ed. U. S. 865.

Monopoly in contract or ordinance for removal of garbage.

The weight of authority is decidedly to the effect that a municipal ordinance or contract conferring an exclusive privilege to remove garbage and filth is a valid exercise of the police power. Re Vandine, 6 Pick. 187, 17 Am. Dec. 351 ; Walker v. Jameson, 140 Ind. 591, 28 L.R.A. 679, 37 N. E. 402, 39 N. E. 869 ; Morgan v. Cincinnati, 12 Ohio L. J. 41 ; State v. Robb (Me.) 60 Atl. 874 ; State v. Orr, 68 Conn. 101, 34 L.R.A. 279, 35 Atl. 770; Grand Rapids v. De Vries, 123 Mich. 570, 82 N. W. 269 ; California Reduction Co. v. San¬ itary Reduction Works, 61 C. C. A. 91, 126 Fed. 38; Dupont v. District of Columbia, 20 App. D. C. 477 ; Gardner v. Michigan, 199 U. S. 325, post, 212, 26 Sup. Ct. Rep. 106 ; Smiley v. MacDonald, 42 Neb. 5, 27 L.R.A. 540, 49 Am. St. Rep. 684, 60 N. W. 355. And see note to the case last cited in 27 L.R.A. 540.

The gathering of garbage is not a trade, business, or occupation in any proper sense ; and such employment does not come under the doctrine respecting monopolies or legislation

199 U. S.

1905. California Reduction Co. v.

of the person, company, or corporation con¬ veying the same, are not wanting in the due process of law required by U. S. Const., 14th Amend., as taking private property for pub¬ lic use without compensation, even if some of the substances so destroyed may have had some elements of value.

[No. 25.]

Argued October 26, 27, 1905. Decided No¬ vember 27, 1905.

ON WRIT of Certiorari to the United States Circuit Court of Appeals for the Ninth Circuit to review a decree which affirmed a decree of the Circuit Court for the Northern District of California, enjoin¬ ing violations of municipal ordinances for the disposal of garbage. Affirmed.

See same case below, 61 C. C. A. 91, 126 Fed. 29.

The facts are stated in the opinion.

Mr. Richard T. Harding argued the cause, and, with Messrs. Garret W. McEn- erney, Charles Page, and Edward J. Mc- Cutchen, filed a brief for petitioners. -

Ordinances like the one here involved are unconstitutional because they involve a con¬ fiscation of property.

State v. Robbins, 124 Ind. 308, 8 L.R.A. 438, 24 N. E. 978; Meyer v. Jones, 20 Ky. L. Rep. 1632, 49 S. W. 809; Iler v. Ross, 64 Neb. 710, 57 L.R.A. 895, 97 Am. St. Rep. 676, 90 N. W. 869; River Rendering Co. v. Behr, 77 Mo. 91, 46 Am. Rep. 6; Enauer v. Louis¬ ville, 20 Ky. L. Rep. 193, 41 L.R.A. 219, 45 S. W. 510,* 46 S. W. 701; State v. Morris, 47 La. Ann. 1664, 18 So. 710; Underwood v. Green. 42 N. Y. 140; Schoen v. Atlanta, 97 Ga. 697, 33 L.R.A. 804, 25 S. E. 380; Greg¬ ory v. New York, 40 N. Y. 273.

in restraint of trade. Grand Rapids v. De Vries, supra.

Holding the contrary view is Re Lowe, 54 Kan. 757, 27 L.R.A. 545, 39 Pac. 710, where an ordinance making it unlawful to engage in the business of a scavenger without having a license, and giving to licensed scavengers, two or more of whom shall be appointed by the mayor, the exclusive privilege of removing garbage from private premises as well as from the streets, was held invalid as an attempt to create a monopoly of a lawful calling, the state Constitution providing that special priv¬ ileges or immunities shall not be granted by any tribunal or agency except the legislature.

And a municipal ordinance directing the proper officers to enter a contract with one or more persons for the collection and disposal of garbage at the expense of the owners, and prohibiting, under penalty, all persons not having such a contract from engaging in the business, was held invalid as tending to create a monopoly, in Kussel v. Erie, 8 Pa. Dist. R.

So, in State v. Hill, 126 N. C. 1139, 50 L. R.A. 473, 36 S. E. 326, an ordinance requiring

199 U. S.

Sanitary Reduction Works.

Authority to grant a franchise never car¬ ries with it power to grant an exclusive franchise.

Minium v. Larue, 23 How. 435, 16 L. ed. 574; Detroit Citizens’ Street R. Co. v. De¬ troit R. Co. 171 U. S. 48, 43 L. ed. 67, 18 Sup. Ct. Rep. 732.

Wherever an incorporated company in any action asserts a right against another person, based upon an assumed franchise or power, the person against whom the right is so asserted may, as a defense, deny the existence of such franchise or power.

Zanesville v. Zanesville Gaslight Co. 47 Ohio St. 1, 23 N. E. 55; 4 Thomp. C'orp. § 5340; Waterloo Tump. Road Co. v. Cole, 51 Cal. 386.

Scavenger work has a well accepted and defined meaning, and the occupation or business, lowly though it be, has existed and has been recognized and regulated for ages.

Iler v. Ross, supra.

To justify the exercise of the police power, the public interest must require the inter¬ ference and the measures adopted must be reasonably necessary for the accomplish¬ ment of the purpose.

Lawton v. Steele, 152 U. S. 133, 38 L. ed. 385, 14 Sup. Ct. Rep. 499.

The right to follow any of the common occupations of life is an inalienable right.

Allgeyer v. Louisiana, 165 U. S. 57S-589, 41 L. ed. 832-835, 17 Sup. Ct. Rep. 427.

Messrs. Sheldon G. Kellogg and Aldis B. Browne argued the cause, and, with Messrs. C. L. Tilden and Alexander Brit¬ ton, filed a brief for respondent:

The action of the board of supervisors was a valid exercise of the police power.

Slaughter-House Cases, 16, Wall, 36, 62, 21 L. ed. 394, 404; Hannibal & St. J. R. Co.

a license for doing scavenger work in the city, and providing that all persons proposing to do such work must submit bids, and that the board of health shall decide who are competent bidders, and fixing the times at which closets shall be cleaned, was held void as in derogation of common right.

A distinction between noxious and unwhole¬ some substances which are a nuisance per se and a menace to public health, and such innox¬ ious substances as ashes, cinders, stable manure, or other substances not in themselves nuisances, though if allowed to accumulate in unreason¬ able quantities they would become such, or which may be utilized for some beneficial purpose, is drawn in Iler v. Ross, 64 Neb. 710, 57 L.R.A. 895, 97 Am. St. Rep. 676, 90 N. W. 869, which holds that, while an exclusive privilege to one person to remove substances of the class first described may be granted by a city as an exercise of the police power, a city cannot grant a monopoly to one individual by contract to enter upon the private premises of the city’s inhabitants, and, at their ex¬ pense, collect and remove substances of the second class mentioned.

205

Supreme Court of the United States.

Oct. Term,

v. Eusen, 95 U. S. 465, 24 L. ed. 527 ; Law- ton v. Steele, 152 U. S. 133, 136, 38 L. ed. 385, 388, 14 Sup. Ct. Rep. 499; Dupont v. District of Columbia, 20 App. D. C. 477 ; Dill. Mun. Corp. § 141; Harrington v. Providence, 20 R. I. 235, 38 L.R.A. 305, 38 Atl. 1; Ex parte Tuttle, 91 Cal. 589, 27 Pac. 933; Ex parte Lacey, 108 Cal. 326, 38 L.R.A. 640, 49 Am. St. Rep. 93, 41 Pac. 411; Tenement House Department v. Hoeschen, 179 N. Y. 325, 103 Am. St. Rep. 910, 72 N. E. 231.

In the city and county of San Francisco the board of supervisors was and is the body or board which formed the legislative department of the government of that municipality.

McDonald v. Dodge, 97 Cal. 112, 31 Pac. 909; Harrison v. Roberts, 145 Cal. 173, 78 Pac. 537; Ex parte Shrader, 33 Cal. 279.

There can certainly be no question that the police power of a state may be delegated to a city so far as it is necessary to protect the health of its inhabitants.

Norfolk v. Flynn, 101 Va. 473, 62 L.R.A. 771, 99 Am. St. Rep. 918, 44 S. E. 717.

An examination of the so-called dead- animal cases demonstrates that the prin¬ ciples underlying all these decisions are in no respect violated by the San Francisco orders.

Iler v. Ross, 64 Neb. 710, 57 L.R.A. 895, 97 Am. St. Rep. 676, 90 N. W. 869; Enauer v. Louisville, 20 Ky. L. Rep. 193, 41 L.R.A. 219, 45 S. W. 510, 46 S. W. 701; Meyer v. Jones, 20 Ky. L. Rep. 1632, 49 S. W. 809; River Rendering Co. v. Behr, 77 Mo. 91, 46 Am. Rep. 6; State v. Morris, 47 La. Ann. 1660, 18 So. 710; Schoen v. Atlanta, 97 Ga. 697, 33 L.R.A. 804, 25 S. E. 380; Campbell v. District of Columbia, 19 App. D. C. 131 ; Dupont v. District of Columbia, supra; Al- pers v. San Francisco, 32 Fed. 503; National Fertilizer Co. v. Lambert, 48 Fed. 458.

The following cases relating to garbage contracts and ordinances indicate a remark¬ able unanimity of opinion on the main ques¬ tions now before this court:

Walker v. Jameson, 140 Ind. 591, 28 L. R.A. 679, 49 Am. St. Rep. 222, 37 N. E. 402, 39 N. E. 869 ; Grand Rapids v. De Vries, 123 Mich. 570, 82 N. W. 269; Dupont v. District of Columbia, supra; People v. Gardner, 136 Mich. 693, 100 N. W. 126; State v. Orr, 68 Conn. 101, 34 L.R.A. 279, 35 Atl. 770; Ex parte Casinello, 62 Cal. 538; Kilvington v. Superior, 83 Wis. 222, 18 L.R.A. 45, 53 N. W. 487; State v. Robb (Me.) 60 Atl. 874; Re Zhizhuzza (Cal.) 81 Pac. 955.

Exclusive garbage contracts were upheld in the following cases:

Grand Rapids v. De Vries, Walke - v.

Jameson, and Dupont v. District of Colum-

206

bia, supra; Smiley v. MacDonald, 42 Neb. 5, 27 L.R.A. 540, 47 Am. St. Rep. 684, 60 N. W. 355; Coombs v. MacDonald, 43 Neb. 632, 62 N. W. 41; People v. Gard¬ ner, supra; State v. Payssan, 47 La. Ann. 1029 , 49 Am. St. Rep. 390, 17 So. 481; State v. Orr, supra.. See also Re Vandine, 6 Pick. 187, 17 Am. Dec. 351; Bancroft v. Thayer, 5 Sawy. 502, Fed. Cas. No. 835; Dickinson v. Cunningham, 140 Ala. 527, 37 So. 345; Leeper v. State, 103 Tenn. 500,

48 L.R.A. 167, 53 S. W. 962; Cooley, Const. Lim. 5th ed. 225, note 1.

And exclusive dead-animal contracts have been upheld in the following casefe:

Alpers v. San Francisco, and National Fertilizer Co. v. Lambert, supra; Louisvihe v. Wible, 84 Ky. 290, 1 S. W. 605.

Private property is not taken without compensation.

People v. Gardner, Dupont v. District of Columbia, National Fertilizer Co. v. Lam¬ bert, and State v. Orr, Supra; Harrington v. Providence, 20 R. I. 235, 38 L.R.A. 305, 38 Atl. 1; Baker v. Boston, 12 Pick. 183, 22 Am. Dec. 421; Lawton v. Steele, 152 U. S. 133, 136, 38 L. ed. 385, 388, 14 Sup. Ct. Rep. 499 ; Mugler v. Kansas, 123 U. S. 623, 661, 31 L. ed. 205, 210, 8 Sup. Ct. Rep. 273; Powell v. Pennsylvania, 127 U. S. 678, 685, 32 L. ed. 253, 256, 8 Sup. Ct. Rep. 992, 1257 ; Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357 : Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 255, 41 L. ed. 979, 991, 17 Sup. Ct. Rep. 581.

There is no interference with the occupa¬ tion of scavengers.

Grand Rapids v. De Vries, supra; River Rendering Co. v. Behr, 7 Mo. App. 345.

There is no valid objection to the charge authorized to be made upon those deliver¬ ing the garbage.

Slaughter-House Cases, 16 Wall. 36, 21 L. ed. 394; Raymond v. Fish, 51 Conn. 80, 50 Am. Rep. 3 ; King v. Davenport, 98 Ill. 305, 38 Am. Rep. 89; Walker v. Jameson, supra; Meyer v. Jones, 20 Ky. L. Rep. 1632,

49 S. W. 809 ; Smiley v. MacDonald, Dupont v. District of Columbia, and People v. Gard¬ ner, supra; Willis v. Standard Oil Co. 50 Minn. 290, 52 N. W. 652. See also Norfolk v. Flynn, 101 Va. 473, 62 L.R.A. 771, 99 Am. St. Rep. 918, 44 S. E. 717; Morgan’s L. & T. R. & S. S. Co. v. Board of Health, 118 U. S. 455, 30 L. ed. 237, 6 Sup. Ct. Rep.

The term of fifty years was within the discretion of the municipality to grant.

Slaughter-House Cases, Smiley v. Mac¬ Donald, and Dupont v. District of Columbia, supra.

A municipality has the same right to exercise the police power in matters within its jurisdiction as the state.

199 U. S.

California Reduction Co. v. Sanitary Reduction Works.

306-309

Louisville v. Wible, and Barbier v. Con¬ nolly, supra; Tick Wo v. Hopkins, 118 U. S. 370, 30 L. ed. 226, 6 Sup. Ct. Rep. 1064; Ex parte Lacey, 108 Cal. 326, 38 L.R.A. 640, 49 Am. St. Rep. 93, 41 Pac. 411; Ex parte Tuttle, 91 Cal. 589, 27 Pae. 933; Ex parte Shrader, 33 Cal. 279.

Mr. Justice Harlan delivered the opin¬ ion of the court:

The board of supervisors of the city and county of San Francisco, by ordinance adopted February 17th, 1896, and known

*as order No. 2965, granted to F. E. Sharon, h is associates and assigns, the sole and ex¬ clusive right and privilege, for a term of fifty years, to cremate and destroy, within that city and county, by crematories or by a process of reduction, house refuse, dirt, ashes, cinders, sludge, crockery, tins, bones, and other like matter, dead animals (not provided for by contract or franchise there¬ tofore granted ) , putrid vegetable matter, fish, flesh, and food condemned by the board of health of the city and county as unfit for human food, — the grantees, their as¬ sociates and assigns, having the right to charge and collect therefor not exceeding the sum of 20 cents per load.

The grantees, their associates and as¬ signs, were required to have in operation, within two years after the granting of the above privilege or franchise, a suitable building or buildings, with necessary crematories, machinery, tools, and ap¬ pliances necessary to cremate and destroy by cremation, or by a process of reduction, all obnoxious germs and elements contained ip house refuse and other substances above mentioned, — the works to be such as would suffice for the cremation or reduction of at least 300 tons per day of such substances.

By the same ordinance it was made un¬ lawful, after erection of such works, for any person or corporation to remove through the public streets from any houses, hotels, markets, hospitals, factories, restaurants, stores, or other like building or place, in the city and county, any of the substances above specified, except in closed vehicles and wagons constructed so as to conceal the contents from public view, and to effectually prevent any smell escaping therefrom, as well as to prevent the drop¬ ping of any portion of such material or substances on the public streets, — such vehicles and wagons to be constructed in accordance with specifications approved by the board of health of the city and county.

The ordinance also made it unlawful, after the buildings referred to had been constructed, for any person or corporation

*to dump or place upon any land, water, or water ways within the city and county, 109 U. S.

any such substances, and required that they should be forthwith delivered to the above crematory, “and there, at the expense of the person or corporation so conveying the same, be cremated or destroyed, or sub¬ jected to such disposition and treatment as will at once secure and effect a complete combustion of all gases and odors arising therefrom.”

The grantees, their associates and as¬ signs, were required, within twenty-four hours after receiving any of the material or substances above specified, to “cremate or reduce the same, or shall subject the same to such process as will secure the complete combustion of all gases or odors arising therefrom,” and to maintain and operate their plant and crematories, or other apparatus, “so as to prevent any obnoxious smells or gases being emitted either from the deposits of such matter or substances on their premises, or from the process of cremation or other treatment thereof, or from the residuum remaining after cremation or treatment as aforesaid ; also, that in the operation of said works, no smote or soot shall be emitted so as to constitute a nuisance.”

The ordinance further provided that the grantees, their associates and assigns, should, from and after December 1st, 1902, have the sole and exclusive right and privilege, during the remainder of the term of their franchise, “to remove and dispose of all dogs killed at the public pound, and all animals impounded and not redeemed by the owners thereof, and which are value¬ less and cannot be sold; also, to remove and dispose of the carcasses of all dead animals in said city and county not slain for human food, which shall not be removed and dis¬ posed of by the owners thereof, so as not to become a nuisance, within six hours after the death of the same.”

It was further provided that the grantees, their associates ana assigns, should be sub¬ ject to all health and sanitary regulations in force during the existence of said fran¬ chises; and should receive no compensation whatever from the city and *county for

services performed by them in disposing of the specified material and substances.

For the privileges or franchise granted by this ordinance, Sharon and his associates paid the sum of $2,510 in cash, and stipulated to pay for fifteen years 2 per centum, and for the remaining term of thirty-five years 5 per centum, of the gross amount of their receipts from the business.

The Sanitary Reduction Works, a corpo¬ ration of California, became the assignee and successor in interest of the franchise or privileges granted to Sharon, his associates and assigns, and notified the board of super-

207

Supreme Court of the United States.

Oct. Term,

309-31 1m315, 316

visors of the completion of their works, and of their readiness to receive, cremate, and destroy all such substances as were specified in order No. 2965. The cost of such works, the present plaintiff alleged, exceeded the sum of $200,000.

Thereupon the board of supervisors, on November 1st, 1897, adopted order No. 12 (second series), which provided that no person, company, or corporation should, on or after November 8th, 1897, deposit, dump, or cause to be dumped or deposited upon any street, lot, land, water, or water ways within the city and county or from any wharf or bulkhead on the water front of the city and county, any of the above sub¬ stances or material, and that all such sub¬ stances or matter should be delivered at and to the crematory of the Sanitary Reduction Works, “and there, at the expense of the person, company, or corporation so convey¬ ing the same, be cremated and destroyed, or subjected to such disposition and treat¬ ment as will secure and effect a complete combustion of all gases and odors arising therefrom.” Any violation of that order was declared to be a misdemeanor, punish¬ able by a fine of not exceeding $250, or by imprisonment for a term not exceeding one hundred days, or by both such fine and im¬ prisonment.

The present suit was brought by the Sanitary Reduction Company against the California Reduction Company,' and about one hundred and fifty individuals.

*The defendant corporation was organized under the laws of Colorado, at the instance of certain citizens of California, for the purpose, we may assume from the record, of removing, by boats and barges, large quantities of the material and substances specified in the orders of the board of supervisors from the city and county of San Francisco, and depositing them on lands in the county of San Mateo and elsewhere than at the works of the Sanitary Reduc¬ tion Company, thereby preventing the same from being delivered to, and incinerated and destroyed by, the latter company, under its contract with the city and county of San Francisco.

The individual defendants are subjects of the Kingdom of Italy, and owners of licensed wagons used in their calling as scavengers in the city and county of San Francisco. It seems that a very few of them — not more than about a half dozen — are householders in that city and county.

Between the California Reduction Com¬ pany and the individual defendants there is a written agreement, dated November 2 2d, 1898, requiring the former, within thirty days thereafter, to provide one or more suitable buildings, wharves, or other 208

places, for the reception from the latter “of all garbage, ashes, refuse, butchers’ offal, dirt, sludge, crockery, tins, or other like matter, or any putrid animal or vegetable matter, or any fish, flesh, or food, or any dead animals; which said buildings, wharves, or other place or places shall be so located that the average travel to the same shall not exceed the average haul to the Sanitary Reduction Works by more than a quarter of a mile.” By that agree¬ ment the individual defendants bound them¬ selves to deliver at the buildings or places provided by the defendant corporation all such material or substances gathered by them from time to time in the city and county. The individual defendants also stipulated in the agreement that they would not deliver any of the above material or substances to any other party than the California Reduction Company, nor at any other place than the one designated and chosen by that company. v

*The pleadings and the evidence in the

cause show that the defendants, had entered upon the execution of their agreement and the transaction of the business to which it related. No question is made as to the right of the plaintiff to exercise whatever privileges had been legally granted to Sharon, his associates and assigns.

The object of the suit by the plaintiff corporation was to obtain a decree restrain¬ ing the defendants, by injunction, from re¬ moving from the city and county of San Francisco, or depositing or dumping at any other place than at the works of the plain¬ tiff, any of the garbage or other materials specified in the orders of the board of super¬ visors, or from infringing, directly or in¬ directly, the exclusive rights, privileges, and franchises secured to the plaintiff as above stated.

The circuit court, Judge Morrow presid¬ ing, passed a decree giving the relief asked.

94 Fed. 693. That decree was affirmed in the circuit court oi appeals, Judge Hawley delivering the opinion of the court. 61 C. C. A. 91, 126 Fed. 29.

The defendants insist that the ordinances in question are invalid for the want of power in the board of supervisors to adopt them. This objection does not seem to b« well taken. By the California Constitution of 1849 it was provided that “the legis¬ lature shall have power to provide for the election of a board of supervisors in each county, and these supervisors shall jointly and individually perform such duties as may be prescribed by law.” [Art. 10, § 5.] Subsequently, by an act approved April 2Ech, 1863, it was provided that “the board of supervisors of the "city and county of San

Francisco shall have power, by regulation

199 U. S.

California Reduction Co. v. Sanitary Reduction Works.

316-318

or order, ... to authorize and direct the summary abatement of nuisances; to make all regulations which may be neces¬ sary or expedient for the preservation of the public health and the prevention of con¬ tagious diseases; to provide, by regulation, for the prevention of contagious diseases; to provide, by regulation, for the prevention and summary removal of all nuisances and obstructions in the streets, alleys, high¬ ways, and public grounds of said city and county,” etc. Cal. Stat. 1863, p. 540. ^Again, in the state Constitution of 1879, it was provided that “any county, city, town, or township may make and enforce within its limits all such local police, sanitary, and other regulations as are not in conflict with general laws.” Art. 11, § 11. Further, by an act approved March 23d, 1893, it was provided, among other things, that every franchise or privilege to erect or lay tele¬ graph or telephone wires, to construct or operate railroads along or upon any public street or highway, or “to exercise any other privilege whatever hereafter proposed to be granted by the board of supervisors, com¬ mon council, or other governing or legis¬ lative body of any county, city and county, city, town, or district, shall be granted up¬ on the conditions in this act provided, and not otherwise.” One of those conditions was that the fact that such franchise or privilege had been made, together with a statement that it was proposed to grant the same, should be advertised, — the franchise or privilege to be awarded to the highest bidder. Cal. Stat. 1893, p. 288.

It may be here observed that, under the charter of San Francisco, the board of supervisors for the city and county of San Francisco constituted the legislative depart¬ ment for that municipality. McDonald v. Dodge, 97 Cal. 112, 114, 3l'Pac. 909; Harri¬ son v. Roberts, 145 Cal. 173, 78 Pac. 537.

In the above constitutional and statutory provisions is found full authority for the board to make and enforce, within the city and county of San Francisco, all such rea¬ sonable sanitary and other regulations as

are not in conflict with any general “statute or with the Constitution, and which have for their object the preservation of the pub¬ lic health, by whatever cause endangered. It was substantially so ruled in the cir¬ cuit court of the United States, northern district of California, in Algers v. San Fran¬ cisco, 32 Fed. 503, Mr. Justice Field de¬ livering the opinion of the court. The rul¬ ing in that case was followed in National Fertilizer Co. v. Lambert , 48 Fed. 458. See also People ex rel. Dean v. Contra Costa County, 122 Cal. 421, 55 Pac. 131.

It is said that the grant to Sharon, his associates and assigns, was, in no sense, a 199 U. S. U. S., Book 50.

franchise. It is true that the title of the act of 1893 refers only to franchises. But the body of the act shows that the legis¬ lature intended to embrace privileges ex¬ ercised under public authority, and not alone what may be, strictly, franchises. The right which was granted to Sharon, his as¬ sociates and assigns, was certainly a priv¬ ilege, and the board of supervisors had power to grant it in order to protect the public health. But, independently of the above statutes, the board had power, under the Constitution of the state, to make such sanitary regulations as were not incon¬ sistent with the general laws, and that broad power carried with it the power, by contract and ordinance, to guard the public health in all reasonable ways.

The defendants criticize the ordinances because they give the exclusive privileges in question for a period of fifty years. But whether the period during which such privi¬ leges might be exercised should be long or slutrt was a matter in the wise discretion of the board, and determinable wholly up¬ on grounds of public policy. It may be that grants by public authority of privileges to be exercised for the benefit or in behalf of the public ought never to be for long periods. But it suffices to say that no such consideration can control the action of the judiciary.

The defendants insist that the ordinances in question are in violation of the 14th Amendment of the Constitution, in that they deprive the householders of San. Fran¬ cisco of property *of value, by transferring [3 18] it to the Sanitary Reduction Works, with¬ out requiring compensation to be made; this, it is contended, being in violation of the 14th Amendment. Chicago, B. & Q. R.

Co. v. Chicago, 106 U. S. 226, 41 L. ed. 979,

17 Sup. Ct. Rep. 581.

We do not perceive that the defendant corporation of Colorado and the individual defendants who are not householders are entitled to raise any such question. If householders do not complain, but by silence assent to what the board did, it is not for others to say that the property of householders is taken for public use with¬ out compensation; for householders, if so minded, may waive any right they have to compensation for their property destroyed to protect the public health. The individ¬ ual defendants, in their answer, claim to be householders in San Francisco. But it seems that only about six of them are householders. The presence, however, of that number as defendants makes it ap¬ propriate to consider the objection just stated upon its merits.

In determining the validity of the ordi¬ nances in question it may be taken as firmly 14 209

518-320

Supreme Court of the United States.

Oct. Term,

established in the jurisprudence of this court that the states possess, because they have never surrendered, the power — and therefore municipal bodies, under legis¬ lative sanction, may exercise the power — to prescribe such regulations as may be reasonable, necessary, and appropriate for the protection of the public health and comfort; and that no person has an abso¬ lute right “to be at all times and in all circumstances wholly freed from restraint;” but “persons and property are subject to all kinds of restraints and burdens, in order to secure the general comfort, health, and general prosperity of the state, ”• — the public, as represented by its constituted authorities, taking care always that no regulation, although adopted for those ends, shall violate rights secured by the funda¬ mental law, nor interfere with the enjoy¬ ment of individual rights beyond the neces¬ sities of the case. Equally well settled is the principle that if a regulation enacted by competent public authority avowedly for the protection of the public health has a real, substantial relation to that object,

the courts will not strike it down upon grounds merely of public policy or ex¬ pediency. Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 470, 471, 24 L. ed. 527, 529, 530; Mugler v. Kansas, 123 U. S. 623, 061, 31 L. ed. 205, 210, 8 Sup. Ct. Rep. 273; Lawton v. Steele, 152 U. S. 133, 136, 38 L. ed. 385, 388, 14 Sup. Ct. Rep. 499; Atkin v. Kansas, 191 U. S. 207, 223, 48 L. ed. 148, 158, 24 Sup. Ct. Rep. 124; Jacob¬ son v. Massachusetts, 197 U. S. 11, 27, 49 L. ed. 643, 650, 25 Sup. Ct. Rep. 358. In the recent case of Dobbins v. Los Angeles, 195 U. S. 223, 235, 49 L. ed. 169, 174, 25 Sup. Ct. Rep. 18, 20, this court said that “every intendment is to be made in favor of the lawfulness of the exercise of munic¬ ipal power making regulations to promote the public health and safety, and that it is not the province of courts, except in clear cases, to interfere with the exercise of the power reposed by law in municipal corpo¬ rations for the protection of local rights and the health and welfare of the people in the community.”

The record abundantly discloses the grounds upon which the board of supervis¬ ors proceeded, in adopting the ordinances in question.

The preamble to order No. 2965 shows that, in the judgment of the board, the only effective mode to dispose of house refuse, butchers’ offal, garbage, putrid or offensive animal or vegetable matter, refuse, ashes, or other like matter, and to prevent such substances from being deposited in or upon the lots, lands, and public streets of the city and county, or in the waters of the bay, to 210

the prejudice of the public health, was by cremation or by some process of chemical reduction. The conviction of the board that decided action on the subject was im¬ peratively demanded for the general good seems to have strengthened; for order No.

12, adopted a year later, stated in its pre¬ amble that, from time to time, during pre¬ vious years, the dumping of garbage, dirt, offal, house refuse, matter, ashes, cinders, sludge, acids, or like matter, to fill in lots, and particularly in filling in water lots, had become so objectionable and deleterious to the public health that the attempt was made to mitigate such nuisances by cover¬ ing them over with sand; that it had, how¬ ever, become apparent that lots so filled and covered had thrown off obnoxious gases, deleterious to the public health, and, when epidemic diseases were prevalent, would become a ’fruitful source of danger to

the sanitary wellbeing of citizens; and that the board of health had called attention to and condemned the disposing of garbage and refuse matter for the purpose of filling in lots. Such were the reasons which moved the board of supervisors to adopt that order making it unlawful to deposit any of such substances upon streets, lots, or lands, or in any water or water way, within the city and county, and requiring that they be delivered at the plaintiff’s works, to be there cremated and destroyed, or subjected to such disposition and treatment as would effect a complete combustion of all gases and odors arising therefrom.

We perceive no ground to doubt the good faith of the board of supervisors; nor can we say that the mode adopted for the sup¬ pression of the evils in question was arbi¬ trary, or did not have a real, substantial relation to the protection of the public health.

Many of the questions involved in munic¬ ipal sanitation ha-ve proved to be diffi¬ cult of solution. There is no mode of dis¬ posing of garbage and refuse matter, as found in cities and dense populations, which is universally followed. In some cities garbage receptacles, properly covered, are provided, sometimes by the householder, sometimes by the municipal authorities or the garbage collector. But even such devi¬ ces often prove to be worthless for want of proper attention to them by householders.

Then, the question arises for the considera¬ tion of the municipal authorities as to the frequency of the removal of garbage. The practice is not at all uniform. In some cities, it is collected seven times a week; in others, six, four, and three times a week.

Again, questions arise as to the mode in which garbage should be collected; and the statement is made by those who have inves-

199 U. S.

W05.

California Reduction Oo. v. Sanitary Reduction Works.

320-323

tigated the subject, that while “there ap¬ pears a well-nigh unanimous demand on the part of health officers, and oftentimes of the public generally, for the municipal collec¬ tion of garbage,” the “problem of garbage disposal has not been solved.” Chapin, Municipal Sanitation in the United States, r32i] p. 670. Similar observations *might be made in reference to what is commonly called “dry refuse,” which, in many cities, includes ashes and all the rubbish accumu¬ lated in private houses, stores, market houses, and like places.

These references to the different methods employed to dispose of garbage and refuse have been made in order to show that the board had before them a most difficult prob¬ lem — unsolved by experience or science — as to the best or most appropriate method of protecting the public health in the matter of the disposal of the garbage, refuse, and other materials found on private premises, and in hotels, restaurants, and like places. The state, charged with the duty of safe¬ guarding the health of its people, commit¬ ted the subject to the wisdom and discre¬ tion of the board of supervisors. The con¬ clusion it reached appears in the ordinances in question, and the courts must accept it, unless these ordinances are, in some essen¬ tial particular, repugnant to the fundamen¬ tal law. The general result which the board of supervisors sought to bring about was by cremation, or by such other treat¬ ment of the materials as would effect a complete combustion of all gases and odors arising therefrom. “Cremation,” it is said, “is exclusively employed for getting rid of the garbage in England and on the con¬ tinent of Europe, and is rapidly coming in¬ to use in the United States,” the destruc¬ tion by fire being theoretically “an ideal way, from a sanitary standpoint, for the disposal of garbage.” Chapin, Municipal Sanitation in the United States, p. 714.

The defendants insist that the require¬ ment that the substances mentioned should be delivered at the plaintiff’s works for cre¬ mation or destruction, at the expense of the person, company, or corporation conveying the same, was a taking of private property for public use without compensation. We cannot assent to this view. It is the duty, primarily of a person on whose premises are garbage and refuse material, to see to by proper diligence, that no nuisance arises therqfrom which endangers the pub¬ lic health. The householder may be com¬ pelled to submit even to an inspection of his f322] ‘premises, at his own expense, and forbidden to keep them, or allow them to be kept, in such condition as to create disease. He may, therefore, have been required, at his own expense, to make, from time to time, 199TJ. S.

such disposition of obnoxious substances originating on premises occupied by him as would be necessary in order to guard the public health. If the householder himself removed them from his premises, it must have been at his own expense; and the scav¬ enger who took to the crematory the mate¬ rial from the premises of origin, under some arrangement with the householder, was, in effect, the representative, in that matter, of the householder, and was per¬ forming a duty resting upon the house¬ holder. So that if the requirement that the person conveying the material should pay a given price for having it cremated or destroyed, in effect put some expense on the householder, that gave him no ground for complaint; for it was Ins duty to see to the removal of garbage and house refuse having its origin on his premises. Still less has the licensed scavenger a right to complain; for his right to convey garbage and refuse through the public streets, in covered wag¬ ons, was derived from the public, and he was subject to such regulations as the con¬ stituted authorities, in their exercise of the police power, might adopt. The whole ar¬ rangement may be fairly regarded as one in the interest and for the convenience of the householder. He gets his proportionate benefit of any revenue derived by the city, and at the same time shares the protection given to him by the community. Nor did the destruction of garbage and refuse, at an approved crematory, amount, in itself, and under the circumstances disclosed, to a tak¬ ing of private property for public use with¬ out compensation, even if some of the sub¬ stances destroyed at the crematory had a value for certain purposes. The authori¬ ties were not bound, prior to the removal of such substances from the premises on which they were found, to separate those that were confessedly worthless from those which might be utilized. The garbage and refuse matter were all together, on the sam? premises, and, as a ‘whole or in the mass,

they constituted a nuisance which the pub¬ lic could abate or require to be abated, and to the continuance of which the community was not bound to submit. And when the ob¬ noxious garbage and refuse was removed from the place of their origin, and put in covered wagons to be carried away, the mu¬ nicipal authorities might well have doubted whether the substances that were per se dangerous or worthless would be separat¬ ed from such as could be utilized, and whether the former would be deposited by the scavenger at some place that would not endanger ' the public health. They might well have thought that the safety of the community could not be assured unless the entire mass of garbage and refuse con-

211

323-325

Supreme Court of the United States.

Oct. Term,

stituting the nuisance, from which the dan¬ ger came, was carried to a crematory, where it could be promptly destroyed by fire, and thus minimize the danger- to the public health.

Be all this as it may, the cremation and destruction of garbage and house refuse, under the authority of the municipal authorities, proceeding upon reasonable grounds, and at a place designated by law, as a means for the protection of the public health, cannot be properly regarded, within the meaning of the Constitution, as a tak¬ ing of private property for public use with¬ out compensation, simply because such gar¬ bage and house refuse may have had, at the time of its destruction, some element of value for certain purposes. With the knowledge of the householder the scaven¬ ger receives the garbage and refuse matter; that which, if separated, might have value, being mingled with that which is, in it¬ self, noxious and worthless. The entire mass goes into the same covered wagon, and the authorities are not bound, before its destruction at the crematory, to cause the good to be separated, from the bad, but could require, as the ordinances in question did, that the substances be promptly con¬ veyed to the designated crematory and de¬ stroyed by fire. Such a disposition of the contents cannot be regarded as a taking of private property for public use without compensation.

and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the commu¬ nity. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will.” Crowley v. Christensen, 137 U. S. 86, 89, 34 L. ed. 620, 621, 11 Sup. Ct. Rep. 13. In Mugler v. Kansas, 123 U. S. 623, 664, 31 L. ed. 205, 211, 8 Sup. Ct. Rep. 273, it appeared that certain distillery property in Kansas was purchased at a time when it was lawful in that state to manufacture and sell spirit¬ uous liquors, but which property, by rea¬ son of the subsequent prohibition of such manufacture and sale, had become of no value, or had materially diminished in value. The owner insisted that, by the necessary operation of the prohibitory stat¬ ute, his property was, in whole or in part, taken for public use without compensa¬ tion. But this court said: “The power which the states have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not — and, con¬ sistently with the existence and safety of 212

organized society, cannot be — burdened with the condition that the state must com¬ pensate such individual owners for pecuni¬ ary losses they may sustain by reason of their not being permitted, by a noxious use of their property, to inflict injury' upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibi¬ tion of its use in a particular way, where¬ by its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his prop¬ erty without due process of law. In the one case, a nuisance only is abated ; in the other, unoffending property is taken away from an innocent owner.” In Sedgwick’s Treatise on Statutory and Constitutional Law the author says that “the clause pro¬ hibiting the taking of private property without compensation is not intended as a limitation ... of those police pow¬ ers which are necessary to' the tranquillity of every- well-ordered community, nor of that general ‘power over private property

which is necessary for the orderly existence of all governments. It has always been held that the legislature may make police regulations, although they may interfere with the full enjoyment of private proper¬ ty, and though no compensation is given.”

Pp. 4-34, 435.

Without further discussion we hold, for the reasons stated, that the circuit court and circuit court of appeals properly re¬ fused to adjudge that these ordinances were invalid.

Other questions have been discussed by counsel, but they do not require special no¬ tice at our hands. We are content with the disposition made of them in the courts below.

The decree of the Circuit Court of Ap¬ peals is affirmed.

Mr. Justice Brewer and Mr. Justice Peckham dissented.