JAMES GARDNER, Plff. in Err ^ v.

PEOPLE OF THE STATE OF MICHIGAN.

(See S. C. Reporter’s ed. 325-335.)

law — mnnicipal disposal of garbage.—

An ordinance conferring on a city contractor the exclusive right to collect and dispose of garbage is not, so far as it relates to the

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 — -

199 U. S.

Gabdneb v. Michigan.

refuse from the tables of hotels, wanting In the due process of law required by U. S. Const., 14th Amend., as depriving the owner of his property without compensation, al¬ though such refuse may be valuable as food for swine, or for the manufacture of mer¬ chantable grease and other products.

of the laws— local regulations for tlie selection of jnrors. — Litigants and per¬ sons accused of crime in Wayne county, Mich¬ igan, are not denied the equal protection of the laws by Mich. Pub. Acts 1893, p. 337, as amended by Pub. Acts 1895, p. 69, under which the jury lists are made up and re¬ turned by a board of jury commissioners ap¬ pointed by the governor with the consent of the senate, and may include persons whose names do not appear on the assessment roll, while, by the general laws of the state, the officers authorized to make and return the jury lists are elected by the people in their several townships and in city wards, and the jurors must be of those who are assessed on the assessment roll.

[No. 62.]

Submitted November 9, 1905. Decided No¬ vember 27, 1905.

IN ERROR to the Supreme Court of the State of Michigan to review a judgment affirming a conviction in the Recorder’s Court in the city of Detroit, in that state, of a violation of an ordinance relating to the collection and disposal of garbage. Af¬ firmed.

See same- case below, 136 Mich. 693, 100 N. W. 126.

The facts are stated in the opinion.

Mr. Fred A. Baker submitted the cause for plaintiff in error:

The record in this case shows that the refuse from the kitchens and tables of resi¬ dences, hotels, and restaurants is valuable (1) as food for swine, and (2) for the manufacture of merchantable grease and other products. These facts are also a part of the common knowledge of the coun¬ try, and of which this court will take judi¬ cial notice.

Schollenberger v. Pennsylvania ( Paul v. Pennsylvania) , 171 U. S. 1, 7, 8, 43 L. ed. 49, 51, 52, 18 Sup. Ct. Rep. 757.

The ordinance is in excess of and beyond the police power of the state because it does not discriminate between those who properly care for and transport garbage and those who do not.

Smith v. St. Louis & S. W. R. Go. 181 U. S. 248, 255, 45 L. ed. 847, 850, 21 Sup. Ct. Rep. 603.

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 ; 199 U. S.

In the following cases this court held state quarantine or inspection laws void as going beyond the police power:

Henderson v. New York ( Henderson v. Wickham), 92 U. S. 259, 23 L. ed. 543; Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 24 L. ed. 527.

In Minnesota V; Barber, 136 U. S. 313, 34 L. ed. 455, 3 Inters. Com. Rep. 185, 10 Sup. Ct. Rep. 862, a statute was held void which provided that no fresh meats should be sold in the state, unless the animals from which they were taken were inspected in the state before they were slaughtered.

In Schollenberger v. Pennsylvania (Paul v. Pennsylvania) 171 U. S. 1, 43 L. ed. 49, 18 Sup. Ct. Rep. 757, a state statute which prohibited the manufacture or sale within the state of oleomargarine was held invalid.

Every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class.

Plessy v. Ferguson, 163 U. S. 537, 550, 41 L. ed. 256, 261, 16 Sup. Ct. Rep. 1138.

TKe case is within the rule laid down in Lochner v. New York, 198 U. S. 45, 49 L. ed. 937, 25 Sup. Ct. Rep. 539.

In Re Lowe, 54 Kan. 757, 27 L.R.A. 545, 39 Pac. 710, an ordinance of the city of Topeka authorized the mayor, with the con¬ sent of the council, to appoint and license two or more suitable persons, corporations, or firms, to act as city scavengers, and pro¬ hibited any other person from engaging in the business without procuring an appoint¬ ment and license therefor. The court held the ordinance void because it attempted to create a monopoly of a lawful calling, and was in restraint of trade.

See also Gregory v. New York, 40 N. Y. 273; State, Nicoulin, Prosecutor, v. Lowery » 49 N. J. L. 391, 8 Atl. 513; Richmond v„ Dudley, 129 Ind. 112, 13 L.R.A. 587, 28- Am. St. Rep. 180, 28 N. E. 312; Re Nash „ 33 U. C. Q. B. 181; Reg. v. Johnston, 38 U. C. Q. B. 549.

In Iler v. Ross, 64 Neb. 710, 57 L.R.A. 895, 97 Am. St. Rep. 676, 90 N. W. 869, an ordinance of the city of Omaha gave the exclusive right to a city contractor to remove dead animals, garbage, ashes, filth, offal, or other refuse matter from the city, and it was held void.

A dead horse is not per se a nuisance, and an owner who will make proper dis¬ and Wilson v. North Carolina, 42 L. ed. U. S. 865.

On monopoly in contract or ordinance for re¬ moval of garbage — see note to California Re¬ duction Co. v. Sanitary Reduction Works, ante, 204.

213

326, 327

Supreme Court of the United States.

Oct. Term,

position of the carcass cannot be deprived of his property right.

Campbell v. District of Columbia, 19 App. D. C. 131.

The act of the Michigan legislature creat¬ ing the board of jury commissioners for the county of Wayne denies to accused per¬ sons and other litigants in that county the equal protection of the laws.

Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 46 L. ed. 679, 22 Sup. Ct. Rep. 431; Hayes v. Missouri, 120 U. S. 68, 30 L. ed. 578, 7 Sup. Ct. Rep. 350.

Messrs. T. E. Tarsney and John B. Corliss submitted the cause for defendant in error. Messrs. Corliss, Leete, & Joslyn were on the brief:

The city may seize, control, remove, and dispose of all garbage, or it may enter into a contract with one or more persons to do it. Such action is not objectionable as creating a monopoly or infringing the rights of property. Such action by municipalities is not a violation of the constitutional in¬ hibitions against the taking of, or injury to, private property without compensation, or without due process of law.

Re Vandine, 6 Pick. 187, 17 Am* Dec. 351 ; State v. Orr, 68 Conn. 101, 34 L.R.A. 279, 35 Atl. 770; Dupont v. District of Columbia, 20 App. D. C. 477 ; Fischer v. St. Louis, 194 U. S. 361, 48 L. ed. 1018, 24 Sup. Ct. Rep. 673; Dobbins v. Los An¬ geles, 195 U. S. 223, 49 L. ed. 169, 25 Sup. Ct. Rep. 18; California Reduction Co. v. Sanitary Reduction Works, 61 C. C. A. 91, 126 Fed. 29.

The constitutional right of trial by jury is not infringed by the act of the Michigan legislature creating the board of jury com¬ missioners for the county of Wayne.

People v. Harding, 53 Mich. 48, 51 Am. Rep. 95, 18 N. W. 555; People v. Reilly, 53 Mich. 260, 18 N. W. 849.

Mr. Justice Harlan delivered the opinion of the court:

This appeal raises for consideration the question whether a certain ordinance of the city of Detroit, relating to the collection and disposition of garbage within that city, is repugnant to the 14th Amendment of the Constitution of the United States.

By the ordinance in question it was made the duty of the occupant or occupants of every dwelling house or other building in the city of Detroit to provide a suitable and water-tight box or other vessel of a conven¬ ient size to be handled by the garbage col¬ lector, in which such occupant or occupants should cause to be placed or deposited “all offal, garbage, and refuse animal and vegeta¬ ble matter of the premises.” Such occu¬ pants were required to keep the box or oth- 214

er vessel in the alley in rear of their prem¬ ises, or at a place on the premises most ac¬ cessible to the person collecting the garbage and offal; and it was made unlawful to put anything but refuse animal and vegetable matter in the vessel used for garbage and offal. If the vessel was placed in the alley, it must be provided with a tight cover, prop¬ erly hinged, and located next to the lot line, from which it should not project more than two feet into the alley. § 1.

The remaining sections of the ordinance are in these words:

“§ 2. The word ‘garbage’ shall be held to include every refuse accumulation of ani¬ mal, fruit, or vegetable matter that "attends

the preparation, use, cooking, dealing in or storing of meat, fish, fowl, food, fruit, or vegetables, including dead animals and con¬ demned foods found within the city limits.

All garbage shall be collected in water-tight closed metal boxes, and such boxes shall be purified as often as the health officer may direct, and shall have painted thereon the word ‘Garbage.’

Ҥ 3. It is hereby made the duty of the contractor with the city of Detroit for the collection and removal of garbage and dead animals to collect and remove, in accordance with the ordinances and contract of the city, all garbage, dead animals, fish, and refuse animal and vegetable matter found within the city limits. No other person or party except the city contractor or its agents shall carry, convey, or transport through the streets, alleys, or public places of the city of Detroit such materials, and it shall be un lawful for any person to interfere in any manner with the collection and disposal of such materials by the city contractor.

“§ 4. It shall be unlawful for any person to deposit, throw, or place any garbage, fish, lead animals, or refuse animal or vegetable matter in any avenue, alley, street, or other public place within the city of Detroit; nor shall any person place such materials upon any private property, whether owned by such person or not, unless the same shall be inclosed in proper vessels or boxes, as pro¬ vided in § 1.

“§ 5. The collection and removal of gar¬ bage shall be under the supervision of the board of health, and it shall be the duty of the board of health and police department, through their proper officials and agents, to enforce the provisions of this ordinance.” Revised Ordinances of 1895, as amended in

The city of Detroit rests the authority of its council to pass this ordinance upon its charter, which contains the following pro¬ visions: “The council shall have power to provide for the preservation of the general health of the inhabitants of the city, and to

199 U. S.

Gardner v. Michigan.

327-330

make regulations to secure the same ;

. . . to abate or remove any nuisance;

. . . to prohibit and prevent any person from having on his premises any substance

or thing *that is unwholesome or nauseous; and to authorize the removal thereof ;

. . . The common council is also em¬

powered to enact and provide, by appropri¬ ate ordinance, for the manner of collecting, transporting, conveying, and handling of garbage and all animal and vegetable mat¬ ter and refuse in said city ; . . . and to

require all persons in said city to dispose of the same in the manner provided by said common council in said ordinance for the removal and destruction thereof, and to im¬ pose and enforce appropriate penalties for any violation of said ordinance.” Charter of the city, chap. 7, § 43, par. 130.

By additional legislation in 1889 the com¬ mon council was given the power “to adver¬ tise for proposals, and contract for the re¬ moval, disposition, and destruction of gar¬ bage and all animal and vegetable refuse for a term of years.”

In 1901 the city and the Detroit Sanitary Works, a corporation of Michigan, entered into a written agreement, by which the lat¬ ter undertook to collect, remove, and dis¬ pose of all garbage and dead animals with¬ in the limits of the city of Detroit for the term of ten consecutive fiscal years, begin¬ ning July 1st, 1901. In consideration of the faithful performance of the conditions and specifications specified in the agreement, the city agreed to pay to the sanitary com¬ pany the sum of $515,000, in equal monthly instalments of $4,291.66% during the con¬ tinuance of the contract.

The agreement between the city and the sanitary works contained, among others, the following provisions: “1. Garbage shall be understood to consist of all refuse animal or vegetable matter, including dead animals, found within the city limits, coming from private or public premises within the city.

garbage and dead animals shall be as fol¬ lows, to wit: (a) Within and upon the pub¬ lic markets daily. (6) Within the two- mile circle as shown from the maps of the city, and from all hotels, restaurants, hos¬ pitals, slaughterhouses, and all other places where animals, game, or fowl are killed

within the said city of Detroit, Collections daily, (c) Within all other portions of the city, collections three times in each week, times as nearly equally divided as possible. The work of collecting said garbage shall be performed to the satisfaction and under the provision of the board of health, {d) The board of health shall have authority to or¬ der daily collections outside of the two-mile circle whenever, in its judgment, it is nec-

199 U. S.

essary. The health officer shall also have authority to order extra collections to be made at any time when necessary, the con¬ tractor shall be required to cause such col¬ lections to be made within three hours of the time when such order is received by him.

(e) Garbage shall be collected in and trans¬ ported through the streets of the city in vehicles with water-tight closed metal boxes.

miles outside the limits of the city of De¬ troit, and disposed of in such manner as to entail no damage or claim against the city of Detroit for such disposal. 4. It is ex¬ pressly agreed that no garbage or other refuse collected by said contractor shall be dumped into the Detroit river or any of its tributaries, or into Lake Erie or any other lake. The common council reserves the right to make such rules and regula¬ tions with reference to the collection of the garbage as may, from time to time, be deemed necessary. No employee of the con¬ tractor shall receive in the city of Detroit less than one and fifty one-hundredths dol¬ lars ($1.50) per day. In case said second party shall fail to collect garbage or dead animals in accordance with this contract, and such failure shall continue for the peri¬ od of twenty- four (24) hours after a writ¬ ten notice from the board of health of the city of Detroit, then, and in such case, said second party shall be liable to and shall pay to the said party of the first part the penalty of two dollars ($2.00) for each and every such failure so to do.”

Upon the complaint of an agent of the sanitary works, Gardner, the plaintiff in error, was arrested by warrant issued out of the recorder’s court of Detroit, charged with having violated the above ordinance by un¬ lawfully and wilfully carrying, *conveying.

and transporting garbage through the streets and alleys of Detroit, he 'not being the city contractor or its agent.

The defendant pleaded not guilty, was tried and found guilty by a jury, and fined $1°.

There was no dispute at the trial as to the facts. It appeared that the defendant gathered and transported refuse from the tables of hotels, of the kinds described in the statute as garbage, acting in such matter, not for the city contractor, but for the per¬ son who bought such material from the pro¬ prietors of the hotels. He violated the stat¬ ute, and was liable to the prescribed penalty unless the ordinance was invalid. The judg¬ ment of conviction in the recorder’s court was affirmed by the supreme court of Michi¬ gan, all the judges (except one who did not sit) concurring. 11 Det. L. N. 166, 100 N.

W. 126.

The contention of the accused at the trial

215

830-332

Supreme Court of the United States.

Oct. Term,

was that the garbage or swill accumulated at hotels was property, and that the 3d sec¬ tion of the ordinance, directing the city con¬ tractor to collect and remove it, deprived the owner of his property without compen¬ sation, and therefore was in violation of the 14th Amendment of the Constitution of the United States.

This contention was overruled by the trial court, the judge saying to the jury: “The defendant in this case was transporting what confessedly was garbage. It is well settled that no one may claim damages be¬ cause of enforced obedience to a police regu¬ lation designed to secure and protect public health. It is manifest that, were individ¬ uals permitted to escape the regulation fixed by the common council, and dispose of gar¬ bage as they severally saw fit, all system in the collection and removal of refuse matter would be destroyed. Even if this garbage have some value for some such use as that to which the respondent’s employer put it, — the feeding of hogs, — the courts will not, at the expense of the public health, recognize that this refuse matter, in its legal aspect,

is property. No property *right has, there¬ fore, been violated.” The supreme court of the state thus disposed of the question: “The defendant attacks the validity of the ordinance as it relates to garbage or refuse from the tables of hotels. Similar ordi¬ nances have been before the court and sus¬ tained in People v. Gordon, 81 Mich. 306, 21 Am. St. Rep. 524, 45 N. W. 658, and Grand Rapids v. De Vries, 123 Mich. 570, 82 N. W. 269. In these cases the question of whether there is a property right in ref¬ use was not raised in the form in which it is here presented, although, in the case last cited, it was quite plainly implied that the common council, in the exercise of the police power, had the right to treat as a nuisance all such refuse as is unfit for human food. The court may well take judicial notice that table refuse, when dumped into receptacles kept for that purpose, will speedily ferment and emit noisome odors, calculated to affect the public health. If, in providing against such a nuisance, the owner of such material suffers some slight loss, the inconvenience or loss is presumed to be compensated in the common benefit secured by regulation. Horr & B. Mun. Pol. Ord. § 220. The precise question involved in the present case was considered in the well-reasoned opinion of Judge Shepard in Dupont v. District of Co¬ lumbia., 20 App. D. C. 477, and the conclu¬ sion reached fully sustains the holding of the trial judge.”

Upon the general subject of the exercise of police powers by municipalities proceed¬ ing under legislative sanction for the pro¬ tection of the public health, the views of this court have been set forth in the case of 216

California Reduction Co. v. Sanitary Reduc¬ tion Works (just decided), 199 U. S. 306, ante, 204, 26 Sup. Ct. Rep. 100, and what has been said in the opinion in that case is, we think, decisive against the present de¬ fendant. It is appropriate, however, to make some observations in reference to cer¬ tain features of the present case.

The defendant insists that it is part of the common knowledge of the country that the refuse from kitchens, tables, hotels, and restaurants is valuable as food for swine, and is property within the meaning of the constitutional provision which forbids *the

taking by any state of private property for public use without compensation. Of course, all know that such a use of refuse is not uncommon in some localities, although modern investigation shows that a good deal may be said against such a practice. It is believed by some that the feeding of gar¬ bage to swine produces an inferior quality of pork. There is authority for the state¬ ment that in 1889 the Massachusetts board of health reported, as the result of its in¬ vestigation, that garbage-fed hogs were af¬ flicted with trichinosis to the extent of 13 per cent. In some states it is forbidden by statute to feed garbage to milch cows, and in some cities it is forbidden to sell milk from garbage-fed cows. Chapin, Municipal Sanitation in the United States, 699, 700.

We do not, of course, express any opinion as to these matters, and refer to them only in order to bring out the thought that the question before the municipal authorities of Detroit was one in respect of which there was room for difference of views as to what means were best for the protection of the public health. Looking at the matter in a practical light, we are unable to say that the means devised by the city council, and indicated by its action, were plainly un¬ reasonable or unnecessary, or did not have a real, substantial relation to the protection of the public.

Touching the suggestion that garbage and refuse are valuable for the manufacture of merchantable grease and other products, it is sufficient, in view of what we have said in the other case, to remark that it was a controlling obligation of the city, which it could not properly ignore, to protect the health of its people in all lawful ways hav¬ ing relation to that object; and if, in its judgment, fairly and reasonably exercised, the presence of garbage and refuse in the city, on the premises of householders and otherwise, would endanger the public health by causing the spread of disease, then it could rightfully require such garbage and refuse to be removed and disposed of, even if it contained some elements of value. In such circumstances, the property rights of

199 U. S.

Hartman v. Butterfield Lumber Co.

332-335

individuals in the noxious ‘materials de¬ scribed in the ordinance must be subordinat¬ ed to the general good. If it be said that the city might have adequately guarded the public health and at the same time saved the property rights of its owner, on whose premises garbage and refuse were found, the answer is that the city evidently thought otherwise, and we cannot confidently say that its constituted authorities went beyond the necessities of the case and exceeded their proper functions when they passed the ordinance in question. Those ordinances cannot, therefore, according to well-settled principles, be held to be wanting in the due process of law required by the Constitution.

The defendant further contends, as he contended in the supreme court of the state, that the act of the Michigan legislature, creating the board of jury commissioners for Wayne county, in which the present trial occurred, denies to accused persons and oth¬ er litigants in that county the equal pro¬ tection of the laws. The ground of this contention is, that by the general laws of the state, the officers authorized to make and return the jury list were elected by the people in their several townships and in city wards (Const, art. 11, § 1, People ex rel. Atty. Gen. v. Detroit, 29 Mich. 108), and required that jurors should be of those who are assessed on the assessment roll; while, by the Wayne county jury law of 1893, as amended in 1895 (Pub. Acts 1893, p. 337; id. 1895, p. 69), the jury lists are made up and returned by a board of seven jury commissioners, appointed by the gov¬ ernor, with the consent of the senate, and the names of persons to be returned need not appear on the assessment rolls. This difference between the general law relating to jury trials and the special law relating to Wayne county, it is said, constitutes a discrimination against the people of that county, and amounts to a denial to them of the equal protection of the law. This view does not commend itself to our judgment. It is fully met and shown not to be sound bv the judgment in Missouri v. Lewis I v. 7,eirisl 101 U. S. 22, 31, 25 L.

ed. 989, 992, where Mr. Justice Bradley, speaking for the court, and referring to the 14th Amendment, said: “The last restric-

tion, ‘as to the equal protection of the laws, is not violated by any diversity in the juris¬ diction of the several courts as to subject- matter, amount, or finality of decision, if all persons within the territorial limits of their respective jurisdictions have an equal right, in like cases and under like circum¬ stances, to resort to them for redress. Each state has the right to make political subdi¬ visions of its territory for municipal pur¬ poses, and to regulate their local govern- 199 U. S.

ment. As respects the administration of justice, it may establish one system of courts for cities and another for rural dis¬ tricts, one system fo one portion of its .territory, and another system for another portion. Convenience, if not necessity, oft¬ en requires this to be done, and it would seriously interfere with the power of a state to regulate its internal affairs to de¬ ny to it this right. We think it is not de¬ nied or taken away by anything in the Con¬ stitution of the United States, including the amendments thereto. We might go still further and say, with undoubted truth, that there is nothing in the Constitution to pre¬ vent any state from adopting any system of laws or judicature it sees fit for all or any part of its territory. If the state of New York, for example, should see fit to adopt the civil law and its method of procedure for New York city and the surrounding counties, and the common law and its meth¬ od of procedure for the rest of the state, there is nothing in the Constitution of the United States to prevent its doing so. This would not, of itself, within the meaning of the 14th Amendment, be a denial to any per¬ son of the equal protection of the laws. If every person residing pr being in either por¬ tion of the state should be accorded the equal protection of the laws prevailing there he could not justly complain of a violatior of the clause referred to. For, as before said, it has respect to persons and classes of persons. It means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances.”

‘Perceiving no error in the record touching

any Federal question, the judgment is af¬ firmed.

Mr. Justice Brewer and Mr. Justice Feckham dissent from the opinion so far as it relates to the ordinances in question.