Jansen Farms, Inc. v. City of Indianapolis

• Decision Date: 22 April 1930
• Docket Number: No. 25094.,25094.
• Parties: JANSEN FARMS, Inc. v. CITY OF INDIANAPOLIS (SANITARY DISTRICT.
• Court: Indiana Supreme Court

202 Ind. 138

171 N.E. 199

JANSEN FARMS, Inc.

v.CITY OF INDIANAPOLIS (SANITARY DISTRICT.^*

No. 25094.

Supreme Court of Indiana.

April 22, 1930.

Appeal from Superior Court, Marion County.

Action by the City of Indianapolis (Sanitary District) against the Jansen Farms, Inc. From judgment for plaintiff, defendant appeals.

Reversed, with directions.

Emsley W. Johnson, of Indianapolis, and Byron K. Elliott, of St. Louis, Mo., for appellant.

Baker & Daniels and Warrack Wallace, all of Indianapolis, for appellee.

MARTIN, J.

The appellee brought this action to permanently enjoin and prohibit the appellant from collecting, removing, hauling away, and disposing of any “garbage, that is to say kitchen refuse from cooking food” found within the sanitary district of Indianapolis, which acts are alleged to be in violation of § 2, ch. 139, Acts 1923, section 10608, Burns' Ann. St. 1926. Appellant filed a cross-complaint seeking an injunction to prevent appellee from interfering with appellant “in the collection of food products *** left from the tables” purchased under contract from certain restaurants. Demurrers were filed to both complaint and cross-complaint, but were withdrawn, and answers in general denial were filed. Judgment was rendered against the appellant on both the complaint and cross-complaint, and it was enjoined from collecting, removing, etc., “any garbage” found within the said sanitary district.

The error relied upon is the overruling of appellant's motion for a new trial, wherein it is alleged that the decision of the court is not sustained by sufficient evidence and is contrary to law. The evidence consists of an agreed stipulation of facts, a brief résumé of which follows:

1. The department of public sanitation of the city of Indianapolis (§§ 1-28, c. 157, Acts 1917, sections 10577-10602, Burns' Ann. St. 1926; sections 1-5, c. 139, Acts 1923, sections 10607-10610, Burns' Ann. St. 1926), maintains and operates a garbage and refuse collection service and a garbage reduction plant, and produces and sells garbage grease and tankage.

2. Section 2, c. 139, Acts 1923, § 10608. Burns' Ann. St. 1926, provides (in part) that:

“It shall be the duty of each such department of sanitation to haul away and to dispose of all garbage, that is to say kitchen refuse from cooking food, found in its sanitary district, from private kitchens and the kitchens of all other establishments and institutions, and no other person may lawfully haul away from the place of its production any such garbage produced or found in any such sanitary district, and any other person convicted of such hauling shall be fined for each offense in a sum not greater than twenty-five dollars.”

3, 4. Jansen Farms, Inc., is an Indiana corporation, and for four years has been feeding hogs on a farm two miles from the city of Indianapolis near the Allisonville pike. It has a modern sanitary hog feeding plant built at a cost of $20,000, which is clear and free from unpleasant odors.

5. For three years it has purchased from the Claypool Hote, Thompson's Restaurant, and the Union Station Restaurant all of the food materials left from the tables and from the preparation of food for the tables, which are specially prepared and collected in large specially made galvanized containers, immediately removed to a room where a low degree of temperature is maintained, covered with tight fitting lids, and kept free from flies and insects. Containers which have been cleaned and scalded are furnished each day by appellant, and no noxious odors are emitted therefrom. They are collected between 5 and 6 o'clock each morning and removed quickly from the city by automobile trucks which in no way injure the streets or interfere with the traffic.

6. Appellant keeps on hand 250 young hogs, and the feeding and sale thereof is profitable. Appellant pays the hotel and restaurant for the material collected, and also recovers for them a large amount of silverware amounting to several thousands of dollars in value each year.

7. Appellant's collection is done in a sanitary manner, and none of such materials are scattered upon the streets.

8. The materials collected by appellant are fed to hogs which are specially prepared to be sold to a plant engaged in the manufacture of anti-hog cholera serum, said materials containing mineral elements and vitamines which give a higher degree of resistance to the virus injected in the course of the manufacture of the serum than grain or commercial hog foods, and produces a superior serum.

9. Appellee has notified appellant that unless it stops the collection of such materials it will be arrested (we assume this to mean that appellant's officers or employees will be arrested). Appellee threatens to interfere and is interfering with appellant in the collection of such materials, and is threatening to take such materials without paying appellant or the hotel or restaurant keepers anything therefor, and appellant would be greatly damaged if the appellee would interfere with its collection of said materials.

10. The appellant unless restrained will continue to collect such materials, and upon demand by appellee has declined to cease collecting the same, and the said hotel and restaurants have declined to permit appellee to collect said materials.

11. The appellee has not collected and does not collect the materials collected by appellant from said hotel and restaurants. If appellee did collect such material, it would treat the same at its garbage disposal plant and would produce garbage grease and tankage therefrom which it could and would sell for considerable money.

12. The collection of such materials by the appellant is not under the supervision of the appellee.

Appellant contends (1) that the remedy of injunction is not available to prohibit the violation of a criminal law, (a) where no certain property damage exists, or (b) even where property damage is proven, if the Legislature has provided a criminal penalty, which legal remedy is adequate and not exhausted, and (c) where, by the extension of the arm of equity into the field of criminal law, one (appellant) is deprived of “his” right to a trial by jury; (2) that the decision of the court deprives appellant, without just compensation and due process of law, article 1, § 21, Const., § 73, Burns' Ann. St. 1926, of its property which is not held or used in such a way as to be injurious to the health, peace, morals, education, or good order of the people.

The appellant's acts were enjoined, we must presume, not upon the theory that they were violative of that portion of the statute defining a misdemeanor, but on the theory that appellee as representing the public was entitled to prevent the appellant from performing acts which are a menace to the public health or safety, and from engaging in a business which the Legislature in the exercise of the police power of the state had lodged exclusively in the appellee. Wolcott v. Doremus (1915) 11 Del. Ch. 58, 95 A. 904;Id., 11 Del. Ch. 277, 101 A. 868;Rochester v. Gutberlett (1914) 211 N. Y. 309, 105 N. E. 548, L. R. A. 1915D, 209, Ann. Cas. 1915C, 483.

[1] Where an injunction is necessary for the protection of public rights, property, or welfare, the criminality of the acts complained of does not bar the remedy by injunction. Board of Health, City of Grand Rapids, v. Vink (1915) 184. Mich. 688, 151 N. W. 672;State v. Feitz (1913) 174 Mo. App. 456, 160 S. W. 585;State v. Ehrlick (1909) 65 W. Va. 700, 64 S. E. 935, 23 L. R. A. (N. S.) 691;Barrett Mt. Greenwood Cemetery Ass'n (1896) 159 Ill. 385, 42 N. E. 891, 31 L. R. A. 109, 50 Am. St. Rep. 168.

[2] This action is not a criminal proceeding, nor is it a civil action in which a jury can properly be demanded, and it does not deprive appellant of a right to trial by jury under either section 13, art. 1, Const., section 65 Burns' Ann. St. 1926, or § 20, art. 1, Const., § 72 Burns' Ann. St. 1926. See, also, Rochester v. Gutberlett, supra.

[3] We cannot agree with appellee that it has such a property right in the garbage of private individuals and corporations, before the same has been collected, as would give it standing in a court to protect the same.

[4] The power and duty of the state and municipalities acting by its authority to control and regulate the manner of the collection and disposition of garbage refuse, filth, dead animals, manure, etc., exists both under the rules...