City of St. Louis v. Weitzel

• Citation: 31 S.W. 1045,130 Mo. 600
• Parties: City of St. Louis v. Weitzel, Appellant
• Decision Date: 19 November 1895
• Court: United States State Supreme Court of Missouri

31 S.W. 1045

130 Mo. 600

City of St. Louis v. Weitzel, Appellant

Supreme Court of Missouri, Second Division

November 19, 1895

[Copyrighted Material Omitted]

Appeal from St. Louis Court of Criminal Correction. -- Hon. J. R Claiborne, Judge.

The defendant was prosecuted under the provisions of a certain ordinance; the complaint, the following:

"City of St. Louis, November 15, A. D. 1892.

"John Weitzel, to the City of St. Louis, Dr.

"To $ 200 for the violation of an ordinance of said city entitled: 'An ordinance regulating the keeping, storing and handling and licensing the removal of garbage, grease, offal and other refuse matter composed of either animal or vegetable matter, and to repeal section 394, article 10, chapter 14, and sections 507 and 514, article 16, chapter 14, of the Revised Ordinances of 1887, and prescribing penalties for the violation thereof, and fixing a license tax on vehicles used for the removal of garbage,' being ordinance No. 16,863, approved August 12, 1892, in this, to wit:

"And it is further charged that the said John Weitzel on the fifteenth day of November, 1892, and on divers other days and times prior thereto, did unlawfully interfere with, remove and disturb the garbage, offal and other liquid substance placed in boxes, barrels and tubs at and upon the premises of Frank Nagel (southeast corner Sixth and St. Charles streets), in the city of St. Louis, contrary to the ordinances of said city in such case made and provided.

"And it is further charged that the said John Weitzel on the fifteenth day of November, 1892, and on divers other days and times prior thereto, did haul and remove garbage and offal from hotels, dwelling houses, boarding houses, restaurant and tenement houses in the city of St. Louis without first having obtained a license from said city therefor, and did haul said garbage and offal for the purpose of being used as food for animals located within the limits of the city of St. Louis, and did haul said garbage and offal to rendering and converting establishments which are conducted in an offensive manner, injurious to the health of the citizens of St. Louis, and which are under condemnation by the board of health of the city of St. Louis, and which have not complied with all the provisions of the ordinances governing the establishment, erection and maintenance of rendering factories, contrary to the ordinances of the city of St. Louis in such cases made and provided.

"And it is further charged the said John Weitzel, on the fifteenth day of November, 1892, and on divers other days and times prior thereto, did use a cart, wagon or other vehicle, for the purpose of hauling garbage and offal from hotels, restaurants, boarding houses and dwelling houses, without having displayed on one side of the said cart, wagon or other vehicle, a metallic plate, having cast thereon, in raised letters, the words 'License to Remove Garbage,' and the figures indicating the number of the plate and the year for which the license is issued, contrary to the ordinance of the city of St. Louis in such cases made and provided.

"On information of L. Harrigan, chief of police of city of St. Louis."

A demurrer to this complaint was filed and overruled, defendant found guilty, and, on appeal to the court of criminal correction, the demurrer was refilled and again overruled.

On the trial of the cause on the merits in the court to which it was appealed, objections were taken to the ordinance mentioned, being read in evidence. These objections are embraced under thirteen general heads, besides a much larger number of subdivided heads, and their diversified ramifications cover nearly three printed pages, which it is unnecessary to set forth at length. These objections to the validity of the ordinance being overruled and the point saved, the ordinance was read in evidence.

In general terms, this ordinance requires that garbage and offal shall be removed and hauled through the streets of the city in water-tight carts, wagons or barrels only, and provision is made to prevent the spilling of the same along the streets and to render the hauling thereof through the city as inoffensive as possible.

Section 5 of the ordinance provides that no person shall haul or remove garbage from hotels, dwelling houses, boarding houses, restaurants or tenement houses, without first obtaining from the city collector a license to do so, and that any person engaged in hauling garbage, either under contract with the city or otherwise, shall pay an annual license of $ 20 in advance for each cart or wagon; that no license shall be issued by the collector unless the party applying therefor shall first file with the collector a certificate from the board of health or the chief sanitary officer, to the effect that said party has filed a statement in compliance with section 6 of the ordinance; that no person having a license shall haul garbage or offal to be fed to animals within the limits of the city; that no license shall be issued to haul garbage to any rendering or converting establishment which shall be conducted in an offensive manner, or which, at the time of making the application for the license, is under condemnation as a nuisance by the board of health, or which shall not have complied with all the provisions of the ordinances governing the establishment, erection and maintenance of rendering factories.

Section 6 of the ordinance provides as follows: "All persons, firms or corporations desiring to have their garbage or offal removed by persons other than the contractor, or any persons, firms or corporations desiring to haul or remove garbage or offal, shall file with the board of health or the chief sanitary officer an application, which application shall state at what point the garbage or offal is located; to what point within or without the limits of the city it is proposed to remove it; the number of carts and wagons proposed to be used, the location where the carts, barrels, wagons or tubs, are kept when not in use, and that said offal and garbage is not to be fed to animals within the limits of the city of St. Louis. On the filing of said application the chief sanitary officer shall furnish to said parties a certificate to be filed with the collector, the number of which certificate shall correspond with the number on the application."

Section 7 requires all wagons so employed to have displayed on one side thereof a metallic plate, having cast thereon in raised letters the words "licensed to remove garbage," and the figures indicating the number of the plate and year for which the license is issued, such plates to be furnished by the city register to the collector.

Cunningham, garbage inspector, testified that on November 15, 1892, he saw the defendant at Nagel's restaurant, southeast corner of Sixth and St. Charles streets, St. Louis, putting something in a barrel; that he called a police officer and with the officer went to the wagon and asked defendant if he had a garbage permit for hauling garbage, and he said no; that he examined the wagon and found on it two barrels of garbage under the front seat; that the barrels contained refuse from the kitchen -- meats, vegetables and bread.

Police officer Reis testified that he arrested the defendant for hauling garbage without a permit. The city then rested.

The defendant asked an instruction for acquittal, which the court refusing to give, defendant excepted.

Winter testified, that his business was that of rendering grease and tallow; that the defendant was his employee, engaged in driving a team for him, hauling garbage and offal from hotels and restaurants; that he had a contract by the month with Nagel for all the kitchen offal from his restaurant, also all garbage, offal and remnants from the tables, all meats, vegetables and bread.

Defendant's counsel then offered in evidence a receipt to Winter from the city collector showing that he had paid $ 15 as a license for three two-horse wagons for the year 1892. Witness further testified that he got all the garbage and kitchen offal in a sound condition every day, sometimes twice a day, just as it was deposited in barrels or receptacles for him; that he did not permit it to become putrid or offensive; that he took the garbage to his factory where he rendered it by means of boiling it in tight iron tanks into grease, and the residue he used for fertilizers by farmers and gardeners.

Defendant testified: "I was arrested by officer Reis, * * * I was hauling garbage for the Flynn and Winter rendering establishment from Nagel's restaurant. The garbage and offal that I was hauling was in sound and fresh condition; was in no way offensive and was taken away every day."

Defendant also offered in evidence sections 440 and 498, Revised Ordinances, 1887, which defined the meaning of garbage to include, "every accumulation of both animal and vegetable matter, liquid or otherwise, that attends the preparation, decay, and dealing in or storage of meats, fish, fowls, birds or vegetables," and all "kitchen offal and other refuse matter composed of either animal or vegetable substance."

Defendant thereupon asked the court to instruct for acquittal, which the court refusing to do, defendant excepted, was found guilty and fined $ 50 and costs, and appealed to this court.

Affirmed.

Louis A. Steber for appellant.

(1) The ordinance attempts to deprive a person of his property without due process of law, and solely on the whim, caprice and uncontrolled discretion of the board of health, chief sanitary officer or city collector. Const. Mo., art. 2, secs 20, 30. City v. Russell, 116 Mo. 248, and cases cited; City v. Hill, 116 Mo. 527; State v. Loomis, 115 Mo. 307; River Rend. Co. v. Behr, 77 Mo. 91; Lowry v....