State v. Robb

Decision Date14 April 1905
PartiesSTATE v. ROBB.
CourtMaine Supreme Court

William P. Robb was charged with violating an ordinance of the city of Portland. On agreed statement. Judgment for the state.

This was a complaint made on the 9th of September, 1903, by the city marshal of Portland against William F. Robb, of South Portland, Cumberland county, Me., alleging that he did on the 9th day of September, A. D. 1903, at Portland, in said county, 'unlawfully go about collecting certain house offal, consisting of animal and vegetable substances; the said Robb not being then and there duly authorized and appointed thereto according to law, nor then and there the deputy of any person so authorized and appointed as aforesaid." On said complaint respondent was arrested and brought before the municipal court for the city of Portland on the 11th of September, 1903. A hearing on the complaint was waived, and respondent pleaded not guilty, and appealed to the superior court. The case was submitted to the law court on an annexed agreed statement of facts. If, according to this statement, respondent has violated the city ordinances, and if the city ordinances are constitutional, then respondent shall be adjudged guilty, otherwise not guilty.

The question also submitted is, "What is house offal?"

Argued before WISWBLL, C. J., and WHITEHOUSE, STROUT, SAVAGE, PEABODY, and SPEAR, JJ.

Robert Treat Whitehouse, Co. Atty., for the State. Dennis A. Meaher, for defendant.

SAVAGE, J. Complaint for violation of section 17 of an ordinance of the city of Portland. The ordinance in question provided that:

"Sec. 14. All house offal, whether consisting of animal or vegetable substances, shall be deposited in convenient vessels, and be kept in some convenient place, to be taken away by such person or persons as shall be appointed by the sanitary committee for that purpose.

"Sec. 15. All persons shall promptly deliver the offal so accumulated on their premises to the person appointed as aforesaid to receive the same. And if any person shall neglect to provide suitable vessels for the deposit of house offal, or shall in any way hinder or delay the person so appointed to receive it, in the performance of his duty aforesaid, he shall forfeit and pay a sum not less than two nor more than twenty dollars for each and every offense.

"Sec. 16. The collection of house and fish offal, and the disposal of the same, and the cleansing of street culverts and catch-basins, shall be under the charge of a committee consisting of three members of the board of mayor and aldermen, to be known as the sanitary committee; but all matters relating to privy vaults and the collection and disposal of night soil shall be under the direction of the board of health.

"Sec. 17. No person shall go about collecting any house offal, consisting of animal or vegetable substances, or carry the same through any of the streets, lanes or courts of the city, except the person appointed as aforesaid, or his deputy, under a penalty of not less than two nor more than twenty dollars for each and every offense."

The case comes up upon an agreed statement of facts which shows that the respondent "at the time of the complaint was proprietor of the Chadwick House and part of the Chase House, in said Portland, and daily removed therefrom, and on the day alleged in said complaint did remove therefrom, to his home, in South Portland, the refuse food and discarded victuals. He prepared himself with proper vessels and made proper sanitary arrangements, so that in removing the same to his home there was no occasion to complain against the manner in which the removing was made or the services rendered. He was the keeper of many hogs in South Portland—probably thirty hogs—and a flock of hens, for which he carried the so-called swill or offal. He gathered swill also from the Dairy Lunch in Portland and from the Columbia, and, on an average, would remove four barrels in a day. All the work was done in a workmanlike manner. The swill consisted of refuse from the table, including bread, meat, vegetables, and broken victuals—none in any decayed condition. He had been engaged in this business during about four years prior to the complaint, and was conducting said business on the day alleged therein, and prior to the time of this complaint he made application to the board of health or sanitary committee for a license to remove the offal, and also made application to the city government of the city of Portland; stating in the petition that the business was done in a workmanlike manner and subject to sanitary rules. No license was granted him. The offal was probably worth $8 a month. Mr. Robb paid $05 a year for the offal of the Columbia, and $35 for the offal of the Dairy Lunch. Mr. Robb has men working for him, who attended to the details of the work. The offal was removed in covered barrels, placed on wagons, and hauled out of the city. No scatterings were allowed on the road. The removal was made daily, and in the summer time often twice a day. The offal was used in feeding the hogs and hens, and was all used up on Mr. Robb's home place. The removal was generally in a covered cart.

"Respondent has never consented to allow any other person than the one in his employ to enter his premises for the removal of house offal, and those from whom he received house offal, so called, forbade others gathering house offal on their premises.

"It is further agreed that a sanitary committee for the city of Portland was duly appointed and constituted as provided by section 16 of the city ordinances, hereinbefore set forth, and that the said William F. Robb was not, on the day when said offense was alleged in said complaint to have been committed, the person appointed by said sanitary committee for the purpose of taking away house offal, and never has been appointed or authorized so to do by said committee; and that he was not the agent or deputy of any person so authorized and appointed as aforesaid, but that one Samuel D. Plummer was on the 5th day of June, 1903, duly appointed and authorized as the person to take away house offal as provided for in sections 14 and 15 of the city ordinances of Portland, hereinafter set forth, and has ever since held that position." It is stipulated that "if, according to this statement, the respondent has violated the city ordinances, and if the city ordinances are constitutional, then respondent shall be adjudged guilty; otherwise not guilty."

1. Upon the first proposition there can be no difficulty. The ordinance prohibits all persons, except the regularly appointed scavenger, from going about collecting or from carrying through the streets any house offal, consisting of animal or vegetable sub stances. The respondent admits that he re moved from certain buildings or hotels in Portland, of which he was proprietor, the refuse food and discarded victuals, and carried them to South Portland; also that he collected swill from the Dairy Lunch and the Columbia Hotel, in Portland, and re moved it to South Portland; and that the swill consisted of refuse from the table, including bread, meat, vegetables, and broken victuals, though none were in a decayed condition. These articles as described come within any proper definition of "house offal." The respondent, in the agreed statement, which was apparently prepared by his counsel, denominates them as offal. "Offal" is defined in the Century Dictionary as "that which is suffered to fall off as of little value or use; waste meat; waste or refuse of any kind"; in the Standard Dictionary, as "that which falls off, as fragments or leavings, regarded as of trifling value"; and in 21 Am. & Eng. Eucyclopædia of Law, 830, as "waste meat; carrion; refuse; that which is thrown away as of no value, or fit only for beasts." Surely, under these definitions, refuse food from the table, and discarded victuals, and swill consisting of refuse from the table, are house offal. And the respondent, not being the appointed scavenger, thus violated the ordinance in question.

2. But the respondent contends that these ordinances are unconstitutional, in that they are in restraint of trade, they create a monopoly, and they constitute an unwarrantable interference with the rights of the owners of private property.

The state, on the other hand, says that they are a proper exercise of the police power of the state, as delegated by statute to the city of Portland. The Constitution of the state (article 4, pt. 3, § 1) provides that the Legislature shall have full power to make and establish all reasonable laws and regulations for the defense and benefit of the people of this state. The Legislature, in Rev. St. c. 4, § 93, cl. 3, has provided that towns, cities, and village corporations may make and enforce ordinances "respecting infectious diseases and health." And it is not contended here but that under this statutory authority the city of Portland had the power to enact reasonable rules and regulations for the government of persons and property within its limits, so far as necessary to promote health and prevent disease. This right is generally based upon what is called the "police power of the state." The warrant of the state to legislate upon the subject of health, and of the various municipal subdivisions of the state to act under the authority of the state upon the same subject, is found, under the terms of the Constitution, in that police power, or sovereign right of the state to provide for the safety, protection, health, comfort, morals, and general welfare of the public. A much quoted definition of this power is that found in Com. v. Alger, 7 Cush. 85, where Chief Justice Shaw said: "The power we allude to is, rather, the police power—the power vested in the Legislature by the Constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not...

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