Alpers v. City and County of San Francisco
| Decision Date | 05 September 1887 |
| Citation | 32 F. 503 |
| Court | U.S. District Court — Northern District of California |
| Parties | ALPERS v. CITY AND COUNTY OF SAN FRANCISCO and another. |
The plaintiff has filed a bill against the city and county of San Francisco, its mayor, supervisors, and pound-keeper, to prevent any obstruction by them to the execution of a contract between him and the city and county, known as the Dead-Animal Contract. ' And he applies for a provisional injunction against the municipality to restrain the passage of any resolution, order, or ordinance, which will impair the obligation of that contract. The injunction is asked upon the bill and affidavits, and their allegations not being controverted, are, for the purposes of this application, to be taken as true. It appears by them that in April 1866, the board of supervisors made a contract with one G. Wetzler, for the removal from the city limits, at his own cost and expense, for a period of 20 years, of all dead animals not slain for human food, to some place where they should be disposed of in a manner so as not at an y time to become a nuisance,-- the manner to be at all times subject to the sanitary regulations and control of the supervisors, and the removal to be made in every instance immediately upon receiving notice of the existence of the dead animals.
In consideration of the removal, the city and county agreed that Wetzler should have the exclusive right of removing all the dead animals for the period designated; such exclusive privilege to be secured by a proper ordinance requiring notice to be given to him in every case of the death of the animal; and Wetzler, on his part, agreed to keep an office or place of business in some central location, where notices might be given of the existence of any dead animal. If the contractor should fail or neglect to perform the terms of the contract, its privileges were to be forfeited, and he was to pay to the city five hundred dollars ($500) as liquidated damages. The supervisors passed the necessary ordinance to give effect to the contract; and it was ratified and confirmed by a special act of the legislature. Statutes of 1875-76, p. 866.
By various mesne assignments, the contract was transferred to the complainant. In 1882, before the expiration of the 20 years, it was renewed and extended for another similar period, and in December of that year, and also in November 1884, resolutions were adopted by the supervisors giving full effect to the renewed contract, and requiring of the contractor a bond, with sureties, in the sum of one thousand dollars, ($1,000,) for the faithful performance of all its stipulations. Among the provisions of the resolutions was one making it the duty of the keeper of the public pound to notify the plaintiff or his assigns to remove the animals destroyed by him, and of all health and police officers to give notice of the death of animals which were to be removed.
The bill alleges that the plaintiff accepted the resolutions adopted, executed the bond required, and entered upon the performance of the duties under the contract, and that he and his assignors have expended twenty-five thousand dollars ($25,000) in buying lands, erecting buildings, and in purchasing horses, wagons, carts, and necessary machinery for carrying out the contract, and have fully performed all its conditions. The carcasses of the animals were utilized by the plaintiff in many ways. Leather was made from the hides and various articles from the bones, fat, and flesh; and it is alleged that in the prosecution of the business expensive and peculiar kinds of machinery are required, and employes expressly trained for it.
Notwithstanding the contract thus made, and the interest in it held by the plaintiff, the bill alleges that, on the seventh of February of the present year, a resolution was passed by the board of supervisors, directing its clerk to advertise for proposals from parties desirous of obtaining, for a period of two years, the carcasses of dogs and other animals killed by the pound-keeper, pursuant to the order of the board, and repealing 'all orders or resolutions, or parts of orders or resolutions, providing for the disposal of the carcasses of dead animals, and in conflict with the provisions of this resolution. ' Thereafter, pursuant to the resolution the supervisors caused an advertisement to be made 'for proposals for purchase of the carcasses of dogs and other animals killed by the pound-keeper;' and the bill alleges that, unless restrained, the board will carry out the action indicated by the resolution and advertisement, and will accept some of the proposals made, and award to the highest bidder the exclusive privilege for the period of two years, of obtaining and removing all the carcasses of animals thus killed; that the board has the physical power and instrumentalities to carry out its action; that the plaintiff will thereby be deprived of such carcasses for that period, and be subjected to great and irreparable injury; and that such action will be subjected to great and irreparable injury; and that such action will impair the obligation of his contract, and deprive him of his property without due process of law, contrary to the constitution of the United States. The plaintiff therefore prays that the board of supervisors may be enjoined from carrying out its intended action, and from passing any resolution, order, or ordinance, depriving him, or attempting to deprive him, or his assigns, of the privilege of removing the dead animals mentioned, during the period in his contract.
The bill also alleges that, since the first of January, 1857, the board of supervisors has authorized the pound-keeper, Jacob Lindo, to disregard, and in pursuance of such authority he has disregarded, the contract of the plaintiff with the city, giving him the exclusive privilege of having and removing the carcasses of dogs and other animals destroyed by the pound-keeper, and has refused to deliver the same or any part of them to him; but on the contrary, has delivered a large number, namely, about 400 dogs, to the defendant William P. Lambert, one of the supervisors, who has received and converted them to his own use. The plaintiff therefore prays that the city pound-keeper may be enjoined from delivering, or causing to be delivered, to any other person than the plaintiff or his assigns, such carcasses, during the period the contract has to run.
Langhorne & Miller, for plaintiff.
M. C. Hassett, for defendants.
FIELD, Circuit Justice, (after stating the facts as above.)
There is no doubt that the contract between the plaintiff and the city and county of San Francisco is one within the competency of the municipality to make. It is within the power of all such bodies to provide for the health of their inhabitants by causing the removal from their limits of all dead animals not slain for human food, which otherwise would soon decay, and, by corrupting the air, engender disease. And provisions for such removal may be made by contract, as well as the performance of any other duty touching the health and comfort of the city; its authorities always preserving such control over the matter as to secure an observance of proper sanitary regulations. In addition to this general power, the constitution of the state of California which was in force when the contract with the plaintiff was renewed, declares that 'any county, city, 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. ' Article 11, Sec. 11. And the consolidation act of 1863, still in force, provides that the board of supervisors shall have power 'to authorize the summary abatement of nuisance; to make all regulations which may be necessary or expedient for the preservation of the public health, and the prevention of contagious diseases; to provide by regulation for the prevention and summary removal of all nuisances and obstructions in the streets, alleys, highways, and public grounds of said city and county, and to prevent the running at large of dogs, and to authorize the destruction of the same when at large, contrary to ordinance.'
The contract in question does not appear to be open to any serious objection; none is alleged against its provisions. It imposes no burden upon the municipality. The removal of the dead animals is to be made without any expense to it. The compensation of the party making the removal is found in the uses to which the animals are or may be put. Their hides are converted into leather, from some of which, shoes, from others, gloves are made. Of their bones, buttons or handles for knives may be manufactured; from their flesh and fat various oils may be distilled for use in the arts. And in case of horned animals, glue from their hoofs and combs from their...
To continue reading
Request your trial
-
State ex rel. Stephan v. Kansas House of Representatives
...of its clearly imposed constitutional duty or is the enactment of an unconstitutional law. See, e.g., Alpers v. City and County of San Francisco, 32 F. 503, 507 (N.D.Cal.1887); 16 Am.Jur.2d, Constitutional Law §§ 144, 315, 316. However, as the petitioner points out, this action does not see......
-
Southern Pac. Co. v. Bartine
...'Legislative discretion, whether rightfully or wrongfully exercised, is not subject to interference by the judiciary. ' Alpers v. San Francisco (C.C.) 32 F. 503; R.R. Com. v. People (Colo.) 98 P. 7, 12; Glide v. Superior Court, 147 Cal. 21, 81 P. 225, 226. The evidence introduced in behalf ......
-
Texas Co. v. Central Fuel Oil Co.
...Tel. Co. v. Union Pacific Ry. Co. (C.C.) 3 Fed. 423; Chicago & Alton Ry. Co. v. N.Y.L.E. & W.R.R. Co. (C.C.) 24 F. 516; Alpers v. San Francisco (C.C.) 32 F. 503; Brush-Swan Co. v. Brush El. Co. (C.C.) 41 F. Colgate v. James T. White & Co. (C.C.) 180 F. 882; Standard Fashion Co. v. Siegel-Co......
-
Common Cause of Pennsylvania v. Pennsylvania, Civil Action No. 1:05-CV-2036.
...declined to interfere prospectively with the exercise of legislative power by the United States Congress."); Alpers v. San Francisco, 32 F. 503 (N.D.Cal.1887) ("The same exemption from judicial interference applies to all legislative bodies, so far as their legislative discretion extends. .......