California Reduction Co. v. Sanitary Reduction Works

• Decision Date: 03 October 1903
• Docket Number: 901.
• Parties: CALIFORNIA REDUCTION CO. et al. v. SANITARY REDUCTION WORKS OF SAN FRANCISCO.
• Court: U.S. Court of Appeals — Ninth Circuit

126 F. 29

CALIFORNIA REDUCTION CO. et al. v. SANITARY REDUCTION WORKS OF SAN FRANCISCO.

No. 901.

United States Court of Appeals, Ninth Circuit.

October 3, 1903

Page McCutchen, Knight & Harding, Garret W. McEnerney, and Black &amp Leaming, for appellants.

William M. Pierson and C. L. Tilden, for appellee.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge.

This is a suit in equity, brought by the Sanitary Reduction Works of San Francisco to obtain an in junction to prevent the California Reduction Company et al from removing any of the substances or materials named in the complaint, and to restrain them from infringing upon the exclusive rights and privileges of appellee, under certain orders, in the cremation of deleterious matters. The Sanitary Reduction Works is a California corporation engaged in the business of incinerating house refuse and garbage at San Francisco in a large crematory owned and operated by it. The California Reduction Company is a Colorado corporation, organized for the purpose of removing from the city and county of San Francisco by boats and barges house refuse and garbage for destruction and disposition outside the city and county of San Francisco. The other defendants, about 140 in number, are subjects of the King of Italy, and pursue the occupation of scavengers in San Francisco, and about half a dozen of them are shown to be householders in the city of San Francisco.

A preliminary injunction, in accordance with the prayer of the bill of complaint, was issued by the court May 25, 1899. The Sanitary Reduction Works of San Francisco v. The California Reduction Company et al. (C.C.) 94 F. 693. The cause came up for final hearing, and resulted in a decree perpetually enjoining and restraining the respondents (appellants herein), and all of them, 'from directly or indirectly removing from the city and county of San Francisco, state of California, any house refuse, butchers' offal, garbage, refuse, dirt, ashes, sludge, crockery, tins, cinders, bones, and other like matter, dead animals, putrid vegetable matter, or such fish, flesh, or food as may be condemned by the board of health of said city and county as unfit for human food, as specified in Order No.2,965 or in Order No.12 (Second Series) of the board of supervisors of the said city and county of San Francisco, state of California, set forth in the bill of complaint herein, and from depositing or dumping at any other place in said city and county of San Francisco, save and except at the works, buildings, and crematories of the complainant herein in said city of San Francisco, any of the house refuse or other materials hereinbefore described, during the life and term of the contract and franchise belonging to the complainant as alleged in the bill of complaint herein, and from obstructing, hindering, or in any way interfering with said complainant in the delivery of it, or in the incineration and cremation by it of any of the house refuse or other materials mentioned and described in said orders and ordinances and in the bill of complaint herein, and from diverting from the complainant any of said house refuse or other materials, and from infringing in any manner upon the rights, privileges, or franchises secured to said complainant by the aforesaid orders or ordinances, and from interfering with said complainant in the performance of any of its duties under said orders or ordinances. ' From this decree the appeal herein is taken.

The Constitution of California (article II, Sec. II) provides that:

'Any county, city, town, 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.' The Legislature of the state, by an act approved April 25, 1863, provided among other things, that:

'The board of supervisors of the city and county of San Francisco, shall have power, by regulation or order, * * * 2d. To authorize and direct the summary abatement of nuisances; 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 or regulate the running at large of dogs, and to authorize the destruction of the same when at large contrary to ordinance. ' St. 1863, p. 540, c. 352.

On March 23, 1893, the Legislature passed 'An act providing for the sale of railroad and other franchises in municipalities, and relative to granting of franchises,' by which it was provided, among other things, that 'every franchise or privilege to erect or lay telegraph or telephone wires, to construct or operate railroads along or upon any public street or highway, or to exercise any other privilege whatever hereafter proposed to be granted by the board of supervisors,' etc., should be granted upon the conditions in that act provided, and not otherwise. The act also provided for an advertisement of the fact that an application for such franchise or privilege has been made, asking for bids for the same, and providing for the award of the franchise or privilege to the highest bidder. St. 1893, p. 288, c. 204. On February 17, 1896, the board of supervisors sold to F. E. Sharon, his associates and assigns, under the provisions of the act of the Legislature just referred to, in consideration of $2,510, and the further payment of 2 per cent, for the term of 15 years and of 5 per cent, for the remaining term of 35 years of the gross amount of the receipts to be derived by said Sharon, his associates or assigns, the franchise and privilege to cremate garbage, house refuse, dead animals and putrid vegetable matter and material of a like character, in which franchise it was provided that the sole and exclusive right and privilege was thereby conferred upon and granted to F. E. Sharon, his associates and assigns, for the term of 50 years to cremate and destroy within the city and county aforesaid by crematories or by a process of reduction, house refuse, etc., as mentioned in the decree, and prohibiting the removal through the public streets, after the passage of the order, from any houses, hotels, markets, etc., any such matter unless conveyed in closed vehicles constructed so as to conceal the contents from public view, and to prevent any smell escaping therefrom, and to prevent the dropping of any such material or substance on the public streets; and further prohibiting any person or corporation from dumping or placing upon any land within said city and county or in any water or waterways within said city and county any of the matter aforesaid, except at the crematory of the grantee of the franchise; and further, that all such matter and substances should be cremated by the grantee of the franchise within 24 hours after its receipt of the same. The appellee, as the grantee of F. E. Sharon, under the provisions of Order No. 2,956, completed the construction of a large brick crematory, and fitted it for the purpose of cremating and destroying by fire all of the materials mentioned in that order, at a cost of about $180,000. it notified the board of supervisors of the completion of its plant, and of its readiness to receive, cremate, and destroy the substances mentioned in Order No.2,965. The board of supervisors passed an order known as 'Order No. 12 (Second Series), ' which, after reciting several facts which led up to the passage of Order No. 2,965, passed February 17, 1896, provided that no person, company, or corporation should, after the 8th of November, 1897, deposit, dump, or cause to be dumped or deposited upon any lot or land within the city and county, excepting at the crematory of the Sanitary Reduction Works, any of the garbage, refuse matter, etc., referred to in said order, and further provided a fine and imprisonment for any violation of the provisions of the order.

The contention of appellants is, in substance, to the effect that the appellee's exclusive privilege of incinerating house refuse and garbage in San Francisco is invalid. (1) That the right or privilege claimed by the complainant could only be granted, if at all, under the police power of the municipality; (2) that Order No. 2,965 was never signed by the mayor of the city and county of San Francisco, and was therefore never lawfully enacted; (3) that the act of March 23, 1893 (St. Cal. 1893, p. 288, c. 204), has no application to this case for the reason that the right and privilege claimed is in no sense a franchise; (4) that, if the right and privilege claimed by the complainant be a franchise there is no authority of law for the granting of such a franchise by the city and county of San Francisco; (5) that the act of March 23, 1893, confers no authority to grant franchises, that it was intended to limit the power to grant franchises which had been given by laws previously passed; (6) that there is no authority of law for the granting of an exclusive franchise; (7) that there is no authority of law for the imposition of the compulsory payment of 20 cents a cubic yard upon the householders of the city and county of San Francisco; (8) that the grant was invalid under article I, Sec. 21, of the Constitution of California, which provides that no citizen or class of citizens shall 'be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens'; (9) that, if the privilege claimed by appellants is authorized by the act of March 23, 1893, the grant thereof is void for the reason that it never received the approval of the mayor, as required by section 68 of the so-called 'Conso...