City of Louisville v. Weible

• Decision Date: 30 September 1886
• Citation: 1 S.W. 605,84 Ky. 290
• Parties: CITY OF LOUISVILLE v. WEIBLE and another. WEIBLE and another v. STRUSS and others.
• Court: Kentucky Court of Appeals

1 S.W. 605

84 Ky. 290

CITY OF LOUISVILLE v. WEIBLE and another.

WEIBLE and another v. STRUSS and others.

Court of Appeals of Kentucky.

September 30, 1886

Appeal from Louisville Chancery Court.

BENNETT J.

By agreement, these two appeals--the first from the Louisville chancery court, and the second from the Louisville law and equity court --are to be heard together. We will dispose of them by one opinion, in the order in which they stand.

The appellees allege, in their petition, that on the twenty-second of November, 1883, they made a contract in writing with the appellant the city of Louisville, by which appellees agreed to promptly remove from the streets, public and private places, and commons and uninclosed lots, in said city, the carcasses of all dead animals, free of cost expense, or liability whatever of said city, or the owners of such animals, and properly inter them on their own premises before creating a nuisance, and to save harmless the city from any liability on account of any nuisance; in consideration whereof the city granted to appellees the exclusive right to the use of its public streets, and to remove the carcasses of all dead animals from the public and private streets, alleys, public places, and commons of said city, for the term of one year, with the privilege to appellees to continue said contract for five years; that by equipping themselves, at large expense, with horses, wagons and machinery, they have complied with the terms of said contract to the letter; that at the expiration of the first year of their term they availed themselves of the privilege granted to them in said contract, and renewed it with the city for five years; that, before the expiration of their contract with the city, it, in disregard of appellees' right under said contract, proposed to let out and sell to the highest bidder the privileges of appellees under said contract, etc. They asked for, and obtained, an injunction restraining appellant from letting or selling said privilege to the highest bidder, etc. The appellant filed a motion in the lower court to dissolve the injunction; also a demurrer to the petition; and, both having been overruled by the court, and appellant declining to plead further, the injunction was perpetuated; from which judgment the appellant appeals to this court.

It is contended in behalf of appellant that, as the removal of dead animal carcasses from the city, and the disposal of them, is one of the police powers of the city necessary to be exercised at all times to preserve the public health comfort, and cleanliness of the city, she has no legal power to limit or surrender its control, by contract, over that subject, or kindred ones, beyond her recall at pleasure. The state has never surrendered its power-- sometimes called its "police power," but more properly its sovereign power--by which it controls, through its municipalities and other agencies, within certain limits everything within its territorial limits relating to the welfare of its people. In the exercise of that power, it creates and controls educational and charitable institutions, and provides for the establishment of public highways, canals, wharves, ferries; and also the public health, public morals, and public safety, and almost numberless other things. These powers she has and exercises in absolute right, except as limited by the federal constitution, or by her own fundamental law. She may also, in the exercise of her powers, grant "exclusive separate public privileges in consideration of public services." She may also grant special or private privileges to certain individuals, provided the rights of others are not...