City of Rochester v. Gutberlett

• Decision Date: 12 May 1914
• Citation: 105 N.E. 548,211 N.Y. 309
• Parties: CITY OF ROCHESTER v. GUTBERLETT.
• Court: New York Court of Appeals Court of Appeals

211 N.Y. 309

105 N.E. 548

CITY OF ROCHESTER

v.GUTBERLETT.

Court of Appeals of New York.

May 12, 1914.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Suit by the City of Rochester against Edward C. Gutberlett for a permanent injunction restraining defendant's collection of garbage without a license. A decree was directed for complainant (73 Misc. Rep. 607,133 N. Y. Supp. 541) and affirmed by the Appellate Division (151 App. Div. 900,135 N. Y. Supp. 1104), from which defendant appeals. Affirmed.

See, also, 152 App. Div. 956,137 N. Y. Supp. 1114.

Percival D. Oviatt, of Rochester, for appellant.

John M. Stull, of Rochester, for respondent.

CHASE, J.

The charter of the plaintiff, a municipal corporation, provides generally and expressly for the enactment of ordinances to preserve the health, safety, and welfare of its inhabitants, and for such other purposes as the interests of the municipality and its citizens require. Charter City of Rochester, L. 1907, c. 755, § 85.

It also provides:

‘The board of contract and supply is authorized to let contracts for periods exceeding one year and providing for the payment of specified annual amounts thereon, for the collection, removal and disposal of ashes, garbage and dead animals, for the cleaning and sweeping of streets. * * *’ Charter City of Rochester, § 235.

It also provides:

‘The city of Rochester may maintain actions in courts of record of competent jurisdiction to restrain violations of penal and other ordinances of the common council.’ Charter City of Rochester, § 126.

In 1907 said city duly enacted an ordinance, the material part of which is as follows:

‘No person shall collect or carry on the business of scavenger, collector of garbage, bones or kitchen refuse * * * without a license from the bureau (bureau of health), but no license for the collectionof garbage, dead animals, bones or kitchen refuse shall hereafter be issued except to the person or persons, firm or corporation having a contract with the city for the collection of garbage therein. * * * The bureau of health is hereby directed to revoke and cancel all licenses heretofore issued and unexpired for the collection of garbage within the city, except the license issued to the Genesee Reduction Company, the city garbage contractor.’

This action was brought April 14, 1909, to enjoin the defendant from violating such ordinance. Prior to 1907 said city had an ordinance relating to the collection of garbage by which licenses to collect garbage were issued to a number of persons including the defendant. On the 12th of December, 1906, the plaintiff entered into a contract with certain persons doing business under the name of Genesee Reduction Company for the collection and removal of garbage and dead animals in said city for five years from January 1, 1907, and for the disposal of such garbage and dead animals in a plant without the corporate limits of the city for which it agreed to pay said company the sum of $70,000 per year. The license theretofore existing to the defendant was canceled. The court in this action found, among other things, as follows:

‘Third. That the defendant is a farmer living just outside of the city of Rochester in the town of Gates, Monroe county, N. Y., and is engaged in raising hogs. That in pursuance of this business he purchased from a number of the clubs, restaurants, and larger hotels within the city, such portions of food as had been rejected for human consumption, consisting generally of bread crumbs and scraps, meat scraps, orange peel, banana skins, chicken bones, potato scraps and peelings, cabbage leaves, egg shells, onions, and carrot trimmings, and other similar materials. That such materials so purchased by the defendant consisted in part of food refuse and trimmingsunsuitable for human consumption and rejected in the preparation of food for the table; and some consisted of scraps of food which had been actually served, remained uneaten, and scraped from plates into the cans provided in such hotels and restaurants for food stuffs so rejected.

‘Fourth. That the defendant from time to time, and usually several times a week, sent his wagons into the city, where they proceeded from place to place to the several hotels, clubs, and restaurants with the proprietors of which he had contracted for such materials, where such materials were collected and transported to the defendant's farm for use in feeding hogs. * * * That the materials so collected by the defendant from such hotels and restaurants were commonly mingled in the cans in which they were placed awaiting collection by the defendant, and were unfit for human consumption. That such materials were commonly of a kind and character calculated to undergo rapid fermentation and decomposition at ordinary temperatures, and required frequent, regular collections and careful handling and disposition in order to avoid the development in such materials of physical and chemical conditions that would make such materials a menace to the health and safety of people in the vicinity where they were kept or taken.

‘Fifth. That the defendant had been continuously collecting such materials from such hotels and restaurants in the manner above stated for a period of more than six months prior to the commencement of this action, during all of which period he had no license for the collection of garbage, bones, and kitchen refuse within the city as required by said ordinance. That defendant was notified on a number of occasions, prior to the commencement of this action, by the police officers of the city of Rochester that he was violating the provisions of the health ordinance by making such collections without a license, and was, on a number of occasions prior to the commencementof this action, directed by said police officers to stop the making of such collections; and said defendant failed and refused to comply with such directions.’

The findings show that the defendant is continuously and willfully disobeying the ordinance. A large part of the specific things collected by the defendant consists of bones and table refuse. To that extent the things collected are within the express language of the ordinance. The defendant, who speaks with knowledge and experience, recognizes all of the specific things collected by him as garbage, as appears from his testimony, in which he says:

‘I have been engaged in the collection of garbage for ten years and was one of the private collectors in the city who procured a license under the old system when licenses were issued to a number of private collectors.’

[1] Property rights cannot be lawfully invaded under the pretense of protecting the public health. If, however, a municipality provides that garbage, bones, and kitchen refuse which are or may be reasonably expected to become a nuisance and a menace to public health, if not promptly collected and removed in a sanitary manner, shall be collected and removed at specified times and in a particular manner and by a particular contractor, it is not necessarily unconstitutional even if private rights are thereby incidentally invaded. Such supervision, when reasonable, is not only lawful but an affirmative duty imposed upon municipalities. An ordinance affecting personal rights must be a reasonable regulation, in good faith designed to accomplish the general public good for which its adoption is authorized.

It is conceded that garbage, bones, and kitchen refuse, particularly when mingled in a common receptacle, will ferment and decompose at ordinary temperatures, within a comparatively short time, and that when so fermented and decomposed they constitute a menace to public health. Because they are a menace to public health, they are subject to the control of the municipality in which they are situated. It is for the municipality, within reasonable bounds, to determine how they shall be collected and removed, or rendered harmless. Where it appears that the officers of a municipality act in good faith and in a reasonable manner, in enacting ordinances to preserve the public health, their action should be upheld by the courts even if its result is somewhat arbitrary in particular cases.

[2] The validity of a statute or ordinance is not to be determined from its effect in a particular case, but upon its general purpose and its efficiency to effect that end. W...