Harper v. Richardson

• Decision Date: 27 June 1927
• Docket Number: No. 16068.,16068.
• Citation: 297 S.W. 141
• Parties: HARPER et al. v. RICHARDSON.
• Court: Missouri Court of Appeals

297 S.W. 141

HARPER et al. v. RICHARDSON.

No. 16068.

Kansas City Court of Appeals, Missouri.

June 27, 1927.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Suit by F. H. Harper and others against Moses Richardson. Decree for defendant, and plaintiffs appeal. Affirmed.

Shultz & Owen, of St. Joseph, for appellants.

Phil Slattery, of St. Joseph, for respondent.

ARNOLD, J.

This is a suit in equity, seeking an injunction to restrain defendant from collecting and disposing of garbage in the city of St. Joseph, Mo. The suit was submitted to the court, sitting as a chancellor, upon an agreed statement of facts, embracing the following:

That by virtue of special Ordinance No. 8871, approved October 13, 1922, as set out in plaintiffs' petition, by exhibit, plaintiffs entered into a contract with the city of St. Joseph for the exclusive right to collect and dispose of all garbage of the city of St. Joseph; that plaintiffs have complied with all the terms and conditions of said ordinance, and have expended large sums of money, and are continuing to expend the same, in preparing for and carrying out said contract; that plaintiffs have refused to remove garbage from certain premises where there has been a refusal to separate same from refuse matter, as provided by section 8 of said ordinance, and after the plaintiffs, pursuant to said ordinance, had notified such persons to separate the same; that plaintiffs have refused to remove garbage from certain premises where there has been a refusal by householders, tenants, and occupants of premises to pay monthly, in advance, the compensation due plaintiffs, as provided by section 24 of the said ordinance, and where said persons had failed and refused to pay such compensation for a period of 15 days after such monthly payments had become due; and that plaintiffs notified the board of health of such default, as required by section 24 of said ordinance, and that plaintiffs at all times have held themselves out as willing, ready, and able to remove said garbage from all premises within said city, but that plaintiffs did not personally solicit all householders, tenants, or occupants of premises to permit them to remove the same; that defendant has, at all times mentioned herein, removed and disposed of garbage from such premises as plaintiffs had refused to remove and dispose of, by reason of a failure to separate the garbage from the refuse matter, as required by section 8 of said ordinance and also from such premises where plaintiffs had refused to remove and dispose of garbage for nonpayment of compensation as provided by section 24 of said ordinance; that defendant, at all times herein, removed and disposed of garbage from certain premises which plaintiff had never removed, or offered to remove, or requested the owners of said garbage to permit them to remove; that special Ordinance No. 8871 was not recommended to the common council by either the board of public works or the park board of said city before its passage; that it was otherwise duly enacted and approved by the mayor; that sections 1827, 1834, 1837, and 1840 of the Revised Ordinances of the city of St. Joseph, Mo., for the year 1923, and which are fully set out in defendant's answer, were in full force and effect at all times herein; and that the contract for the removal of said garbage as provided for in said Ordinance 8871 was not submitted to competitive bids.

The petition set out the formal matters embraced within the terms of the agreed stipulation of facts, and alleges that on October 13, 1922, the city of St. Joseph, by special Ordinance 8871, granted to one Frank W. Beach, his successors, associates, or assigns, either as individuals or as a body corporate, for a period of ten years from and after the passage of said ordinance, the exclusive right said franchise was by the bankruptcy court, through the trustee in bankruptcy, sold to plaintiffs herein; admits that plaintiffs have complied with all the terms of said ordinance, that defendant has been engaged in hauling and disposing of garbage at all times as alleged in the petition.

As affirmative answer, defendant alleges special Ordinance No. 8871 is void (1) because in conflict with section 7924, R. S. Mo. 1919, and the charter of the city of St. Joseph, for the reason that the exclusive control of the streets, alleys, public buildings, and properties of the said city are vested in the board of public works; (2) that section 1 of the said ordinance is illegal, null, and void because in conflict with section 7929, R. S. Mo. 1919, in that under said section the board of public works shall supervise the cleaning of streets, avenues, alleys, and other public places; (3) because said special Ordinance No. 8871 is void for the reason it is in conflict with section 7937, R. S. Mo. 1919, in that said special ordinance was not submitted by the board of public works to the common council for passage; (4) because section 7811, R. S. 1919, gives the park board the exclusive control over the cleaning of said streets, avenues, boulevards, and parkways, and also by section 7837, R. S. 1919, the park board is given control over the removal of refuse matter situated on any properties under their control, and therefore, the council, in passing said special ordinance, did so in violation of said statute; (5) that the said special ordinance is in conflict with section 7962, R. S. 1919, and of the city charter, which provides that in all city improvements of every kind or character, including the cleaning of streets, the contract therefor must be let to the lowest and best bidder, which was not done in this case; (6) that the said ordinance is void because in conflict with article 2, § 30, of the Constitution of Missouri, wherein it is provided that no person shall be deprived of life, liberty, or property without due process of law, and said ordinance also violates sections 20 and 21 of article 2 of the Constitution; (7) that paragraph 2 of section 3, entitled "Refuse Matter," is void, for the reason that the acts enumerated therein do not constitute nuisances and are not dangerous to the public health; (8) that section 8 is void because it is arbitrary and oppressive in its provisions and is not necessary for the protection of the public welfare of the city of St. Joseph; (9) that section 24 thereof is void for the reason privilege, and franchise to collect, haul, and dispose of all garbage and refuse matter, of every kind and description, accumulating in the streets, alleys, and public places of said city, and from all public and private premises therein; that said exclusive right includes the right to collect, haul, and dispose of all waste and residue from all food, and food products, both animal and vegetable, collected from public and private dining rooms and kitchens and waste or residue from preparing, dealing in, or in storing meats, fruits, and vegetables or grain products and all sweepins, spittoon cleanings, papers, feathers, rags, glass, dishes, bottles, crockery, pans, ashes, pasteboard boxes, lye, poison, food containers, oyster and clam shells, and all other waste matter and rubbish not suitable for use as food for animals; that on November 19, 1923, said Frank W. Beach, in writing, duly assigned, sold, and conveyed all his rights and privileges as such grantee, under said ordinance, to the St. Joseph Garbage Disposal Company, a corporation; that afterwards said garbage disposal company, a corporation, became bankrupt, and all its rights in and to said franchise were, by the bankruptcy court, through the trustee in bankruptcy, sold to the plaintiffs herein; that plaintiffs have complied with all the terms of said ordinance; that no other person, since the passage and approval of said ordinance, has any right to collect, haul, or dispose of garbage and refuse matter in said city; that, notwithstanding the exclusive right conferred upon the plaintiffs herein, defendant has been, since the passage and approval of said ordinance, and is now, engaged in the collecting, hauling, and disposal of the garbage and refuse matter mentioned, in violation of said ordinance and franchise and plaintiffs' rights thereunder. Plaintiffs further state they have no adequate remedy at law.

The said special Ordinance No. 8871 is, by exhibit, made a part of the petition.

Injunction is sought permanently to restrain defendant, his agents, servants, and employees from collecting, hauling, and disposing of garbage or other refuse matter from any households, residences, hotels, restaurants, apartment houses, boarding houses, hospitals, sanitariums, grocery stores, meat markets, and places of business in said city of St. Joseph, Mo., and for such other and further relief as to the court may seem proper.

The answer admits plaintiffs were partners as alleged; that special Ordinance No. 8871 referred to in the petition was passed on October 13, 1922, granting Frank W. Beach, his successors and assigns, for a period of ten years, the exclusive right to collect and dispose of all garbage in the city of St. Joseph, as alleged in the petition, that the same was duly assigned by said Beach to the St. Joseph Garbage Disposal Company, and that said disposal company became bankrupt, and that said franchise was by the bankruptcy court, through the trustee in bankruptcy, sold to plaintiffs herein; admits that plaintiffs have complied with all the terms of said ordinance, that defendant has been engaged in hauling and disposing of garbage at all times as alleged in the petition.

As affirmative answer, defendant alleges special Ordinance No. 8871 is void (1) because in conflict with section 7924, R. S. Mo. 1919, and the charter of the city of St. Joseph, for the reason that the exclusive control of the streets, alleys, public buildings, and properties of the said city are vested in the board of public works; (2) that section 1 of the said ordinance is illegal, null,...