National Fertilizer Co. v. Lambert

• Decision Date: 07 December 1891
• Court: U.S. District Court — Northern District of California
• Parties: NATIONAL FERTILIZER CO. v. LAMBERT et al.

48 F. 458

NATIONAL FERTILIZER CO. v. LAMBERT et al.

United States Circuit Court, N.D. California.

December 7, 1891

Langhorne & Miller, for complainant.

R. C Harrison and Lloyd & Wood, for respondents.

HAWLEY J., (orally.)

This is a suit in equity to restrain respondents from infringing upon the exclusive rights and privileges of complainant under what is commonly known and designated as the 'dead animal contract.' The board of supervisors of the city and county of San Francisco, on December 11, 1882, passed the following resolution, viz.:

'Resolved that for the period of twenty years from and after the 1st day of December, A.D. 1882, Charles Alpers, the assignee of Gustav Wetzlar of the contract with the city and county for the removal of dead animals from the city limits, bearing date May 29, 1866, or the assigns of said Alpers, shall have and enjoy the exclusive right and privilege of removing from the city limits all carcasses of such dead animals, not slain for human food, as shall not be removed and so disposed of as not in any manner to become a nuisance, within twelve hours next after the death of the same, by the owner thereof, or the person in whose possession such animal may be at the time of its death, or by the immediate servant or employe of such owner or person.

'Resolved, that for the purposes hereof the said Charles Alpers or his assigns shall keep up and maintain order boxes for the receipt of notices for the removal of such carcasses of dead animals in conspicuous places at the new city hall and health office, in said city and county; and the same shall be labeled, 'Orders for the Removal of Dead Animals.'

'Resolved, that the owners of any animal that shall die within the city limits within the said period of twenty years from and after the 1st day of December, A.D. 1882, save such as shall be killed for human food, or the person in whose possession such animal shall be at the time of its death, shall, immediately upon such death, notify the said Charles Alpers or his assigns of such death, and of the place where such carcass may be found, by depositing written notice thereof in one of the boxes above provided for, or by personal notification, unless such owner or person shall himself, or by his immediate servant or employe, and not otherwise, remove and dispose of the same, in such manner as not to become a nuisance, within twelve hours next after such death shall occur; provided, that the term 'servant or employe,' herein employed, shall in no manner be construed so as to include a contractor or other person not actually employed by and under the direct supervision and control of such owner or person.

'Resolved, that said Charles Alpers or his assigns shall receive no compensation whatever from the city and county for any such removals; but said city and county, in full consideration thereof, shall protect the said Charles Alpers and his assigns in the exclusive rights and privileges to make all such removals by all such orders and resolutions as may be lawfully made in that behalf.

'Resolved, that it shall be the duty of all health and police officers of said city and county, upon being informed of any such death, to immediately notify said Charles Alpers or his assigns personally, or by depositing a notice thereof, as herein provided.'

And on December 26, 1882, in pursuance of said resolution, enacted the following order, viz.'

'Concerning the removal of dead animals from the city limits.

'Whereas, on the 11th day of December, A.D. 1882, the board of supervisors of the city and county of San Francisco passed resolution No. 16,013 1/2, (New Series,) giving to Charles Alpers and his assigns the exclusive privilege of removing the carcasses of dead animals from the city limits, so that the same may not become a nuisance, for the period of twenty years from and after the 1st day of December, A.D. 1882, which resolution was duly approved on the 15th day of December, 1882: Now, therefore, the people of the city and county of San Francisco do ordain as follows:

'Section 1. Whenever any horse, ass, or mule, swine, sheep, goat, or cattle of any kind, save such as shall be killed for human food, shall die within the limits of the city and county of San Francisco, the owner thereof, in person or by his immediate servant or employe, and not otherwise, or the person in whose possession such animal shall be at the time of its death, shall remove and dispose of the same, in such manner as not to become a nuisance, within twelve hours next after such death shall occur, or immediately upon such death shall notify said Charles Alpers or his assigns, in person, thereof, and the place where such carcasses may be found, or by depositing a written notice thereof in one of the boxes labeled, 'Orders for the Removal of Dead Animals,' set up by the said Charles Alpers or his assigns at the new city hall or health office, in said city and county. Any person who shall violate any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than ten dollars, nor more than fifty dollars.

'Sec. 2. Any person other than the said Charles Alpers or his assigns, or the owner, by himself or his immediate servant or employe, or the person having possession of any animal mentioned in the preceding section at the time of its death, who shall remove or dispose of the carcass of such animal, unless the said Alpers or his assigns shall fail to do so within twenty-four hours after notice thereof, as hereinbefore provided, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than ten dollars nor more than fifty dollars: provided, the term 'servant or employe,' whenever herein expressed, shall in no manner be construed so as to include a contractor or other person not actually employed by and under the direct supervision, control, and direction of such owner or person.

'Sec. 3. Any person who shall obstruct, hinder, or in any manner interfere with the said Charles Alpers or his assigns in the removal or disposition of the carcass of any animal mentioned in section 1 of this order, by intercepting any notice herein mentioned, or by putting up or maintaining any box for the receipt of any notices for the removal of such carcasses, or by soliciting in person, by agent, or by advertising, or by maintaining any stands or trucks or drays used for the purpose of such removal, or otherwise, shall be deemed guilty of

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