River Rendering Co. v. Behr

• Decision Date: 31 October 1882
• Citation: 77 Mo. 91
• Parties: THE RIVER RENDERING COMPANY v. BEHR et al., Appellants.
• Court: Missouri Supreme Court

77 Mo. 91

THE RIVER RENDERING COMPANY

v.BEHR et al., Appellants.

Supreme Court of Missouri.

October Term, 1882.

Appeal from St. Louis Court of Appeals.

REVERSED.

J. E. McKeighan, E. P. Meany and L. A. Steber for appellants.

The construction of the ordinance put upon it by respondent makes it violate section 20 of the bill of rights, which forbids private property from being taken for private use, with or without consent of the owner; also, section 30, which forbids the taking of private property for public use without due process of law. Donovan v. Mayor, etc., 29 Miss. 247; Fisher v. McGirr, 1 Gray 1, 14. The power of making by-laws for the suppression of nuisances is confined to the suppression and prohibition of acts which, if done, must necessarily and inevitably cause a nuisance. It does not empower the town to impose penalties for the doing of things which may or may not become nuisances, according to circumstances. 1 Add. on Torts, (Wood's Ed.) § 54. Dead animals may become nuisances if not removed in a reasonable time, but if they are so removed they will not. A mere declaration in a city ordinance (even this is not done in the ordinance in question) that a certain thing is a nuisance or an obstruction, does not make it so, unless, in fact, it is a nuisance or obstruction. Yates v. Milwaukee, 10 Wall. 497. A dead animal is not per se a nuisance, and it is not necessarily dangerous to public health. The owner may still put it to an innocent and useful purpose, and an ordinance which provides for the removal of dead animals cannot be literally construed so as to take away the owner's right to so use it. Underwood v. Green, 42 N. Y. 140

Dyer & Ellis for respondent.

The question whether it is for the health and best interest of the city to restrict the duty and right to remove dead animals to one particular agency, thereby preventing free traffic in nuisances, is entirely within the control of the city, and its board of health. This is necessarily a part of the municipal system for the preservation of public health, as much so as appointing a single physician or surgeon to a city hospital, instead of opening the doors to the practice or malpractice of all the doctors in the town. The municipal authorities cannot surround this subject with too many safeguards, and the claim of the scavenger ought not to prevail over the high duty which a government owes to preserve the health and comfort of its people. An exclusive privilege very similar to that possessed by the respondent, was upheld by this court. State v. Fisher, 52 Mo. 174. It needs no argument and requires no adjudication to establish the fact, that the dead animals referred to in this ordinance, are per se nuisances, and should be removed as summarily and as certainly as possible from the city limits. City v. Stern, 3 Mo. App. 48; River Rendering Co. v. Behr, 7 Mo. App. 45. The question which is fundamental in this case is: Who shall determine when a carcass has become offensive? At what moment does the animal cease to be innocuous, and become dangerous? Must this question be in each case judicially ascertained before the city's right and duty attaches? Can the determination of this all-important question be safely committed to the appellants? According to the laws of nature, decomposition begins immediately at death, and the danger then commences. The only safe action for the city to take in the matter is to require, as far as possible, the instant removal of the animal when dead, and to provide the means or agency by which the removal can be safely and certainly effected.

The claim of confiscation is not fairly raised by the issues in this case. No owner is complaining of this ordinance, nor is the right or interest of the owner in any way represented or involved herein. But if it were, his rights are amply protected by section 6 of the ordinance. Under proper and necessary restrictions he may obtain a permit and remove his dead animal. And besides this, so far as the carcass is a nuisance, the right of the city to abate or destroy it, is paramount to the owner's right. A nuisance is not a right, it is a wrong. The owner is presumed to be compensated by his share in the advantages arising from the destruction or removal of the nuisance. Mills' Eminent Domain, § 7; 2 Cow. 349, 352; 12 Pick. 184.

HENRY, J.

This is an appeal from the judgment of the St. Louis court of appeals, affirming the judgment of the circuit court, perpetually enjoining defendant from removing dead animals from the city of St. Louis. The grounds of the injunction are, that the acts with respect to which appellants are restrained, are violative of an ordinance of said city, No. 10,062, and the question involved relates to the validity of that ordinance, which is as follows:

“An ordinance to repeal ordinance number 6,745, entitled An ordinance to repeal ordinance No. 6,016, entitled ‘An ordinance to amend ordinance No. 5,433,” and to provide for the removal of the carcasses of dead animals from the streets of the city of St. Louis.

Be it ordained by the City Council of the City of St. Louis

Section 1. It shall be the exclusive privilege and duty of the River Rendering Company of St. Louis, for a period of eight years from and after the passage of this ordinance, to remove out of the city and beyond the jurisdiction of the board of health, as now or as may be hereafter established, the remains and carcasses of every dead horse, mare, mule, ox, steer, cow, ass, hog, goat, dog or other animal, (within ten hours after a report shall be made to the said River Rendering Company by the chief of police, or any authorized agent of the board of health, and appropriate them to their own use), observing every care, and using the utmost precaution that the carcasses of said animals be conveyed away in the most inoffensive manner possible, causing them to be covered with tarpaulins or otherwise. The drivers of the teams conveying away said carcasses shall not stop on their way unless detained by some unforeseen accident, under a penalty of not less than five nor more than twenty-five dollars for each offense, which fine shall, upon the conviction of any driver or drivers of such teams, be recovered and enforced as other fines before the police justice.

Section 2. The River Rendering Company shall cause to be removed and placed upon a receiving boat or boats of suitable size, strength and dimensions, all carcasses and remains of dead animals mentioned in section 1 of this ordinance, within six hours after a report shall be made to said River Rendering Company, in conformity with the provisions of said section 1; and no rendering or manufacturing upon such receiving boat or boats shall be done inside the city limits, and only in such manner and in such place as may be designated by the board of health, and so that no nuisance may be created thereby; provided, however, that during the winter months, when the river is blocked with ice, such steam rendering or manufacturing may be done in such manner, in such place, and at such hours as may be designated by the board of health.

Section 3. The River Rendering Company shall, before being authorized to perform the duties and enjoy the privileges granted by this ordinance, execute to the city of St. Louis a bond, with good and sufficient securities, in the sum of $5,000, to be approved by the mayor, and filed and preserved in the office of the city register, conditioned for the faithful and punctual performance of the duties imposed by the provisions of this ordinance.

Section 4. It shall be the duty of the police department to notify the River Rendering Company, their officers or agents, of the whereabouts of every animal carcass which they may find, or of the existence of which, within the city limits, they may be informed, as soon as possible, and within six hours of their being so notified, it shall be the duty of said River Rendering Company to remove the same in the manner specified in section 1 of this ordinance; and, upon the failure of said company to so remove the carcass of any dead animal within the time so specified, the manager or chief officer thereof shall be subject to a fine of $10, for the first offense, and for every subsequent offense $20, to be recovered as other fines before the police...