River Rendering Co. v. Behr

• Decision Date: 17 June 1879
• Citation: 7 Mo.App. 345
• Parties: RIVER RENDERING COMPANY, Respondent, v. PETER BEHR ET AL., Appellants.
• Court: Missouri Court of Appeals

7 Mo.App. 345

RIVER RENDERING COMPANY, Respondent,

v.PETER BEHR ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jun. 17, 1879.

1. The constitutional provision prohibiting the passage of any local or special law granting any special or exclusive right, privilege, or immunity, is not violated by a city ordinance, passed as a sanitary police regulation, granting the exclusive right to remove the carcasses of dead animals from the streets 2. The municipal authorities have the right to prescribe the terms upon which the streets may be used for the purpose of removing the carcasses of dead animals, and may confine such removal to a single agency, subject to their control.

3. Injunction will lie to restrain the removal of such carcasses in violation of a city ordinance granting the exclusive privilege of removal to another

APPEAL from St. Louis Circuit Court.

Affirmed.

MCCOMAS & MCKEIGHAN and E. P. MEANY, for appellants: Every statute in derogation of the rights of property, that takes away the estate of a citizen, must be strictly construed.-- Fowler v. St. Joseph, 37 Mo. 228; St. Louis v. Speck, 4 Mo. App. 252; United States v. Fisher, 2 Cranch, 386. The title of an act, even before the constitutional and charter provisions hereinafter referred to, should be regarded as furnishing aid in showing what was in the mind of the legislature.-- United States v. Palmer, 3 Wheat. 610; Garrigus v. Commissioners, 39 Ind. 66. The ordinance is in violation of sect. 53, art. 3, City Charter.--Cooley's Const. Lim. 141-151; Insurance Co. v. Mayor, 8 N. Y. 253; Ryerson v. Utley, 16 Mich. 269; Dorsey's Appeal, 72 Pa. St. 192; Hind v. Rice, 10 Bush, 528; Jones v. Thompson, 12 Bush, 394; The State v. Young, 47 Ind. 150. And in violation of sect. 53, art. 4, Constitution of 1875.--Meyer's Supp. to Wag. Stats. 24. Municipal by-laws must be in harmony with the general laws of the State and with the provisions of the charter.--Cooley's Const. Lim. 198; Thompson v. ____, 10 Ohio St. 688; Haywood v. Mayor, etc., 12 Ga. 40; Burlington v. Kellar, 18 Iowa, 59; Mayor, etc. v. Nichols, 4 Hill, 209; The State v. Caldwell, 3 La. An. 435; City of Canton v. Wist, 9 Ohio St. 439. The construction claimed by the respondent for this ordinance would make it in violation of the Constitution of the United States.--Const. U. S., art. 1, sect. 8; Railroad Co. v. Husen, 95 U. S. 465. Exclusive privileges are not to be tolerated.-- Chicago v. Rumpff, 45 Ill. 90; NorwichGas-Light Co. v Norwich Gas Co., 25 Conn. 19; Mayor v. Thorn, 7 Paige, 261. And an ordinance which tends to create a monopoly will not be upheld.-- St. Louis v. Weber, 44 Mo. 547; Gale v. Kalamazoo, 23 Mich. 344. An ordinance which pretends to be a regulation for the health of the city, but which amounts to a prohibition, and is unreasonable, is void.-- Austin v. Murray, 16 Pick. 121; Hayden v. Nays, 5 Conn. 391; Dunham v. Trustees, etc., 5 Cow. 462.

WAGNER, DYER & EMMONS, for respondent: Sanitary powers exist independent of constitutions, and may even infringe upon chartered rights. The power to provide for the safety, well-being, and health of the citizen is inherent, and cannot be abrogated.-- The State v. Mathews, 44 Mo. 523; Blair v. Finhand, 100 Mass. 136; Watertown v. Mayo, 109 Mass. 315; Kincaid's Appeal, 66 Pa. St. 411; Slaughter-House Cases, 16 Wall. 36; Thorpe v. Railroad Co., 27 Vt. 194; The State v. Fisher, 53 Mo. 174.

LEWIS, P. J., delivered the opinion of the court.

The petition states that plaintiff is a corporation, engaged in the business of rendering the carcasses of animals not slain for the purpose of human food, and producing soap-grease therefrom and selling the same, etc; that, on July 7, 1876, the City Council of the City of St. Louis passed an ordinance, No. 10,062, which is set out at length in the petition. Its material provisions are as follows:--

“Sect. 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 animals, 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 said carcasses shall not stop on the way, unless detained by some unforeseen accident, under a penalty of not less than five nor more than twenty-five dollars for each offence, 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.

Sect. 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 sect. 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 sect. 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.

Sect. 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 five thousand dollars, to be approved of 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.

Sect. 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 sect. 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 ten dollars for the first offence, and for every subsequent offence twenty dollars, to be recovered as other fines before the police justice.

Sect. 5. The River Rendering Company, or any person, copartnership of persons, or corporation who shall remove the carcass or carcasses of any dead animal or animals not slain for the purposes of human food, shall give a bond of five thousand dollars as a guaranty that none of the product of any carcass specified in sect. 1 of this ordinance shall be employed or utilized for purposes of human food, and that all grease and other products rendered or manufactured, or packed for use or transportation to or from market in the city of St. Louis or elsewhere, shall be branded with a burning-brand as follows: “Product of dead animals, St. Louis.'

Sect. 6. Hereafter it shall not be lawful for any person, copartnership of persons, or corporation, except the River Rendering Company, to remove the carcasses of any dead animals as specified in this ordinance, without first having obtained a permit so to do from the clerk of the Board of Health, said permit specifying the date when and the person to whom issued, the kind of animal or carcass to be removed, the place to and from which the same is to be taken, and the character of the products to be derived from the same.”

The petition further sets forth that plaintiff accepted the provisions of the ordinance and gave bond in due form as therein required, and has procured at great expense receiving-boats and all the necessary machinery, implements, and appliances for the successful operation of its business, and is now engaged with a sufficient force of employees in carrying on the same; that plaintiff would, but for the wrongful acts of defendants as hereinafter stated, have made great gains, advantages, and profits by virtue of the privileges, powers, and duties provided for in said ordinance; that plaintiff has in all things faithfully complied with the terms of said ordinance, and is therefore entitled to the exclusive privilege, for the period of eight years from and after its passage, of removing out of the city of St. Louis and beyond the jurisdiction of the Board of Health the carcasses and remains, etc., as described in the ordinance; that defendants have, in violation of the provisions of the ordinance and of the plaintiff's rights in the premises, been removing the carcasses, remains, etc., as described, out of the city of St. Louis and beyond the jurisdiction of the Board of Health, and threaten and intend to continue so doing, to the great detriment and irreparable damage of plaintiff; that defendants are insolvent, and unable to respond in damages. Plaintiff prays that the defendants be perpetually enjoined and restrained from further removing or attempting to remove such carcasses, remains, etc.

The answer avers that the defendants have a factory situated in St. Clair County, Illinois, and are there engaged in the business of rendering the carcasses of dead animals into grease, bone-black, and...