Schoen v. City Of Atlanta

• Decision Date: 07 February 1896
• Citation: 97 Ga. 697,25 S.E. 380
• Parties: SCHOEN et al. v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

97 Ga. 697

25 S.E. 380

SCHOEN et al.

v.CITY OF ATLANTA.

Supreme Court of Georgia.

Feb. 7, 1896.

City Ordinance—Removal of Dead Animals-Validity.

1. A city may by ordinance lawfully prescribe that unless the owner of a dead animal, even though the carcass may be of some value, shall remove it, or cause it to be removed, beyond the city limits, within a specified reasonable time, and to a specified reasonable distance, the municipal authorities may deal with such carcass as a nuisance per se, and as such take charge of it, and make such disposition thereof as will best conserve the public health.

2. It is not, however, lawful to require that such owner, upon removing the carcass, or caus-ing its removal, within the time allowed him for this purpose, shall deposit it beyond the city limits at such place only as may be designated by the municipal authorities, or that upon his refusing so to do the city will have it removed at his expense to that particular place, provided the removal intended by the owner contemplates the deposit of the carcass at some other place outside of the city not itself within a prohibited distance from the city line, and such disposition of it, when so deposited, as will in any event prevent its becoming a nuisance to, or otherwise injuring, any of the inhabitants of the city. (Syllabus by the Court.)

Error from superior court, ITulton county; J. H. Lumpkin, Judge.

Action by Schoen Bros, against the city of Atlanta. Judgment for defendant, and plaintiffs bring error. Reversed.

Rosser & Carter, for plaintiffs in error.

J.A. Anderson and W. M. Davis, for defendant in error.

SIMMONS, C. J. An ordinance of the city of Atlanta provided as follows: "Whenever the chief of police or sanitary inspectors shall be Informed of any dead horse, mule, cow or other animal being within the corporate limits of the city of Atlanta, he or they shall cause said carcass to be removed beyond said limits and then properly buried or disposed of so as not to create a nuisance, and any person or persons other than those employed who shall remove the carcass of any such animal shall, on conviction, be fined not more than one hundred dollars or Imprisonment not exceeding thirty days, in the discretion of the court; provided, the owner or his authorized agent may remove such carcass from the city under the direction of the sanitary inspector." An ordinance subsequently adopted provided that the board of health should be authorized to contract for the removal of all dead carcasses of animals, such as horses, etc., from within the corporate limits, and to authorize the contractor to charge for and collect from the owners of such carcasses not more than a dollar per head; the carcasses to be removed, whether by the owner or the contractor, to such lands or place outside the city limits as should be designated from time to time by the board of health, or the sanitary inspector, acting for the board. The ordinance further provided that it should be the duty of any person owning such animal, or any person on whose premises such animal might die, or be found dead, to notify the sanitary inspector of the district, or the chief sanitary inspector's office, of the location of such dead animal, In order to its removal by such contractor, within three hours after its death or the discovery thereof, unless the owner should within that time remove or cause the removal of such carcass to the place designated by the board or inspectors; and, further, that it should be the duty of the contractor to provide neat and proper vehicles and appliances for the removal of such carcasses without offense to persons living or passing along the routes traveled in such removal, and the board of health should have power at all times to regulate the removal of such carcasses. In pursuance of this ordinance a contract was entered into between the board of health and Kirkpatrick, Fogg & Co., in which it was agreed that the latter should have the exclusive right to remove all such dead animals as died or were killed within the city limits, "over the bodies of which the city has any authority, " during the three years beginning November 15, 1894, and should have the right to charge and collect a dollar per head for each carcass of horses or like animals, from the owner thereof, unless the owner elected to remove such himself within three hours from the death of the animal or time of the discovery of its death. In March, 1895, Schoen Bros., a firm engaged in the business of dealing in hides and tallow, and of rendering the carcasses of animals,...