Smiley v. MacDonald

• Decision Date: 02 October 1894
• Citation: 60 N.W. 355,42 Neb. 5
• Parties: SMILEY v. MACDONALD.
• Court: Nebraska Supreme Court

42 Neb. 5

60 N.W. 355

SMILEY

v.MACDONALD.

Supreme Court of Nebraska.

Oct. 2, 1894.

Syllabus by the Court.

1. Section 15, art. 3, of the constitution, which provides that “the legislature shall not pass local or special laws * * * granting to any corporation, association, or individual, any special or exclusive privileges, immunity or franchise whatever,” held not a restriction upon the power of the legislature over the subject involved, but rather as a limitation with respect to the manner of the exercise of such power.

2. The constitutional provision above cited does not prohibit cities of the metropolitan class from contracting for the removal therefrom of dead animals, garbage, and other noxious and unwholesome matter.

3. Nor will such a contract be held void by reason of a stipulation therein that the privilege thereby conferred upon the contractor is exclusive.

4. The legislature cannot, under the guise of police regulation, arbitrarily invade private property or personal rights. The test when such regulations are called in question is whether they have some relation to the public health or public welfare, and whether such is in fact the end sought to be attained.

Appeal from district court, Douglas county; Ferguson, Judge.

Suit by George D. Smiley against Alexander MacDonald to enjoin the performance of a contract. There was a decree for plaintiff, and defendant appeals. Reversed.Saunders, Macfarland & Dickey, for appellant.

Breckenridge & Breckenridge, for appellee.

POST, J.

This is an appeal from a decree of the district court for Douglas county, restraining the defendant from proceeding under a contract with the city of Omaha providing for the removal of the garbage, offal, dead animals, etc., from said city. In view of the importance of the question at issue, it is deemed proper to copy at length from the petition, to wit: “The plaintiff states to the court that he is a citizen and resident of the city of Omaha, Nebraska, and a taxpayer therein, and has been such resident of the city of Omaha and taxpayer therein for, to wit, the period of eight (8) years, and he brings this action in said capacity, as a taxpayer and citizen of said city, against this defendant, Alexander MacDonald, and states to the court the following facts: That on the 21st day of July, 1893, said Alexander MacDonald, the defendant herein, made and entered into a pretended contract or agreement with the city of Omaha, under and by the terms of which, for a period of ten years from and after January 1, 1894, said Alexander MacDonald, in consideration of being allowed the right to remove dead animals, garbage, offal, night soil, etc., within the city of Omaha, for the period of ten years from and after January 1, 1894, under the terms and stipulations contained in said pretended contract, a copy of which is hereto attached, marked ‘Exhibit A,’ and made a part hereof, as though incorporated at length in the body of this petition, agreed to pay the said city of Omaha, annually, for such privilege, at the end of each year, during the existence of said contract, the sum of two hundred and fifty dollars ($250). Plaintiff alleges that, under and by virtue of the terms of said pretended contract, the defendant is given an exclusive privilege and right, which is illegal and contrary to law, and is permitted thereunder to make large profits in the transaction of the business therein specified, and that the compensation fixed by said contract or agreement is burdensome upon the taxpayers of said city, and is in excess of the reasonable value of the services to be so rendered. The plaintiff further says that the contract, as aforesaid, is unlawful, in this, to wit: That the privilege of removing garbage, dead animals, offal, night soil, etc., necessary to be removed, under the requirements of the board of health, as set out in said pretended contract or agreement with said city and the defendant, is a franchise, and that no authority to grant said franchise to said defendant, Alexander MacDonald, was ever voted by the citizens and legal voters within and for said city of Omaha, Nebraska, and that the city council and the municipal authorities of said city of Omaha had no right or authority whatever to make and enter into any such contract. Plaintiff says that he is informed and believes that the said defendant is about to enter upon the execution of his said pretended contract with the said city, and, if permitted to do so, will, under color of authority, as shown by said pretended contract, levy and assess upon said taxpayers of the city of Omaha and this plaintiff unlawful dues for the removal of garbage, dead animals, offal, night soil, etc. Plaintiff alleges that he is without remedy at law. Wherefore plaintiff prays that said pretended contract between the said city of Omaha and said Alexander MacDonald be declared null and void, and set at naught, and that the defendant, his agents, employés, and servants be perpetually enjoined from proceeding under said pretended contract to remove dead animals, garbage, offal, night soil, etc., or any other filth required to be removed by board of health or the ordinances of said city of Omaha, and for such other relief as to the court may seem meet.” The contract to which reference is therein made is as follows: “This agreement, made and entered into this 21st day of July, 1893, by and between the city of Omaha, party of the first part, and Alexander MacDonald, party of the second part, witnesseth that the party of the second part, in consideration of being allowed to remove and make use of all the dead animals, garbage, offal, night soil, etc., necessary to be removed, as may be required by the board of health or ordinances of said city of Omaha, during the period of ten years, commencing January 1st, 1894, or from such time prior to said date as may be required by the mayor and council, hereby agrees, in accordance with the ordinances of said city now existing or hereafter passed, and in accordance with the rules and regulations of the board of health of said city, and as may be required by the commissioners of health, upon payment of the charges herein...