Smith v. City of New Albany
| Decision Date | 29 November 1910 |
| Docket Number | No. 21,536.,21,536. |
| Citation | 175 Ind. 279,93 N.E. 73 |
| Parties | SMITH et al. v. CITY OF NEW ALBANY. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Floyd County; William C. Utz, Judge.
Gus Smith and another were convicted of violating an ordinance of the city of New Albany, and they appeal. Affirmed.Alexander Dowling, for appellants. Geo. H. Hester and C. W. Schindler, for appellee.
Appellants were charged in the city court of the city of New Albany on May 14, 1907, by verified complaint with the violation of a city ordinance, in “that on the 13th day of May, 1907, the said defendants did, within the corporate limits of the city of New Albany, Ind., unlawfully remove the carcass of a dead animal, to wit, a horse, from the city of New Albany, the said Gus Smith and Rudolph Alles, nor either of them, then and there having a license or contract with said city for the removal of dead animals, and the said city having theretofore entered into a contract with the firm of Parad & Buhler for the removal of carcasses of all dead animals, contrary to the provision of sections 1, 2, and 3 of an ordinance of said city, in such cases made and provided, passed on the 5th day of November, 1883.” There was a trial, conviction, and appeal to the circuit court. There a motion to dismiss the action for want of sufficient facts to constitute a cause of action was renewed and overruled, exception reserved, a trial had, a special finding of facts made, and conclusions of law stated, and over motion for a new trial judgment was rendered against appellants.
The facts found were, in substance, as follows: On November 5, 1883, the common council of the city of New Albany passed an ordinance authorizing the mayor of the city to enter into a contract with some suitable and responsible person for the removal of the carcasses of all dead animals from the corporate limits of the city, and for the destruction or other disposition of such carcasses. This ordinance provided that “only such carcasses are to be removed as may be lawfully removed and disposed of by the city or its officers.” The person contracting to remove the bodies of the dead animals was to execute a bond in a penalty of $100 payable to the city, conditioned for the faithful performance of his contract, and for the protection of the city from loss, damage, or expenses on account of the acts and proceedings of such contractor. The person so contracting was to have the exclusive right to remove all such carcasses of dead animals from the city and dispose of them. Any person other than such contractor, his agents, or servants removing or attempting to remove any carcass of a dead animal was to forfeit and pay to the city not less than $2, nor more than $10, for every carcass removed, or attempted to be removed. If the contractor failed, neglected, or refused for six hours, after notice, to remove any such carcass, then any other person might lawfully remove it. This ordinance was duly published, and remained in force thereafter until the time of the trial and special finding.
On March 30, 1907, Louis Parad and William Buhler entered into a contract in writing with said city for the removal of the carcasses of all animals dying within the limits of the city of New Albany of which the city authorities had control. The contractors were to pay the city $50 per year for a term of five years as the consideration for the privilege granted. Certain other provisions required by the ordinance were set out in the agreement. This agreement was approved and ratified by the board of public works and the common council. The contractors filed their bond agreeably to the requirements of the ordinance and contract, and it was duly approved. Parad & Buhler paid to the city the sum of $50, and thereafter were ready and willing to comply with the terms of their agreement, excepting as they were prevented from doing so by the defendants. On May 13, 1907, the defendants removed from the corporate limits of the city of New Albany the carcass of a dead horse, and transported the same through the streets of said city. The contractors, Parad & Buhler, had received no notice to remove the said carcass. At the time of the removal of said carcass by the defendant he had no contract with said city to receive or remove dead animals from the city limits, and through the streets of said city, or for the destruction or other disposition of such carcasses.
The sufficiency of the complaint is challenged upon the ground, first, that Acts 1905, p. 247 (Burns' Ann. St. 1908, § 8655), repealed Acts 1875, p. 28 (Burns' Ann. St. 1901, § 4195); second, that the provisions of the ordinance of 1883 are inconsistent with the act of 1905, and are not within the saving clause (section 8642, Burns' Ann. St. 1908) of the latter act; third, that the ordinance of 1883 is unconstitutional, as being in violation of the fourteenth amendment to the federal Constitution, in that the carcass of a dead animal is property, and its owner cannot be deprived of its possession and control without his consent, or due process of law (Burns' Ann. St. 1908, § 39), and in violation of article 1, § 21, State Const. (Burns' Ann. St. 1908, § 66), in that no man's property shall be taken by law without just compensation; fourth, that the ordinance is invalid because of its uncertainty, and that the statements in the complaint are not sufficient to bar another action for the same cause.
We may eliminate the question as to the constitutionality of the statute from the fact that the owner of the carcass is not here making any question, and appellee is not in a situation to raise the question as to rights of property in another, when he has no right of property, and, if the ordinance is valid as to him, he cannot complain that it may be invalid as to another on the constitutional grounds here urged. Bedford, etc., Co. v. Bough (1907) 168 Ind. 671, 80 N. E. 529, 14 L. R. A. (N. S.) 418;Pittsburgh Co. v. Montgomery (1898) 152 Ind. 1, 49 N. E. 582, 69 L. R. A. 875, 71 Am. St. Rep. 301;Currier v. Elliott (1895) 141 Ind. 394, 39 N. E. 554;Henderson v. State, 137 Ind. 552, 36 N. E. 257, 24 L. R. A. 469;Wagner v. Town (1889) 118 Ind. 114, 20 N. E. 706. If it be urged that he acquired a property right by the bestowal of the carcass upon him by the request of the owner to remove it, it is properly answered that he was bound by the ordinance as to the exclusive right of removal in another, and, upon the waiver by the owner, the property right was by the ordinance vested in another. It appears from the evidence that the owner called the telephone exchange to give him the dead-animal man, without thinking of the city contractors, and without thinking who he was calling upon to remove the horse, though the city contractors seem also to have been called, but the horse was taken away before the contractor had time to reach it. Appellant had been an unsuccessful bidder for the removal of dead animals at the time the contract was awarded to another, and had actual knowledge of the existence of the contract. He paid nothing for the horse. We do not think it possible for him to raise the question of the constitutionality of the ordinance in this action.
The act of 1875, under which the ordinance was enacted, provided that “the common council of cities, and the trustees of incorporated towns of this state are empowered and authorized to pass by-laws to secure the removal of slops, garbage, the carcasses of dead animals, and other waste material from their corporate limits, and to appoint and contract for such removal, and provide that the person appointed or contracted with shall have the exclusive right to remove the same, and to provide penalties for the violation of by-laws in accordance with the general laws for the incorporation of cities and towns now in force, or which may hereafter be adopted.” Acts 1875, p. 28; Burns' Ann. St. 1901, § 4195. The act of 1905 (subdivision 7, § 8655, Burns' Ann. St. 1908), in enumerating the powers of common councils, authorizes them “to declare what shall constitute a nuisance, to prevent the same, require its abatement, authorize the removal of the same by the proper officers, and provide for the punishment of the person or persons causing or suffering the same,” etc., and by subdivision 53 “to carry out the objects of the corporation not hereinbefore particularly specified,” and under the same clause it is provided that, “whenever any executive or administrative function shall be required to be performed by any ordinance or resolution of the common council, the same shall be performed by the proper executive department, and not by the common council.” The act (section 8696) in enumerating the powers of the board of public works provides by the sixteenth subdivision that such boards shall have power “to remove all dead animals, garbage, filth, ashes, dirt, rubbish or other offal from such city either by contract, or otherwise, and to erect crematories, or other plants for the destruction, or disposal thereof.” The same act (Burns' Ann. St. 1908, § 8655, cls. 13, 14) grants the power to common councils to prevent the deposit of unwholesome substance upon private or public property, and to compel its removal to designated points, and to require slops, garbage, ashes, and other waste material to be removed to designated points, and to require occupants of premises to place them conveniently for removal, etc.
Appellants' position is that the act of 1905 covers the whole subject-matter, and by necessary implication repeals the former statute, and that the only provision in the new act in regard to the removal of the carcasses of dead animals confers the power upon boards of public works to cause the removal by contract or otherwise, and cannot be exercised concurrently with common councils, and that the saving clause, Burns' Ann. St. 1908, § 8642, does not save the ordinance, for the reason that the act of 190...
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