Toledo Disposal Co. v. State Of Ohio

• Decision Date: 13 January 1914
• Docket Number: 14019
• Citation: 106 N.E. 6,89 Ohio St. 230
• Parties: Toledo Disposal Co. v. State Of Ohio.
• Court: Ohio Supreme Court

106 N.E. 6

89 Ohio St. 230

Toledo Disposal Co. v. State Of Ohio.

No. 14019

Supreme Court of Ohio

January 13, 1914

Criminal law - Police power - Prosecution cannot be maintained under one statute - When act done authorized by special statute -Public nuisances - State cannot prosecute garbage disposal company, when.

1. In the exercise of the police power, the state and municipal authorities may make all such provisions as are reasonable necessary and appropriate for the protection of the public health and comfort, and when any such provision has a real and substantial relation to that object and does not interfere with the enjoyment of private rights beyond the necessities of the situation, every intendment is to be made in favor of its lawfulness.

2. No criminal prosecution can be sustained in Ohio except for an act done in violation of a statute or ordinance legally passed; and the courts will not construe that to he a crime punishable under one statute which was done under authority especially granted by another statute.

3. A public nuisance arises out of the violation of public rights or the doing of unlawful acts; and if the legislature, by a law passed within its legislative power, authorizes an act to be done which, in the absence of the statute, would be a public nuisance, such act ceases to be legally a nuisance so far as the public is concerned.

4. The state cannot maintain a criminal prosecution against a defendant for conducting a plant and business located constructed and operated under an express contract with a municipality, made under legislative authority, where the plant is conducted under municipal control and regulation with care and skill, and in such manner as to produce the least possible annoyance, and where it is all done for the purpose of conserving the health and safety of the public.

Plaintiff in error was indicted by the grand jury of Lucas under Section 12646, General Code, for maintaining a public nuisance.

The indictment charged that the defendant corporation did unlawfully and purposely use and maintain a certain building for the purpose of carrying on the business of reducing garbage and manufacturing fertilizer of and from garbage and from the entrails, offal and bones of beasts etc., which occasioned noisome and offensive smells and which became and were injurious to the health and comfort of the public and of persons residing in said county to the common nuisance of all the people of the state of Ohio there living and abiding.

On the trial in common pleas defendant was found guilty. The trial court imposed a fine of $300 and ordered the nuisance abated.

This judgment was affirmed by the circuit court, and these proceedings are brought to reverse the judgments of the courts below.

Mr. Ben W. Johnson, for plaintiff in error.

Mr. Holland C. Webster, prosecuting attorney; Mr. Charles M. Milroy, prosecuting attorney, and Mr. George P. Grennhalgh, assistant prosecuting attorney, for defendant in error.

JOHNSON J.

The Toledo Disposal Company is a corporation organized to operate a reduction plant. In 1910 it entered into a contract with the city of Toledo, under specifications prepared by the city, for the disposal of its garbage waste by a process of reduction. Thereupon the company constructed a plant at an expense of about $150,000. On the trial the company offered evidence showing that the plant was built and equipped with approved machinery, which was made upon modern, sanitary and scientific lines; that the location, construction and operation were prescribed, supervised and regulated by the city of Toledo and that the plant was operated carefully and skillfully. The director of public service as a witness in the case expressed his approval of the manner in which the work was conducted and his opinion that its conduct did not constitute a nuisance. The contract expressly stipulated that the disposal of the garbage should be under the control of the director of public service.

The contract and the ordinance and resolutions under which it was made, were offered in evidence by defendant and rejected by the trial court, as was also the testimony that the plant was operated with care and skill.

Counsel for defendant in error concede in their brief, for the sake of the argument, that the "plaintiff in error could show that its plant and business were located, constructed and conducted so as to produce the least possible annoyance."

The trial court refused the request of defendant to charge the jury that "The defendant was, during the time laid in the indictment, expressly authorized to conduct the business in which it was then engaged. It cannot therefore be prosecuted or punished merely for conducting said business, and if the jury find by a preponderance of the evidence, that the defendant conducted said business at the best available location, by the use of the best available machinery, equipment and appliances, and in a skillful and careful manner, with reference to preventing the escape of odors, and if you find that the conduct of said business created no more odors than were necessarily incident to such conduct of said business, your verdict must be for the defendant."

The court charged the jury that "if the smells indicated did emanate from this building, and if they were offensive to the general public, it is immaterial for your consideration how the business was conducted and what kind of machinery was used by defendant in the conduct of its plant."

The refusal to charge as requested and the quoted part of the general charge given to the jury indicate the views of the courts below on the important matter under consideration.

The contract referred to was made by the city Under express legislative authority.

Section 3649, General Code, authorizes municipal corporations to establish, maintain and regulate plants for the disposal of sewage, garbage and similar refuse matter. Section 3677 provides that municipal Corporations shall have special power to appropriate and hold real estate within their corporate limits for many purposes, among which are specified "sewage and garbage disposal plants and farms." Section 3678 enacts that in the appropriation of property for any of the purposes named in the preceding section the corporation may when reasonably necessary acquire property outside the limits of the corporation.

Section 3809 authorizes a city to make a contract with any person, firm or company for the collection and disposal of garbage in such cor- poration. Construing the sections above referred to in pari materia, it is manifest that the legislature intended to provide for the disposal of garbage that should gather and be collected in the corporation, but not to restrict the place Of disposal.

The question is, therefore, clearly presented whether the state can maintain a criminal prosecution against a defendant for conducting a plant and business located, constructed and operated under an express contract with a municipality made under legislative authority, when the plant is conducted under municipal control and regulation, with care and skill, and in such manner as to produce the least possible annoyance, such authority having been given and such contract having been made for the purpose of conserving the health and comfort of the public.

The inception, the creation and the maintenance...