Valley Spring Hog Ranch Co. v. Plagmann

• Decision Date: 15 March 1920
• Citation: 220 S.W. 1,282 Mo. 1
• Parties: VALLEY SPRING HOG RANCH COMPANY, Appellant, v. FRED PLAGMANN et al
• Court: Missouri Supreme Court

220 S.W. 1

282 Mo. 1

VALLEY SPRING HOG RANCH COMPANY, Appellant, v. FRED PLAGMANN et al

Supreme Court of Missouri

March 15, 1920

Appeal from Barton Circuit Court. -- Hon. B. G. Thurman, Judge.

Reversed and remanded (with directions).

John J Wolfe and Mercer Arnold for appellant.

(1) Under the general charter powers of the City of Joplin, the city had express authority to pass the ordinance in question and to authorize the contract entered into with plaintiff. (2) Such a disposal of garbage is not a taking within the constitutional provision forbidding such taking, but is a proper and salutary police regulation. Atlantic City v Abbott, 73 N. J. L. 281; Vantine v. Petitioner, 6 Pick. (Mass.) 187; State v. Payson, 47 La. Ann 1029; Walker v. Jameson, 140 Ind. 603, 28 L. R. A. 679; Louisville v. Wible, 84 Ky. 290; Re Zhizhuzza, 147 Cal. 328; Dupont v. Dist. of Columbia, 20 App. D. C. 477; State v. Orr, 68 Conn. 101, 34 L. R. A. 279; Coombs v. MacDonald, 43 Neb. 632; State v. Robb, 100 Me. 180, 4 A. & E. Ann. Cas. 275; Reduction Company v. Sanitary Works, 94 F. 693, 126 F. 29, 199 U.S. 306; Cumberland Gro. Co. v. Baugh, Ann. Cas. 1915 A. 130; Gardner v. Michigan, 199 U.S. 325; Grand Rapids v. DeVries, 123 Mich. 570; Rochester v. Gutberlett, 211 N.Y. 309; Smith v. Spokane, 55 Wash. 219; Oneal v. Harrison, 96 Kan. 339. (3) Garbage in and of itself is a nuisance, and in the exercise of the police power a municipality may control the manner of its collection and disposition, and it is obviously for the interest of the whole public that such offensive offal should be collected by persons under the immediate control of the municipal authorities. Board of Health v. Vink, 151 N.W. 672; State v. Robb, 100 Me. 180, 4 A. & E. Ann. Cas. 275; Gardner v. Michigan, 199 U.S. 310; Rochester v. Gutberlett, 211 N.Y. 309, 37 Ann. Cas. 483; California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306.

H. S. Miller for respondents.

(1) The ordinance in question is unconstitutional and void and should not be enforced. River Co. v. Behr 77 Mo. 91. (2) The evidence showed, and the trial court so found, that the defendants were engaged in removing garbage either as agents, employees or owners of garbage. That is to say in every instance the defendants either were removing their own garbage or were employed by the owner so to do, either for a straight monetary consideration or under an arrangement for a division of the profits derived from the sale of hogs. City of Richmond v. Caruthers, 79 L. R. A. 1005; Underwood v. Green, 42 N.Y. 140; Schoen v. Atlanta, 97 Ga. 697, 33 L. R. A. 804. (3) It must be conceded that the plaintiff is not particularly interested in the sanitary condition of the City of Joplin. It is a commercial concern, organized for commercial and business purposes. The real property involved is hogs, and hogs are of substantial value. The real question at issue is whether or not the plaintiff can be authorized to invade property rights of the defendants and others, and ruthlessly deprive them of their just rights, or take away that which belongs to them, without just compensation or due process of law. The principal is wrong, is un-American and unjust. .Walker v. Jamison, 28 L. R. A. 679; Gregory v New York, 40 N.Y. 273. (4) Garbage is not a nuisance per se. We fail to see any distinction between dead animals and garbage from the standpoint of either being a nuisance. The garbage removed by the defendants in the case at bar was not a nuisance per se when removed, but liable to become such if permitted to remain too long, and the trial court so found. Likewise it must be admitted that dead animals certainly would become a nuisance if permitted to lie in a public place, street or highway very long. A dead animal will become a nuisance much more quickly than garbage, and be a much more dangerous nuisance than garbage, and the stench arising or resulting from dead animals is many times more offensive than that arising from garbage, and much more unsanitary, and the courts hold with one accord, that dead animals are not per se a nuisance. Philadelphia v. Lyster, 3 S.Ct. 475; Kussel v. Erie, 8 Pa. Dist. 105; Culliver v. Comm. Co., 65 N. J. L. 167; Iler v. Ross, 64 Neb. 710; 97 Am. St. 676; Landberger v. Chicago, 237 Ill. 112. (5) There has been no violation of the ordinance on the part of the defendants, and judgment here, dismissing plaintiff's bill, should be affirmed. If the defendants were merely employees or agents of owners, working for hire, a straight money consideration or an agreement to share the profits, that they did not violate the ordinance. Rochester v. Gutberlett, 211 N.Y. 309.

OPINION

In Banc

GRAVES J.

Plaintiff is the successor to the original garbage contractor of the City of Joplin, a city of the second class. The city passed an ordinance providing for the care, removal and disposal of the garbage of the city, and further providing for making a contract by which it could give a person the exclusive right of collecting and disposing of the garbage of the city. Pursuant to such ordinance the city entered into a contract with one A. A. Wright (exclusive in terms) by which he was made the garbage man of the city. He complied with the terms of the ordinance, gave the required bond, and entered upon the discharge of his duties. Said Wright incorporated the plaintiff, and transferred his contract rights to it. The defendants are parties who have been gathering and hauling garbage from the city, but with no contract or license so to do. The case was tried in Barton County, and the learned chancellor found the following facts and stated the following conclusions of law:

"The court finds that the garbage ordinance read in evidence was duly passed and approved; that under the authority of this ordinance the plaintiff was given the exclusive authority to gather and remove garbage in the City of Joplin, a city of the second class, by contract duly entered into by the plaintiff with the City of Joplin, in the manner provided by said ordinance; that plaintiff executed a bond to the city for the faithful performance of the contract, as required by the ordinance, which was accepted and approved by the city, and entered upon the performance of its duties under the contract and ordinance, and expended a large amount of money in the preparation for and in the performance of its duties under the contract and ordinance, and was and is engaged in complying with the terms and conditions of same;

"That defendants were, at the time of filing the bill, and are now, engaged in removing garbage in violation of the ordinance, as either agents or employees or owners of garbage, by agreements to purchase or to share the profits when fed to hogs;

"That garbage so removed by defendants is of some value for the purpose of feeding hogs and chickens, and not offensive or detrimental to health at the time removed by defendants, but liable to become so, unless promptly removed.

"The law is clear that injunction is the proper remedy, and that this ordinance and contract is not a monopoly, as understood by that term; and the only question left for determination is, as to whether or not this ordinance is void as being violative of Section 20 of Article II of the Constitution of Missouri, which prohibits the taking of private property for private use, etc.

"The great weight of authority in the United States is, that such taking of private property as a sanitary precaution is not violative of such constitutional inhibition.

"It is held by numerous authorities that such ordinances, under modern conditions, are a necessary precaution to prevent the spread of disease; that it is the only way the health of the inhabitants of a city can be protected from decaying matter and disease producing germs; that the value of property interest in such property, as garbage, is so small that the sanitary precaution more than compensates for the property loss in such cases, and so strongly do these authorities, and the reason upon which they are based, appeal to me, that this court, hesitates not to follow them; but, after much consideration I am of the opinion the doctrine of the River Rendering Co. v. Behr, 77 Mo. 91, is in conflict with the rule so stated and the modern authorities in the United States. While the decision in that case was rendered more than thirty-six years ago, when the necessity for proper sanitation was not as fully appreciated as in recent years, this court feels bound by it; and, following that case, as construed by this court, it feels bound to find against the plaintiff's contention; and the bill is dismissed and judgment against the plaintiff for costs.

"The importance of this question to all the cities of the size of Joplin, and larger, is so important that this court begs pardon for exceeding jurisdiction to the extent of urging counsel to move the Supreme Court to advance this case, to the end that we may have an early decision in the light of present conditions and modern authorities."

From an adverse judgment the plaintiff appealed, and this court advanced the cause upon our docket. Additional facts, if required, may well be left to the opinion.

I. We have examined the evidence with the view of determining the correctness of the chancellor's findings of fact, as we are interested more in these than in his conclusions of law. These findings are fully justified by the evidence, so that the case is one purely of the applicatory law to such facts. The court finds (1) that the ordinance relied upon by plaintiff was duly enacted, (2) that plaintiff was, by contract, duly made the only party authorized to remove and dispose of the city garbage, (3) that plaintiff had gone to much expense in fitting up a hog ranch for the...