Walker v. Jameson
| Decision Date | 09 May 1894 |
| Docket Number | 17,102 |
| Citation | 37 N.E. 402,140 Ind. 591 |
| Parties | Walker et al. v. Jameson |
| Court | Indiana Supreme Court |
Reported at: 140 Ind. 591 at 603.
From the Marion Circuit Court.
The judgment is affirmed.
J. E McCullough, H. N. Spaan, J. F. Carson and C. N. Thompson, for appellants.
W. H H. Miller, F. Winter and J. B. Elam, for appellee.
On July 12, 1893, the city of Indianapolis, by its board of public works, by contract (a copy of which is in the complaint), clothed James H. Woodward with the exclusive right and obligation to remove the garbage from the premises of all persons in said city, and to transport the same through the streets thereof to the crematory.
On August 18, 1893, with the written consent of the city, said Woodward assigned the contract to the appellee Jameson. The circuit court, at the suit of Jameson, after due notice and hearing on complaint and affidavits, enjoined appellant from interfering with or removing such garbage. By this appeal appellants attack the ruling of the circuit court granting that injunction.
The general ordinance of the city, No. 5, 1893, designed to effectuate the contract, is set out in the complaint. The contract makes it the duty of the contractor to remove all the garbage. The ordinance requires the householder to place the garbage in proper receptacles, convenient for removal, and forbids any person, other than the contractor, to interfere with or remove the same. The ordinance is expressly authorized by section 23 of the charter (Acts 1881, pp. 143, 4 and 6), wherein it is provided that the common council shall have the power to enact ordinances "to prevent the deposit of any unwholesome substances, either on private or public property; compel its removal to designated points, and to require slops, garbage, ashes, waste or other material to be removed to designated points, or to require the occupants of premises to place them conveniently for removal."
In strict pursuance of this expressly authorized power, the ordinance in question was passed. Section 59 of the city charter (Acts 1891, pp. 167-8-9, etc.), expressly authorizes the board of public works "to remove all dead animals, garbage, filth, ashes, dirt, rubbish or other offal from such city, either by contract or otherwise." Accordingly, the common council having authority to pass the ordinance providing for the collection and storage in proper receptacles of the garbage, and the board of public works having authority to remove the same, the ordinance was passed and the contract was made, each supplementing the other, to carry out the common duty imposed on the two bodies for the protection of the public health in the prompt and efficient removal of all garbage in an inoffensive manner.
The contract was let to the lowest bidder, as section 61 of the charter provides. It fixes the price for removal by the contractor at 249/1000, practically one-fourth of a cent per pound, this being the maximum; permits the contractor to collect the same from the householder, the party producing the garbage; and expressly exempts the city from any liability in the premises.
Appellants contend that this contract is invalid for several reasons: 1st. The contention is that the contract is invalid because the board of public works had no authority to make it.
The first reason given in support of this claim is that the provision for payment by the householder for the removal of his garbage is an "assessment" against him or his property, and, as the charter does not confer the power to make an assessment of this kind, therefore it can not be made. If the premise were correct the conclusion would necessarily follow. The infirmity is in the assumption that this contract provides for an assessment, either upon person or property. An assessment is a charge laid upon individual property, because the property upon which the burden is imposed receives a special benefit which is different from the general one which the owner enjoys in common with others as a citizen. Elliott's Roads and Streets, 370.
When the Legislature so declares, a lien in the amount fixed fastens upon the property, as against the owner and all who acquire rights subsequent to the time it attaches. Elliott Roads and Streets, 432.
An assessment is levied only upon the property benefited. It has been uniformly restricted to the means for paying those local burdens arising by reason of the wants of small communities. The general meaning of the word "assessment" is authoritative imposition. Welty's Law of Assessments, pages 2 and 3.
In this case there is nothing of the kind. No householder is required to have garbage removed or pay for its removal. Every householder may destroy all his garbage on his own premises, taking care not to create a nuisance in so doing. If he do not destroy all, he may reduce it to a minimum. This ordinance and contract simply provide that if he does produce garbage which has to be carted through the streets, the city or its agent, the contractor, shall do the work at his expense. Whatever else it may be, it is certainly not an assessment. It has not a single element of an assessment for the reasons:
1st. That except by the voluntary act of the householder, nothing is to be paid at all.
2d. No definite amount, in any event, is to be paid.
3d. Nothing is made a charge upon the property.
The whole arrangement is simply a provision by the ordinance that garbage shall be collected and carted through the streets only by a licensed agent of the city; second, that parties producing the garbage needed to be thus carted away shall place the same in proper vessels, convenient for the removal by such agent; and third, that such agent shall charge not exceeding the price named for removing the same.
It is no more an assessment than is the provision of the ordinance fixing the rate of payment for gas, or water, or street car fare, as authorized by section 59 of the city charter, or the numerous provisions of section 23, specifying that the common council may require things done by the parties, and, if not so done, have the city do them at their expense, as taking down dangerous buildings, removing snow from the walks, etc. It can not be said that the charter does not expressly authorize the fixing of prices for removal of garbage, because the same section which confers upon the board the power "to remove all dead animals, garbage, filth, ashes, dirt, rubbish, or other offal from such city, either by contract or otherwise," impliedly authorizes the fixing of a price therefor; that is the very essence of the power to contract.
The appellants' learned counsel say:
It is within the general power of a government to preserve and promote the public welfare even at the expense of private rights. 18 Am. and Eng. Encyc., etc., 739, 740. Police power is defined in New Orleans Gas Light Co. v. Hart, 40 La. 474, 8 Am. St. Rep. 574, where it is said: It is the right "of a State functionary to prescribe regulations for the good order, peace, protection, comfort and convenience of the community, which do not encroach on the like power vested in congress by the federal constitution."
In Commonwealth v. Alger, 7 Cush. (Mass.) 53, the court lays down the rule that "rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law, as the Legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient."
In Thorpe v. Rutland, etc., R. R. Co., 27 Vt. 140 (149), 62 Am. Dec. 625, it is said: "By this general policy power of the State, persons and property are subjected to all kinds of restraints and diligence in order to secure general comfort, health and prosperity of the State."
In Town of Lake View v. Rose Hill Cemetery Co., 70 Ill. 191, the court say: Hale v. Lawrence, 21...
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