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- May 9, 2012
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It's amazing sometimes what you find in older cases. Here's an Interesting case regarding the disposal of table scraps and food. In the case, the proprietors of a hotel also owned a farm. The owner of the hotel would take the good table scraps, separate the good from the bad, and take the rest back to the farm to use as feed. Seems like nothing's wrong. Of course, leave it to those who have exclusive rights to haul the garbage to complain about the transgression of transporting your own garbage. The hotel owner said he wasn't transporting "garbage" - he was hauling what was still good unused food. The Michigan Supreme Court upheld the ordinance since we're still talking about hauling garbage but there's some interesting comments about about the good food and how it would not be a nuisance if the food was still good and how people have a right to dispose of the good portion as they see fit. Here's what the Michigan Supreme Court said in the case of Pantlind v. City of Grand Rapids, 210 Mich. 18 (1920) (I left out the facts and jumped to the argument):
Cleanliness characterized the keeping and handling of this garbage by all of the plaintiffs. None of the plaintiffs collected or conveyed through the streets of the city any garbage but his own. On August 24, 1917, the city notified plaintiffs to discontinue forthwith the practice of disposing and collecting garbage and conveying the same through the streets of the city. On August 31, 1917, plaintiffs Pantlind and Lawrence filed their bill of complaint in the superior court of Grand Rapids alleging among other things that the city was about to proceed against them under the ordinance, to take their property, the so-called garbage, from them without compensation, to their irreparable injury, and to subject them to daily arrests, prosecutions and multiplicity of suits, and praying a temporary order and a perpetual injunction restraining the city from proceeding against them under the ordinance and from interfering with them in their transporting and conveying from their respective hotels and restaurants to their farms in the country, their so-called garbage. A temporary restraining order was allowed. Plaintiff Hannaford was permitted to intervene without objection of record. Defendant answered and by cross-bill asked affirmative relief: That the plaintiffs be required to account to the city for the garbage which had been taken to their farms and that they be enjoined from transporting through the streets of the city any garbage, and from in any way violating the provisions of the city ordinance relating thereto. After a hearing the trial court decreed to plaintiffs the relief prayed. Defendant has appealed. Because of what was said in Grand Rapids Board of Health v. Vink, 184 Mich. 688, and City of Grand Rapids v. DeVries, 123 Mich. 570, we consider but the following: Was the material conveyed by plaintiffs through the streets garbage within the meaning of the ordinance and had the city the right to control the disposition of it? That the matter conveyed through the streets of the city by the plaintiffs to their farms was almost wholly garbage within the meaning of section 3 of the ordinance above quoted we have no doubt. It was "a refuse accumulation of animal, fruit and vegetable matter" attending the preparation, cooking and use of food in these enterprises. Century Dictionary defines refuse: "That which is refused or rejected; waste or useless matter; the worst or meanest part." See Gardner v. Michigan, 199 U.S. 325 (26 Sup. Ct. Rep. 106).
"In the case last cited ( City of Grand Rapids v. DeVries, supra) it was quite plainly implied that the common council, in the exercise of the police power, had the right to treat as a nuisance all such refuse as is unfit for human food. The court may well take judicial notice that table refuse, when dumped into receptacles kept for that purpose, will speedily ferment and emit noisome odors calculated to affect the public health." People v. Gardner, 136 Mich. 693.
See, also, Iler v. Ross, 64 Neb. 710 (90 N.W. 869, 57 L.R.A. 895); State v. Robb, 100 Me. 180 (60 Atl. 874, 4 Ann. Cas. 275).
As to the right of plaintiffs to those wholesome substances, leavings of the kitchen or table, which are fit for food, we quote from City of Grand Rapids v. DeVries, supra:
"It may be said that the ordinance does not attempt to regulate in any manner whatever the disposition of wholesome substances by the householder. It is aimed only at refuse; that is, discarded, worthless matter -- matter unfit for food. The householder has perfect liberty, under the ordinance, to consume, or to sell or give away, all the leavings of his table or kitchen that are fit for food."
The above language plainly implies that the city in the exercise of its police power had the right to treat as a nuisance all such refuse as is unfit for human food. People v. Gardner, supra. Wholesome substances may be distinguished from garbage upon the facts of a given case but generally speaking they may include broken bread, meat trimmings, vegetable parts, specked apples and the like, if fit for food. See State v. Orr, 68 Conn. 101 (35 Atl. 770, 34 L.R.A. 279). But when such matter is mingled with garbage it becomes subject to public control. Dupont v. District of Columbia, 20 App. D.C. 477.
"All authorities agree in holding that garbage in and of itself is a nuisance." Grand Rapids Board of Health v. Vink, supra.
Gatherers, collectors and purchasers of garbage who conveyed the same through city streets have been held to be violators of such ordinances (cases above cited). Urbach v. City of Omaha, 101 Neb. 314 (163 N.W. 307); People v. Gordon, 81 Mich. 306.
But it is urged that a person who has produced garbage upon his own premises has a right to dispose of it and to convey it through the streets because it is property of value and that as to him the ordinance is wanting in the due process of law required by the Constitution. Upon this point several dead animal cases, so-called, are cited but these are not controlling. It is not competent to declare a dead animal to be a nuisance immediately after death. People v. Gardner, supra. Dead animals are not nuisances per se, and the city in its ordinances must pay a proper regard [27] for the rights of the owner in such property. River Rendering Co. v. Behr, 77 Mo. 91. Garbage cases precisely in point are not cited. But we again quote from People v. Gardner, 136 Mich. 696:
HN1 "The court may well take judicial notice that table refuse, when dumped into receptacles kept for that purpose, will speedily ferment and emit noisome odors calculated to affect the public health. If, in providing against such a nuisance, the owner of such material suffers some slight loss, the inconvenience or loss is presumed to be compensated in the common benefit secured by regulation. Horr & B. Mun. Pol. Ord. § 220."
The ordinance in the Gardner Case, supra, including the definition of garbage, is substantially the same as in the case at bar. In Gardner v. Michigan, supra, the language above quoted is approved and the court said:
"The defendant insists that it is part of the common knowledge of the country that the refuse from kitchens, tables, hotels and restaurants is valuable as food for swine, and is property within the meaning of the constitutional provision which forbids the taking by any State of private property for public use without compensation. * * *
"Looking at the matter in a practical light, we are unable to say that the means devised by the city council and indicated by its action were plainly unreasonable or unnecessary or did not have a real, substantial relation to the protection of the public.
"Touching the suggestion that garbage and refuse are valuable for the manufacture of merchantable grease and other products it is sufficient, in view of what we have said in the other case, to remark that it was a controlling obligation of the city, which it could not properly ignore, to protect the health of its people in all lawful ways having relation to that object; and if, in its judgment, fairly and reasonably exercised, the presence of garbage and refuse in the city, on the premises of householders and otherwise, would endanger the public health, by causing the spread of [28] disease, then it could rightfully require such garbage and refuse to be removed and disposed of, even if it contained some elements of value. In such circumstances, the property rights of individuals in the noxious materials described in the ordinance must be subordinated to the general good. If it be said that the city might have adequately guarded the public health and at the same time saved the property rights of its owner on whose premises garbage and refuse were found, the answer is that the city evidently thought otherwise, and we cannot confidently say that its constituted authorities went beyond the necessities of the case and exceeded their proper functions when they passed the ordinance in question. Those ordinances cannot, therefore, according to well-settled principles, be held to be wanting in the due process of law required by the Constitution."
We quote from State v. Robb, supra:
"It may therefore be regarded as settled that HN2 reasonable municipal health regulations, under the authority of the State, are not void as taking private property without due process of law, or as a taking of private property without just compensation. * * *
"That some regulation of the collection and removal of refuse and offal in thickly populated cities (is necessary) is not denied. It needs no argument to show that if the disposal of matter of that sort already decayed or which will forthwith decay, be left to the will or whim or negligence, or ignorance of its owner, or of those to whom the owner may commit it for removal, the health, to say nothing of the comfort, of the public, will be seriously endangered. Ordinances or other regulations with respect to the collection and disposal of offal and garbage have frequently been before the courts, and in no case has the power and propriety of regulation been questioned, though in some cases objectionable features in the method of regulation have been discovered. * * *
"The question now reverts to whether the regulation adopted in this case was reasonable and lawful. By its terms it gives the exclusive privilege of collecting and removing all refuse matter constituting house offal or swill, within the city of Portland, to a [29] person or persons specially appointed, and prohibits all other persons from engaging in that business. It even prohibits the owners upon whose premises the refuse is made, from carrying it through the streets -- no matter how carefully and safely -- to uses of their own outside of the city. That house offal has some appreciable value, we think, may be assumed, but as we have already seen, that fact does not save it from police regulation, if it is already noxious, or is in such condition as to require prompt intervention to prevent its becoming noxious and dangerous to health. Harrington v. Board of Aldermen, 20 R.I. 233 (38 Atl. 1, 38 L.R.A. 305). The State may even direct its destruction. Lawton v. Steele, 152 U.S. 133 (14 Sup. Ct. Rep. 499)."
See, also, Iler v. Ross, supra; 2 Dillon Mun. Corp. (5th Ed.) § 678; State v. Payssan, 47 La. Ann. 1029; In re Zhizhuzza, 147 Cal. 328 (81 Pac. 955); North American Cold Storage Co. v. Chicago, 211 U.S. 306 (29 Sup. Ct. Rep. 101).
The rights of plaintiffs in this garbage must be subordinated to the general good. They are compensated in the common benefits secured by the ordinance. The city has the right to control the disposition of this garbage agreeably to the provisions of the ordinance. The request of the defendant for an accounting which is not discussed in its brief and which is not supported by competent evidence and which was seemingly abandoned upon the hearing will be denied. The decree of the lower court is reversed and one will be entered dismissing the bill of complaint and enjoining plaintiffs from conveying garbage through the streets of the city and from in any manner violating the ordinance of the defendant city with reference to garbage or removal thereof. No costs will be awarded.
Cleanliness characterized the keeping and handling of this garbage by all of the plaintiffs. None of the plaintiffs collected or conveyed through the streets of the city any garbage but his own. On August 24, 1917, the city notified plaintiffs to discontinue forthwith the practice of disposing and collecting garbage and conveying the same through the streets of the city. On August 31, 1917, plaintiffs Pantlind and Lawrence filed their bill of complaint in the superior court of Grand Rapids alleging among other things that the city was about to proceed against them under the ordinance, to take their property, the so-called garbage, from them without compensation, to their irreparable injury, and to subject them to daily arrests, prosecutions and multiplicity of suits, and praying a temporary order and a perpetual injunction restraining the city from proceeding against them under the ordinance and from interfering with them in their transporting and conveying from their respective hotels and restaurants to their farms in the country, their so-called garbage. A temporary restraining order was allowed. Plaintiff Hannaford was permitted to intervene without objection of record. Defendant answered and by cross-bill asked affirmative relief: That the plaintiffs be required to account to the city for the garbage which had been taken to their farms and that they be enjoined from transporting through the streets of the city any garbage, and from in any way violating the provisions of the city ordinance relating thereto. After a hearing the trial court decreed to plaintiffs the relief prayed. Defendant has appealed. Because of what was said in Grand Rapids Board of Health v. Vink, 184 Mich. 688, and City of Grand Rapids v. DeVries, 123 Mich. 570, we consider but the following: Was the material conveyed by plaintiffs through the streets garbage within the meaning of the ordinance and had the city the right to control the disposition of it? That the matter conveyed through the streets of the city by the plaintiffs to their farms was almost wholly garbage within the meaning of section 3 of the ordinance above quoted we have no doubt. It was "a refuse accumulation of animal, fruit and vegetable matter" attending the preparation, cooking and use of food in these enterprises. Century Dictionary defines refuse: "That which is refused or rejected; waste or useless matter; the worst or meanest part." See Gardner v. Michigan, 199 U.S. 325 (26 Sup. Ct. Rep. 106).
"In the case last cited ( City of Grand Rapids v. DeVries, supra) it was quite plainly implied that the common council, in the exercise of the police power, had the right to treat as a nuisance all such refuse as is unfit for human food. The court may well take judicial notice that table refuse, when dumped into receptacles kept for that purpose, will speedily ferment and emit noisome odors calculated to affect the public health." People v. Gardner, 136 Mich. 693.
See, also, Iler v. Ross, 64 Neb. 710 (90 N.W. 869, 57 L.R.A. 895); State v. Robb, 100 Me. 180 (60 Atl. 874, 4 Ann. Cas. 275).
As to the right of plaintiffs to those wholesome substances, leavings of the kitchen or table, which are fit for food, we quote from City of Grand Rapids v. DeVries, supra:
"It may be said that the ordinance does not attempt to regulate in any manner whatever the disposition of wholesome substances by the householder. It is aimed only at refuse; that is, discarded, worthless matter -- matter unfit for food. The householder has perfect liberty, under the ordinance, to consume, or to sell or give away, all the leavings of his table or kitchen that are fit for food."
The above language plainly implies that the city in the exercise of its police power had the right to treat as a nuisance all such refuse as is unfit for human food. People v. Gardner, supra. Wholesome substances may be distinguished from garbage upon the facts of a given case but generally speaking they may include broken bread, meat trimmings, vegetable parts, specked apples and the like, if fit for food. See State v. Orr, 68 Conn. 101 (35 Atl. 770, 34 L.R.A. 279). But when such matter is mingled with garbage it becomes subject to public control. Dupont v. District of Columbia, 20 App. D.C. 477.
"All authorities agree in holding that garbage in and of itself is a nuisance." Grand Rapids Board of Health v. Vink, supra.
Gatherers, collectors and purchasers of garbage who conveyed the same through city streets have been held to be violators of such ordinances (cases above cited). Urbach v. City of Omaha, 101 Neb. 314 (163 N.W. 307); People v. Gordon, 81 Mich. 306.
But it is urged that a person who has produced garbage upon his own premises has a right to dispose of it and to convey it through the streets because it is property of value and that as to him the ordinance is wanting in the due process of law required by the Constitution. Upon this point several dead animal cases, so-called, are cited but these are not controlling. It is not competent to declare a dead animal to be a nuisance immediately after death. People v. Gardner, supra. Dead animals are not nuisances per se, and the city in its ordinances must pay a proper regard [27] for the rights of the owner in such property. River Rendering Co. v. Behr, 77 Mo. 91. Garbage cases precisely in point are not cited. But we again quote from People v. Gardner, 136 Mich. 696:
HN1 "The court may well take judicial notice that table refuse, when dumped into receptacles kept for that purpose, will speedily ferment and emit noisome odors calculated to affect the public health. If, in providing against such a nuisance, the owner of such material suffers some slight loss, the inconvenience or loss is presumed to be compensated in the common benefit secured by regulation. Horr & B. Mun. Pol. Ord. § 220."
The ordinance in the Gardner Case, supra, including the definition of garbage, is substantially the same as in the case at bar. In Gardner v. Michigan, supra, the language above quoted is approved and the court said:
"The defendant insists that it is part of the common knowledge of the country that the refuse from kitchens, tables, hotels and restaurants is valuable as food for swine, and is property within the meaning of the constitutional provision which forbids the taking by any State of private property for public use without compensation. * * *
"Looking at the matter in a practical light, we are unable to say that the means devised by the city council and indicated by its action were plainly unreasonable or unnecessary or did not have a real, substantial relation to the protection of the public.
"Touching the suggestion that garbage and refuse are valuable for the manufacture of merchantable grease and other products it is sufficient, in view of what we have said in the other case, to remark that it was a controlling obligation of the city, which it could not properly ignore, to protect the health of its people in all lawful ways having relation to that object; and if, in its judgment, fairly and reasonably exercised, the presence of garbage and refuse in the city, on the premises of householders and otherwise, would endanger the public health, by causing the spread of [28] disease, then it could rightfully require such garbage and refuse to be removed and disposed of, even if it contained some elements of value. In such circumstances, the property rights of individuals in the noxious materials described in the ordinance must be subordinated to the general good. If it be said that the city might have adequately guarded the public health and at the same time saved the property rights of its owner on whose premises garbage and refuse were found, the answer is that the city evidently thought otherwise, and we cannot confidently say that its constituted authorities went beyond the necessities of the case and exceeded their proper functions when they passed the ordinance in question. Those ordinances cannot, therefore, according to well-settled principles, be held to be wanting in the due process of law required by the Constitution."
We quote from State v. Robb, supra:
"It may therefore be regarded as settled that HN2 reasonable municipal health regulations, under the authority of the State, are not void as taking private property without due process of law, or as a taking of private property without just compensation. * * *
"That some regulation of the collection and removal of refuse and offal in thickly populated cities (is necessary) is not denied. It needs no argument to show that if the disposal of matter of that sort already decayed or which will forthwith decay, be left to the will or whim or negligence, or ignorance of its owner, or of those to whom the owner may commit it for removal, the health, to say nothing of the comfort, of the public, will be seriously endangered. Ordinances or other regulations with respect to the collection and disposal of offal and garbage have frequently been before the courts, and in no case has the power and propriety of regulation been questioned, though in some cases objectionable features in the method of regulation have been discovered. * * *
"The question now reverts to whether the regulation adopted in this case was reasonable and lawful. By its terms it gives the exclusive privilege of collecting and removing all refuse matter constituting house offal or swill, within the city of Portland, to a [29] person or persons specially appointed, and prohibits all other persons from engaging in that business. It even prohibits the owners upon whose premises the refuse is made, from carrying it through the streets -- no matter how carefully and safely -- to uses of their own outside of the city. That house offal has some appreciable value, we think, may be assumed, but as we have already seen, that fact does not save it from police regulation, if it is already noxious, or is in such condition as to require prompt intervention to prevent its becoming noxious and dangerous to health. Harrington v. Board of Aldermen, 20 R.I. 233 (38 Atl. 1, 38 L.R.A. 305). The State may even direct its destruction. Lawton v. Steele, 152 U.S. 133 (14 Sup. Ct. Rep. 499)."
See, also, Iler v. Ross, supra; 2 Dillon Mun. Corp. (5th Ed.) § 678; State v. Payssan, 47 La. Ann. 1029; In re Zhizhuzza, 147 Cal. 328 (81 Pac. 955); North American Cold Storage Co. v. Chicago, 211 U.S. 306 (29 Sup. Ct. Rep. 101).
The rights of plaintiffs in this garbage must be subordinated to the general good. They are compensated in the common benefits secured by the ordinance. The city has the right to control the disposition of this garbage agreeably to the provisions of the ordinance. The request of the defendant for an accounting which is not discussed in its brief and which is not supported by competent evidence and which was seemingly abandoned upon the hearing will be denied. The decree of the lower court is reversed and one will be entered dismissing the bill of complaint and enjoining plaintiffs from conveying garbage through the streets of the city and from in any manner violating the ordinance of the defendant city with reference to garbage or removal thereof. No costs will be awarded.
