Nos. 21360 and 21361
Decided May 1, 1929.
Municipal corporations — Police power — Health and sanitary regulations, including garbage collection and disposal — Designated officer may determine terms and conditions for issuing permits — Officer not thereby vested with legislative power — Granting garbage removal permit to single contractor, and denying others, constitutional.
1. The adoption of regulations pertaining to health and sanitation, including the process of collection and disposal of garbage, is within the proper exercise of the police powers of the state and of its municipalities.
2. It was within the province of the city authorities to commit the power of issuing permits for the collection and disposal of garbage upon a designated officer, leaving to him the terms and conditions under which they should be issued. Such action on the part of the city does not invest the officer with legislative power.
3. The city of Cincinnati advertised for and received bids and entered into a contract with a single contractor who, for a consideration paid by the city, engaged to collect and remove garbage therefrom in accordance with the city's specifications. A permit was thereupon issued to the city's contractor, but denied to the relator who had contracts for garbage removal with various hotels and restaurants in the city. This garbage, consisting of animal, vegetable and other products, had a commercial value, much of which being adaptable for the feeding of swine. Held: Neither the city ordinance nor the refusal of the city manager to issue relator a permit for the collection and removal of garbage contravened any provision of our state or federal constitutions.
ERROR to the Court of Appeals of Hamilton county.
Cause No. 21360 is an action instituted by George B. Moock in the court of common pleas of Hamilton county, wherein a writ of mandamus was sought commanding C.O. Sherrill, city manager of Cincinnati, to issue to him a permit to remove, and carry through the public places of the city, offal, animal, and vegetable matter and refuse substance, commonly known as garbage, from hotels, restaurants, and other places in the city.
Relator's petition setting forth Section 973 of the city ordinance, as amended April 20, 1915, alleges that the defendant Sherrill, as city manager, was authorized thereby to issue such permits; that the relator was the owner, by contract with certain hotels and restaurants of the city, of the substances aforesaid commonly known as garbage, and which had a commercial value as animal food; that the relator on April 20, 1926, applied to the city manager for a permit to remove such substances through the thoroughfares of the city to places outside of the city for the purpose of disposing of the same as animal food, but that the city manager refused to grant the relator a permit for that purpose. The relator alleged that, by reason of the action of the city manager refusing him a permit, he was denied legal rights to which he was entitled, and that this refusal resulted in the taking of relator's private property without compensation, in violation of the Fourteenth Amendment to the federal Constitution, and of Sections 1 and 19 of Article I of our state Constitution.
Issues were joined and the cause heard by the common pleas court, which awarded the relator, Moock, a writ of mandamus as prayed for. Error was then prosecuted to the Court of Appeals, which reversed the judgment of the trial court and rendered judgment in favor of the defendants below, whereupon Moock prosecuted error to this court.
Cause No. 21361 involves substantially the same questions as are presented in the case in mandamus. This was an action instituted in the court of common pleas seeking to enjoin the city manager, Sherrill, and the chief of police, Copelan, from interfering with the plaintiff in his removal of said garbage through the streets of said city, and to enjoin a defendant, the Union Reduction Company, which had a contract with the city for the removal of the garbage, from interfering with the plaintiff. Relator also prayed that said municipal officers be restrained from prosecuting a criminal action then pending in the criminal court against one Charles Yutze, an employee of the plaintiff. In this case issues were also joined, but, as shown by the journal entries, they were found in favor of the defendants both in the trial court and in the Court of Appeals. Moock thereupon prosecuted error to this court in that case. However, the disposition of the mandamus case (No. 21360) will necessarily dispose of case No. 21361, the injunction case.
While much of the evidence introduced in the trial court was objected to by both sides, the salient and competent facts necessary for the disposition of the cases are as follows:
The city council of Cincinnati adopted an ordinance authorizing the director of public service to prepare specifications and to advertise for and receive bids for the collection and disposal of garbage for the city for a period of five years, beginning June 1, 1926. Specifications were prepared, advertisement made, and the Union Reduction Company, under its bid, obtained a contract from the city for the collection and disposal of the garbage during said five-year period, and a permit therefor was issued to the city contractor. During the period of that contract Moock entered into an arrangement with various hotels, restaurants, and eating places in the city, whereby, for a consideration, he agreed to remove their garbage and to carry it to points outside of the city. He was the owner of a stock farm — having hogs, cattle, and chickens thereon. The waste food or garbage from these hotels and restaurants, consisting mainly of vegetable and animal matter from the plates of customers, or of kitchen waste, was collected in galvanized, water-tight, metal-covered cans and utilized as food for animals, especially for hogs. It was admitted that the relator, in the handling of this garbage, did and would do so in a sanitary manner, and that he had an arrangement with some of the producers of the garbage to recover and restore to them dishes or silverware found therein, which in the course of time amounted to a sum of considerable value.
The city manager was of the opinion that, in order to handle the garbage of the entire city, it was essential that its collection should be handled by a single operator in order to make it better capable of supervision; that it was much more difficult to supervise this phase of sanitation if several operators were permitted to gather garbage within the city. These considerations, as well as the fact that the city had contracted with the Union Reduction Company, caused the city manager to refuse the application of the relator for a permit to haul individual garbage through the public streets. The city's population at the time was approximately 425,000 people.
Messrs. Pogue, Hoffheimer Pogue and Mr. Walter M. Locke, for plaintiffs in error.
Mr. John D. Ellis, city solicitor, Mr. Ralph A. Kreimer and Mr. Milton H. Schmidt, for defendant in error, City of Cincinnati.
Messrs. Tooker Strasser, for defendant in error, The Union Reduction Company.
The chief question for our determination is whether the ordinance of the city of Cincinnati, as applied to the relator, impinges upon his constitutional rights guaranteed to him by the state and federal Constitutions.
In the case of Yutze v. Copelan, Chief of Police, 109 Ohio St. 171, 142 N.E. 33, 32 A. L. R., 1048, the same constitutional questions were fully presented, but were not then decided by this court. It is again urged that the city ordinance contravenes Sections 1 and 2 of Article I of the state Constitution, in that it denies the right of individual contract and confers special privileges upon the contractor with the city, thereby creating a monopoly in respect to the garbage contract; that it violates Section 19 of the same Article, in that it permits property to be taken without compensation, and that, contrary to the provisions of the Fourteenth Amendment to the federal Constitution, the relator is denied the equal protection of the laws. The ordinance under attack is as follows, Section 973 (passed April 20, 1915): " That no person shall remove or carry in or through any of the streets, squares, courts, lanes, avenues, places or alleys of the City of Cincinnati, any house dirt or house offal, animal or vegetable, or any refuse substance, from any of the dwelling houses or other places of the city, or carcass of any dead animal, unless the owner of the same shall have procured a permit so to do from the Director of Public Service, prescribing the terms and conditions as may be deemed essential to the health and interests of the city. Provided, however, the provisions hereof shall not apply to any contractor with the city in relation to garbage," etc. The city manager now possesses the functions formerly exercised thereunder by the director of public service.
Public health and sanitation, and this includes the process of collection and disposal of garbage, have always been recognized by the courts of this country as coming within the proper exercise of the police power of the state, and within the police powers of the city, if such are conferred upon the municipality by the state. In that field of legislation private property and private convenience must give way to the public welfare. Ample power to enact regulations conserving the public health and providing for the collection and disposition of garbage has been conferred upon municipalities by Sections 3646 and 3649, General Code. If the city is a chartered, home-rule city, it also has power to adopt and enforce sanitary regulations not in conflict with the general law, under our Constitution as amended in 1912. The action of the city manager in refusing the relator a permit is challenged, because his refusal was arbitrary and based upon mere whim and caprice; that the city, having prescribed no conditions upon which permits should be granted, left their determination to the city manager, and thereby invested him with legislative power. It is obvious that the city cannot, by ordinance, prescribe all the terms and conditions under which a permit shall be granted for the collection and removal of garbage. The fact that the ordinance did not prescribe the conditions and terms under which a permit should be granted, but left their determination to the city manager, did not confer legislative power upon him in a constitutional sense. Yee Bow v. City of Cleveland, 99 Ohio St. 269, 124 N.E. 132, 12 A. L. R., 1424. Were we to construe the ordinance as one conferring upon the city manager the power to issue general permits for the removal of garbage, and to determine conditions for their issuance, we glean from his testimony, what the court could take notice of judicially, that the supervision of the sanitation of the city, including the removal of garbage, could be more effectively and satisfactorily exercised where the handling of the garbage was in the hands of a single rather than of several garbage collectors. In City of Rochester v. Gutberlett, 211 N.Y. 309, 105 N.E. 548, L.R.A., 1915D, 209, Ann. Cas., 1915C, 483, in dealing with this feature, Chase, J., said: "Experience has shown that when there are many collectors of garbage within a municipality, acting independently although under license, it is difficult to maintain the supervision necessary to preserve the public health; while, with one contractor acting under a contract pursuant to which he is paid and for the faithful performance of which he is required to give bond with sureties, the public health can be and is better and more surely protected." In addition to this, the city, after advertising for bids and entering into a contract with a single contractor for the collection and removal of garbage, had indicated that this branch of sanitation, affecting the public health of the city, should be undertaken by the city contractor under the specifications prescribed by the contract, and in view of that fact, also, we are constrained to the view that there was no arbitrary exercise of discretion committed by the city manager, if indeed he had any power to grant a general permit to another than the city contractor.
It is claimed, however, that, because of the fact that the vegetable and animal products commonly called garbage had a monetary value as food for animals, the denial of the privilege to the hotels and restaurants of selling, and to the relator of purchasing, garbage for animal food, was violative of the latter's constitutional right of contract with relation to private property, and amounted to a special privilege and the creation of a monopoly in favor of the city's public contractor; that thereby the relator was denied the equal protection of our laws guaranteed him by the Fourteenth Amendment to the federal Constitution. Indeed this is the chief attack upon the validity of the ordinance and its operative effect upon the constitutional rights claimed by the relator. In support of this claimed invalidity of the Cincinnati ordinance, counsel for the relator cite several lower court decisions of this state, and also the case of Iler v. Ross, 64 Neb. 710, 90 N.W. 869, 57 L.R.A., 895, 97 Am. St. Rep., 676. The Nebraska court, while holding that the particular ordinance there under consideration was in excess of the power conferred by a city charter, conceded the city's power of regulating garbage disposal, its right to contract with a single agency, and its right to give the latter the exclusive privilege of collecting and removing garbage. Under that phase of the case we do not enter upon a virgin field, since the overwhelming weight of authority, both state and federal, upholds the municipal right to regulate, supervise, and control sanitation, including the collection and disposal of garbage, under the police power of the city and state; and this may be done, notwithstanding the fact that garbage may have animal food value and the authority for such collection and disposal has been exclusively confided to a single person or agency. We cite a few cases where this principle has been authoritatively decided in other jurisdictions. That the action of the city council in this field of regulation does not contravene the federal Constitution by denying the equal protection of the law, or by taking private property without compensation, or in granting exclusive rights to a single individual for the collection and disposal of garbage, has been definitely decided by the United States Supreme Court in the following cases: California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306, 26 S.Ct., 100, 50 L.Ed., 204; Gardner v. Michigan, 199 U.S. 325, 26 S. Ct., 106, 50 L.Ed., 212. In California Reduction Co. v. Sanitary Reduction Works, dealing with constitutional questions very similar to those here presented, the federal court held: "An ordinance of competent municipal authorities based upon reasonable grounds for the cremation of garbage and refuse at a designated place as a means for the protection of the public health is not a taking of private property for public use without compensation within the meaning of the Federal Constitution even though such garbage and refuse may have some elements of value for certain purposes. The exclusive privilege granted to one company by the Board of Supervisors of San Francisco to dispose of the garbage in the city and county of San Francisco held not to be void as taking the property of householders for public use without compensation." In Gardner v. Michigan, supra, the United States Supreme Court adhered to and further amplified the principle announced in the California Reduction case, supra.
The constitutional validity of similar ordinances has likewise been sustained by the following courts: Wheeler v. City of Boston, 233 Mass. 275, 123 N.E. 684, 15 A.L.R., 275; City of Rochester v. Gutberlett, supra; Pantlind v. City of Grand Rapids, 210 Mich. 18, 177 N.W. 302, 15 A.L.R., 280; Valley Spring Hog Ranch Co. v. Plagmann, 282 Mo., 1, 220 S.W. 1, 15 A. L. R., 266; Walker v. Jameson, 140 Ind. 591, 37 N.E. 402, 39 N.E. 869, 28 L.R.A., 679, 683, 49 Am. St. Rep., 222, and in the many citations contained therein. These cases are also authority for the principle that granting the power of garbage removal to a single contractor, and excluding others, does not make an ordinance constitutionally invalid on the ground that it effects discrimination or confers special privileges.
We are therefore of the opinion that no rights of the relator, either under the state or federal Constitutions, were violated by reason of the adoption of the city ordinance and the refusal of the city manager to issue him a permit thereunder. Apparently, to safeguard his position in respect to procedure, the relator brought his suit in injunction as well. Although it appears from the journal entry in the trial court that the issues were found generally in favor of the defendants, counsel state that, in fact, the judgment against the relator was rendered in that court for the reason that injunction did not lie. We need not decide this procedural question in the injunction case, since the disposition of the mandamus case upon its merits necessarily disposes of the other.
In each case the judgment of the Court of Appeals is affirmed.
KINKADE, MATTHIAS, DAY and ALLEN, JJ., concur.