State v. Orr , 68 Conn. 101 ( 1896 )

Baldwin, J.

The charter of the city of Bridgeport conferred upon the Common Council ample power to regulate by ordinance the collection and removal of garbage and offal.

The ordinance brought in question upon this proceeding deals only (§ 2) with “such refuse matter as accumulates in the preparation of food for the table.” “ Refuse matter,” as the term is thus employed, can embrace nothing which has not been refused or rejected as unsuitable for table use. It may be thus rejected because it has little or no value for human food, or because it is decayed or unwholesome. It must in its nature be perishable; and can include little which is not liable to become decomposed or offensive, if left where it falls. The Common Council therefore had authority to regulate its disposition, in such a way as to prevent it from becoming the occasion of a nuisance.

Much, however, that is of the nature of garbage and offal, and has slight value for table use, may be not unsuitable for the food of animals, for manure, or as materials for manufacture. Construing this ordinance with the strictness properly applicable to municipal legislation of a penal nature, the term “refuse matter” can only extend to matter which is in fact noisome, or which has been refused and rejected by the owner as worthless. Meat trimmings, potato parings, specked apples, and many other things of a like character, might be thrown aside in preparing table dishes, and yet properly utilized afterwards for other purposes.

• The mode of regulation of the disposition of kitchen refuse which is contained in this ordinance seems to be one of an alternative character.

The board of health is empowered’to take such measures as it may deem effectual for the removal of this refuse from the whole city or any portion of it, and to this end to employ or make contracts with one or more persons, subject to certain rules, of which the following are the leading ones: No person shall collect and transport such refuse in the city without first having obtained a permit from the board. It shall all be carried through the city in water-tight covered carts, so loaded as not to spill; each to be plainly marked' “ City Garbage Cart,” with the name of the contractor, and. number of the cart, and of the ward, and to be used only when inspected, approved and licensed by the clerk of the board. All such refuse is to be placed by the person on whose premises it originates in suitable covered vessels, set, there in a position convenient for removal, or in some place designated by the clerk of the board, so that it “ may be called for by the garbage contractor of said city; provided, however, that any person may be excepted from the provisions of this section, upon obtaining a permit to that effect from the clerk of the board of health.” No other matter whatever can be placed in such a vessel.- “ The garbage contractor or other person employed by the board of health shall call regularly at all dwellings, tenements, hotels, restaurants, or other buildings designated by the said board, and remove promptly and in as cleanly a manner as possible all garbage or offal that may be offered, and shall return the receptacles to the place on such premises from which the same were taken. All garbage and offal which shall be removed through said city shall be carried and deposited in such places as may be designated and approved by the board of health, and shall be disposed of in such manner as not to create a nuisance, and the covers of all carts, wagons or vessels used for the purpose of removing such garbage or offal, shall be kept tightly closed while they are being transported through the streets of the city. No deposit of garbage or offal shall be made within the limits of the city of Bridgeport, or upon any wharf, or upon any vessel lying at any wharf, except by permit from the board of health.” The clerk of the board is to enter in a record book “ all contracts entered into, or licenses issued by authority of said board.”

Under these provisions, and the authority of the Special Act of 1895, the board of health might contract with a single person to collect and remove garbage from the entire city, or with several persons to collect and remove it from as many different portions of the city. It might also make such contracts with respect to part of the city, or to certain buildings in part of the city, and leave the collection and removal of garbage from other places open to those who obtained from its clerk a proper permit, and provided proper means of transportation. By neither method of procedure would any monopoly be created, b}r which the common rights of citizenship would be infringed upon. The Slaughter-House Cases, 16 Wall. 36; Alpers v. San Francisco, 32 Fed. Rep. 503; National Fertilizer Co. v. Lambert, 48 id. 458. Nor did the absence in the charter of any express provision as to the grant of licenses to engage in this business, prevent the Common Council from resort to that mode of regulation, since it was a business which as usually carried on is in its nature dangerous to the public health, and as carried on in Bridgeport might, under the Act of February 28th, 1895, have been made by the board of health the subject of a public contract. Over any such occupation a strict watch must be kept, and the general police powers vested in the city by § 24 of its charter, in connection with the Act of 1895, justify the implication of a right to limit the number of those who pursue it. State v. Wordin, 56 Conn. 216, 226; Vandine, Petitioner, 6 Pick. 187.

The defendant offered evidence to show that he had been for many years engaged in the business of collecting and removing garbage in Bridgeport, in carts so constructed as to satisfy the requirements of the ordinance; and that he had applied to the clerk of the board for a license or permit, and met with a refusal.

He also offered evidence, which was excluded, that permits had been previously issued to others; but that, before he applied, the board had instructed its clerk to issue no more to any one. This evidence was properly excluded. The board of health, having the right to limit the number of those engaged in this particular occupation, the defendant had no absolute title to a license. If the number which it had issued was unreasonably small, and if an inquiry into that subject was open to him in any proceeding, it was certainly not open in this, to which the board was not a party. He could not thus assume to take the law into his own hands, and pursue the business without a license, because a license had been wrongfully refused. His remedy, if he had any, would be to apply by mandamus to compel the board to grant him one.

The defendant offered evidence to show that all the garbage collected by him came from certain restaurants, with the proprietors of which he had contracts for its removal. This also was properly excluded. It was not claimed, and cannot be assumed that such engagements had been entered into before the adoption of the ordinance. Without inquiring whether, had the fact been otherwise, the law would have been otherwise, it is sufficient, as the case stands, to say that no contract to perform an unlawful act can justify its performance.

The defendant further offered evidence to prove, and claimed that it did prove, that the garbage he collected was fresh, and some of it fit for food; and there was no evidence on either side tending to show that any of this garbage “ was sour or putrid and for that reason dangerous to the public health.” In view of this, the defendant asked the court to instruct the jury that “ the privilege of contracting to transport garbage is a liberty and property right, of which one cannot be deprived without due process of law;- unless the jury find that such garbage at the time of its transportation is a nuisance and detrimental to health.”

Such instructions were properly refused. It was a violation of the ordinance to collect and transport the kitchen refuse which was its subject, whether such of it as was being transported at the time of the act complained of was noxious or innoxious. It was enough that it was “ such refuse matter as accumulates in the preparation of food for the table.” There is so much of this kind of matter that is offensive and dangerous to the health of the community, that all may be properly made the subject of public supervision'and control.

The ordinance does not extend to everything that is separated and thrown aside in the preparation of food for the table. Whatever of this description is not abandoned as worthless,, remains property which, so long as it does not constitute a nuisance, may be sold or otherwise disposed of at the will of the owner. If the evidence had shown both that the contents of the defendant’s cart, while they had been rejected for table use, were not offensive, and that they were in his possession as the agent or vendee of the original owners, he might have been entitled to a verdict, for he could not then have been engaged in the business for which a license was required.

The Court of Common Pleas was requested but declined to instruct the jury that “ the board of health has no poyrer to assume in advance that garbage is or will become a nuisance and detrimental to public health, and so contract arbitrarily for its removal or prohibit its removal by purchasers thereof; that the board of health cannot prohibit the carrying on of a lawful business not necessarily a nuisance, and which may be conducted without injury or danger to the public health; that the Common Council has no power under the charter of the city of Bridgeport to refuse a citizen the right to exercise a lawful calling, or to prohibit his exercise of the same when not dangerous to public health or safety.”

There was no error in refusing these instructions. Ample authority is found in the charter and the Act of 1895 for dealing with the business of disposing of garbage and offal as one dangerous to the public health. Any occupation comes within the range of the police power which is such as to be naturally liable to create a nuisance, unless subjected to special regulations; whether it be so conducted as, in fact, to create a nuisance, or not. The prevention of nuisances is quite as important as their abatement. Raymond v. Fish, 51 Conn. 80, 96.

There is no error in the judgment appealed from.

In this opinion the other judges concurred.