Urbach v. City of Omaha , 101 Neb. 314 ( 1917 )

Rose, J.

This is an action to enjoin the city of Omaha from enforcing an ordinance prohibiting any one not employed by the city for that purpose from hauling garbage through the streets and alleys. Plaintiff King is the proprietor of a restaurant and sells the waste from his kitchen to plaintiff Urbach who hauls it beyond the city limits as feed for swine. It is alleged in the petition that the garbage is valuable feed for swine, and that the ordinance, in preventing King from selling it, violates the state and federal Constitutions, which prohibit the taking of private property without due process of law or for public use without just compensation. U. S. Const., Amend. XIY, sec. 1; Nebraska Const., art. I, sec. 21. Defendant demurred to the petition. The demurrer whs sustained. Prom an order denying an injunction and dismissing the action, plaintiffs have appealed.

The ordinance makes it'a misdemeanor for any one not employed by the city for that purpose to remove or haul any garbage through the streets or alleys; provides for the collection of garbage by city employees; requires every housekeeper, or occupant of any building, and the proprietor of any hotel, restaurant, café and boarding house to place all garbage in proper receptacles reasonably accessible to the garbage collector; and defines “garbage” to include “every refuse, accumulation of animal, fruit or vegetable matter that attends the preparation, use, cooking or the dealing in or storage of meats, fish, fowl, fruits or vegetables.”

The question presented is whether the enactment of the ordinance was a proper exercise of police power. Plaintiffs cite Whelan v. Daniels, 91, Neb. 642, in which it was held that an ordinance declaring that dead animals found within the city become the property of the contractor employed by the city to remove them was void as taking private property without just compensation. The decision was based on the propositions that a dead animal may be valuable' property, that it is not a nuisance per se, and that its owner should be given a reasonable opportunity to remove it before it becomes a nuisance. In other cases it has been held that substances which are nuisances per se may “be removed by the city, in its exercise of lawful authority, for the protection and preservation of the health, comfort and welfare of the inhabitants.” Iler v. Ross, 61 Neb. 710, 717; Smiley v. MacDonald, 12 Neb. 5. In the present case the ordinance deals with garbage, which it defines to include “every refuse, accumulation of animal, fruit or vegetable matter thát attends the preparation, use, cooking or the dealing in or storage of meats, fish, fowl, fruits or vegetables.” Under the police power of the city, garbage, thus defined, may be treated as a nuisance per se. Smiley v. MacDonald, 12 Neb. 5; Iler v. Ross, 64 Neb. 710; City of Grand Rapids v. De Vries, 123 Mich. 570; State v. Robb, 100 Me. 180; O’Neal v. Harrison, 96 Kan. 339; California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306; Gardner v. Michigan, 199 U. S. 325.

These cases are in harmony with the following statement of the law: “The removal and disposal of garbage, off ai, and other refuse matter is recognized as a proper subject for the exercise of the power of a municipality to pass ordinances to promote the public health, comfort and safety. The natural scope of an ordinance on this subject is confined to discarded and rejected matter, i. e., to such as is no longer of value to the owner for ordinary purposes of domestic consumption. If the matter in question has not been rejected or abandoned as worthless and is not offensive in any way to the public health, it does not come within the natural scope of such an ordinance. Garbage matter and refuse are regarded by the decisions as inherently of such a nature as to be either actual or potential nuisances. By reason of the inherent nature of the substance, it is therefore not a valid objection to an ordinance requiring disposal in a specified manner that garbage has some value for purposes of disposal, and that the effect of the ordinance is to deprive the owner or householder of such value. That the owner suffers some loss by destruction or removal without compensation is justified by the fact that the loss is occasioned through the exercise of the police power of the state, and the loss sustained by the individual is presumed to be compensated in the common benefit secured to the public.” 2 Dillon, Municipal Corporations (5th ed.) sec. 678.

Plaintiffs further contend that the ordinance is void because it prohibits the owner of garbage from feeding it to fowls or animals on his own premises. Whether this is a proper construction of the ordinance and whether, thus construed, it is unconstitutional are questions not necessary to a decision. It is not shown that plaintiffs have been prevented from making such a use of the garbage. King complains because his right to sell garbage has been invaded, and the petition does not show that he does, or desires to, feed the garbage to fowls or animals on his own premises. Urbach complains because the ordinance denies him the right to purchase and remove garbage produced on the premises of others. The rule is that parties whose constitutional rights are not affected will not ordinarily be permitted to challenge the constitutionality of a law on the ground that it may operate in other respects to deprive other persons of their constitutional rights. State v. Brandt, 83 Neb. 656; Cram v. Chicago, B. & Q. R. Co., 85 Neb. 586; State v. Stevenson, 18 Neb. 416; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571.

The ordinance is not unconstitutional for the reasons advanced by plaintiffs. The judgment of the district court is therefore

Affirmed.