Reduction Co. v. Sanitary Works, ante, p.
199 U. S. 306,
followed as to the power of municipal authorities to make suitable
regulations for the disposition of garbage, and that such
regulations do not amount to a taking of private property for
public use without compensation within the meaning of the federal
Constitution.
Property rights of individuals must be subordinated to the
general good, and if the owner of garbage suffers any loss by its
destruction, he is compensated therefor in the common benefit
secured by the regulation requiring all garbage to be
destroyed.
Courts may take judicial notice of the effect of garbage on the
public health.
The fact that a law relating to jury trials applicable to a
particular county in a state is different from the general law on
that subject applicable to all other counties is not necessarily a
discrimination against the people
Page 199 U. S. 326
of the county affected and a denial of the equal protection of
the law, and so
held in this case, it appearing that every
person within the county affected was accorded equal protection of
the law prevailing there.
The facts are stated in the opinion.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This appeal raises for consideration the question whether a
certain ordinance of the City of Detroit relating to the collection
and disposition of garbage within that city is repugnant to the
Fourteenth Amendment of the Constitution of the United States.
By the ordinance in question it was made the duty of the
occupant or occupants of every dwelling house or other building in
the City of Detroit to provide a suitable and watertight box or
other vessel of a convenient size to be handled by the garbage
collector, in which such occupant or occupants should cause to be
placed or deposited "all offal, garbage, and refuse animal and
vegetable matter of the premises." Such occupants were required to
keep the box or other vessel in the alley in the rear of their
premises, or at a place on the premises most accessible to the
person collecting the garbage and offal, and it was made unlawful
to put anything but refuse animal and vegetable matter in the
vessel used for garbage and offal. If the vessel was placed in the
alley, it must be provided with a tight cover, properly hinged, and
located next to the lot line, from which it should not project more
than two feet into the alley. Section 1.
The remaining sections of the ordinance are in these words:
"§ 2. The word 'garbage' shall be held to include every refuse
accumulation of animal, fruit, or vegetable matter that
Page 199 U. S. 327
attends the preparation, use, cooking, dealing in or storing of
meat, fish, fowl, food, fruit, or vegetables, including dead
animals and condemned foods found within the city limits. All
garbage shall be collected in watertight closed metal boxes, and
such boxes shall be purified as often as the health officer may
direct, and shall have painted thereon the word 'Garbage.'"
"§ 3. It is hereby made the duty of the contractor with the City
of Detroit for the collection and removal of garbage and dead
animals to collect and remove, in accordance with the ordinances
and contract of the city, all garbage, dead animals, fish, and
refuse animal and vegetable matter found within the city limits. No
other person or party except the city contractor or its agents
shall carry, convey, or transport through the streets, alleys, or
public places of the City of Detroit such materials, and it shall
be unlawful for any person to interfere in any manner with the
collection and disposal of such materials by the city
contractor."
"§ 4. It shall be unlawful for any person to deposit, throw, or
place any garbage, fish, dead animals, or refuse animal or
vegetable matter in any avenue, alley, street, or other public
place within the City of Detroit; nor shall any person place such
materials upon any private property, whether owned by such person
or not, unless the same shall be enclosed in proper vessels or
boxes, as provided in section 1."
"§ 5. The collection and removal of garbage shall be under the
supervision of the board of health, and it shall be the duty of the
board of health and police department, through their proper
officials and agents, to enforce the provisions of this
ordinance."
Revised Ordinances of 1895, as amended in 1901.
The City of Detroit rests the authority of its council to pass
this ordinance upon its charter, which contains the following
provisions:
"The council shall have power to provide for the preservation of
the general health of the inhabitants of the city, and to make
regulations to secure the same; . . . to abate or remove any
nuisance; . . . to prohibit and prevent any person from having on
his premises any substance or thing
Page 199 U. S. 328
that is unwholesome or nauseous, and to authorize the removal
thereof. . . . The Common Council is also empowered to enact and
provide, by appropriate ordinance, for the manner of collecting,
transporting, conveying, and handling of garbage and all animal and
vegetable matter and refuse in said city . . . and to require all
persons in said city to dispose of the same in the manner provided
by said Common Council in said ordinance for the removal and
destruction thereof, and to impose and enforce appropriate
penalties for any violation of said ordinance."
Charter of the City, c. 7, § 43, par. 130.
By additional legislation in 1889, the Common Council was given
the power "to advertise for proposals, and contract for the
removal, disposition, and destruction of garbage and all animal and
vegetable refuse for a term of years."
In 1901, the city and the Detroit Sanitary Works, a corporation
of Michigan, entered into a written agreement, by which the latter
undertook to collect, remove, and dispose of all garbage and dead
animals within the limits of the City of Detroit for the term of
ten consecutive fiscal years, beginning July 1, 1901. In
consideration of the faithful performance of the conditions and
specifications specified in the agreement, the city agreed to pay
to the sanitary company the sum of $515,000, in equal monthly
installments of $4,291.66 2/3 during the continuance of the
contract.
The agreement between the city and the sanitary works contained,
among others, the following provisions:
"1. Garbage shall be understood to consist of all refuse animal
or vegetable matter, including dead animals, found within the city
limits, coming from private or public premises within the city. 2.
The time for making the collection of garbage and dead animals
shall be as follows, to-wit: (a) within and upon the public markets
daily; (b) within the two-mile circle as shown from the maps of the
city, and from all hotels, restaurants, hospitals, slaughterhouses,
and all other places where animals, game, or fowl are killed within
the said City of Detroit,
Page 199 U. S. 329
collections daily; (c) within all other portions of the city,
collections three times in each week, times as nearly equally
divided as possible. The work of collecting said garbage shall be
performed to the satisfaction and under the provision of the board
of health; (d) the board of health shall have authority to order
daily collections outside of the two-mile circle whenever, in its
judgment, it is necessary. The health officer shall also have
authority to order extra collections to be made at any time when
necessary, the contractor shall be required to cause such
collections to be made within three hours of the time when such
order is received by him; (e) garbage shall be collected in and
transported through the streets of the city in vehicles with
watertight closed metal boxes. 3. All garbage must be taken at
least two miles outside the limits of the City of Detroit, and
disposed of in such manner as to entail no damage or claim against
the City of Detroit for such disposal. 4. It is expressly agreed
that no garbage or other refuse collected by said contractor shall
be dumped into the Detroit River or any of its tributaries, or into
Lake Erie or any other lake. The Common Council reserves the right
to make such rules and regulations with reference to the collection
of the garbage as may from time to time be deemed necessary. No
employee of the contractor shall receive in the City of Detroit
less than one and fifty one-hundredths dollars ($1.50) per day. In
case said second party shall fail to collect garbage or dead
animals in accordance with this contract, and such failure shall
continue for the period of twenty-four (24) hours after a written
notice from the Board of Health of the City of Detroit, then and in
such case said second party shall be liable to and shall pay to the
said party of the first part the penalty of two dollars ($2.00) for
each and every such failure so to do."
Upon the complaint of an agent of the sanitary works, Gardner,
the plaintiff in error, was arrested by warrant issued out of the
Recorder's Court of Detroit, charged with having violated the above
ordinance by unlawfully and willfully
Page 199 U. S. 330
carrying, conveying, and transporting garbage through the
streets and alleys of Detroit, he not being the city contractor or
its agent.
The defendant pleaded not guilty, was tried and found guilty by
a jury, and fined ten dollars.
There was no dispute at the trial as to the facts. It appeared
that the defendant gathered and transported refuse from the tables
of hotels of the kinds described in the statute as garbage, acting
in such matter not for the city contractor, but for the person who
bought such material from the proprietors of the hotels. He
violated the statute, and was liable to the prescribed penalty
unless the ordinance was invalid. The judgment of conviction in the
Recorder's Court was affirmed by the Supreme Court of Michigan, all
the judges (except one who did not sit) concurring. 100 N.W.
126.
The contention of the accused at the trial was that the garbage
or swill accumulated at hotels was property, and that the third
section of the ordinance, directing the city contractor to collect
and remove it, deprived the owner of his property without
compensation, and therefore was in violation of the Fourteenth
Amendment of the Constitution of the United States.
This contention was overruled by the trial court, the judge
saying to the jury:
"The defendant in this case was transporting what confessedly
was garbage. It is well settled that no one may claim damages
because of enforced obedience to a police regulation designed to
secure and protect public health. It is manifest that, were
individuals permitted to escape the regulation fixed by the Common
Council and dispose of garbage as they severally saw fit, all
system in the collection and removal of refuse matter would be
destroyed. Even if this garbage have some value for some such use
as that to which the respondent's employer put it -- the feeding of
hogs -- the courts will not, at the expense of the public health,
recognize that this refuse matter, in its legal aspect, is
property. No property
Page 199 U. S. 331
right has therefore been violated."
The supreme court of the state thus disposed of the
question:
"The defendant attacks the validity of the ordinance as it
relates to garbage or refuse from the tables of hotels. Similar
ordinances have been before the court and sustained in
People
v. Gordon, 81 Mich. 306, and
Grand Rapids v. De
Vries, 123 Mich. 570. In these cases, the question of whether
there is a property right in refuse was not raised in the form in
which it is here presented, although, in the case last cited, 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. 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 and Burns, Mun.Corp.
§ 220. The precise question involved in the present case was
considered in the well reasoned opinion of Judge Shepard in
Dupont v. District of Columbia, 20 App.D.C. 477, and the
conclusion reached fully sustains the holding of the trial
judge."
Upon the general subject of the exercise of police powers by
municipalities proceeding under legislative sanction for the
protection of the public health, the views of this Court have been
set forth in the case of
California Reduction Co. v. Sanitary
Reduction Works, ante, p.
199 U. S. 306, and
what has been said in the opinion in that case is, we think,
decisive against the present defendant. It is appropriate, however,
to make some observations in reference to certain features of the
present case.
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
Page 199 U. S. 332
the taking by any state of private property for public use
without compensation. Of course, all know that such a use of refuse
is not uncommon in some localities, although modern investigation
shows that a good deal may be said against such a practice. It is
believed by some that the feeding of garbage to swine produces an
inferior quality of pork. There is authority for the statement
that, in 1889, the Massachusetts Board of Health reported, as the
result of its investigation, that garbage-fed hogs were afflicted
with trichinosis to the extent of thirteen percent In some states
it is forbidden by statute to feed garbage to milch cows, and in
some cities it is forbidden to sell milk from garbage-fed cows.
Chapin, Municipal Sanitation in the United States 699-700. We do
not, of course, express any opinion as to these matters, and refer
to them only in order to bring out the thought that the question
before the municipal authorities of Detroit was one in respect of
which there was room for difference of views as to what means were
best for the protection of the public health. 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 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
Page 199 U. S. 333
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.
The defendant further contends, as he contended in the supreme
court of the state, that the act of the Michigan Legislature
creating the Board of Jury Commissioners for Wayne County, in which
the present trial occurred, denies to accused persons and other
litigants in that county the equal protection of the laws. The
ground of this contention is that, by the general laws of the
state, the officers authorized to make and return the jury list
were elected by the people in their several townships and in city
wards, Const., Art. XI, § 1,
Attorney General v. Detroit,
29 Mich. 108, and required that jurors should be of those who are
assessed on the assessment roll, while, by the Wayne County jury
law of 1893, as amended in 1895, Pub.Acts 1893, p. 337; Pub.Acts
1895, p. 69, the jury lists are made up and returned by a board of
seven jury commissioners appointed by the governor with the consent
of the senate, and the names of persons to be returned need not
appear on the assessment rolls. This difference between the general
law relating to jury trials and the special law relating to Wayne
County, it is said, constitutes a discrimination against the people
of that county and amounts to a denial to them of the equal
protection of the law. This view does not commend itself to our
judgment. It is fully met and shown not to be sound by the judgment
in
Missouri v. Lewis, 101 U. S. 22, where
Mr. Justice Bradley, speaking for the Court and referring to the
Fourteenth Amendment, said:
"The last restriction,
Page 199 U. S. 334
as to the equal protection of the laws, is not violated by any
diversity in the jurisdiction of the several courts as to subject
matter, amount, or finality of decision if all persons within the
territorial limits of their respective jurisdictions have an equal
right, in like cases and under like circumstances to resort to them
for redress. Each state has the right to make political
subdivisions of its territory for municipal purposes and to
regulate their local government. As respects the administration of
justice, it may establish one system of courts for cities and
another for rural districts, one system for one portion of its
territory, and another system for another portion. Convenience, if
not necessity, often requires this to be done, and it would
seriously interfere with the power of a state to regulate its
internal affairs to deny to it this right. We think it is not
denied or taken away by anything in the Constitution of the United
States, including the amendments thereto. We might go still further
and say, with undoubted truth, that there is nothing in the
Constitution to prevent any state from adopting any system of laws
or judicature it sees fit for all or any part of its territory. If
the State of New York, for example, should see fit to adopt the
civil law and its method of procedure for New York City and the
surrounding counties and the common law and its method of procedure
for the rest of the state, there is nothing in the Constitution of
the United States to prevent its doing so. This would not of
itself, within the meaning of the Fourteenth Amendment, be a denial
to any person of the equal protection of the laws. If every person
residing or being in either portion of the state should be accorded
the equal protection of the laws prevailing there, he could not
justly complain of a violation of the clause referred to. For, as
before said, it has respect to persons and classes of persons. It
means that no person or class of persons shall be denied the same
protection of the laws which is enjoyed by other persons or other
classes in the same place and under like circumstances. "
Page 199 U. S. 335
Perceiving no error in the record touching any federal question,
the judgment is
Affirmed.
MR. JUSTICE BREWER and MR. JUSTICE PECKHAM dissent from the
opinion so far as it relates to the ordinances in question.