The Board of Supervisors of the City and County of San Francisco
have full authority under the constitution and laws of the
California to make and enforce within that city and county all such
reasonable sanitary and other regulations as are not in conflict
with any general statute or with the constitution, and which have
for their object the preservation of the public health by whatever
cause endangered.
Where the power of the authorities to grant privileges to be
exercised for public benefit is not limited by law in that respect
the duration of the period for which the privilege is granted is a
matter in their discretion to be determined on grounds of public
policy, and, even if such privileges ought not be granted for long
periods, the courts cannot declare a grant void merely on that
ground.
Where a regulation enacted by competent public authority for the
protection of the public health has a real, substantial relation to
that object, the courts will not strike it down on grounds of
public policy or expediency.
Where the basis of the claim is that an ordinance is
unconstitutional as taking private property for public use without
compensation, the claim must be made by one whose property is
taken, and it cannot be raised on his behalf by others whose
property is not taken.
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.
The Board of Supervisors of the City and County of San
Francisco, by ordinance adopted February 17th, 1896, and known
Page 199 U. S. 307
as Order No. 2965, granted to F. E. Sharon, his associates and
assigns, the sole and exclusive right and privilege, for a term of
fifty years, to cremate and destroy, within that city and county,
by crematories or by a process of reduction, house refuse, dirt,
ashes, cinders, sludge, crockery, tins, bones, and other like
matter, dead animals (not provided for by contract or franchise
theretofore granted), putrid vegetable matter, fish, flesh, and
food condemned by the Board of Health of the city and county as
unfit for human food, the grantees, their associates and assigns
having the right to charge and collect therefor not exceeding the
sum of twenty cents per load.
The grantees, their associates and assigns, were required to
have in operation within two years after the granting of the above
privilege or franchise a suitable building or buildings, with
necessary crematories, machinery, tools, and appliances necessary
to cremate and destroy by cremation, or by a process of reduction,
all obnoxious germs and elements contained in house refuse and
other substances above mentioned, the works to be such as would
suffice for the cremation or reduction of at least 300 tons per day
of such substances.
By the same ordinance it was made unlawful, after erection of
such works, for any person or corporation to remove through the
public streets from any houses, hotels, markets, hospitals,
factories, restaurants, stores, or other like building or place, in
the city and county, any of the substances above specified except
in closed vehicles and wagons constructed so as to conceal the
contents from public view, and to effectually prevent any smell
escaping therefrom, as well as to prevent the dropping of any
portion of such material or substances on the public streets, such
vehicles and wagons to be constructed in accordance with
specifications approved by the Board of Health of the city and
county.
The ordinance also made it unlawful, after the buildings
referred to had been constructed, for any person or corporation
Page 199 U. S. 308
to dump or place upon any land, water, or waterways within the
city and county any such substances, and required that they should
be forthwith delivered to the above crematory,
"and there, at the expense of the person or corporation so
conveying the same, be cremated or destroyed, or subjected to such
disposition and treatment as will at once secure and effect a
complete combustion of all gases and odors arising therefrom."
The grantees, their associates and assigns, were required,
within twenty-four hours after receiving any of the material or
substances above specified, to "cremate or reduce the same, or
shall subject the same to such process as will secure the complete
combustion of all gases or odors arising therefrom," and to
maintain and operate their plant and crematories, or other
apparatus
"so as to prevent any obnoxious smells or gases being emitted
either from the deposits of such matter or substances on their
premises, or from the process of cremation or other treatment
thereof, or from the residuum remaining after cremation or
treatment as aforesaid; also, that in the operation of said works,
no smoke or soot shall be emitted so as to constitute a
nuisance."
The ordinance further provided that the grantees, their
associates and assigns, should, from and after December first,
1902, have the sole and exclusive right and privilege, during the
remainder of the term of their franchise,
"to remove and dispose of all dogs killed at the public pound,
and all animals impounded and not redeemed by the owners thereof,
and which are valueless and cannot be sold; also to remove and
dispose of the carcasses of all dead animals in said city and
county not slain for human food, which shall not be removed and
disposed of by the owners thereof, so as not to become a nuisance,
within six hours after the death of the same."
It was further provided that the grantees, their associates, and
assigns should be subject to all health and sanitary regulations in
force during the existence of said franchises, and should receive
no compensation whatever from the city and
Page 199 U. S. 309
county for services performed by them in disposing of the
specified material and substances.
For the privileges or franchise granted by this ordinance,
Sharon and his associates paid the sum of $2,510 in cash, and
stipulated to pay for fifteen years two percentum, and for the
remaining term of thirty-five years five percentum, of the gross
amount of their receipts from the business.
The Sanitary Reduction Works, a corporation of California,
became the assignee and successor in interest of the franchise or
privileges granted to Sharon, his associates and assigns, and
notified the Board of Supervisors of the completion of their works,
and of their readiness to receive, cremate, and destroy all such
substances as were specified in Order No. 2965. The cost of such
works, the present plaintiff alleged, exceeded the sum of
$200,000.
Thereupon the Board of Supervisors, on November 1, 1897, adopted
Order No. 12 (second series), which provided that no person,
company, or corporation should, on or after November 8, 1897,
deposit, dump, or cause to be dumped or deposited upon any street,
lot, land, water, or waterways within the city and county or from
any wharf or bulkhead on the waterfront of the city and county, any
of the above substances or material, and that all such substances
or matter should be delivered at and to the crematory of the
Sanitary Reduction Works,
"and there at the expense of the person, company, or corporation
so conveying the same, be cremated and destroyed, or subjected to
such disposition and treat ment as will secure and effect a
complete combustion of all gases and odors arising therefrom."
Any violation of that order was declared to be a misdemeanor,
punishable by a fine of not exceeding two hundred and fifty dollars
or by imprisonment for a term not exceeding one hundred days, or by
both such fine and imprisonment.
The present suit was brought by the Sanitary Reduction Company
against the California Reduction Company, and about one hundred and
fifty individuals.
Page 199 U. S. 310
The defendant corporation was organized under the laws of
Colorado, at the instance of certain citizens of California, for
the purpose, we may assume from the record, of removing, by boats
and barges, large quantities of the material and substances
specified in the orders of the Board of Supervisors from the City
and County of San Francisco, and depositing them on lands in the
County of San Mateo and elsewhere than at the works of the Sanitary
Reduction Company, thereby preventing the same from being delivered
to, and incinerated and destroyed by, the latter company under its
contract with the City and County of San Francisco.
The individual defendants are subjects of the Kingdom of Italy,
and owners of licensed wagons used in their calling as scavengers
in the City and County of San Francisco. It seems that a very few
of them -- not more than about a half dozen -- are householders in
that city and county.
Between the California Reduction Company and the individual
defendants there is a written agreement, dated November 22, 1898,
requiring the former, within thirty days thereafter, to provide one
or more suitable buildings, wharves, or other places for the
reception from the latter
"of all garbage, ashes, refuse, butchers' offal, dirt, sludge,
crockery, tins, or other like matter, or any putrid animal or
vegetable matter, or any fish, flesh, or food, or any dead animals;
which said buildings, wharves, or other place or places shall be so
located that the average travel to the same shall not exceed the
average haul to the Sanitary Reduction Works by more than a quarter
of a mile."
By that agreement, the individual defendants bound themselves to
deliver at the buildings or places provided by the defendant
corporation all such material or substances gathered by them from
time to time in the city and county. The individual defendants also
stipulated in the agreement that they would not deliver any of the
above material or substances to any other party than the California
Reduction Company, nor at any other place than the one designated
and chosen by that company.
Page 199 U. S. 311
The pleadings and the evidence in the cause show that the
defendants had entered upon the execution of their agreement and
the transaction of the business to which it related. No question is
made as to the right of the plaintiff to exercise whatever
privileges had been legally granted to Sharon, his associates and
assigns.
The object of the suit by the plaintiff corporation was to
obtain a decree restraining the defendants, by injunction, from
removing from the City and County of San Francisco, or depositing
or dumping at any other place than at the works of the plaintiff,
any of the garbage or other materials specified in the orders of
the Board of Supervisors, or from infringing, directly or
indirectly, the exclusive rights, privileges, and franchises
secured to the plaintiff as above stated.
The circuit court, Judge Morrow presiding, passed a decree
giving the relief asked. 94 F. 693. That decree was affirmed in the
circuit court of appeals, Judge Hawley delivering the opinion of
the court. 126 F. 38.
Page 199 U. S. 315
MR. JUSTICE HARLAN delivered the opinion of the Court.
The defendants insist that the ordinances in question are
invalid for the want of power in the Board of Supervisors to adopt
them. This objection does not seem to be well taken. By the
California Constitution of 1849, it was provided that
"the Legislature shall have power to provide for the election of
a Board of Supervisors in each county, and these supervisors shall
jointly and individually perform such duties as may be prescribed
by law."
Subsequently, by an act approved April 25th, 1863, it was
provided that
"the Board of Supervisors of the
Page 199 U. S. 316
City and County of San Francisco shall have power, by regulation
or order, . . . to authorize and direct the summary abatement of
nuisances; to make all regulations which may be necessary or
expedient for the preservation of the public health and the
prevention of contagious diseases; to provide by regulation for the
prevention of contagious diseases; to provide, by regulation, for
the prevention and summary removal of all nuisances and
obstructions in the streets, alleys, highways, and public grounds
of said city and county,"
etc. Cal.Stat. 1863, p. 540. Again, in the state constitution of
1879 it was provided that
"any county, city, town, or township may make and enforce within
its limits all such local police, sanitary, and other regulations
as are not in conflict with general laws."
Art. XI, ยง 11. Further, by an Act approved March 23, 1893, it
was provided, among other things, that every franchise or privilege
to erect of lay telegraph or telephone wires, to construct or
operate railroads along or upon any public street or highway,
or
"to exercise any other privilege whatever hereafter proposed to
be granted by the Board of Supervisors, common council, or other
governing or legislative body of any county, city and county, city,
town, or district, shall be granted upon the conditions in this act
provided, and not otherwise."
One of those conditions was that the fact that such franchise or
privilege had been made, together with a statement that it was
proposed to grant the same, should be advertised, the franchise or
privilege to be awarded to the highest bidder. Cal.Stat. 1893, p.
288.
It may be here observed that, under the Charter of San
Francisco, the Board of Supervisors for the City and County of San
Francisco constituted the legislative department for that
municipality.
McDonald v. Dodge, 97 Cal. 112, 114;
Harrison v. Roberts, 145 Cal. 173.
In the above constitutional and statutory provisions is found
full authority for the board to make and enforce, within the City
and County of San Francisco, all such reasonable sanitary and other
regulations as are not in conflict with any general
Page 199 U. S. 317
statute or with the Constitution, and which have for their
object the preservation of the public health, by whatever cause
endangered. It was substantially so ruled in the Circuit Court of
the United States, Northern District of California, in
Alpers
v. San Francisco, 32 F. 503, Mr. Justice Field delivering the
opinion of the court. The ruling in that case was followed in
National Fertilizer Co. v. Lambert, 48 F. 458.
See
also People v. Board of Supervisors of Contra Costa County,
122 Cal. 421.
It is said that the grant to Sharon, his associates and assigns,
was in no sense a franchise. It is true that the title of the act
of 1893 refers only to franchises. But the body of the act shows
that the legislature intended to embrace privileges exercised under
public authority, and not alone what may be strictly franchises.
The right which was granted to Sharon, his associates, and assigns
was certainly a privilege, and the Board of Supervisors had power
to grant it in order to protect the public health. But,
independently of the above statutes, the board had power under the
constitution of the state to make such sanitary regulations as were
not inconsistent with the general laws, and that broad power
carried with it the power, by contract and ordinance, to guard the
public health in all reasonable ways.
The defendants criticize the ordinances because they give the
exclusive privileges in question for a period of fifty years. But
whether the period during which such privileges might be exercised
should be long or short was a matter in the wise discretion of the
board, and determinable wholly upon grounds of public policy. It
may be that grants by public authority of privileges to be
exercised for the benefit or in behalf of the public ought never to
be for long periods. But it suffices to say that no such
consideration can control the action of the judiciary.
The defendants insist that the ordinances in question are in
violation of the Fourteenth Amendment of the Constitution, in that
they deprive the householders of San Francisco of property
Page 199 U. S. 318
of value by transferring it to the Sanitary Reduction Works
without requiring compensation to be made, this, it is contended,
being in violation of the Fourteenth Amendment.
Chicago, B.
& Q. R. Co. v. Chicago, 166 U. S. 226.
We do not perceive that the defendant corporation of Colorado
and the individual defendants who are not householders are entitled
to raise any such question. If householders do not complain, but by
silence assent to what the board did, it is not for others to say
that the property of householders is taken for public use without
compensation, for householders, if so minded, may waive any right
they have to compensation for their property destroyed to protect
the public health. The individual defendants, in their answer,
claim to be householders in San Francisco. But it seems that only
about six of them are householders. The presence, however, of that
number as defendants makes it appropriate to consider the objection
just stated upon its merits.
In determining the validity of the ordinances in question, it
may be taken as firmly established in the jurisprudence of this
Court that the states possess, because they have never surrendered,
the power -- and therefore municipal bodies, under legislative
sanction, may exercise the power -- to prescribe such regulations
as may be reasonable, necessary, and appropriate for the protection
of the public health and comfort, and that no person has an
absolute right "to be at all times and in all circumstances wholly
freed from restraint," but "persons and property are subject to all
kinds of restraints and burdens in order to secure the general
comfort, health, and general prosperity of the stat" -- the public,
as represented by its constituted authorities, taking care always
that no regulation, although adopted for those ends, shall violate
rights secured by the fundamental law, nor interfere with the
enjoyment of individual rights beyond the necessities of the case.
Equally well settled is the principle that, if a regulation enacted
by competent public authority avowedly for the protection of the
public health has a real, substantial relation to that object,
Page 199 U. S. 319
the courts will not strike it down upon grounds merely of public
policy or expediency.
Railroad Co. v. Husen, 95 U. S.
465,
95 U. S.
470-471;
Mugler v. Kansas, 123 U.
S. 623,
123 U. S. 661;
Lawton v. Steele, 152 U. S. 133,
152 U. S. 136;
Atkin v. Kansas, 191 U. S. 207,
191 U. S. 223;
Jacobson v. Massachusetts, 197 U. S.
11,
197 U. S. 27. In
the recent case of
Dobbins v. Los Angeles, 195 U.
S. 223,
195 U. S. 235,
this Court said that
"every intendment is to be made in favor of the lawfulness of
the exercise of municipal power making regulations to promote the
public health and safety, and that it is not the province of
courts, except in clear cases, to interfere with the exercise of
the power reposed by law in municipal corporations for the
protection of local rights and the health and welfare of the people
in the community."
The record abundantly discloses the grounds upon which the Board
of Supervisors proceeded, in adopting the ordinances in
question.
The preamble to Order No. 2965 shows that, in the judgment of
the board, the only effective mode to dispose of house refuse,
butchers' offal, garbage, putrid or offensive animal or vegetable
matter, refuse, ashes, or other like matter, and to prevent such
substances from being deposited in or upon the lots, lands, and
public streets of the city and county, or in the waters of the bay,
to the prejudice of the public health was by cremation or by some
process of chemical reduction. The conviction of the board that
decided action on the subject was imperatively demanded for the
general good seems to have strengthened, for Order No. 12, adopted
a year later, stated in its preamble that from time to time during
previous years, the dumping of garbage, dirt, offal, house refuse,
matter, ashes, cinders, sludge, acids, or like matter to fill in
lots, and particularly in filling in water lots, had become so
objectionable and deleterious to the public health that the attempt
was made to mitigate such nuisances by covering them over with
sand; that it had, however, become apparent that lots so filled and
covered had thrown off obnoxious gases deleterious to the public
health, and, when epidemic diseases were prevalent, would become
a
Page 199 U. S. 320
fruitful source of danger to the sanitary wellbeing of citizens,
and that the Board of Health had called attention to and condemned
the disposing of garbage and refuse matter for the purpose of
filling in lots. Such were the reasons which moved the Board of
Supervisors to adopt that order making it unlawful to deposit any
of such substances upon streets, lots, or lands, or in any water or
waterway within the city and county and requiring that they be
delivered at the plaintiff's works, to be there cremated and
destroyed, or subjected to such disposition and treatment as would
effect a complete combustion of all gases and odors arising
therefrom.
We perceive no ground to doubt the good faith of the Board of
Supervisors, nor can we say that the mode adopted for the
suppression of the evils in question was arbitrary or did not have
a real, substantial relation to the protection of the public
health.
Many of the questions involved in municipal sanitation have
proved to be difficult of solution. There is no mode of disposing
of garbage and refuse matter, as found in cities and dense
populations, which is universally followed. In some cities, garbage
receptacles, properly covered, are provided, sometimes by the
householder, sometimes by the municipal authorities or the garbage
collector. But even such devices often prove to be worthless for
want of proper attention to them by householders. Then, the
question arises for the consideration of the municipal authorities
as to the frequency of the removal of garbage. The practice of not
at all uniform. In some cities, it is collected seven times a week;
in others, six, four, and three times a week. Again, questions
arise as to the mode in which garbage should be collected, and the
statement is made by those who have investigated the subject, that,
while
"there appears a well nigh unanimous demand on the part of
health officers, and oftentimes of the public generally, for the
municipal collection of garbage,"
the "problem of garbage disposal has not been solved." Chapin,
Municipal Sanitation in the United States, p. 670. Similar
observations
Page 199 U. S. 321
might be made in reference to what is commonly called "dry
refuse," which, in many cities, includes ashes and all the rubbish
accumulated in private houses, stores, markethouses, and like
places.
These references to the different methods employed to dispose of
garbage and refuse have been made in order to show that the board
had before them a most difficult problem -- unsolved by experience
or science -- as to the best or must appropriate method of
protecting the public health in the matter of the disposal of the
garbage, refuse, and other materials found on private premises, and
in hotels, restaurants, and like places. The state, charged with
the duty of safeguarding the health of its people, committed the
subject to the wisdom and discretion of the Board of Supervisors.
The conclusion it reached appears in the ordinances in question,
and the courts must accept it unless these ordinances are, in some
essential particular, repugnant to the fundamental law. The general
result which the Board of Supervisors sought to bring about was by
cremation, or by such other treatment of the materials as would
effect a complete combustion of all gases and odors arising
therefrom. "Cremation," it is said, "is exclusively employed for
getting rid of the garbage in England and on the continent of
Europe, and is rapidly coming into use in the United States," the
destruction by fire being theoretically "an ideal way, from a
sanitary standpoint, for the disposal of garbage." Chapin,
Municipal Sanitation in the United States, p. 714.
The defendants insist that the requirement that the substances
mentioned should be delivered at the plaintiff's works for
cremation or destruction at the expense of the person, company, or
corporation conveying the same was a taking of private property for
public use without compensation. We cannot assent to this view. It
is the duty, primarily, of a person on whose premises are garbage
and refuse material to see to it by proper diligence that no
nuisance arises therefrom which endangers the public health. The
householder may be compelled to submit even to an inspection of
his
Page 199 U. S. 322
premises at his own expense, and forbidden to keep them or allow
them to be kept in such condition as to create disease. He may
therefore have been required at his own expense to make from time
to time such disposition of obnoxious substances originating on
premises occupied by him as would be necessary in order to guard
the public health. If the householder himself removed them from his
premises, it must have been at his own expense, and the scavenger
who took to the crematory the material from the premises of origin,
under some arrangement with the householder, was in effect the
representative in that matter of the householder, and was
performing a duty resting upon the householder. So that if the
requirement that the person conveying the material should pay a
given price for having it cremated or destroyed in effect put some
expense on the householder, that gave him no ground for complaint,
for it was his duty to see to the removal of garbage and house
refuse having its origin on his premises. Still less has the
licensed scavenger a right to complain, for his right to convey
garbage and refuse through the public streets in covered wagons was
derived from the public, and he was subject to such regulations as
the constituted authorities, in their exercise of the police power,
might adopt. The whole arrangement may be fairly regarded as one in
the interest and for the convenience of the householder. He gets
his proportionate benefit of any revenue derived by the city, and
at the same time shares the protection given to him by the
community. Nor did the destruction of garbage and refuse at an
approved crematory amount, in itself and under the circumstances
disclosed, to a taking of private property for public use without
compensation, even if some of the substances destroyed at the
crematory had a value for certain purposes. The authorities were
not bound, prior to the removal of such substances from the
premises on which they were found, to separate those that were
confessedly worthless from those which might be utilized. The
garbage and refuse matter were all together, on the same premises,
and, as a
Page 199 U. S. 323
whole or in the mass, they constituted a nuisance which the
public could abate or require to be abated, and to the continuance
of which the community was not bound to submit. And when the
obnoxious garbage and refuse was removed from the place of their
origin and put in covered wagons to be carried away, the municipal
authorities might well have doubted whether the substances that
were
per se dangerous or worthless would be separated from
such as could be utilized, and whether the former would be
deposited by the scavenger at some place that would not endanger
the public health. They might well have thought that the safety of
the community could not be assured unless the entire mass of
garbage and refuse constituting the nuisance, from which the danger
came, was carried to a crematory, where it could be promptly
destroyed by fire, and thus minimize the danger to the public
health.
Be all this as it may, the cremation and destruction of garbage
and house refuse under the authority of the municipal authorities,
proceeding upon reasonable grounds, and at a place designated by
law, as a means for the protection of the public health, cannot be
properly regarded, within the meaning of the Constitution, as a
taking of private property for public use without compensation,
simply because such garbage and house refuse may have had at the
time of its destruction, some element of value for certain
purposes. With the knowledge of the householder, the scavenger
receives the garbage and refuse matter, that which, if separated,
might have value, being mingled with that which is, in itself,
noxious and worthless. The entire mass goes into the same covered
wagon, and the authorities are not bound, before its destruction at
the crematory, to cause the good to be separated from the bad, but
could require, as the ordinances in question did, that the
substances be promptly conveyed to the designated crematory and
destroyed by fire. Such a disposition of the contents cannot be
regarded as a taking of private property for public use without
compensation.
Page 199 U. S. 324
This Court has said that
"the possession and enjoyment of all rights are subject to such
reasonable conditions as may be deemed by the governing authority
of the country essential to the safety, health, peace, good order,
and morals of the community. Even liberty itself, the greatest of
all rights, is not unrestricted license to act according to one's
own will."
Crowley v. Christensen, 137 U. S.
86,
137 U. S. 89. In
Mugler v. Kansas, 123 U. S. 623,
123 U. S. 664,
it appeared that certain distillery property in Kansas was
purchased at a time when it was lawful in that state to manufacture
and sell spirituous liquors, but which property, by reason of the
subsequent prohibition of such manufacture and sale, had become of
no value, or had materially diminished in value. The owner insisted
that, by the necessary operation of the prohibitory statute, his
property was, in whole or in part, taken for public use without
compensation. But this Court said:
"The power which the states have of prohibiting such use by
individuals of their property as will be prejudicial to the health,
the morals, or the safety of the public, is not -- and,
consistently with the existence and safety of organized society,
cannot be -- burdened with the condition that the state must
compensate such individual owners for pecuniary losses they may
sustain by reason of their not being permitted, by a noxious use of
their property, to inflict injury upon the community. The exercise
of the police power by the destruction of property which is itself
a public nuisance, or the prohibition of its use in a particular
way, whereby its value becomes depreciated, is very different from
taking property for public use, or from depriving a person of his
property without due process of law. In the one case, a nuisance
only is abated; in the other, unoffending property is taken away
from an innocent owner."
In Sedgwick's Treatise on Statutory and Constitutional Law the
author says that
"the clause prohibiting the taking of private property without
compensation is not intended as a limitation . . . of those police
powers which are necessary to the tranquillity of every well
ordered community, nor of that general
Page 199 U. S. 325
power over private property which is necessary for the orderly
existence of all governments. It has always been held that the
legislature may make police regulations although they may interfere
with the full enjoyment of private property, and though no
compensation is given."
Pp. 434-435.
Without further discussion, we hold for the reasons stated that
the circuit court and circuit court of appeals properly refused to
adjudge that these ordinances were invalid.
Other questions have been discussed by counsel, but they do not
require special notice at our hands. We are content with the
disposition made of them in the courts below.
The decree of the circuit court of appeals is
Affirmed.
MR. JUSTICE BREWER and MR. JUSTICE PECKHAM dissented.
