CITY AND COUNTY OF SAN FRANCISCO.
CITY AND COUNTY OF SAN FRANCISCO and another.
(Oircuit Oourt, N. D.Oalifornia. September 5, 1887.)
MUNICIPAL ORDINANCE-REMOVAL OF DEAD ANIMALS-CONTRACT-ExOLUSIVE PRIVILEGE-INJUNCTION.
The city and county of San Francisco. under the power vested in all municipal bodies to provide for the health of their inhabitants, and by virtue of express provisions of the constitution of California, art.H, § 11, and by the consolidation act of 1863, has power to make regulations for the removal from its limits of dead animals, not slain for human food. Pursuant to this authority,. the board of supervisors entered into a contract, and passed the neclilssary ordinance to give it effect, known as the "Dead-Animal Contract," whereby plaintiff and his assigns were granteel the exclu5ive privilege, for 20 years, of having and removing all 'dead animals not slain for food. During the existence of thecontract, the board of supervisors passed a resolution directing its clerk to advertise for. proposals from parties desirous of obtaining the car casses of dogs killed by the pound-keeper pursuant to the order of the board, and repealing "all orders or resolutions, or parts of orders or resolutions. 'in conflict with this resolution. ", The ,plaintiff asked for an injlinctioll . ing the board from passing or carrying out such a resolution. Held, that the passage of lI. resolution or order or ordinance providing for the removal of dead animals by the board was a. matter of legislative discretion, and an injunction restraininj:\' the' passage of such a resolution, order, or ordinatlce would .not be granted by the.circuit court of the United States. 1 .. .
SAME-"DEAD-ANuIAL CONTRACT" OF SAii FRANCISCo-DUTY OF POUNDKEEPER, . . .
The contract known as. the "Dead-Animal Contract." whereby plaintiff and his assigns were granted,' by the board of supervisors of San the exclusive privilege, for 20 years, of having and removing the carcasses Of all dead animals, not slain fbrioo. d, sUbjec.t to the regulations and. c.o.ntrol of the supervisors, provides that it shall "be the duty of tbe keeper tbe public pound to notify the plaintiff .orhis assigns to remove the animals. destroyed by him." Reld, that the plaintiff is entitled to an injunction restraining the pound-keeper from delivering, or ca.using to be delivered, to any other. person than pla.intiff or his assigns, such carcasses during the Ilxist!'lDCe of the contract.
The plaintiff has filed a bill against the city and county of Ban Francisco, its mayor, supervisors, and pound-keeper, to prevent any' obstruction by them to the execution of a contract between him and the city and county, known as the' Dead-Animal Contract." And he applies for a provisional injunction against the municipality to restrain the passage Many resolution, order, ot ordinance, which will impair the obligaEon of that contract. The injunctiori'is asked upon the bill and affidavits. and their allegations not being controverted, are, for the purposes of this application, to be taken as true. It appears by them that ill April, board of supervisors made a contract with one G. Wetzler, for 1866, the removal from the city limits, at hil:' own cost and expense, for °a period of 20 years, of all dead animals not slain for human food; to some
lIn an injunction to restrain the anticipated action of board'bfsllpervisors of a county in paying ct'l'tain alle-ged claims will not be granted, it !:leing hardly claimed that the board has nojurisdiction. Mprriam v. Yuba Co., 14 Pac. ReIl.137·. But that courts have jurisdiction to enjoin the board of supervisors ofa mnnICipal corporation from passing an ordinance which is not within the scope of their powers, ",bere the pll8sage of sucb ordillallC(; would work irreparable injury,see Water-Works v.Mayor, 16 Fed. Rep. 615. .
place where they should be disposed of in a manner so as not at any time to become a nuisance,-the manner to be at all times subject to the sanitary regulations and control of the supervisors, and the removal to be made in every instance immediately upon receiving notice of the existence of the dead animals. , In consideration of the removal, the city and county agreed that Wetzler should have the exclusive right of removing all the dead animals for the period designated; such exclusive privilege to be secured by a proper ordinance requiring notice to be given to him in every case of the death and Wetzler, on his part, agreed to keep an office or place of the of business in some central location, where notices might be given of the existence of any dead animal. If the contractor should fail or neglect toperform the terms of the contract, its privileges were to be forfeited, and he was to pay to the city five hundred dollars ($500) as liquidated damages. The supervisors pas(led the necessary ordinance to give effect to the contract; and it was ratified and confirmed by a special act of the legislature. Statutes of 1875-76, p. 866. By various mesne assignments, the contract was transferred to the complainant. In 1882, before the expiration of the 20 years, it was re, newed and extended for another similar period, and in December of that year, and also in November, 1884, resolutions were adopted by the supervisors giving full effect to the renewed contract, and requiring of the contractor a bond, with sureties, in the sum of one thousand dollars, ($1,000,) for the faithful performance of all its stipulations. Among the provisions ofthe resolutions was one making it the duty of the keeper of the public 'pound to notifY the plaintiff or his assigns to remove the animals destroyed by him, and of all health and police officers to give notJCe of the: death of animals which were to be removed. The bill alleges that the plaintiff accepted the resolutions adopted, executed the bond required. and entered upon the performance of the duties under the contract, and that he and his assignors have expended twenty-five thousand dollars ($25,000) in buying lands, erecting buildings, and in purchasing horses, wagons, carts, and necessary machinery, for carrying out the and have fully performed all its conditions. The carcasses of the animals were utilized by the plaintiff in many ways. Leather was made from the hides, and various articles from the bones, fat, and flesh; and it is alleged that in the prosecution of the business and peculiar kinds of machinery are required, and employes expressly trained for it. Notwithstanding the contract thus made, and the interest in it held by the plaintiff, the bill alleges that, on the seventh of February of the present year, a resolution was passed by the board of supervisors, directing its clerk to advertise for proposals from parties desirous of obtaining, for, a period of two years, the carcasses of dogs and other animals killed by the pound-keeper, pursuant to the order of the board, and repealing "all orders or resolutions, ,or parts of orders or resolutions, providing for the disposal of the carcasses of dead animals, and in conflict with the provisions of this pursuant to the res-
olution, the supervisors caused an advertisement to be made "for proposals for purchase of the carcasses of dogs and other animals killed by the pound-keeper;" and the bill alleges that, unless restrained, the board will carry out the action indicated by the resolution and advertisement, and will accept some of the proposals made, and award to the highest bidder the exclusive privilege for the period of two years, of obtaining and removing all the carcasses of animals thus killed; that the board has the physical powerar.d instrumentalities to carry out its action; that the plaintiff will thereby be deprived of such carcasses for that period, and be subjected to great and irreparable injury; and that such action will impair the obligation of his contract, and deprive him of his property without due process of law, contrary to the constitution of the United States. The plaintiff therefore prays that the board of supervisors may be enjoined from carrying out its intended action, and from passing any resolution, order, or ordinance depriving him, or attempting to deprive him, or his assigns, of the privilege of removing the dead animals mentioned, during the period designated in his contract. The bill also alleges that, since the first of January, 1857, the board of supervisors has authorized the pound-keeper, Jacob Lindo, to disregard, and in pursuance of such authority he has disregarded, the contract of the plaintiff with the city, giving him the exclusive privilege of having and removing the carcasses of dogs and other animals destroyed by the pound-keeper, and has refused to deliver the same or any part of them to him; but on the contrary, has delivered a large number, namely, about 400 dogs, to the defendant William P. Lambert, one of the supervisors, who has received them and converted them to his own use. The plaintiff therefore prays that the city pound-keeper may be enjoined from delivering, or causing to be delivered, to any other person than the plaintiff or his assigns, such carcasses, during the period the contract has to run. Langhorne & Miller, for plaintiff. M. p. Hassett, for defendants. FIELD, Circuit Justice, (after stating as above.) There is no doubt that the contract between the plaintiffand the city and county of San Francisco is one within the competency of the municipality to make. It is within the power of all such bodies to provide for the health of their inhabitants by causing the removal from their limits of all dead animals not slain for human food, which otherwise would soon decay, and, by corrupting the air, engender disease. And provisions for such removal may be made by contract, as well as the performance of any tither duty touching the health and comfort of the city; its authorities always preserving such control over the matter as to secure an observance of proper sanitary regulations. In addition to this general power, the constitution of the state of California which was in force when the contract with the plaintiff was renewed, declares that "any county, city, or township :may make and enforce within its limits all such local police, sanitary, and othel' regulations as are not in conflict with general laws." Article
.. FEDERAL REPORTER.
11, § 11. And the consolidation act of 1863, still in force, provides thdtthe' board of supervisors shall have power "to authorize the summary, abatement of nuisances; to make all regulations which may be necexpedient for the of the public health, and the preventaon 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, and to 'prevent the running at large of dogs, and to authorize the destruction of the same when at large, contrary to ordinance." The contract in question does not appear to be open to any serious jectiou; .none is alleged against its provisions. It imposes no burden upon·themunicipality. The removal of the dead animals is to be made without any expense to it. The compensation of the party making the removal is found in the uses to which the animals are .ormay be put. Their hides are converted into leather, from some of which, shoes, from others, gloves are made. Of their bones, buttons or handles for knives may be manufactured; from their flesh and fat, various oils may be distilled foruse:in the arts. And in case of horned animals, glue from their hoofs and. combs from their horns may be made. Indeed, all parts of the animals may be put to some useful It requjres, however, for sueli.uses, special and somewhat expensive machinery, and also, it is said> the employment of hands trained to the business. All these facilities .the bill alleges have been -provided by the plaintiff. While there'can, by contract, beno such restriction imposed upon the powel' 'of a municipal corpotationas to preclude legislation required by the health of its people, yet a contract having for its object to secure such health is not to be disregarded, and its provisions set 'aside, where no charge justly lies that the purposes of the contract are not accomplished. It is not pretended in this case that the plaintiff has failed in any respect to comply with his contract, and that the duty assumed by, him has not been fully performed. The municipality cannot disregard its contract obligations upon mere caprice, or because a pecuniary advantage may be thereby secured. When that is attempted, the courts will 'come to the relief of the contractor, if the party committing the injury ·is, with -reference to the matter complained of, subject to their jurisdiction. There can .be no doubt that the pound.keeper may be reached and enjoined from delivering the animals destroyed by him to any other paTty than the plaintiff, or his assigns. And should the board of supervisors, by its legislation, attempt to destroy the contract, or to deprive the' plaintiff of its benefit, .the enforcement of such legislation may be arrested. The difficulty presented in the case before us is that the application to enjoin the passage of resolution,order, or ordinance, which may tend to impair the obli,gation of the contract, is an application'toenjoin a legislative body from the ex.ercise of legislative power,. and to enjoin the exercise of such power is not within the jurisdictionof,a court of equity. This no one will question as applied to the power of the legislature of the state... The suggestion of any such jurisdiction of the court over that body WQuld not be entertained for a