California Reduction Company v. Sanitary Reduction Works of San Francisco

Messrs.

The board of supervisors of the city and county of San Francisco, by ordinance adopted February 17th, 1896, and known 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 20 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 to dump or place upon any land, water, or water ways 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 1st, 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 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 2 per centum, and for the remaining term of thirty-five years 5 per centum, of the gross amount of their receipts from the business.

The Sanitory 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 1st, 1897, adopted order No. 12 (second series), which provided that no person, company, or corporation should, on or after November 8th, 1897, deposit, dump, or cause to be dumped or deposited upon any street, lot, land, water, or water ways within the city and county or from any wharf or bulkhead on the water front of the city and county, and 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 $250, 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.

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 22d, 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.

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 Fed. 693. That decree was affirmed in the circuit court of appeals, Judge Hawley delivering the opinion of the court. 61 C. C. A. 91, 126 Fed. 38.

R. T. Harding, Garret W. McEnerney, Charles Page, and Edward J. McCutchcn for petitioners.

[Argument of Counsel from pages 311-313 intentionally omitted]

Messrs. Sheldon G. Kellogg, Aldis B. Brownc, C. L. Tilden, and Alexander Britton for respondent.

[Argument of Counsel from pages 313-315 intentionally omitted]

Mr. Justice Harlan delivered the opinion of the court: