Mich. 570, 82 N. W. 269; River Rendering ordinance relating to the collection of garCo. v. Behr, 7 Mo. App. 345; Smiley v. bage, by which licenses to collect garbage MacDonald, 42 Neb. 5, 27 L.R.A. 540, 47 were issued to a number of persons, includAm. St. Rep. 684, 60 N. W. 355; Brooklyn ing the defendant. On the 12th of Decemv. Breslin, 57 N. Y. 591; People v. Rosen-ber, 1906, the plaintiff entered into a conberg, 67 Hun, 55, 22 N. Y. Supp. 56; Rej tract with certain persons doing business Vandine, 6 Pick. 187; Jacobson v. Massa- under the name of Genesee Reduction Comchusetts, 197 U. S. 27, 49 L. ed. 650, 25 pany, for the collection and removal of Sup. Ct. Rep. 358, 3 Ann. Cas. 765; Parker garbage and dead animals in said city for & W. Public Health & Safety, ¶¶ 256, 257. five years from January 1, 1907, and for The city is without adequate remedy at the disposal of such garbage and dead anilaw to restrain the defendant from a con- mals in a plant without the corporate limtinuance of his unlawful acts, and the in- its of the city, for which it agreed to pay junction restraining the defendant from such said company the sum of $70,000 per year. continuance was properly granted. The license theretofore existing to the de

Storm v. Bennett, 91 Hun, 303, 36 N. Y. fendant was canceled. The court in this Supp. 290. action found, among other things, as follows:

Chase, J., delivered the opinion of the

court:

The charter of the plaintiff, a municipal corporation, provides generally and expressly for the enactment of ordinances to preserve the health, safety, and welfare of its inhabitants, and for such other purposes as the interests of the municipality and its citizens require. Charter City of Rochester, L. 1907, chap. 755, § 85.

It also provides: "The board of contract and supply is authorized to let contracts for periods exceeding one year and providing for the payment of specified annual amounts thereon, for the collection, removal and disposal of ashes, garbage and dead animals, for the cleaning and sweeping of streets. ." Charter City of Rochester, § 235.

It also provides: "The city of Rochester may maintain actions in courts of record of competent jurisdiction to restrain violations of penal and other ordinances of the common council." Charter City of Rochester, § 126.

In 1907 said city duly enacted an ordinance, the material part of which is as follows: "No person shall collect or carry on the business of scavenger, collector of garbage, bones, or kitchen refuse without a license from the bureau (bureau of health), but no license for the collection of garbage, dead animals, bones, or kitchen refuse shall hereafter be issued except to the person or persons, firm or corporation, having a contract with the city for the collection of garbage therein. The bureau of health is hereby directed to revoke and cancel all licenses heretofore issued and unexpired for the collection of garbage within the city, except the license issued to the Genesee Reduction Company, the city garbage contractor."

"Third. That the defendant is a farmer living just outside of the city of Rochester in the town of Gates, Monroe county, New York, and is engaged in raising hogs. That in pursuance of this business he purchased from a number of the clubs, restaurants, and larger hotels within the city, such portions of food as had been rejected for human consumption, consisting generally of bread crumbs and scraps, meat scraps, orange peel, banana skins, chicken bones, potato scraps and peelings, cabbage leaves, egg shells, onions, and carrot trimmings, and other similar materials. That such materials so purchased by the defendant consisted in part of food refuse and trimmings unsuitable for human consumption and rejected in the preparation of food for the table; and some consisted of scraps of food which had been actually served, remained uneaten, and scraped from plates into the cans provided in such hotels and restaurants for food stuffs so rejected.

"Fourth. That the defendant from time to time, and usually several times a week, sent his wagons into the city, where they proceeded from place to place to the several hotels, clubs, and restaurants with the proprietors of which he had contracted for such materials, where such materials were collected and transported to the defendant's farm for use in feeding hogs. . . That the materials so collected by the defendant from such hotels and restaurants were commonly mingled in the cans in which they were placed awaiting collection by the defendant, and were unfit for human consumption. That such materials were commonly of a kind and character calculated to undergo rapid fermentation and decomposition at ordinary temperatures, and required frequent, regular collections and careful handling and disposition in order to This action was brought April 14, 1909, avoid the development in such materials of to enjoin the defendant from violating such physical and chemical conditions that ordinance. Prior to 1907 said city had an

'would make such materials a menace to

the health and safety of people in the vicinity where they were kept or taken.

"Fifth. That the defendant had been continuously collecting such materials from such hotels and restaurants in the manner above stated for a period of more than six months prior to the commencement of this action, during all of which period he had no license for the collection of garbage, bones, and kitchen refuse within the city as required by said ordinance. That defendant was notified on a number of occasions, prior to the commencement of this action, by the police officers of the city of Rochester, that he was violating the provisions of the health ordinance by making such collections without a license, and was, on a number of occasions prior to the commencement of this action, directed by said police officers to stop the making of such collection; and said defendant failed and refused to comply with such directions.”

constitute a menace to public health. Because they are a menace to public health, they are subject to the control of the municipality in which they are situated. It is for the municipality, within reasonable bounds, to determine how they shall be collected and removed, or rendered harmless. Where it appears that the officers of a municipality act in good faith and in a reasonable manner in enacting ordinances to preserve the public health, their action should be upheld by the courts, even if its result is somewhat arbitrary in particular cases.

The validity of a statute or ordinance is not to be determined from its effect in a particular case, but upon its general purpose and its efficiency to effect that end. When a statute is obviously intended to provide for the safety of a community, and an ordinance under it is reasonable and in compliance with its purpose, both the statThe findings show that the defendant is ute and the ordinance are lawful and must continuously and wilfully disobeying the be sustained. Rochester v. West, 164 N. Y. ordinance. A large part of the specific 510, 53 L.R.A. 548, 79 Am. St. Rep. 659, things collected by the defendant consists 58 N. E. 673. The ordinance of the plainof bones and table refuse. To that extent tiff is not unreasonable. the things collected are within the express language of the ordinance. The defendant, who speaks with knowledge and experience, recognizes all of the specific things collected by him as garbage, as appears from his testimony, in which he says: "I have been engaged in the collection of garbage for ten years, and was one of the private collectors in the city who procured a license under the old system when licenses were issued to a number of private collectors."

Property rights cannot be lawfully in vaded under the pretense of protecting the public health. If, however, a municipality provides that garbage, bones, and kitchen refuse which are, or may be reasonably expected to become, a nuisance and a menace to public health. If not promptly collected and removed in a sanitary manner, shall be collected and removed at specified times and in a particular manner and by a particular contractor, it is not necessarily unconstitutional, even if private rights are thereby incidentally invaded. Such supervision, when reasonable, is not only lawful, but an affirmative duty imposed upon municipalities. An ordinance affecting personal rights must be a reasonable regulation, in good faith designed to accomplish the general public good for which its adoption is authorized.

It is conceded that garbage, bones, and kitchen refuse, particularly when mingled in a common receptacle, will ferment and decompose at ordinary temperatures with in a comparatively short time, and that when so fermented and decomposed they

All of the garbage, bones, and kitchen refuse collected by the defendant had been discarded as human food. The specific things collected by the defendant and mentioned in the ordinance are wholly worthless except as they have a nominal value when removed to some point without the city limits where they can with safety to the public health be fed to hogs. If they are not an existing menace to the public health when first placed in the receptacles provided for them, they must necessarily soon become such. Whether they become an existing menace to public health depends upon the care with which they are kept in the receptacles in which they are placed, and in the frequency with which the contents of such receptacles are removed without the boundaries of the municipality and away from human habitation. The city is not required in a case where danger is constantly to be apprehended, to wait until a nuisance actually exists before taking action to safeguard the public health. The duty of the city includes such supervision and direction as will prevent the danger to public health which will necessarily and surely arise if the things mentioned in the ordinance are not only properly cared for, but promptly removed. The specific things mentioned, which are so discarded for human food and for all use within the municipality, demand constant vigilance and oversight on the part of the health department of the municipality. Experience has shown that, when there are many collectors of garbage within a municipality, acting independ

vide that garbage and refuse matter shall only be removed by the officers of the city, or by a contractor hired by the city, or by some single individual to whom an exclusive license is granted for the purpose. An exclusive right so created is not open to the objection that it is a monopoly."

ently although under license, it is difficult to maintain the supervision necessary to preserve the public health; while, with one contractor acting under a contract pursuant to which he is paid and for the faithful performance of which he is required to give a bond with sureties, the public health can be and is better and more surely protected. It will be observed that there is nothing in the ordinance now under consideration to prevent the owner of a restaurant or hotel from removing the garbage, bones, and kitchen refuse on his property to a place where it will not be a nuisance to the public health, there to be fed to hogs or otherwise disposed of in such manner as to such owner may seem desirable.

The United States Supreme Court in Gardner v. Michigan, 199 U. S. 325, 328, 330, 50 L. ed. 212, 215, 216, 26 Sup. Ct. Rep. 106, 108, had under consideration an ordinance of the city of Detroit which gave to a contractor with the city the exclusive right to collect and remove garbage, which was "understood to consist of all refuse animal or vegetable matter, including dead animals, found within the city limits, comThe ordinance relates soley to scavengers ing from private or public premises within and collectors of garbage. The proprietors the city." The defendant gathered and of restaurants and hotels from whose pla- transported refuse from the tables of hotels ces of business the defendant collects the of the kinds described in the statute as gargarbage, bones, and table refuse are not par-bage, acting in such matter not for the city ties to this action. Their nominal proper- contractor, but for the person who bought ty is not taken without compensation. such materials from the proprietors of the Their compensation rests in the general good to the municipality. If the defendant is allowed to collect garbage, bones, and kitchen refuse from seven places in the city, any other person can collect from seven other places, and so the number may be increased indefinitely without the municipality having any means of controlling or super-stroyed. vising a work which concededly is one of value for some such use as that to which great public concern.

hotels. The court sustained a conviction under the ordinance, and say: “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 deEven if this garbage have some

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.

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.

Ordinances regulating the removal and disposition of garbage, bones, and kitchen refuse have frequently been sustained by state and Federal courts. The late Judge Dillon in his work on Municipal Corporations, 5th ed. § 678, referring to decisions of the courts, says: "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 The defendant insists that it is part of disposal, and that the effect of the or- of the common knowledge of the country dinance is to deprive the owner or house- that the refuse from kitchens, tables, hotels, holder of such value. That the owner suf- and restaurants is valuable as food for fers some loss by destruction or removal swine, and is property within the meaning without compensation is justified by the of the constitutional provision which for fact that the loss is occasioned through the bids the taking by any state of private prop exercise of the police power of the state, erty for public use without compensation. and the loss sustained by the individual Of course, all know that such a use of refuse is presumed to be compensated in the com- is not uncommon in some localities, almon benefit secured to the public. Founded though modern investigation shows that a upon the foregoing considerations it is there- good deal may be said against such a pracfore within the power of the city not only tice. Touching the suggestion that to impose reasonable restrictions and regu- garbage and refuse are valuable for the lations upon the manner of removing gar-manufacture of merchantable grease and bage, but also, if it seems fit, to assume the other products, it is sufficient, in view of exclusive control of the subject, and to pro- what we have said in the other case, to re

to restrain the defendant from violating the ordinance, he has no constitutional right to a trial of the issues by a jury. The constitutional provision relating to a trial by jury is: "The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever." Constitution State of New York, art. 1, § 2.

mark that it was a controlling obligation of As equity has jurisdiction of the action 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."

It had not been theretofore used in chancery.

The judgment should be affirmed, with costs.

Willard Bartlett, Ch. J., and Hiscock, Cuddeback, Miller, and Cardozo, JJ.,

NEW YORK COURT OF APPEALS.

MATTHIAS AALHOLM et al., Exrs. etc., of William A. Kenneally, Deceased,

The same court in California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306, 318, 50 L. ed. 204, 209, 26 Sup. Ct. Rep. 100, 103, approved the enforcement concur. of an ordinance of the city and county of San Francisco pursuant to which a contract had been made with certain persons and their successors and assigns by which they were given the exclusive right and privilege to. cremate and destroy garbage as therein defined, within said city and county for the period of fifty years, and charge therefor not exceeding 20 cents per load. The court say: "If a regulation enacted by competent public authority avowedly for the protection of the public health has a real, substantial relation to that object, the courts will not strike it down upon grounds merely of public policy or expediency.

'It

is not the province of the 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 appellant's contention that the ordinance is unconstitutional because, as it alleges, it grants an exclusive privilege or franchise, has been sufficiently answered in what we have said herein. See Gardner v. Michigan, and California Reduction Co. v. Sanitary Reduction Works, supra; Atlantic City v. Abbott, 73 N. J. L. 281, 62 Atl. 999; Grand Rapids v. De Vries, 123 Mich. 570, 82 N. W. 269; Smiley v. MacDonald, 42 Neb. 5, 27 L.R.A. 540, 47 Am. St. Rep. 684, 60 N. W. 355.

The right to maintain an action to restrain violation of penal and other ordinances is expressly given to the plaintiff, as we have seen, by its charter.

Such right of action is concurrent with the legal action to recover for a violation of the ordinance. It is based upon the inadequacy as a remedy of successive actions following a series of violations. The equitable action is designed not only to prevent a multiplicity of legal actions, but to prevent a continuous injury to public health that might exist unabated while wilful violations of the ordinance were continued.

V.

PEOPLE OF THE STATE OF NEW YORK. RE PETITION OF JOHN KENNEALLY as Heir at Law, etc., of William A. Kenneally, Deceased, Appt.

V.

SAME, Respt.

A

PPEAL by petitioner from an order of, geant John Kenneally and the half-brother the Appellate Division of the Supreme of the decedent was not supported by eviCourt, First Department, reversing an order dence sufficient to uphold the determination of a Special Term of New York County, of the special term. directing the state treasurer to pay to the petitioner as sole heir and next of kin of William A. Kenneally, deceased, certain moneys and personal property, pursuant to an order of the Supreme Court. Modified and affirmed.

Merges v. Ringler, 158 N. Y. 701, 53 N. E. 1128; Re Regan, 167 N. Y. 338, 60 N. E. 658; Re King, 168 N. Y. 53, 60 N. E. 1054; Re Board of Education, 169 N. Y. 456, 62 N. E. 566; Re Earnshaw, 196 N. Y. 330, 89 N. E. 825; Velleman v. Rohrig, 193 N. Y. 439, 86 N. E. 476; Conlon v. Kelly, 199 N. Y. 43, 92 N. E. 109; Re Carnegie Trust Co.

The facts are stated in the opinion. Messrs. Louis Marshall, J. Van Vechten Olcott, Edward K. Sumerwell, and | 206 N. Y. 394, 46 L.R.A. (N.S.) 260, 99 N. Nelson H. Tunnicliff, for appellant:

E. 1096; Hirshfeld v. Fitzgerald, 157 N. The court erred in dismissing appellant's Y. 166, 46 L.R.A. 839, 51 N. E. 997; O'Brien petition on the theory that, even if the dec- v. East River Bridge Co. 161 N. Y. 539, 48 larations on which he relies were admissi- L.R.A. 122, 56 N. E. 74; Buffalo & L. Land ble, the finding that he is the son of Ser- Co. v. Bellevue Land & Improv. Co. 165 N. died, or at least be beyond the reach of the sayings of a deceased person cannot be process, and the declarations have been rendered competent evidence on a question made ante litem motam, but also that of pedigree by merely proving that such there must have been some evidence dehors person said he was a kinsman or relative the declarations themselves, of the relation of the person whose pedigree is the subject ship of the declarant to at least one of the of the inquiry, but that the fact of relationbranches of the family in question. The ship must be shown by other evidence, important point for the purpose of this although Judge Lumpkin, in writing the question is that considered in the AALHOLM opinion of the court in Terry v. Brown, exCASE, whether the relationship of the declar-pressed, as his personal opinion, that the ant to the claimant, or to the person through whom the claimant traces his relationship, is sufficient, or whether there must be extrinsic evidence of relationship of the declarant to the other branch of the family.

court fell into error in its former decision, and that where the question is whether any or what relationship exists between two supposed branches of the same family, it is sufficient to establish the connection of The view taken in AALHOLM V. PEOPLE, and the deceased declarant with either branch in cases in the earlier note, that relationship of order to render such declaration admissible. the declarant to the claimant is not suf- Continuing, he said: "Relationship is muficient to render the declarations as to tual; and the question of whether A is repedigree admissible, without some evidence lated to B, or a member of B's family, also independent of the declarations that declar- involves the question whether B is related ant was related to the family of which he to A, or is a member of A's family. Where speaks, is supported by Vantine v. Butler, the question is whether A and B are re240 Mo. 521, 39 L.R.A.(N.S.) 1177, 144 S. lated, it is just as competent to prove that W. 807; though in that case it was held A's circle of relationship includes B, as to that there was sufficient independent evi- prove that B's circle of relationship includes dence of such relationship to make the dec-A. Proof of pedigree by statements of delarations admissible.

The contrary position taken in Re Hartman, supra, was followed in Re Clark, 13 Cal. App. 786, 110 Pac. 828, holding that the relationship required to be shown before declarations are admissible is the relationship of the claimant to the declarant, so where it was admitted that the declarant was the father of the claimant, it was not necessary to also show by extrinsic evidence that the declarant was related to the decedent.

In Terry v. Brown, 142 Ga. 224, 82 S. E. 566, refusing to reverse a decree against an administrator in an action to recover land, because of the exclusion of declarations by the intestate's mother, since deceased, and the intestate himself, made before any controversy had arisen, to the effect that he was the only son of one to whose orphans the land had been granted, -the court said: that it felt itself bound by the former decision in Greene v. Almand, 111 Ga. 735, 36 S. E. 957, which held that

ceased relatives and reputation in the family is recognized as an exception to the hearsay rule, based on necessity. Where the question is whether a person now living is related to or descended from another, dead for many years, perhaps a century or more, to hold that, before declarations of deceased persons could be admitted in evidence, their relationship to the dead person with whom it is sought to connect the living person must be shown, and that it is not sufficient to show the relation of the declarant to the living person, would often be practically destructive of the rule itself, and would be to disregard the basis on which the rule is founded. If it should be held that there must be evidence of the relationship of the deceased declarant with both families or branches, then there would be no need for the declaration to be admitted, because the evidence required as a basis for the admission of the declaration would show the very thing to prove which the declaration would be admissible. In Blackburn v. Crawford,