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Mich. 570, 82 N. W. 269; River Rendering | ordinance relating to the collection of gar. Co. 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, 57, 22 N. Y. Supp. 56; Re i 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, IT 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 deStorm v. Bennett, 91 Hun, 303, 36 N. Y. fendant was canceled. The court in this Supp. 290.

action found, among other things, as fol

lows: Chase, J., delivered the opinion of the “Third. That the defendant is a farcourt:

mer living just outside of the city of RochThe charter of the plaintiff, a munici- ester in the town of Gates, Monroe county, pal corporation, provides generally and ex. New York, and is engaged in raising hogs. pressly for the enactment of ordinances to | That in pursuance of this business he purpreserve the health, safety, and welfare of chased from a number of the clubs, restauits inhabitants, and for such other pur- rants, and larger hotels within the city, poses as the interests of the municipality such portions of food as had been rejected and its citizens require. Charter City of for human consumption, consisting generalRochester, L. 1907, chap. 755, $ 85.

ly of bread crumbs and scraps, meat scraps, It also provides : "The board of con- orange peel, banana skins, chicken bones, tract and supply is authorized to let con- potato scraps and peelings, cabbage leaves, tracts for periods exceeding one year and egg shells, onions, and carrot trimmings, providing for the payment of specified an- and other similar materials. That such nual amounts thereon, for the collection, re- materials so purchased by the defendant moval and disposal of ashes, garbage and consisted in part of food refuse and trimdead animals, for the cleaning and sweep mings unsuitable for human consumption ing of streets. ." Charter City of and rejected in the preparation of food for Rochester, $ 235.

the table; and some consisted of scraps It also provides: "The city of Rochester of food which had been actually served, remay maintain actions in courts of record mained uneaten, and scraped from plates of competent jurisdiction to restrain viola- into the cans provided in such hotels and tions of penal and other ordinances of the restaurants for food stuffs so rejected. common council.” Charter City of Roches- "Fourth. That the defendant from time ter, § 126.

to time, and usually several times a week, In 1907 said city duly enacted an ordi- sent his wagons into the city, where they nance, the material part of which is as proceeded from place to place to the sevfollows: "No person shall collect or carry eral hotels, clubs, and restaurants with the on the business of scavenger, collector of proprietors of which he had contracted for garbage, bones, or kitchen refuse

such materials, where such materials were without a license from the bureau (bureau collected and transported to the defendant's of health), but no license for the collec- farm for use in feeding hogs. .. That tion of garbage, dead animals, bones, or the materials so collected by the defendant kitchen refuse shall hereafter be issued ex- from such hotels and restaurants were comcept to the person or persons, firm or cor- monly mingled in the cans in which they poration, having a contract with the city were placed awaiting collection by the defor the collection of garbage therein.

fendant, and were unfit for human conThe bureau of health is hereby directed to sumption. That such materials were comrevoke and cancel all licenses heretofore monly of a kind and character calculated issued and unexpired for the collection of to undergo rapid fermentation and decomgarbage within the city, except the license position at ordinary temperatures, and reissued to the Genesee Reduction Company, quired frequent, regular collections and the city garbage contractor.”

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 vi. , constitute a menace to public health. Becinity where they were kept or taken. cause they are a menace to public health,

“Fifth. That the defendant had been con- they are subject to the control of the mutinuously collecting such materials from nicipality in which they are situated. It is such hotels and restaurants in the manner for the municipality, within reasonable above stated for a period of more than six bounds, to determine how they shall be colmonths prior to the commencement of this lected and removed, or rendered harmless. action, during all of which period he had Where it appears that the officers of a muno license for the collection of garbage, nicipality act in good faith and in a reabones, and kitchen refuse within the city sonable manner in enacting ordinances to as required by said ordinance. That de preserve the public health, their action fendant was notified on a number of occa- should be upheld by the courts, even if its sions, prior to the commencement of this result is somewhat arbitrary in particular action, by the police officers of the city of cases. Rochester, that he was violating the pro- The validity of a statute or ordinance is visions of the health ordinance by making not to be determined from its effect in a such collections without a license, and was, particular case, but upon its general puron a number of occasions prior to the com- pose and its efficiency to effect that end. mencement of this action, directed by said / When a statute is obviously intended to police officers to stop the making of such provide for the safety of a community, and collection; and said defendant failed and an ordinance under it is reasonable and in refused to comply with such directions." compliance with its purpose, both the stat

The 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 All of the garbage, bones, and kitchen language of the ordinance. The defendant, refuse collected by the defendant had been who speaks with knowledge and experience, discarded as human food. The specific recognizes all of the specific things collected things collected by the defendant and menby him as garbage, as appears from his tes- tioned in the ordinance are wholly worthtimony, in which he says: “I have been less except as they have a nominal value engaged in the collection of garbage for when removed to some point without the ten years, and was one of the private col city limits where they can with safety to lectors in the city who procured a license the public health be fed to hogs. If they under the old system when licenses were are not an existing menace to the public issued to a number of private collectors.” | health when first placed in the receptacles

Property rights cannot be lawfully in provided for them, they must necessarily vaded under the pretense of protecting the soon become such. Whether they become an public health. If, however, a municipality existing menace to public health depends provides that garbage, bones, and kitchen upon the care with which they are kept in refuse which are, or may be reasonably ex- the receptacles in which they are placed, pected to become, a nuisance and a menace and in the frequency with which the conto public health. If not promptly collected tents of such receptacles are removed with: and removed in a sanitary manner, shall be out the boundaries of the municipality and collected and removed at specified times away from human habitation. The city is and in a particular manner and by a par. not required in a case where danger is conticular contractor, it is not necessarily un- stantly to be apprehended, to wait until constitutional, even if private rights are a nuisance actually exists before taking acthereby incidentally invaded. Such super- tion to safeguard the public health. The vision, when reasonable, is not only lawful, duty of the city includes such supervision but an affirmative duty imposed upon and direction as will prevent the danger municipalities. An ordinance affecting per- to public health which will necessarily and sonal rights must be a reasonable regula surely arise if the things mentioned in the tion, in good faith designed to accomplish ordinance are not only properly cared for, the general public good for which its adop- but promptly removed. The specific things tion is authorized.

mentioned, which are so discarded for huIt is conceded that garbage, bones, and man food and for all use within the munickitchen refuse, particularly when mingled ipality, demand constant vigilance and overin a common receptacle, will ferment and sight on the part of the health department decompose at ordinary temperatures with. ; of the municipality. Experience has shown in a comparatively short time, and that that, when there are many collectors of garwhen so fermented and decomposed they' bage within a municipality, acting independ

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ently although under license, it is difficult , vide that garbage and refuse matter shall to maintain the supervision necessary to only be removed by the officers of the city, preserve the public health; while, with one or by a contractor hired by the city, or by contractor acting under a contract pursu- some single individual to whom an exclusive ant to which he is paid and for the faith- license is granted for the purpose. An exful performance of which he is required to clusive right so created is not open to the give a bond with sureties, the public health objection that it is a monopoly.” can be and is better and more surely pro- The United States Supreme Court in tected. It will be observed that there is Gardner v. Michigan, 199 U. S. 325, 328, nothing in the ordinance now under con 330, 50 L. ed. 212, 215, 216, 26 Sup. Ct. sideration to prevent the owner of a restau. Rep. 106, 108, had under consideration an rant or hotel from removing the garbage, ordinance of the city of Detroit which gave bones, and kitchen refuse on his property to to a contractor with the city the exclusive a place where it will not be a nuisance to right to collect and remove garbage, which the public health, there to be fed to hogs was "understood to consist of all refuse or otherwise disposed of in such manner animal or vegetable matter, including dead as to such owner may seem desirable. animals, found within the city limits, com

The 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 hotels. The court sustained a conviction good to the municipality. If the defendant under the ordinance, and say: “It is mani. is allowed to collect garbage, bones, and fest that, were individuals permitted to eskitchen refuse from seven places in the city, cape the regulation fixed by the common any other person can collect from seven council, and dispose of garbage as they other places, and so the number may be in severally saw fit, all system in the collection creased indefinitely without the municipali and removal of refuse matter would be de. ty having any means of controlling or super-stroyed. Even if this garbage have some vising a work which concededly is one of value for some such use as that to which great public concern.

the respondent's employer put it, the feedOrdinances regulating the removal and dis- ing of hogs, the courts will not, at the exposition of garbage, bones, and kitchen ref- pense of the public health, recognize that use have frequently been sustained by state this refuse matter, in its legal aspect, is and Federal courts. The late Judge Dil. property. .. The court may well take lon in his work on Municipal Corporations, judicial notice that table refuse when 5th ed. § 678, referring to decisions of the dumped into receptacles kept for that purcourts, says: “Garbage matter and refuse pose will speedily ferment and emit noiare regarded by the decisions as inherently some odors, calculated to affect the public of such a nature as to be either actual or health. If, in providing against such a potential nuisances. By reason of the in- nuisance, the owner of such material sufherent nature of the substance, it is therefers some slight loss, the inconvenience or fore not a valid objection to an ordinance loss is presumed to be compensated in the requiring disposal in a specified manner,

benefit secured by regulation. 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 deprive the owner or house-i that the refuse from kitchens, tables, hote 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 the other case, to re





mark that it was a controlling obligation of As equity has jurisdiction of the action the city, which it could not properly ig. to restrain the defendant from violating nore, to protect the health of its people the ordinance, he has no constitutional in all lawful ways having relation to that right to a trial of the issues by a jury. The object; and if, in its judgment, fairly and constitutional provision relating to a trial reasonably exercised, the presence of gar- by jury is: “The trial by jury in all casbage and refuse in the city, on the premises es in which it has been heretofore used shall of householders and otherwise, would en remain inviolate forever.” Constitution danger the public health by causing the State of New York, art. 1, § 2. spread of disease, then it could rightfully It had not been theretofore used in chanrequire such garbage and refuse to be re- cery. moved and disposed of, even if it contained The judgment should be affirmed, with some elements of value.”

costs. The same court in California Reduction Co. v. Sanitary Reduction Works, 199 U. Willard Bartlett, Ch. J., and Hiscock, S. 306, 318, 50 L. ed. 204, 209, 26 Sup. Ct. Cuddeback, Miller, and Cardozo, JJ., 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 NEW YORK COURT OF APPEALS. were given the exclusive right and privilege to. cremate and destroy garbage as therein MATTHIAS AALHOLM et al., Exrs. etc.,

of William A. Kenneally, Deceased, defined, within said city and county for the period of fifty years, and charge therefor

PEOPLE OF THE STATE OF NEW YORK. not exceeding 20 cents per load. The court say: “If a regulation enacted by competent RE PETITION OF JOHN KENNEALLY public authority avowedly for the protec

as Heir at Law, etc., of William A. Kention of the public health has a real, sub- neally, Deceased, Appt. stantial relation to that object, the courts will not strike it down upon grounds merely

SAME, Respt. of public policy or expediency.

It is not the province of the courts, except in (211 N. Y. 406, 105 N. E. 647.) clear cases, to interfere with the exercise of the power reposed by law in municipal

Evidence declaration of pedigree corporations for the protection of local

status of declarant, rights and the health and welfare of the

1. Declarations by a person since depeople in the community.''

ceased, of relationship to a particular fam.

ily, are not of themselves sufficient to estabThe appellant's contention that the ordi- lish such relationship, so as to render nance is unconstitutional because, as it al. admissible evidence of his declarations with leges, it grants an exclusive privilege or respect to the pedigree of persons claiming franchise, has been sufficiently answered in to be members of such family. what we have said herein. See Gardner v. Appeal dismissal of action - inabil. Michigan, and California Reduction Co. v. ity to furnish necessary proof. Sanitary Reduction Works, supra; Atlantic

2. It cannot be said as matter of law City v. Abbott, 73 N. J. L. 281, 62 Atl. 999; that one claiming the estate of a deceased Grand Rapids v. De Vries, 123 Mich. 570, person upon evidence of declarations as to 82 N. W. 269; Smiley v. MacDonald, 42 tionship of declarant to the family, cannot

pedigree, but failing to establish the relaNeb. 5, 27 L.R.A, 540, 47 Am. St. Rep. 684, do so on another hearing, so as to justify 60 N. W. 355.

a dismissal of the petition without new The right to maintain an action to re- trial. strain violation of penal and other ordinances is expressly given to the plaintiff, as

(June 2, 1914.) we have seen, by its charter. Such right

Note. Admissibility of declarations of action is concurrent with the legal ac

of relatives of claimant upon the tion to recover for a violation of the ordi.

issue of his relationship or heirship It is based upon the inadequacy as to decedent. a remedy of successive actions following a series of violations. The equitable action This note is supplementary to the one is designed not only to prevent a multi- appended to Re Hartman, 36 L.R.A. (N.S.)

530, where the earlier cases will be found. plicity of legal actions, but to prevent a

It is assumed, for the purposes of these continuous injury to public health that notes, that, to render declarations admismight exist unabated while wilful violationssible as relating to pedigree or family histof the ordinance were continued.

ory, not only must the declarant have since

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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 Merges v. Ringler, 158 N. Y. 701, 53 N. petitioner as sole heir and next of kin of E. 1128; Re Regan, 167 N. Y. 338, 60 N. E. William A. Kenneally, deceased, certain 658; Re King, 168 N. Y. 53, 60 N. E. 1054; moneys and personal property, pursuant to Re Board of Education, 169 N. Y. 456, 62 an order of the Supreme Court. Modified N. E. 566; Re Earnshaw, 196 N. Y. 330, 89 and affirmed.

N. E. 825; Velleman v. Rohrig, 193 N. Y. The facts are stated in the opinion. 439, 86 N. E. 476; Conlon v. Keliy, 199 N.

Messrs. Louis Marshall, J. Van Vech- Y. 43, 92 N. E. 109; Re Carnegie Trust Co. ten 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-I 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 court fell into error in its former decision, whom the claimant traces his relationship, and that where the question is whether any is sufficient, or whether there must be ex- or what relationship exists between two trinsic evidence of relationship of the de- supposed branches of the same family, it clarant to the other branch of the family. 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 oi 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.

ceased relatives and reputation in the famiThe contrary position taken in Re Hart- ly is recognized as an exception to the man, supra, was followed in Re Clark, 13 hearsay rule, based on necessity. Where the Cal. App: 786, 110 Pac. 828, holding that the question is whether a person now living is relationship required to be shown before related to or descended from another, dead declarations are admissible is the relation- for many years, perhaps a century or more, ship of the claimant to the declarant, so to hold that, before declarations of deceased where it was admitted that the declarant persons could be admitted in evidence, their was the father of the claimant, it was not relationship to the dead person with whom necessary to also show by extrinsic evidence it is sought to connect the living person that the declarant was related to the de- must be shown, and that it is not sufficient cedent.

to show the relation of the declarant to the In Terry v. Brown, 142 Ga. 224, 82 S. living person, would often be practically E. 566, refusing to reverse a decree against destructive of the rule itself, and would an administrator in an action to recover be to disregard the basis on which the rule land, because of the exclusion of declara- | is founded. If it should be held that there tions by the intestate's mother, since de must be evidence of the relationship of the ceased, and the intestate himself, made be- deceased declarant with both families or fore any controversy had arisen, to the branches, then there would be no need for effect that he was the only son of one to the declaration to be admitted, because the whose orphans the land had been granted, evidence required as a basis for the admis. --the court said: that it felt itself bound sion of the declaration would show the very by the former decision in Greene v. Almand, thing to prove which the declaration would 111 Ga. 735, 36 S. E. 957, which held that'be admissible. In Blackburn v. Crawford,

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