Mr. Justice Shepard
delivered the opinion of the Court:
There can he no more important field for the exercise of the activity of the ordinary police powers of government than the preservation of the public health, and it is within the unquestioned power of the municipal authorities to enact regulations looking to the speedy and innocuous removal of the carcasses of all animals that may die within the limits of their jurisdiction, the decomposition of which would not only endanger the public health, but also create a serious nuisance of another kind.
At the same time it is equally clear that the power is not an unlimited one, and that every exercise of it, on behalf of the public health or any other legitimate public purpose, must, in order to justify an infringement of the rights of person or property, have a substantial relation to those objects. Mugler v. Kansas, 123 U. S. 623, 661; Lawton v. Steele, 152 U. S. 133, 136; Moses v. United States, 16 App. D. C. 428, 438.
Applying those principles to the facts disclosed by the record, the question for determination is, whether the regulations as made and interpreted by the Commissioners, and their refusal to permit the owner of the dead animal to arrange for its removal with the precautions specified in said regulations, were within, or in excess of, the powers which they could lawfully exercise ?
The original regulation, it will be observed, merely provides for the manner in which certain dead animals shall be transported through the streets, alleys and public places of the city, and conveyed either out of the District, or to such place therein, as shall be designated by the health officer for disposition in ways not injurious to the public health.
Thereafter the Commissioners contracted with certain parties, for five years, to remove all garbage and dead animals from the city limits; and then, with the intention, as recited [138]*138in the agreed statement, to prevent any one but said contractor from removing dead animals, they enacted an additional regulation prohibiting such removals without a special permit issued by them.
The regulations, on their face, seem unobjectionable, and the question turns upon the conduct of the Commissioners in refusing the permit, and the action of the owner and his agents in proceeding to remove the animal notwithstanding the refusal of the permit, which is the immediate foundation of the conviction that is sought to be reversed.
As the agreed statement shows, the animal had recently died, the carcass had not become injurious to health or offensive to the senses of sight or smell, it was valuable to the owner, who sold it for one dollar, and was worth to the purchaser eight dollars, and the transportation through the streets and from the District was offered to be made, in demanding the permit, and actually made after its refusal, in strict accordance with the specifications of the regulations.
These admitted facts, and the further admission of the intent with which the regulation respecting permits had been enacted, show that it was enacted, not to confer a discretion to be exercised upon a consideration of the circumstances of each application that might be made for a permit, but an arbitrary power to refuse consent. The admission of this intent was made in order to present- the question in a clear-cut form for adjudication, and there is no doubt that the regulation, whilst intended to operate as aforesaid, was founded in an honest conception of what the conservation of the public interests demanded.
However, the actual conditions disclosed make as complete a case for judicial inquiry and determination, as if the exclusion of all such removals, by owners and others under their authority, had been expressly declared. Yick Wo v. Hopkins, 118 U. S. 356, 366, 374.
After much consideration, and with due regard to the public interests involved, our conclusion is, that the owner’s right of property did not cease with the death of the animal, [139]*139•which did not at once become a nuisance, and that he had the right to dispose of the carcass and procure its removal from the city and District limits before it could become offensive or dangerous to the public health, in a manner fulfilling the requirements for transportation along the streets and other public places of the city and District.
This conclusion is supported by the decided weight of authority. Underwood v. Green, 42 N. Y. 140; River Rendering Co. v. Behr, 77 Mo. 91; State v. Morris, 47 La. Ann. 1660; Schoen Bros. v. Atlanta, 97 Ga. 697; Knauer v. Louisville, 41 L. R. A. 219 (Ky. 1900); Greensboro v. Ehrenreich, 80 Ala. 579; Vontresse v. McGee, 60 N. E. Rep. 318 (Ind. 1901); Alpers v. Brown, 60 Cal. 447.
• In Underwood v. Green, supra, which is the leading case involving the question, the owner of certain hogs that had been suffocated in a car, brought an action against the city contractor who took them away under the authority of an ordinance directing all dead animals to be forthwith removed from the city limits.
In the course of the well-reasoned opinion of Judge Earl it was said in language directly applicable to this case, that: “ There was no evidence that the hogs were offensive or dangerous in any way to public health, or that the owner had abandoned them, or was unwilling to take proper care of them. The plaintiff’s agent was not requested to take care of them, and they were taken away before he had an opportunity to take care of or remove them. * * * Upon such a state of facts I am of opinion that the defendant cannot justify under the city ordinance above mentioned. A dead hog is not per se a nuisance, even though it died of suffocation, and is not necessarily dangerous to public health. The owner may still put it to a useful and innocent purpose.”
In Rendering Co. v. Behr, supra, the Supreme Court of Missouri, in an analogous case, wherein it reversed the Missouri Court of Appeals (7 Mo. App. 345), said:
“ The death of a domestic animal does not terminate the owner’s property, and while he may be required to make such use or disposition of the carcass as will prevent a nuisance, [140]*140stench, or other inconvenience to the neighborhood, the municipal authorities cannot arbitrarily deprive him of his property by giving it to another. If not per se a nuisance, it is property in the broadest sense of the term, and all the provisions of our constitution above quoted apply to it.”
In this we fully concur. State v. Morris, supra, is a case on all fours with the one at bar, and the other cases cited assert the same governing principle.
The owner of an a’nimal dying within the city limits, is entitled to a reasonable opportunity to exercise his unextinguished right of property in the carcass, and a police regulation that denies it to him is without foundation.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Shepard
delivered the opinion of the Court:
There can he no more important field for the exercise of the activity of the ordinary police powers of government than the preservation of the public health, and it is within the unquestioned power of the municipal authorities to enact regulations looking to the speedy and innocuous removal of the carcasses of all animals that may die within the limits of their jurisdiction, the decomposition of which would not only endanger the public health, but also create a serious nuisance of another kind.
At the same time it is equally clear that the power is not an unlimited one, and that every exercise of it, on behalf of the public health or any other legitimate public purpose, must, in order to justify an infringement of the rights of person or property, have a substantial relation to those objects. Mugler v. Kansas, 123 U. S. 623, 661; Lawton v. Steele, 152 U. S. 133, 136; Moses v. United States, 16 App. D. C. 428, 438.
Applying those principles to the facts disclosed by the record, the question for determination is, whether the regulations as made and interpreted by the Commissioners, and their refusal to permit the owner of the dead animal to arrange for its removal with the precautions specified in said regulations, were within, or in excess of, the powers which they could lawfully exercise ?
The original regulation, it will be observed, merely provides for the manner in which certain dead animals shall be transported through the streets, alleys and public places of the city, and conveyed either out of the District, or to such place therein, as shall be designated by the health officer for disposition in ways not injurious to the public health.
Thereafter the Commissioners contracted with certain parties, for five years, to remove all garbage and dead animals from the city limits; and then, with the intention, as recited [138]*138in the agreed statement, to prevent any one but said contractor from removing dead animals, they enacted an additional regulation prohibiting such removals without a special permit issued by them.
The regulations, on their face, seem unobjectionable, and the question turns upon the conduct of the Commissioners in refusing the permit, and the action of the owner and his agents in proceeding to remove the animal notwithstanding the refusal of the permit, which is the immediate foundation of the conviction that is sought to be reversed.
As the agreed statement shows, the animal had recently died, the carcass had not become injurious to health or offensive to the senses of sight or smell, it was valuable to the owner, who sold it for one dollar, and was worth to the purchaser eight dollars, and the transportation through the streets and from the District was offered to be made, in demanding the permit, and actually made after its refusal, in strict accordance with the specifications of the regulations.
These admitted facts, and the further admission of the intent with which the regulation respecting permits had been enacted, show that it was enacted, not to confer a discretion to be exercised upon a consideration of the circumstances of each application that might be made for a permit, but an arbitrary power to refuse consent. The admission of this intent was made in order to present- the question in a clear-cut form for adjudication, and there is no doubt that the regulation, whilst intended to operate as aforesaid, was founded in an honest conception of what the conservation of the public interests demanded.
However, the actual conditions disclosed make as complete a case for judicial inquiry and determination, as if the exclusion of all such removals, by owners and others under their authority, had been expressly declared. Yick Wo v. Hopkins, 118 U. S. 356, 366, 374.
After much consideration, and with due regard to the public interests involved, our conclusion is, that the owner’s right of property did not cease with the death of the animal, [139]*139•which did not at once become a nuisance, and that he had the right to dispose of the carcass and procure its removal from the city and District limits before it could become offensive or dangerous to the public health, in a manner fulfilling the requirements for transportation along the streets and other public places of the city and District.
This conclusion is supported by the decided weight of authority. Underwood v. Green, 42 N. Y. 140; River Rendering Co. v. Behr, 77 Mo. 91; State v. Morris, 47 La. Ann. 1660; Schoen Bros. v. Atlanta, 97 Ga. 697; Knauer v. Louisville, 41 L. R. A. 219 (Ky. 1900); Greensboro v. Ehrenreich, 80 Ala. 579; Vontresse v. McGee, 60 N. E. Rep. 318 (Ind. 1901); Alpers v. Brown, 60 Cal. 447.
• In Underwood v. Green, supra, which is the leading case involving the question, the owner of certain hogs that had been suffocated in a car, brought an action against the city contractor who took them away under the authority of an ordinance directing all dead animals to be forthwith removed from the city limits.
In the course of the well-reasoned opinion of Judge Earl it was said in language directly applicable to this case, that: “ There was no evidence that the hogs were offensive or dangerous in any way to public health, or that the owner had abandoned them, or was unwilling to take proper care of them. The plaintiff’s agent was not requested to take care of them, and they were taken away before he had an opportunity to take care of or remove them. * * * Upon such a state of facts I am of opinion that the defendant cannot justify under the city ordinance above mentioned. A dead hog is not per se a nuisance, even though it died of suffocation, and is not necessarily dangerous to public health. The owner may still put it to a useful and innocent purpose.”
In Rendering Co. v. Behr, supra, the Supreme Court of Missouri, in an analogous case, wherein it reversed the Missouri Court of Appeals (7 Mo. App. 345), said:
“ The death of a domestic animal does not terminate the owner’s property, and while he may be required to make such use or disposition of the carcass as will prevent a nuisance, [140]*140stench, or other inconvenience to the neighborhood, the municipal authorities cannot arbitrarily deprive him of his property by giving it to another. If not per se a nuisance, it is property in the broadest sense of the term, and all the provisions of our constitution above quoted apply to it.”
In this we fully concur. State v. Morris, supra, is a case on all fours with the one at bar, and the other cases cited assert the same governing principle.
The owner of an a’nimal dying within the city limits, is entitled to a reasonable opportunity to exercise his unextinguished right of property in the carcass, and a police regulation that denies it to him is without foundation.
Under conditions that may prevail or dangers that may be apprehended, the time allowed may be very brief, but some reasonable time, under all the circumstances, must be accorded.
Whatever the owner may do in person he may, of course, do through the agency of others.
To say that he may remove the carcass, himself, in a proper manner, or sell it, but that his vendee shall not have the same right to remove, is still to deprive him of his right of property.
Dominion over property includes the right to dispose of it freely, and the denial of the right of the vendee to make lawful use of the property after its sale, indirectly affects and deprives the vendor of his right. Moreover, as long as. the article retains its character of lawful property, the right of the vendee can be no less than that of his vendor.
Most, if not all, of the cases cited on behalf of the defendant in error, arise out of regulations and exclusive contracts for the disposition of garbage, and present conditions that do not appear in the case at bar. It may well be that, from the nature of garbage, a different rule would apply; but that phase of the question is not involved and we express no opinion upon it.
We are of the opinion that the refusal of the permit applied for by the purchaser of the animal was without justification, and that the owner could not be deprived of his right [141]*141to remove his property in a proper manner. The conviction of the plaintiff in error who acted as the employee of the owner in the matter of the removal, was, therefore, erroneous.
The judgment will be reversed and the cause remanded with direction to discharge the plaintiff in error.
Reversed.