before the time set for the hearing. CONSTITUTIONAL LAW [§ 1063] (3) Sufficiency of Hearing. The constitutional guaranty of due process of law is complied with where a person whose property is assessed for local improvements is given an opportunity for a hearing as to the validity and amount of the assessment at any time before it becomes a final charge on his property. Accordingly it has been held that there was due process of law where there was an inquiry before a jury of six men, which was to view the premises and assess the damages, coupled with a right of appeal to the highest court in the state; 10 where the owners aggrieved had the right to appear to contest at each stage of the proceedings; where an appeal might be taken from the reports or determinations of officials;12 where the only mode of enforcing the tax was by a suit against the owner;13 and where the owner, after execution issued, was permitted to file an affidavit denying the validity of any part of the assessment, and was given an opportunity for a hearing 8. State v. Blair, 245 Mo. 680, 151 SW 148. 9. U. S.-Cleveland, etc., R. Co. v. Porter, 210 U. S. 177, 28 SCt 647, 52 L. ed. 1012 [aff 38 Ind. A. 226, 74 NE 260, 76 NE 179]; Voigt v. Detroit, 184 U. S. 115, 22 SCt 337, 46 L. ed. 459 [aff 123 Mich. 547, 82 NW 253]. Ala.-Ex p. Gudenrath, 194 Ala. 568, 69 S 629. Dist., 102 Miss. 796, 59 S 921. Mo.-Embree v. Kansas City, etc... Boulevard Road Dist., 257 Mo. 593, 166 SW 282; Kansas City v. Huling, 87 Mo. 203. N. J. Skinkle v. Essex Public Road Bd., 47 N. J. L. 93. N. Y.-Day v. Dunkirk, 86 Misc. 266, 148 NYS 299; Matter of Sewer in Kissel Ave., 81 Misc. 541, 143 NYS 467. N. C.-Kinston v. Loftin, 149 N. C. 255, 62 SE 1069. Oh.-Caldwell v. Carthage, 49 Oh.. St. 334, 31 NE 602. Tex.-Paris v. Brenneman, 59 Tex. Civ. A. 464, 126 SW 58. Va.-Whitlock v. Hawkins, 105 Va. 242. 53 SE 401. 20 [12 C. J.] 1263 thereon.14 The opportunity for a hearing is not a condition precedent to a valid determination of preliminary matters,15 such as the necessity or wisdom of the improvement,16 the establishment of boundaries of the taxing district, the condemnation of, or amount of damages to, the property of other persons, 18 the basis on which the assessment is to be levied,19 or the appointment of assessors;2 nor is one owner entitled to a hearing as to the amount of an assessment which has been made on the property of another owner within the district, and which has been paid by the person assessed.21 Neither does due process require a hearing of a judicial character;22 but the requirement is satisfied by a hearing before an administrative body,2 such as a municipal council,24 or board of commissioners,25 or appraisers,2 made final. A mere opportunity to file objections whose decision may be in writing is not, however, a sufficient hearing,28 but the property owner must be accorded the right to introduce evidence and to be heard in person or Wyo. In re Bench Canal Drain. Dist. Organization, 156 P 610. See also supra § 1009. "If, therefore, the law provides for giving notice and whereby the property-owner for a method ultimately challenge the correctness of the assessment made against his property, in respect to whether it was made in good faith, without intervening mistake or error, and according to the method and under the Such an opportunity safeguards provided by the law-the 688, 691. held to constitute due process." Jones is constitutional provision v. Houston, (Tex. Civ. A.) 188 SW deemed satisfied." is to be Per 13. C. J., in Garvin v. Daussman, 114 Ind. Ky. 492, 5 SW 546, 9 KyL 819]; GarMitchell, 578, 9 SCt 192, 32 L. ed. 544 [aff 86 Walston v. Nevin, 128 U. S. 429, 436, 16 NE 826, 5 AmSR-637. [a] A hearing which a taxpayer 826, 5 AmSR 637; Saxton Nat. Bank vin v. Daussman, 114 Ind. 429, 16 NE Davies v. Los Angeles, 86 Cal. portunity to have the validity of the 23 25. Peo.. v. 27. Hibben v. Smith. 191 U. S. 310, 28. Londoner v. Denver, 210 U. S. 373, 28 SCt 708, 52 L. ed. 1103 [rev 33 Colo. 104, 80 P 117]. by counsel.29 A right to appeal from the decision of the trial court in respect to the assessment is not essential to due process of law.30 Imposing condition precedent. Payment of an amount admitted to be due may be made a condition precedent to the right of a landowner to contest an assessment by a proceeding for an injunction.31 Limitations. A statute providing for filing a petition for improvements and for a hearing on the question of benefits, and further providing that within ten days after such hearing a contest may be instituted, but that any person failing to institute suit within ten days shall be forever barred from attacking either the assessment or the validity of any proceeding with reference to the improvement, affords due process of law by the hearing, and one who fails to sue within ten days cannot avoid the assessment.3 32 A failure to report land as either benefited or damaged by a local improvement does not deprive the owner of property without due process of law, where he has notice of the proceeding, as he may intervene and claim damages." 33 29. Londoner v. Denver, 210 U. S. 373, 28 SCt 708, 52 L. ed. 1103 [rev 33 Colo. 104, 80 P 117]. 30. Peo. v. Chen, 219 III. 200, 76 NE 388. See also supra § 1015. 31. Lanham, etc., Co. v. Rome, 136 Ga 398, 71 SE 770. 32. Jones v. Houston, (Tex. Civ. A.) 188 SW 688. But see supra § 1009. 33. Vandalia R. Co. v. Mizer, 184 Ind. 680, 112 NE 522. 332. See also Municipal Corporations [28 Cyc 1209]. 34. U. S.-Seattle Dock Co. v. Seattle, etc., Waterway Co., 195 U. S. 624 mem, 25 SCt 789 mem, 49 L. ed. 350 mem [aff 35 Wash. 503, 77 P 845]. Cal.-Hellman v. Shoulters, 114 Cal. Md. Hyattsville v. Smith, 105 Md. 318, 66 A 44. Mo.-Embree v. Kansas City, etc., Boulevard Road Dist., 257 Mo. 593, 166 SW 282. Oh.-Taylor v. Crawford, 72 Oh. St. 560, 74 NE 1065, 69 LRA 805. Okl. Block v. Patrick, 35 Okl. 408, 130 P 588. Wash.-Young V. Borzone, 26 Wash. 4, 66 P 135, 421. [a] Assessments for improvements may be made a first lien (1) on the property (Ramish v. Hartwell, 126 Cal. 443, 58 P 920), and may be given priority (2) over the lien of a mortgagee (Baldwin v. Moroney, 173 Ind. 574, 91 NE 3, 30 LRANS 761; Fitchpatrick v. Botheras, 150 Iowa 376, 130 NW 163, 37 LRANS 558, Ann Cas1912D 534) and (3) over the rights of a purchaser of the property without notice of the assessments or of the improvements for which an assessment is subsequently levied (Willoughby v. Chicago. 235 U. S. 45, 35 SCt 23. 59 L. ed. 123; Seattle v. Kelleher, 195 U. S. 351, 25 SCt 44, 49 and there is authority to the effect that the land Waiver of defenses. The exercise by the owner of an option to pay his assessment by installments may be given the effect of a waiver of defenses to the assessment, and a defense once waived may not be taken advantage of thereafter.12 42 [§ 1065] (2) Personal Judgment. A personal judgment for an assessment may not, for want of jurisdiction, be rendered against a nonresident of the state who has not entered his appearance or been served with process within the state;13 and notwithstanding the expression of a contrary opin-. ion by an eminent justice in a leading case in the United States supreme court," it has usually been held that a personal judgment for an assessment is void even against a resident owner, for the reason that assessments are based on the theory of special benefits to property, and that a taking of the entire property and the imposition of personal liability in addition would constitute a clear case of confiscation.45 [§ 1066] d. Bonds. It is within the requirement of due process for the legislature to provide for the issuance of bonds to pay for an improvement46 and for the levy of assessments in install L. ed. 232; Morse V. Boston St. [b] An act denying a lien for im- 35. Shultz v. Ritterbusch, 38 Okl. 478, 134 P 961 (eighteen per cent per annum). 36. O'Reilly v. Holt, 18 F. Cas. No. 10,563, 4 Woods 645; Georgia R., etc., Co. v. Atlanta, 144 Ga. 722, 87 SE 1058. See also Municipal Corporations [28 Cyc 1214, 1224, 1244]. [a] Summary proceedings for the sale of land and execution of a tax deed, on failure of those interested to redeem, without further hearing on the validity of a special assessment lien, satisfy the requirements of due process of law. Carstens v. Seattle. 84 Wash. 88, 146 P 381, Ann Cas1917A 1070. See also Municipal Corporations [28 Cyc 1214, 1224]. [b] A lessee's interest may not be sold for an assessment against the fee. Coast Land Co. v. Seattle, 52 Wash. 380, 100 P 856. [c] Attorney's fees in action to foreclose.-Burns St. Annot. (1901) $3626b (act approved Febr. 22, 1899, c 66 § 2), providing that attorney's fees, in an action to foreclose a sewer assessment lien, shall not exceed the amount of the assessment, does not deprive the property owner of his property without due process of law. Pittsburgh, etc., R. Co. v. Schmuck, 181 Ind. 323, 103 NE 325. 37. Williams V. St. Paul, 123 Minn. 1. 142 NW 886. 38. Bobo V. Yazoo-Mississippi Delta Levee Comrs., 92 Miss. 792. 46 S 819. See also Municipal Corporations [28 Cyc 1210]. 39. Londoner v. Denver, 210 U. S. 373, 28 SCt 708, 52 L. ed. 1103 [rev 33 Colo. 104, 80 P 117]. 40. Chicago Terminal Transfer R. Co. v. Chicago, 217 Ill. 343, 75 NE 499. 41. Edward C. Jones Co. v. Perry, 26 Ind. A. 554, 57 NE 583; Newport v. Silva, 143 Ky. 704, 137 SW 546: Weise v. Green Bay, 143 Wis. 198, 126 NW 681. 42. Peo. v. Chicago, etc., Co., 261 Ill. 392, 103 NE 997. 43. Dewey v. Des Moines, 173 U. S. 193. 19 SCt 379, 43 L. ed. 665 [rev 101 Iowa 416. 70 NW 605]. 44. Per Miller, J., in Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616. 45. 240. Cal.-Taylor v. Palmer, 31 Cal. Ill. Hoover v. Peo., 171 Ill. 182. 49 NE 367. Mo.-St. Louis v. Allen. 53 Mo. 44 [overr St. Louis v. Clemens, 36 Mo. 467, 49 Mo. 552]. S. D. Brookings v. Natwick, 22 S. D. 322, 117 NW 376, 133 AmSR 927, 18 LRANS 1259, 17 AnnCas 1254. Va.-Asberry v. Roanoke, 91 Va. 562, 22 SE 360. 42 LRA 636. Wash.-Yesler v. Seattle, 1 Wash. 308, 25 P 1014. See also Municipal Corporations [12 Cyc 1253]. [a] By electing to pay in installments the owner may become personally liable. Edward C. Jones Co. v. Perry, 26 Ind. A. 554, 57 NE 583. 46. German Sav., etc.. Soc. V. Ramish. 138 Cal. 120, 69 P 89, 70 P 1067; Kucera v. West Chicago Park Comrs., 221 Ill. 488, 77 NE 912; Barstow v. Ward County Irr. Dist. No. 1, (Tex. Civ. A.) 177 SW 563. [a] The issue of the bonds may be made conclusive evidence of the regularity of all the proceedings which have been had for the levy of the assessments, but may not be made conclusive evidence that the bonds are valid or that all the steps have been taken which are necessary to constitute due process of law in the levy of the assessments. Ramish v. Hartwell, 126 Cal. 443, 58 P 920. [b] An act providing for the issuance of bonds (1) unless assessments are paid within thirty days after 49 CONSTITUTIONAL LAW the ments to pay off the bonds.* 47 [1067] e. Reassessment. property for the benefit of a public improvement A reassessment of may be made where the original assessment has been insufficient18 or illegal,* subject to the assessment has been omitted.50 Furor where property thermore, reassessments may be made without violation of the guaranty of due process for maintenance and repair of public improvements.51 If the owner has, by reason of notice or otherwise, been properly made a party to the proceeding, no additional notice of the reassessment need be given him; 52 and where the provision for notice is that there shall be three successive publications in the official newspaper of the city, and objections may be filed within ten days after the last publication, the time is not so short as to amount to a denial of due process of law.53 is governed by the law in force at the time it is The validity of a reassessment made, and it may, therefore, be valid, although it is not made in the manner prescribed by law at the time of the original assessment,55 property on which it is made was exempt from furor although the ther assessment under the law in force when the original assessment was levied.5 56 [§ 1068] f. Curing Invalid Assessments. they become final (Oliver v. Whit- a Hulbert v. Chicago, 213 Ill. 452, 72 NE 1097 [writ of error dism 202 U. S. 275, 26 SCt 617, 50 L. ed. 1026]. [aj A provision that deferred installments shall bear interest does not render the act void. Whittaker, 122 Oliver v. 201; Hulbert v. Chicago, 213 Ill. 452, Ark. 291, 183 SW 72 NE 1097 [writ of error dism 202 U. S. 275, 26 SCt 617, 50 L. ed. 1026] (sustaining an act fixing the minimum rate of interest at a given per cent); Erickson v. Cass County, 11 N. D. 494, 92 NW 841. 48. Stone v. Little Yellow Drain. Dist., 118 Wis. 388, 95 NW 405. 49. Lombard Park Comrs., 181 U. S. 33, 21 SCt 507, V. West Chicago 45 L. ed. 731 [aff 181 Ill. 136, 54 NE 941]; Lincoln v. Harts, 266 Ill. 405, 107 NE 725; Howell v. Buffalo, 37 N. Y. 267, 4 Transcr. A. 505 [foll In re Van Antwerp, 56 N. Y. 261 (aff 1 Thomps. & C. 423); Buffalo, 38 N. Y. 276; In re Mauger, Hatch 23 Hun 658]; Haubner v. Milwaukee, 124 Wis. 153, 101 NW 930, 102 NW 578; Schintgen v. La Crosse, 117 Wis. 158, 94 NW 84. V. assess [a] Assessment ment completed. Where an after improvement for a street improvement has been declared void, the fact that a later assessment pursuant to special statutory authority is made after the improvement has been made and paid for by the city, and the owners of property are enjoying thereof, for the purpose of reimbursthe benefit ing the city, does not render the assessment unconstitutional. Howell v. Buffalo, 37 N. Y. 267, 4 Transcr. A. 505 [foll In re Van Antwerp, 56 N. Y. 261 (aff 1 Thomps. & C. 423); Hatch v. Buffalo, 38 N. Y. 276; In re Mauger, 23 Hun 658]. V. 50. St. Louis, etc., Land Co. Kansas City, 241 U. S. 419, 36 SCt 647, 61 L. ed. 1072 [aff 260 Mo. 395, 169 SW 62]. as [a] Hearing to be accorded owner of omitted property.-The owner of omitted property sought to be sessed in a supplemental proceeding is not entitled to a hearing as to the amounts of assessments property owners. on other paid by them. St. Louis. etc., Land which have been [12 C. J.-80] The [12 C. J.] 1265 legislature cannot validate an assessment which it could not originally have authorized,57 and a sale of land to satisfy such an assessment is a taking without due process of law, notwithstanding the attempt of the legislature to validate it.58 where an act establishing a drainage and levee So also district is invalid for want of a definite description of the boundaries, and contracts by the district are void, the defect cannot be cured by a subsequent act purporting to abolish the district and directing a levy on the lands intended to be benefited for the preliminary expenses incurred under a contract.5 A special assessment which is void by reason of unconstitutionality of the statute under which it is levied cannot be validated by a popular vote.60 59 [ 1069] 8. Police Regulations 60%-a. Building Regulations. Statutes enacted to promote the public safety which have been sustained as not violating constitutional guaranties of due process of law include reasonable regulations governing the location, erection, and maintenance of buildings.61 Thus for the protection of the general public the erection, removal, alteration, or repair of buildings of a certain character,6 ample, garages," wooden or frame buildings, as, for ex Co. v. Kansas City, 241 U. S. 419, 36 51. McMillan v. Freeborn County [a] Additional assessment for use. Sewer Comrs., 182 U. S. 398, 21 SCt 52. State v. Wilson, 216 Mo. 215. 115 SW 549; In re Livingston St., 82 N. Y. 621 mem; Stone v. Little Yellow Drain. Dist., 118 Wis. 388, 95 NW 405; In re Bench Canal Drain. Dist. Organization, (Wyo.) 156 P 610. 53. Bellingham Bay, etc., R. Co. v. New Whatcom, 172 U. S. 314, 19 SCt 205, 43 L. ed. 460. 54. Seattle v. Kelleher, 195 U. S. 351, 25 SCt 44, 49 L. ed. 232. 55. Seattle v. Kelleher, 195 U. S. 351, 25 SCt 44, 49 L. ed. 232. "Whatever authorize if it were ordering an asthe legislature could sessment for the first time it equally could authorize, not withstanding a previous invalid attempt to assess." Seattle v. Kelleher, 195 U. S. 351, 25 SCt 44. 49 L. ed. 232 [quot Wagner, Inc. v. Leser, 239 U. S. 207, 217, 36 SCt 66, 60 L. ed. 230]. 56. Ettor v. Tacoma, 57 Wash. 50, See 106 P 478, 107 P 1061. 61. V. 58. Brady v. King, 53 Cal. 44. 59. Morgan Engineering Cache River Drain. Dist., 122 Ark. Co. 491, 184 SW 57 [foll Markle v. Hart, 191 SW 24]. 60. 29 NW 549. Municipal Corporations [28 Cyc 692]. 602. See also supra §§ 412-443; Harrison's Est., 23 Pa. Dist. 605. [a] A permit may (1) before erection or alteration of be required a building as a means of enforcing Charleston, 62 W. Va. 665, 59 SE 623, building regulations. Fellows 125 AmSR 990, 13 LRANS 737, 13 requiring an applicant for a license AnnCas 1185. (2) Thus an ordinance to erect a building to be used as a motion picture show first to get a permit from the mayor and council is not void as taking property with Anderson v. Hill, 54 Mich. 477, V. 63 62 64 or Brown v. Stubbs, out due process. 128 Md. 129, 97 A 227. escapes.-(1) The legislature may re[b] Requiring maintenance of fire quire erection and maintenance of suitable fire escapes at the expense Steinkamp, 54 Oh. St. 284, 43 NE 490. of property owners. doors may be required in factories. Cincinnati V. (2) Reasonable fire escapes and fire Greene v. L. Fish Furniture Co.. 272 Ill. 148, 111 NE 725; Peo. v. Harris, 74 Misc. 353, 134 NYS 409, 26 N. Y. Cr. 472. [c] without the written permission of the Prohibiting the moving of buildings into or on any city streets mayor does not contravene the fourteenth amendment. son, 15 Utah 53, 67, 48 P 41, 150, 62 Eureka v. WilAmSR 904. all landowners abutting on streets in [d] Regulating connections with sewer. The legislature may require which are sewers to have sufficient water-closets sewer. connected with Com. v. Roberts, 155 Mass. the 281, 29 NE 522, 16 LRA 400. [e] Regulating The legislature may require tenement water supply.each floor occupied or intended to be houses to have a supply of water on occupied by one when so directed by the board of or more families, health, and may prescribe a penalty for failure to comply, although the order by the board of health is made Church, 145 N. Y. 32, 39 NE 833. without notice to the owner. York City Health Dept. v. Trinity New 736]. Municipal building regulations see Municipal Corporations [28 Cyc 62. See cases infra notes 63-65. 63. McIntosh v. Johnson, 211 N. Y. 265, 105 NE 414, LRA1915D 603 [aff 160 App. Div. 563, 145 NYS 763] (not within fifty feet of school building). Cal. 125, 13 P 310. 403. 28 AmD 188. Mass.-Salem v. Maynes, 123 Mass. 67 68 tents,65 may be forbidden or restricted within certain 74 ter is void, "for it attempts to confer upon a private citizen who may be so fortunate as to own a stone or brick house power of the most arbitrary character over the property of his neighbor." Tilford v. Belknap, 126 Ky, 244, 250, 103 SW 289, 31 KyL 662, 11 LRÁNS 708. 65. In re Newell, 2 Cal. A. 767, 84 P 226. 66. Eichenlaub v. St. Joseph, 113 Mo. 395, 21 SW 8, 18 LRA 590. [a] Notice required.-Brooklyn City Charter tit 14 § 51, providing that any building in violation of the provision as to fire limits may be removed, but not requiring notice to be given to the owner of such building, is void. Matter of Brooklyn, 87 Hun 54, 33 NYS 869. Fire regulations see Municipal Corporations [28 Cyc 741]. 67. Williams v. Parker. 188 U. S. 491, 23 SCt 440, 47 L. ed. 559 [aff 178 Mass. 330, 59 NE 812]; Williams v. Boston, 190 Mass. 541. 77 NE 509; Peo. v. D'Oench, 111 N. Y. 359, 18 NE 862. 68. Peo. v. D'Oench, 111 N. Y. 359, 18 NE 862. 69. Welch v. Swasey, 214 U. S. 91, 29 SCt 567, 53 L. ed. 923 [aff 193 Mass. 364. 79 NE 745, 118 AmSR 523, 23 LRANS 1160]. 70. St. Louis Gunning Adv. Co. v. St. Louis, 235 Mo. 99, 137 SW 929. 71. Matter of Perry's Ct., 10 Phila. (Pa.) 27 (where the court said that the owner of property was entitled to be compensated for the value of the land of the use of which he was deprived). See also Municipal Corporations [28 Cyc 859]. 72. Willison v. Cooke, 54 Colo. 320. 130 P 828, 44 LRANS 1030 (where the court seems to have been of this opinion, although the decision based on a limitation of the right to erect stores). was 73. Northrop V. Waterbury, 81 Conn. 305. 70 A 1024; St. Louis v. Hill, 116 Mo. 527, 22 SW 861, 21 LRA 226. 74. St. Louis v. Hill, 116 Mo. 527, 22 SW 861, 21 LRA 226. 75. Eubank v. Richmond, 226 U. S. 137, 33 SCt 76. 57 L. ed. 156 [rev 110 Va. 749, 67 SE 376, 19 AnnCas 186]. 76. Peo. v. Chicago, 261 Ill. 16. 103 NE 609. 49 LRANS 438, AnnCas 77. Willison v. Cooke, 54 Colo. 320, 130 P 828, 44 LRANS 1030. owner. Vaccination. A regulation excluding from the [a] Reasons for rule.-"A store con 78. State v. Robb, 100 Me. 180, 60 A 874, 4 AnnCas 275; Atlantic City v. France, 75 N. J. L. 910, 70 A 163, 18 LRANS 156 [aff 74 N. J. L. 389, 65 A 894]; Kirk v. State, 126 Tenn. 7, 150 SW 83, AnnCas1913D 1239; Arbuckle v. Pflaeging, 20 Wyo. 351, 123 P 918. See also Health [21 Cyc 382]; Municipal Corporations [28 Cye 710]. 79. Cooper v. Schultz, 32 HowPr (N. Y.) 107. 80. State v. New Orleans, 27 La. Ann. 521; Haverty v. Bass, 66 Me. 71; 509, 71 A 344, 19 LRANS 262, 16 Ann Valentine v. Englewood, 76 N. J. L Cas 731; Kirk v. Aiken Bd. of Health, 83 S. C. 372, .65 SE 387, 23 LRANS 1188. [a] Notice and hearing.-Except in cases of great emergency, no such removal may be made without notice to the person affected and an opportunity for a suitable hearing. Kirk v. Aiken Bd. of Health, 83 S. C. 372, 65 SE 387, 23 LRANS 1188. Compagnie Francaise de Navigation a Vapeur v. Louisiana Bd. of Health, 186 U. S. 380, 22 SCt 811, 46 L. ed. 1209 [aff 51 La. Ann. 645, 25 S 591, 72 AmSR 458. 56 LRA 795]: Kirk v. Aiken Bd. of Health, 83 S. C. 372, 65 SE 387. 23 LRANS 1188. 82. McSween v. Ft. Worth School Trustees, 60 Tex. Civ. A. 270, 129 SW 206. [12 C. J.] 1267 municipality by the discharge of sewage has been held to deprive a lower riparian owner of property without due process of law.1 CONSTITUTIONAL LAW provides for exceptions where the health of the children is such as to render vaccination unsafe.83 Food and drugs. facture and sale of impure or injurious articles of The state may forbid the manufood; may prescribe inspection of the articles themselves,85 or of the places in which they are produced, as a condition precedent to the right of the owner to sell; and may require licenses of persons engaged in selling such articles.87 On the same principles, the sale of drugs,88 as for example opium, may be regulated. 89 86 Garbage. A municipal corporation may grant to a person or corporation having a contract with it the exclusive right to collect garbage and transport it through the streets," sons thus authorized to remove garbage to deliver 90 and may require all perit at a particular crematory or reduction plant for reduction at the expense of the person delivering it. 91 Such ordinances are not void as depriving persons of property without due process of law, even though the term "garbage" as defined by them includes all refuse from tables of private families and hotels;92 but an extension of the term to include condemned food has been held so unreasonable as to render the ordinance void.93 Sewage and pollution of water. ordinance forbidding the pollution of running A statute or streams with sewage or otherwise95 is valid even as against riparian proprietors. the maintenance and use of privy vaults within the In like manner city limits may be forbidden;97 and methods may be prescribed for the drainage of sewage from buildings, 98 even though compliance with such regulations requires the making of substantial alterations in existing buildings at considerable expense. Conversely, the pollution of a running stream by a 94 96 99 83. Zucht v. San Antonio School | tions [28 Cyc 717]. Bd., (Tex. Civ. A.) 170 SW 840. 84. Price v. Illinois, 238 U. S. 446, 35 SCt 892. 59 L. ed. 1400 [aff 257 III. 587, 101 NE 196, AnnCas1914A 1154]; Curtice Bros. Co. v. Barnard, 209 Fed. 589, 126 CCA 411; Sanders v. Com., 117 Ky. 1, 77 SW 358, 25 KyL 1165, 111 AmSR 219, 1 LRANS 932. [a] Thus a prohibition of (1) the sale of food preservatives containing boric acid (Price v. Illinois, 238 U. S. 446, 35 SCt 892, 59 L. ed. 1400 [aff 257 Ill. 587, 101 NE 196, AnnCas1914A 1154]), (2) the use of benzoate of soda as a food preservative (Curtice Bros. Co. v. Barnard, 209 Fed. 589, 126 CCA 411), or (3) the sale of milk from cows fed on "still slop" (Sanders v. Com., 117 Ky. 1, 77 SW 358, 25 KyL 1165, 111 AmSR 219, 1 LKA NS 932), is valid. [b] Summary seizure of putrid, decayed, poisoned, or infected articles of food may North American Cold Storage Co. v. be authorized. Chicago, 211 U. S. 306, 29 SCt 101, 53 L. ed. 195, 15 AnnCas 276 [mod 151 Fed. 120]. Food generally see Food [19 Cyc 1084]. 85. North American Cold Storage Co. v. Chicago, 151 Fed. 120 [mod on other grounds 211 U. S. 306, 29 SCt 101, 53 L. ed. 195, 15 AnnCas 276]. 86. State v. Broadbelt, 89 Md. 565. 43 A 771, 73 AmSR 201, 45 LRA 433 (dairies). 87. New York v. Van de Carr, 199 U. S. 552, 26 SCt 144, 50 L. ed. 305 [aff 175 N. Y. 440, 67 NE 913. 108 AmSR 781 (aff 81 App. Div. 128, 80 NYS 1108)]. Licenses generally [25 Cyc 593]. see Licenses 88. See cases infra note 89. Drugs generally [14 Cyc 1078]. see Druggists 89. Ex p. Yun Quong, 159 Cal. 508, 114 P 835, Ann Cas1912C 969; Hyde v. State, 131 Tenn. 208. 174 SW 1127. 892. See also Municipal Corpora Dead animals.1% An ordinance requiring a permit for the removal of a dead animal by others than the person having a contract with the city for the performance of such services has been sustained; but an ordinance which immediately on the death of a domestic animal, and before it becomes a nuisance or dangerous to the public health, deprives the owner of his property in the body is unreasonable and void.3 Smoke.3 3% An ordinance prohibiting the emission of dense smoke is not a deprivation of due process of law, provided that before a conviction is had for having jurisdiction over such matter.* a violation thereof the invasion of the rights of persons and property be determined by a court . Unreasonable regulations. public health are unreasonable in their invasions of porting to be prescribed in. the interest of the If regulations purthe rights of private property, they are void as a violation of the guaranty of due process of law. [ 1071] c. Regulation of Corporations (1) In General. It is a well settled doctrine that private corporations, even without any express reservation of the legislature's powers over them in the act of incorporation, are subject, like individuals, to be restrained, limited, and controlled, in the exercise of the powers granted, by such laws as the legislature may pass based on the principle of safety to the public. The amendment or repeal of a corporate charter in pursuance of a reserved power so to do does not of itself constitute a violation of the guaranty of due process of law; but on the other hand, the power of amendment or repeal may 6 90. Gardner v. Michigan, 199 U. S. Gutberlett, 73 Misc. 607, 133 NYS 541 325, 26 SCt 106, 50 L. ed. 212 [aff 136 Mich. 693, 100 NW 126]; Rochester v. 1104 mem (aff 211 N. Y. 309, 105 NE 548, [aff 151 App. Div. 900 mem, 135 NYS LRA1915D 209, AnnCas1915C 483)]. Sanitary Reduction Works. 199 U. S. 92. 93. 598. 94. Bauer v. Casey, 26 Oh. Cir. Ct. Peo. v. Hupp, 53 Colo. 80, 123 96. Durham v. Eno Cotton Mills, 98. New York Tenement 7 203 U. S. 583 mem, 27 SCt 781 mem, 51 L. ed. 328 mem]; New York Tenement House Dept. v. Moeschen, 89 App. Div. 526, 85 NYS 704 [aff 179 N. Y. 325, 72 NE 231, 103 AmSR 910, 70 LRA 704, 1 AnnCas 439 (aff 203 ed. 328 mem)]. U. S. 583 mem, 27 SCt 781 mem, 51 L. V. 1. Atty.-Gen. v. Grand Rapids, 175 Mich. 503, 141 NW, 890, 50 LRANS 473. 12. See also Municipal Corporations [28 Cyc 720]. 2. Schwarz Bros. City Bd. of Health, 84 N. J. L. 735, Co. Jersey 87 A 463 [aff 83 N. J. L. 81, 83 A 762]. 3. Richmond v. Caruthers, 103 Va. 774, 50 SE 265, 70 LRA 1005, 2 Ann Cas 495. 32. See also Municipal Corporations [28 Cyc 717]. Peo. v. McFall, 158 NYS 974. [a] Illustrations.-(1) this character declared unreasonable Acts rily forbidding the keeping of food and void include a statute arbitraproducts in cold storage for more than ten months (Peo. v. McFall, 158 NYS 974), (2) and an act empowerlimits (Malone v. Williams, 118 Tenn. ing a city council to abate as nuisances certain things beyond the city 390, 103 SW 798, 121 AmSR 1002). (3) So also a rule of the state commissioner of health that a water supply company reservoir to supply ice for public or shall not use its private purposes, and that teams or men shall not cut and remove and store ice in winter, is oppressive and seeks to deprive one to whom the company has given the right of his property without compensation, Peo. v. Kirk, 65 Misc. 657, 122 NYS 604.. Limitations on police power see supra §§ 439-443. |