Suit to restrain defendant City from enforcing ordinance. The trial court sustained a demurrer to the complaint and on plaintiffs' refusing to plead further, entered judgment dismissing the complaint from which the plaintiffs appeal.

This is a suit to restrain defendants from enforcing an ordinance of the City of Medford entitled: "Ordinance No. 2273, — An ordinance relating to sanitation and the disposal of garbage."

The complaint alleges:

"That said ordinance, at section 8 thereof, provides that all dirt, rubbish, soot, ashes, cinders or filth of any kind in any house, cellar, yard or other place, which the fire chief or health officer shall deem necessary for the health of the city to be removed, shall be carried away therefrom by and at the expense of the owner or occupant of such house or other place where the same may be found, and removed to such place as may be designated by the fire chief; while section 9 of said ordinance declares that, whereas, the city has given unto the City Sanitary Service, Inc., the exclusive right, franchise or privilege of collecting, gathering and hauling over the streets of the city of Medford, Oregon, all garbage, ashes or rubbish accumulating therein; it shall be unlawful for any person, firm or corporation, other than the City Sanitary Service, Inc., to collect, gather or haul over the streets of said city any garbage, ashes or rubbish accumulating therein; and, further, by section 11 thereof, provides a heavy penalty by fine or imprisonment for any person violating the provisions of said ordinance.

"That said defendant city by said ordinance assumes to create and does create and form a monopoly in garbage, and thereby awards the usufruct thereof to a private corporation, to-wit: the City Sanitary Service, Inc., and thereby under duress of fine or servitude compels residents and home owners of Medford to give away their garbage to said private corporation and pay the same for the removal thereof. That said ordinance is class legislation, discriminatory, unconstitutional and void and should, by order and decree of this court, be abrogated, cancelled and annulled.

"That garbage, as defined in said ordinance, includes solid or semi-solid kitchen refuse, and is valuable for the feed of swine and chickens, and that plaintiffs herein have been buying, and are now under contract to buy, from the hotels, cafes and restaurants of Medford all of the garbage thereof, which they use for stock feed and other purposes; that plaintiffs have been and now are under such contract with Hotel Medford, Hotel Holland, Hotel Jackson, Passtime Pool Hall, Crater Lake Cafe, Crosons Cafe, Tom's Restaurant, Club Cafe, Ideal Cafe, Coffee Cup Cafe, Do Drop Inn, Jewell Cafe, J.N. Cafe and others for the purchase and removal of said garbage, and that plaintiffs have been and now are handling and hauling said garbage in the most sanitary and approved manner, in compliance with the laws of Oregon and with the ordinances of the city of Medford, and that they intend continuing so to do.

"That plaintiff Ray Spencer resides on the Biddell Road, east of and some three miles from the city of Medford, and that plaintiff W.H. Welty lives near the Millionaire Drive, west of said city, and some five miles therefrom, and that said garbage is, in the sanitary manner aforesaid, taken away from said city to said respective places where it is used and consumed as feed for stock, as aforesaid. That plaintiff Spencer owns 87 hogs and that plaintiff Welty has 70 hogs which said plaintiffs feed upon the garbage obtained upon said contracts as aforesaid, and that they each day remove said garbage from the said several places for the purpose of feeding and sustaining said hogs, and that plaintiffs rely solely upon said garbage as such hog feed."

It is further alleged, that in pursuance of the exigency of said ordinance, the city, by its fire chief and health officer, threatens to force plaintiffs to break their contracts with the various hotels and restaurants before mentioned, and to arrest, detain and imprison plaintiffs for removing or driving on the streets with said garbage, and will so do, unless restrained, to their great and irreparable damage. Then follows a prayer for an injunction and equitable relief generally.

The defendants interposed a general demurrer, which being sustained, and the plaintiffs refusing to plead further, a judgment of dismissal followed and plaintiffs appeal.

AFFIRMED. REHEARING DENIED.

McBRIDE, J.

The sole question to be determined here is whether the city has jurisdiction to pass an ordinance regulating the method of disposal of the kind of garbage with which plaintiffs are concerned. That the materials which they are engaged in hauling away, for the purpose of feeding their swine, is, in fact, garbage, is admitted in the complaint, and that it is useful for the purpose of feeding hogs, is admitted by the demurrer. Discussion of the provisions of the ordinance as to ashes and rubbish are not germane to this controversy. If legislation regulating the handling of such materials is beyond the power of the council, such provisions can be rejected in a suit brought by the parties aggrieved thereby. They can be rejected and still leave the provisions as to garbage intact, if, in themselves, they are not unconstitutional or wholly unreasonable. So far as the charter is concerned, we are of the opinion that its provisions are sufficiently broad to authorize any legislation, subject to the conditions of constitutionality and reasonableness, which may be, or, in good faith, may appear to be reasonable to secure the proper disposal of garbage accumulating in the city. The charter provision, under which the city claims to enact the ordinance in question, is as follows:

"Section 25. City council shall have power and authority, within the limits of the city of Medford to enact all ordinances and adopt all regulations, not inconsistent with the constitution and laws of the state of Oregon as shall be needful or requisite to maintain and establish the peace, good order, health, cleanliness, prosperity and general welfare of the city."

Under similar statutes, it has been usually held that a city has authority, in the interest of public health and cleanliness, to regulate and provide for the disposal of garbage. Wheeler v. City of Boston, 223 Mass. 275 ( 123 N.E. 684, 15 A.L.R. 275), is an instructive case. The facts are thus summed up in the opinion:

"There is little controversy as to the facts. The city having the responsibility of removing or causing to be removed offal and garbage that may be a menace to the public health, has adopted a system both of removal and disposal, employing as its agencies its own employes, its contractors and the Boston Development Sanitary Company, and as its agents for disposal it has adopted the Boston Development Sanitary Company under a contract. In order to carry out and make effective its policy, it has undertaken to refuse permission to anybody except one of its own agencies to transport garbage through the streets. The Boston Development Sanitary Company has erected a large reduction plant on Spectacle Island, and furnished scows for the transportation of garbage from the water-front stations to the island. At the island it treats all the garbage by a `reduction' process, and extracts from it grease, oil, and other products of commercial value. The garbage is therefore of value to it."

In the opinion of RUGG, C.J., which cites many authorities supporting the validity of the ordinance, the court says:

"So far as we are aware, there are no contrary decisions. These decisions rest in general upon the idea that garbage is widely regarded as an actual and potential source of disease or detriment to the public health, and that therefore it is within the well-recognized limits of the police power, for the municipality, acting for the common good of all, either to take over itself or to confine to a single person or corporation the collection, transportation through the streets and final disposition of a commodity which so easily may become a nuisance. Private interests must yield to that which is established for the general benefit of all. Commonwealth v. Alger, 77 Cush. (Mass.) 53; Commonwealth v. Wheeler, 205 Mass. 384 ( 91 N.E. 415, 137 Am. St. Rep. 456, 18 Ann. Cas. 319); Commonwealth v. Titcomb, 229 Mass. 14 ( 118 N.E. 328)."

State v. Orr, 68 Conn. 101, 102 ( 35 A. 770, 34 L.R.A. 279), is to the same effect. We quote from the syllabus as follows:

"Held:

"That it was not essential, that the garbage at the time of its transportation, should be in fact, a nuisance, and detrimental to health; it was enough if it was such `refuse matter' as accumulated in the preparation of food for the table.

"That the absence in the charter of any express authority to require licenses for the business, did not prevent the mode of regulation adopted, since the collection and removal of garbage was a business which, as usually carried on was in its nature dangerous to public health, and the general police powers vested in the city by its charter, in connection with the Special Act of 1895, implied the right to limit the number of those who might pursue it.

"That evidence that the defendant was under contract with certain proprietors to remove all the garbage from their restaurants, was also properly excluded; as no contract to perform an unlawful act could justify its performance.

"Any occupation comes within the range of the police power, which is such as to be naturally liable to create a nuisance unless subjected to special regulation; whether it be so conducted as in fact to create a nuisance, or not."

Pantlind et al. v. City of Grand Rapids, 210 Mich. 18 ( 177 N.W. 302, 15 A.L.R. 280), is another strong case supporting defendants' contention here. The opinion is too long to admit of extensive quotation, but from the syllabus we quote the following:

"The right of plaintiff, owner of hotels, cafeterias, and restaurants, to the garbage from their tables and kitchens, must be subordinated to the general good, and they are compensated therefor in the common benefits secured by an ordinance providing for sale and removal of garbage, so that a city ordinance therefor is not wanting in the due process of law required by the constitution."

We have carefully followed up the citations in the foregoing opinions, as well as those cited by counsel, and find the great weight of authority sustains the right of defendant city, so far as the disposal of garbage of the character handled by plaintiffs is concerned, to pass the ordinance attacked by the complaint. Landberg v. City of Chicago, 237 Ill. 112 ( 86 N.E. 638, 127 Am. St. Rep. 319, 21 L.R.A. (N.S.) 830), and Iler v. Ross, 64 Neb. 710 ( 90 N.W. 869, 97 Am. St. Rep. 676, 57 L.R.A. 895), are cited by plaintiffs as sustaining a contrary doctrine. Both of these cases are in our opinion contrary to the great weight of authority, and their reasoning does not commend itself to our judgment.

A court is always treading upon dangerous ground when it assumes to hold a city ordinance void on the ground that it is unreasonable, and this should not be done unless the unreasonable features are so apparent as to be beyond question. Both of the cases above cited are in flat contradiction to the case of California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306 ( 50 L.Ed. 204, 26 Sup. Ct. Rep. 100).

The plaintiffs here allege that they are conducting their business in a careful and sanitary manner, and no doubt this is true. The ordinance was not passed with reference to the manner in which one or two individuals carry on the business, but with reference to the manner in which all individuals engaged in the business were conducting it, or thereafter, might conduct it. It is easier to control the operations of a single concern than to watch and supervise the activities of two or half a dozen, and solicitude for the public health might well suggest to a city council the propriety of so centralizing the service as to have it under the municipal thumb without employing a large number of watchers or supervisors.

Counsel for appellants very plausibly suggests, that while the rule laid down in such cases as California Reduction Co. v. Sanitary Reduction Works, supra, may be applicable to large cities, that as applied to the City of Medford, it is unreasonable. Medford is a city of 12,000 inhabitants and "no mean city" as cities go in Oregon, and its inhabitants are certainly entitled to sanitary protection the same as larger centers of commerce.

The council is chosen by the people and is presumed to act honestly and for the best interests of their constituency. They ought, in view of their experience as citizens and officials of the community, to be fairly well advised as to its reasonable requirements and necessities, and we will not assume that they acted from any other than proper motives. That they had authority to pass the ordinance in question, we are well assured. That it was an unreasonable exercise of that power, we are not disposed to hold.

The ruling of the Circuit Court is affirmed.

AFFIRMED. REHEARING DENIED.

BELT, RAND and ROSSMAN, JJ., concur.