erly held the estate of the indorser upon the note in question, unless it be true, as urged by the testatrix, that the bank had constructive knowledge of Mr. Sneed's condition when it accepted this renewal note. This contention rests upon the fact that Mr. Neely was the president of the bank, and a member of the discount committee which passed on this note, and that at that time he was advised of Sneed's insanity. That Mr. Neeley did sustain these of cial relations to the bank, and was informed of the fact in question, when this new note was

taken, is clear; but it is equally clear that be
was not present with the committee when it
was received, and the old note extinguished,
and had no agency whatever in the transac
tion, and, in fact, only obtained knowledge of
Under
it the day after it was consummated.
such conditions, his knowledge could not af
fect the bank. 1 Morawetz, Priv. Corp. p. 450c;
Union Bank v. Campbell, 4 Humph. 394.

It follows that the decree of the chancellor is in all things affirmed.

CONNECTICUT SUPREME COURT OF ERRORS.

1. An ordinance prohibiting the col-
lection or transportation of garbage
without a license therefor is authorized by a
charter giving power to regulate by ordinance
the collection and removal of garbage, although
it makes no express provision for licenses.
2. The fact that garbage is not a nui-
sance or detrimental to health does not exempt
it from the police power or entitle a citizen to
engage in its transportation without a license.
3. Any occupation comes within the
range of the police power which is such
as to be naturally liable to create a nuisance un-
less subjected to special regulations, whether it

be so conducted as in fact to create a nuisance or

not.

4. The wrongful refusal to a person of a license for transportation of garbage does not entitle him to pursue the business without a license in violation of an ordinance, but his remedy is by mandamus.

removal not dangerous to the public health. A by-law which assumes to be a police regulation, but deprives a party of the use of his property without regard to the public good, under the pretense of the preservation of health, when it is manifest that such are not the object and purpose of the regulation, will be set aside as a clear and direct infringement of the right of property without any compensating advantages.

Cooley, Const. Lim. 6th ed. 247, 485, 486; Austin v. Murray, 18 Pick. 121; Corfield v. Coryell, 4 Wash. C. C. 380; Vanzant v. Wad del, 2 Yerg. 260; Com. v. Towles, 5 Leigh, 748; Norwich Gaslight Co. v. Norwich City Gas Co. 25 Conn. 19; Hudson v. Thorne, 7 Paige, 261; State, Tieman, v. Indianapolis, 69 Ind. 375, 35 Am. Rep. 223; Warner v. Curran, 75 Ind. 309; Chicago v. Rumpff, 45 Ill. 90, 92 Am. Dec. 196. A by-law which prohibits one person from carrying on a certain business, and allows another to carry on the same business, is void.

Hudson v. Thorne, supra; Cooley, Const. Lim. 6th ed. 244-246.

The board of health has not the power to assume in advance what is or will become a nuisance or dangerous to public health, and contract for its removal.

Gregory v. New York, 40 N. Y. 273.

5. "Refuse matter," within the meaning of an ordinance prohibiting the transportation without a license of "such refuse matThose who make the laws "are to govern by ter as accumulates in the preparation of food for the table," includes only what is abandoned promulgated established laws not to be varied as worthless; but such materials as may be prop-rich and poor, for the favorite at court and the in particular cases, but to have one rule for erly utilized for other purposes, when they do not constitute a nuisance, remain property which may be sold or otherwise disposed of at the will of the owner.

(June 25, 1896.)

countryman at the plow.'

Wally v. Kennedy, 2 Yerg, 554, 24 Am. Dec. 511; Lewis v. Webb, 3 Me. 326; Durham v. Lewiston, 4 Me. 140; Holden v. James, 11 Mass. 396, 6 Am. Dec. 174; People v. Frisbie, 26 Cal. 135; Davis v. Menasha, 21 Wis. 491; Millett v.

APPEAL by defendant from a judgment of People, 117 III 294, 57 Am. Rep. 869; God

the Criminal Court of Common Pleas for Fairfield County convicting him of violating an ordinance of the city of Bridgeport which prohibited unlicensed persons from collecting and transporting garbage. Affirmed.

The facts are stated in the opinion.
Messrs. David B. Lockwood and Alfred
B. Beers, for appellant:

The garbage in this case was fresh, and its

charles v. Wigeman, 113 Pa. 431; Cooley, Const. Lim. 6th ed. 483, 733.

The Constitution, art. 1, § 1, clearly prohibits the legislature from delegating the power to a city to grant to any individual the special privilege of carrying on any ordinary business or calling.

State v. Conlon, 65 Conn. 478, 31 L. R. A. 55; Norwich Gaslight Co. v. Norwich City Gas

NOTE. As to monopoly in contract for removal ; A. 540, and note; also Walker v. Jameson (Ind.) 28 of garbage, see Smiley v. MacDonald (Neb. 27 L. R. L. R. A. 679.

Co. 25 Conn. 34: Re Lowe, 54 Kan. 757, 27 L. R. A. 545; Logan v. Pyne, 43 Iowa, 524, 22 Am. Rep. 261; Cooley, Const. Lim. 6th ed. 485; State v. Fire Creek Coal & C. Co. 33 W. Va. 188, 6 L. R. A. 359; Millett v. People, supra; Atchison & N. R. Co. v. Baty, 6 Neb. 37, 29 Am. Rep. 356; Wally v. Kennedy, supra; Durkee v. Janesville, 28 Wis. 464,9 Am. Rep. 500. The privilege of contracting is both a liberty and a property right of which one cannot be deprived without due process of law.

Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79; State v. Loomis, 115 Mo. 307, 21 L. R. A. 789; People v. Marx, 99 N. Y. 387, 52 Am. Rep. 34; Er parte Whitwell, 98 Cal. 73, 19 L. R. A. 727; State v. Julow, 129 Mo. 163, 29 L. R. A. 257: Cooley, Const. Lim. 6th ed. 481-483, 485; Bertholf v. O'Reilly, 74 N. Y. 515, 30 Am. Rep. 323; Tiedeman, Pol. Power, 489-493; Citizens' Sav. & L. Asso. v. Topeka ("Loan Association v. Topeka"), 87 U. S. 20 Wall. 655, 22 L. ed. 455.

Municipal ordinances placing restrictions upon lawful conduct or business or the use of lawful property must, in order to be valid, specify the rules and conditions to be observed in such conduct or business or the use of such property; and must not admit of the exercise of any arbitrary discrimination by the munici pal authorities as between citizens who will comply.

The right to regulate a business does not include the right to prohibit.

Ex parte Burnett, 30 Ala. 461; Austin v. Murray, 16 Pick. 121; Portland v. Schmidt, 13 Or. 17; Bronson v. Oberlin, 41 Ohio St. 476, 52 Am. Rep. 90; Cooley, Const. Lim. 6th ed. 246.

A municipality cannot create a monopoly. Altgelt v. San Antonio, 81 Tex. 436, 13 L. R. A. 383; Tiedeman, Pol. Power, 315, 316.

The defendant could not be deprived of the privilege of contracting for or removing merchandise which the finding shows was not dangerous to life or health.

Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79; State v. Loomis, 115 Mo. 307, 21 L. R. A. 789. If the ordinance unfairly discriminates against the defendant, it deprives him of a constitutional right and is void.

Calder v. Bull, 3 U. S. 3 Dall. 387, 1 L. ed. 648; Durkee v. Janesville, 28 Wis. 464, 9 Am. Rep. 500; Cincinnati v. Steinkamp, 54 Ohio St. 284.

Messrs. John H. Light and V. R. C. Giddings, for appellee:

The ordinance was clearly within the power of the common council to enact.

1 Dill. Mun. Corp. 4th ed. 315, 316. The exercise of municipal authority through by-laws to regulate and suppress nuisances is ancient.

Pierce v. Bartrum, Cowp. 269; Com. Dig. By-Law, B 3.

A section providing that no person should collect garbage and offal without a permit from the board of health is valid.

Re Vandine, 6 Pick. 187, 17 Am. Dec. 351; Re Nightingale, 11 Pick. 168; Com. v. Stodder, 2 Cush. 574, 48 Am. Dec. 679; People v. Gordon, 81 Mich. 306.

Richmond v. Dudley, 129 Ind. 112, 13 L. R. A. 587; Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220; Newton v. Belger, 143 Mass. 598; Baltimore v. Radecke, 49 Md. 217, 33 Am. Rep. 239; Re Frazee, 63 Mich. 396; Anderson v. Wellington, 40 Kan. 173, 2 L. R. A. 110; Trotter v. Chicago, 33 Ill. App. 206; Barthet v. New Orleans, 24 Fed. Rep. 563; Bills v. Goshen, 117 Ind. 221, 3 L. R. A. 261; Graffty v. Rushville, 107 Ind. 502, 57 Am. Rep. 128; The people of this state have not by the Cooley, Const. Lim. 6th ed. 484, 485; Frorer Constitution parted with any portion of their v. People, 141 Ill. 171, 16 L. R. A. 492; Ram-power to protect themselves, nor have they put sey v. People, 142 Ill. 380, 17 L. R. A. 853; Braceville Coal Co. v. People, 147 Ill. 66, 22 L. R. A. 340; Hocking Valley Coal Co. v. Rosser, 53 Ohio St. 12, 29 L. R. A. 386.

any limitation upon themselves as to the exercise of it. It is now as fully in the legislature as at the beginning it was in the people.

State v. Wordin, 56 Conn. 226; Dunham v. Nor will the board of health prohibit the New Britain, 55 Conn. 378; Northwestern Fercarrying on of a lawful business not necessa-tilizing Co. v. Hyde Park, 97 U. S. 659, 24 L. rily a nuisance, but which may be conducted ed. 1036; Coates v. New York, 7 Cow. 585. without injury or danger to the public health. Wiel v. Ricord, 24 N. J. Eq. 169; Er parte Sing Lee, 96 Cal. 354.

Ordinances must be reasonable, and not inconsistent with the policy of the state.

The legislature can invest municipal bodies with the same police power it has itself.

Ex parte Shrader, 33 Cal. 279; Johnson v. Simonton, 43 Cal. 242.

The benefit of a by-law is generally the touchstone of its validity.

Zylstra v. Charleston, 1 Bay, 382; 1 Dill. Mun. Corp. 4th ed. § 369.

Weil v. Ricord, 24 N. J. Eq. 169.

Hayden v. Noyes, 5 Conn. 397; State v. Speyer, 67 Vt. 502, 29 L. R. A. 573; People v. Armstrong, 73 Mich. 288, 2 L. R. A. 721; Anderson v. Wellington, 40 Kan. 173, 2 L. R. A. The courts will not interfere with the legis110; Cooley, Const. Lim. 6th ed. 240-247; lative exercise by municipal bodies of their Tugman v. Chicago, 78 Ill. 4C5; River Render-police powers by which the peace, health, coming Co. v. Beler, 77 Mo. 91, 46 Am. Rep. 6; fort, and general welfare are secured or proWard v. Greeneville, 8 Baxt. 228, 35 Am. Rep. moted. 700; Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; People v. Gillson, 109 N. Y. 389; Caldwell v. Alton, 33 Ill. 416, 75 Am. Dec. 282; Blooming ton v. Wahl, 46 Ill. 489; Bethune v. Hughes, 28 Ga. 560, 73 Am. Dec. 789; Kip v. Paterson, 26 N. J. L. 298; Barling v. West, 29 Wis. 307, Ex parte Casinello, 62 Cal. 538; Green v. Sa9 Am. Rep. 576; St. Paul v. Traeger, 25 Minn.vannah, 6 Ga. 1; State v. Freeman, 38 N. H. 248, 33 Am. Rep. 462; Hudson v. Thorne, 7426; Chicago v. Bartee, 100 Ill. 57; St. Louis v. Paige, 261: Hawes v. Chicago, 158 Ill. 653, 30 Knox, 74 Mo. 79; Cronin v. People, 82 N. Y. L. R. A. 225. 318, 37 Am. Rep. 564; Carthage v. Frederick,

Ordinances having for their purpose the protection of the public health and of the same exclusive scope as this garbage ordinance have been universally upheld.

122 N. Y. 268, 10 L. R. A. 178; State v.; Schlemmer, 42 La. Ann. 1166, 10 L. R. A. 135; Com. v. Patch, 97 Mass. 221; Taunton v. Tay lor, 116 Mass. 254; Ashbrook v. Com. 1 Bush, 139, 89 Am. Dec. 616; Singer v. State, 72 Md. 464, 8 L. R. A. 551.

Where a municipal corporation can pass ordinances in regulation of the doing of any thing in its tendency prejudicial to health, the doing of such thing can be prohibited unless in accordance with a permit or license issuable by some officer or board.

ropolitan Bd. of Excise v. Barrie, 34 N. Y. 657; Patterson v. Kentucky, 97 U. S. 501, 24 L. ed. 1115; State v. Addington, 77 Mo. 118; Wynehamer v. People, 13 N. Y. 378; Bartemeyer v. | Iowa, 85 C. S. 18 Wall. 129, 21 L. ed. 929.

Baldwin, J., delivered the opinion of the court:

The charter of the city of Bridgeport conferred upon the common council ample power to regulate by ordinance the collection and removal of garbage and offal. The ordinance Com. Dig. By-Law, B 3; Welch v. Hotchkiss, brought in question upon this proceeding deals 39 Conn. 140, 12 Am. Rep. 383; People, Lar only ( 2) with such refuse matter as acrabee, v. Mulholland, 82 N. Y. 324, 37 Am. cumulates in the preparation of food for the Rep. 568; Chicago v. Bartee, 100 Ill. 57; Kins- table." "Refuse matter," as the term is thus ley v. Chicago, 124 Ill. 359; Boehm v. Baltimore, employed, can embrace nothing which has not 61 Md. 259; St. Louis v. Knox, 74 Mo. 79; St. been refused or rejected as unsuitable for table Johnsbury v. Thompson, 59 Vt. 300, 59 Am. use. It may be thus rejected because it has Rep. 731; Johnson v. Simonton, 43 Cal. 242; little or no value for human food, or because it. Charleston v. Pepper, 1 Rich. L. 364; Frank is decayed or unwholesome. It must, in its fort & P. Pass. R. Co. v. Philadelphia, 58 Pa. nature, be perishable, and can include little 119; Johnson v. Philadelphia, 60 Pa. 445; Al- which is not liable to become decomposed or lerton v. Chicago, 6 Fed. Rep. 555; Powell v. offensive if left where it falls. The common Pennsylvania, 127 U. S. 678, 32 L. ed. 253. council therefore had authority to regulate its The validity or invalidity of the refusal to disposition in such a way as to prevent it from issue such a permit is not relevant to this crim- becoming the occasion of a nuisance. Much, inal prosecution. however, that is of the nature of garbage and Even a contract with a municipal corpora-offal, and bas slight value for table use, may tion whereby the contractor shall have the ex-be not unsuitable for the food of animals, for clusive right to collect, remove, or dispose of all garbage or offal, does not tend to create a monopoly, but is consonant with a valid exercise of the police powers relative to health.

Smiley v. Mac Donald, 42 Neb. 5, 27 L. R. A. 540; Walker v. Jameson, 140 Ind. 603, 28 L. R. A. 679; Louisville v. Wible, 84 Ky. 290; Swift v. New York, 83′ N. Y. 528; Alpers v. San Francisco, 32 Fed. Rep. 503; National Fertili zer Co. v. Lambert, 48 Fed. Rep. 458; State v. Payssan, 47 La. Aun. 1029; State v. Fisher, 52 Mo. 174; River Rendering Co. v. Behr, 7 Mo. App. 345; Rae v. Flint, 51 Mich. 526; Re Lowe, 54 Kan. 757, 27 L. R. A. 545.

The general assembly has the most plenary power as to all matters relative to the protection of the lives, health, and general well be ing of the citizens of the commonwealth.

manure, or as materials for manufacture. Construing this ordinance with the strictness properly applicable to municipal legislation of a penal nature, the term "refuse matter" can only extend to matter which is in fact noisome, or which has been refused and rejected by the owner as worthless. Meat trimmings, potato parings, specked apples, and many other things of a like character, might be thrown aside in preparing table dishes, and yet properly utilized afterwards for other purposes. The mode of regulation of the disposition of kitchen refuse which is contained in this crdinance seems to be one of an alternative character. The board of health is empowered to take such measures as it may deem effectual for the removing of this refuse from the whole city or any portion of it, and to this end to emWoodruff v. Catlin, 54 Conn. 277; Woodruff ploy or make contracts with one ог more v. New York & N. E. R. Co. 59 Conn. 63; Sco-persons, subject to certain rules, of which the vill v. McMahon, 62 Conn. 378. following are the leading ones: No person shall collect and transport such refuse in the city without first having obtained a permit from the board. It shall all be carried through the city in water-tight, covered carts, so loaded as not to spill; each to be plainly marked "City Garbage Cart," with the name of the contractor, and number of the cart, and of the ward, and Raymond v. Fish, 51 Conn. 80, 50 Am. Rep. to be used only when inspected, approved, and 3; Woodruff v. New York & N. E. R. Co, supra; licensed by the clerk of the board. All such State, New York & N. E. R. Co., v. Asylum refuse is to be placed by the person on whose Street Bridge Commission, 63 Conn. 91. premises it originates in suitable covered Any contract made under legislative author-vessels, set there in a position convenient for ity is of binding force. removal, or in some place designated by the Hartford v. Hartford Electric Light Co. 65 clerk of the board, so that it "may be called Conn. 324; Train v. Boston Disinfecting Co. for by the garbage contractor of said city; pro1 44 Mass. 530, 59 Am. Rep. 113; Baker v. Box-vided, however, that any person may be extorn, 12 Pick. 184, 22 Am. Dec. 421; 2 Hare,cepted from the provisions of this section upon Am. Const. Law, 779; Com. v. Tewksbury, 11 obtaining a permit to that effect from the clerk Met. 55; Le Claire v. Davenport, 13 Iowa, 210; | of the board of health." No other matter what Ire toxicating Liquor Cases, 25 Kan. 751, 37 Am. ever can be placed in such a vessel. "The Rep. 284; Blair v. Kilpatrick, 40 Ind. 312; garbage contractor or other person employed State v. Brennan's Liquors, 25 Conn. 278; Met by the board of health shall call regularly

For the purpose of exercising and carrying out this police power authority can be delegated to such bodies as the legislature thinks best. Every city charter contains such a delegation. So the power can be delegated to any committee or board already existing or thereto expressly constituted.

CONNECTICUT SUPREME COURT OF ERRORS.

JUNE,

particular occupation, the defendant had no absolute title to a license. which it had issued was unreasonably small, If the number and if an inquiry into that subject was open to him in any proceeding, it was certainly not open in this, to which the board was not a party. law into his own hands, and pursue the busiHe could not thus assume to take the ness without a license, because a license had been wrongfully refused. His remedy, if he had any, would be to apply by mandamus to compel the board to grant him one.

all the garbage collected by him came from cerThe defendant offered evidence to show that tain restaurants, with the proprietors of which he had contracts for its removal. This also was properly excluded. It was not claimed, and cannot be assumed, that such engagements had been entered into before the adoption of the ordinance. had the fact been otherwise, the law would Without inquiring whether, have been otherwise, it is sufficient, as the case uniawful act can justify its performance. stands, to say that no contract to perform an

at all dwellings, tenements, hotels, restaurants, or other buildings designated by the said board, and remove promptly and in as cleanly a manner as possible all garbage or offal that may be offered, and shall return the receptacles to the place on such premises from which the same were taken. All garbage and offal which shall be removed through said city shall be carried and deposited in such places as may be designated and approved by the board of health, and shall be disposed of in such man ner as not to create a nuisance, and the covers of all carts, wagons, or vessels used for the purpose of removing such garbage or offal shall be kept tightly closed while they are being transported through the streets of the city. No deposit of garbage or offal shall be made within the limits of the city of Bridgeport, or upon any wharf, or upon any vessel lying at any wharf, except by permit from the board of health." The clerk of the board is to enter in a record book "all contracts entered into, or licenses issued by authority of said board.' Under these provisions and the authority of the special act of 1895, the board of health might contract with a single person to collect prove, and claimed that it did prove, that the The defendant further offered evidence to and remove garbage from the entire city, or garbage he collected was fresh, and some of it with several persons to collect and remove it fit for food; and there was no evidence on from as many different portions of the city. It either side tending to show that any of this might also make such contracts with respect garbage "was sour or putrid, and for that to part of the city, or to certain buildings in reason dangerous to the public health." In part of the city, and leave the collection and view of this, the defendant asked the court to removal of garbage from other places open to instruct the jury that "the privilege of conthose who obtained from its clerk a proper per-tracting to transport garbage is a liberty and mit, and provided proper means of transportation. By neither method of procedure would any monopoly be created by which the common rights of citizenship would be infringed upon. Slaughter-House Cases, 83 U. S. 16 Wall. 36, 21 L. ed. 394; Alpers v. San Francisco, 32 Fed. Rep. 503; National Fertilizer Co. v. Lambert, 48 Fed. Rep. 458. absence in the charter of any express proNor did the vision as to the grant of licenses to engage in this business prevent the common council from resort to that mode of regulation, since it was a business which, as usually carried on, is in its nature dangerous to the public health; and as carried on in Bridgeport might, under the act of February 28, 1895, have been made by the board of health the subject of a public contract. Over any such occupation a strict watch must be kept, and the general police powers vested in the city by § 24 of its charter, in connection with the act of 1895, justify the implication of a right to limit the number of those who pursue it. State v. Wordin, 56 Conn. 216, 226; Re Vandine, 6 Pick. 187, 17 Am. Dec. 351.

It

property right, of which one cannot be deprived without due process of law, unless the jury find that such garbage,.at the time of its transportation, is a nuisance, and detrimental to health." Such instructions were properly refused. It was a violation of the ordinance to collect and transport the kitchen refuse was being transported at the time of the act which was its subject, whether such of it as complained of was noxious or innoxious. was enough that it was "such refuse matter as accumulates in the preparation of food for the table." There is so much of this kind of matter that is offensive and dangerous to the health of the community that all may be properly made the subject of public supervision and control. extend to everything that is separated and The ordinance does not thrown aside in the preparation of food for the table. Whatever of this description is not abandoned as worthless, remains property which, so long as it does not constitute a nuisance, may be sold or otherwise disposed of at the will of the owner. If the evidence had ant's cart, while they had been rejected for shown both that the contents of the defendtable use, were were in his possession as the agent or vendee not offensive, and that they of the original owners, he might have been entitled to a verdict, for he could not then have been engaged in the business for which a license was required.

The defendant offered evidence to show that he had been for many years engaged in the business of collecting and removing garbage in Bridgeport, in carts so constructed as to satisfy the requirements of the ordinance; and that he had applied to the clerk of the board for a license or permit, and met with a refusal. He also offered evidence, which was excluded, that permits had been previously issued to but declined, to instruct the jury that, "the The court of common pleas was requested. others; but that, before he applied, the board board of health has no power to assume in adhad instructed its clerk to issue no more to any-vance that garbage is or will become a nuisance. one. This evidence was properly excluded. The board of health having the right to limit the number of those engaged in this 34 L. R. A.

and detrimental to public health, and so con-
tract arbitrarily for its removal, or prohibit its
removal by purchasers thereof; that the board

FLORIDA SUPREME COURT.

4. Clerks of the circuit court were not David L. Yulee, as administrator of the esauthorized by statute, in this state, in 1864, to tate of Moses E. Levy, deceased, tiled a bill receive payments of judgments, or to accept against appellants, John M. Hendry, Archibald money on judgments as paid into the registry and Norman Campbell, for the purpose of canof the court, without a judicial order for that pur-celing a written agreement for the sale of pose; and the payment to such officers on a judg-several sections of land situated in Alachua ment, without prior authority, or subsequent ratification on the part of the judgment creditor, was no payment to him.