ness of burning garbage; (15) that it is unreasonable and invalid because there is no necessity to prevent the removal of house refuse and garbage from the municipality for destruction or disposition elsewhere; (16) that it is unreasonable because it prohibits the performance of a harmless act in a proper and harmless manner; (17) that it does not prohibit the transportation of house refuse and garbage beyond the territorial limits of the municipality; (18) that the right claimed has been forfeited by reason of overcharging by the complainant for the destruction of the substances enumerated; (19) that the right claimed has been forfeited because in the enjoyment thereof the appellee is maintaining a nuisance; (20) that, if the grant of the privilege claimed by the complainant is a franchise, the respondents are entitled to defend on the ground that there has been no grant of such a franchise, or that the franchise has been forfeited, and no longer exists.

It must be admitted that the power of the Legislature or municipality under what is commonly designated as the "police power of the state," is not absolute. It does not necessarily follow that every statute which may be enacted by the Legislature, or order passed by a municipality, ostensibly for the purpose of preserving the public health, protecting the public morals, and guarding the public safety, is always to be accepted as a legitimate exercise of the police power of a state. Neither the Legislature nor municipality can, under the guise of police regulations, arbitrarily invade private property or personal rights; and when such regulations are called in question. the test should be whether they have some relation to the public health or public safety, and whether such is, in fact, the end sought to be attained. The means used must be such as are reasonably necessary for the accomplishment of the purpose, and must not be unduly oppressive upon individuals or the public. Every act, order, or ordinance is subject to review by the courts, and, if the power granted by the Constitution is exceeded by the Legislature or municipality, it is the duty of the courts to declare such act, order, or ordinance invalid. Under the guise of protecting the public interests, neither the Legislature nor the municipality can arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful business and occupations. The police power cannot be used as a shield for all the ills that legislation is heir to, but it must be recognized that the power and purposes of laws of this character are necessarily very broad and far-reaching, and, if the power granted does not exceed the limits of the Constitution, and clearly comes within the legitimate exercise of the police power, it should be sustained. It may be that it is impractical, if not impossible, to definitely prescribe the limits of the police power by any general rule or definition. As was said by Chief Justice Shaw in Commonwealth v. Alger, 7 Cush. 84: "It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries or prescribe limits to its exercise." 18 Am. & Eng. Ency. L. (2d Ed.) 915, and authorities there cited. One thing, how ever, is certain: that everything which, from its nature and surroundings, is, or is liable to become, a menace to the public health or public

safety, is a proper subject to be dealt with under the police power of a state. This case comes within that class. The power to make the law necessarily carries with it the power to judge of its necessity, expediency, and justice, and, primarily at least, of the reasonableness of the means and methods used to accomplish the end sought to be obtained. Courts have nothing to do with the wisdom, policy, or expediency of the law. The courts are only authorized to deal with the question of the power of the Legislature or municipality to pass the laws or orders in question, and determine whether they are valid, and, if so, to construe their provisions. There their duty ends. These general principles are axiomatic in the jurisprudence of this country. Mugler v. Kansas, 123 U. S. 623, 661, 8 Sup. Ct. 273, 31 L. Ed. 205; Powell v. Pennsylvania, 127 U. S. 678, 685, 8 Sup. Ct. 992, 32 L. Ed. 253; Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6, 32 L. Ed. 346; Lawton v. Steele, 152 U. S. 133, 136, 14 Sup. Ct. 499, 38 L. Ed. 385; In re Wilshire (C. C.) 103 Fed. 620, 622, and authorities there cited; Jew Ho v. Williamson (Č. C.) 103 Fed. 10, 17, 20; Iler v. Ross (Neb.) 90 N. W. 869, 57 L. R. A. 895.

Appellee, in support of the constitutionality of its contract with the city and the validity of the orders of the municipality upon which it is based, relies upon the principles announced in Alpers v. City and County of San Francisco (C. C.) 32 Fed. 503; National Fertilizer Co. v. Lambert (C. C.) 48 Fed. 458, and in the Slaughter-House Cases, 16 Wall. 36, 64, 21 L. Ed. 394. In the Alpers Case, Mr. Justice Field, in upholding the constitutionality of the "dead animal contract," said:

"There is no doubt that the contract between the plaintiff and the city and county of San Francisco is one within the competency of the municipality to make. It is within the power of all such bodies to provide for the health of their inhabitants by causing the removal from their limits of all dead animals not slain for human food, which otherwise would soon decay, and, by corrupting the air, engender disease. And provisions for such removal may be made by contract, as well as the performance of any other duty touching the health and comfort of the city; its authorities always preserving such control over the matter as to secure an observance of proper sanitary regulations." And, in addition to this general power, he referred to article II, § II of the Constitution and to the provisions of the consolidation act of 1863.

In the Lambert Case, the court, in answer to the objections made. that the contract attempted to create a monopoly, that it was in violation of section 21, art. 1, of the Constitution of California, and that it deprived persons of their property without due process of law, said: "It is the duty of every government, whether state or municipal, to pass laws or ordinances for preserving the public health, protecting the good order and peace of society, and providing for the abatement of nuisances. Such laws, if they contain nothing more than the necessary restrictions and limitations for the accomplishment of such purposes, are not unconstitutional on the ground that they deprive persons of their property without due process of law. Quarantine regulations, for instance, materially interfere with the free and unobstructed use of private property, and for the time being restrain, to a certain extent, the liberty of individuals. Yet the health, safety, and welfare of the community often demand their enforcement; and such laws have always been upheld as necessary police regulations. Several other instances might be cited where laws of a similar character are sustained, but 61 C.C.A.-7

the authorities are too numerous, and the general principles of law too well settled, to require any extended reference or review. No person has an inalienable right to produce disease, or trade in that which is noxious; and in every community, large or small, some minor rights of individuals must be surrendered for the benefit, protection, health, and general good of all."

These decisions may not be absolutely decisive of all the questions. relied upon by appellants, but the principles therein announced are certainly conclusive upon many of the points involved in this case. The authorities, if any are needed, to support these views are abundant. We cite, in addition to those already referred to, a few of the later cases on the subject: Walker v. Jameson, 140 Ind. 591, 37 N. E. 402, 39 N. E. 869, 28 L. R. A. 679, 683, 49 Am. St. Rep. 222; Smiley v. MacDonald, 42 Neb. 5, 13, 60 N. W. 355, 27 L. R. A. 540, 47 Am. St. Rep. 684; Harrington v. City of Providence (R. I.) 38 Atl. 1, 38 L. R. A. 305; Ex parte Tuttle, 91 Cal. 589, 591, 27 Pac. 933; Ex parte Lacey, 108 Cal. 326, 41 Pac. 411, 38 L. R. A. 640, 49 Am. St. Rep. 93; City of Louisville v. Wible, 84 Ky. 290, 294, I S. W. 605; State v. Orr, 68 Conn. 101, 110, 35 Atl. 770, 34 L. R. A. 279; City of Grand Rapids v. De Vries, 123 Mich. 570, 580, 583, 82 N. W. 269; Kilvington v. City of Superior, 83 Wis. 222, 226, 53 N. W. 487, 18 L. R. A. 45; 18 Am. & Eng. Ency. L. (2d Ed.) 922, 940, and authorities there cited. In Walker v. Jameson, supra, the court had under consideration the validity of a contract made by the board of public works of the city of Indianapolis, clothing one Woodward with the exclusive right, privilege, and obligation to remove the garbage, etc., from the premises of all persons in the city, and to transport the same to a crematory. This contract was let to the lowest bidder, and afterwards assigned to Jameson, who brought suit to enjoin appellants from interfering with or removing such garbage, etc. Appellant there, as here, contended that the contract was invalid because the board of public works had no authority to make it. The court discussed all the points made by counsel, and in the course of the opinion declared that it was within the general power of the government to preserve and promote the public welfare even at the expense of private rights; that under the police power of the state persons and property may be subjected to all kinds of restraints and diligence in order to secure the general comfort, health, and prosperity of the state, and that it is the inherent and plenary power of the state which enables it to prohibit all things hurtful to the comfort and welfare of society; that it resolves itself solely into a question of power, and not of mere reasonableness; that a municipal corporation has no power to treat a thing as a nuisance which cannot be one, but it has the power to treat as a nuisance a thing that, from its character, location, and surroundings, may or does become such; that in doubtful cases, where a thing may or may not be a nuisance, depending upon a variety of circumstances requiring judgment and discretion on the part of the town authorities in exercising their legislative functions under a general delegation of power, their action, under such circumstances, would be conclusive of the question; that it has been often held to be reasonable for municipalities to grant to one or more the exclusive right to remove the carcasses of dead animals and other offal of the city; and in summing up said:

"In view of the great weight of authorities, we are of the opinion that the contract and ordinance assailed are both within the long-settled and clearly recognized lines of police power, which is as broad as the power of taxation, and, being simply a sanitary regulation, they cannot be considered as in the nature of confiscation, or an attempt to create a monopoly. The provision for the removal of the garbage at the expense of the property holder is an extreme exercise of this power, but is an incident to its existence. It is a familiar rule that, if the power is conferred upon a municipal corporation by the laws of the state, and the law is silent as to the mode of doing such act, the corporate authorities are necessarily clothed with a reasonable discretion to determine the manner in which such act shall be done. All the reasonable methods of executing such power are inferred. The right of removal by contract or otherwise being vested in the city, it was for the common council to determine whether the work should be paid for out of the city treasury or by the person producing the garbage, and their action is not subject to review here. It may be that the hotel and restaurant keepers will lose money on their garbage under the workings of this contract, where they before derived a revenue; but if, under this plan, the sources of contagion and disease will be more speedily and effectively removed, the city was empowered to make this contract."

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The opinion of Mr. Justice Miller, speaking for a majority of the court in the Slaughter-House Cases, contains perhaps a clearer and stronger expression of opinion in relation to the subject under consideration than any of the other cases we have referred to. Its full force and effect, as applicable to the case in hand, is materially strengthened by reference to the language used by Mr. Justice Bradley and Mr. Justice Field (who dissented from the majority) in their concurring opinion in Bartemeyer v. Iowa, 18 Wall. 129, 136, 138, 21 L. Ed. 929. Mr. Justice Field said:

"No one has ever pretended, that I am aware of, that the fourteenth amendment interferes in any respect with the police power of the state. Certainly no one who desires to give to that amendment its legitimate operation has ever asserted for it any such effect. It was not adopted for any such purpose. The judges who dissented from the opinion of the majority of the court in the Slaughter-House Cases never contended for any such position. But, on the contrary, they recognized the power of the state in its fullest extent, observing that it embraced all regulations affecting the health, good order, morals, peace, and safety of society; that all sorts of restrictions and burdens were imposed under it; and that, when these were not in conflict with any constitutional prohibition or fundamental principles, they could not be successfully assailed in a judicial tribunal."

The municipality of San Francisco had authority, under the provisions of section 1 of the act of 1863, "by regulation or order * * * to authorize and direct the summary abatement of nuisances; to make all regulations which may be necessary or expedient for the preservation of the public health, and the prevention of contagious diseases; to provide by regulation for the prevention and summary. removal of all nuisances," etc. St. 1863, p. 540, c. 352. And by the Constitution of the state (article 11, § 11) it has the power to "make and enforce all such local, police, sanitary and other regulations as are not in conflict with general laws." It had the power, as was held in the Slaughter-House Cases, and in many of the other cases. which we have cited, itself to regulate the removal and disposition of all garbage and refuse matter; and, having this authority, it naturally follows that it had the power to contract with others to perform that duty.

The general principles we have announced, and several of the authorities we have cited, furnish an answer to appellants' contention that the board of supervisors had no authority to confer an exclusive privilege or franchise. This question was involved in the Alpers and Lambert Cases, where a similar contract was upheld. See, also, Slaughter-House Cases, supra; Louisville Gas Co. v. Citizens' Gas Co., 115 U. S. 683, 691, 6 Sup. Ct. 265, 29 L. Ed. 510.

In Smiley v. MacDonald, supra, it was claimed that the grantwhich was practically the same as in the present case-was in violation of the Constitution of Nebraska, which prohibits the grant to any corporation or individual of "any special or exclusive privileges. or immunity or franchise whatever." The court, in the course of its opinion, said:

"The removal of the noxious and unwholesome matter mentioned in the contract tends directly to promote the public health, comfort, and welfare, and is therefore a proper exercise of the police power. Nor is the fact that in this instance the city has by contract conferred an exclusive privilege material. From the power thus conferred upon the city is implied the duty to determine the means and agencies best adapted to the end in view. The means adopted appear to be not only a reasonable and necessary regulation, but a judicious exercise of the discretion conferred upon the city. That the object of all such regulations can be best attained by intrusting the work in hand to a responsible contractor who possesses the facilities for carrying it on with dispatch and with the least possible inconvenience to the public is apparent to all. The alleged excess of power is a mere sanitary measure, as obviously so as the familiar and necessary quarantine for the detention of persons exposed to contagious diseases. In either case the privilege, although exclusive, is but an incident to the proper exercise of the general police power of the state."

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The question as to the reasonableness of granting the exclusive franchise for 50 years is one upon which there may be honest differences of opinion. Courts cannot, in the determination of this question, run a race of opinion upon points of reason and expediency with the law-making power. No iron-clad rule can be laid down to determine where the discretion of the board ceases and where the power and authority of the court to declare the action of the board unreasonable begins. The border line must be ascertained by the facts, conditions, and circumstances surrounding the subject-matter in every particular case. The board in the present case exercised its best judgment in passing Order No. 2,965, and included therein such terms and conditions as it deemed necessary for the protection of the public health, safety, and welfare. It was authorized by the laws of the state to make the contract in question. It was required to act with sound discretion as to the methods and terms. With the honest and reasonable exercise of this authority a court has no right to interfere, although the board may not have chosen the best method or made the most advantageous contract in relation to the subjectmatter. It is only in cases where it clearly appears that the board has exceeded its authority, or acted arbitrarily, oppressively, and unjustly in the exercise of its discretion, that a court is called upon to act. When we take into consideration, as we must, the large expense to be incurred by appellee in the building of its crematory, and the protection and benefit to be derived by the city and its inhabitants,