Argument for Respondent.

199 U. S.

As to act of 1863 see Ex parte Schrader, 33 California, 279, and the right of the State to delegate police power to the city so far as necessary to protect the health of the inhabitants. Norfolk v. Flynn, 101 Virginia, 473.

As to Iler v. Ross, 64 Nebraska, 710, and other cases cited by petitioner, see Smiley v. McDonald, 42 Nebraska, 5; Coombs v. McDonald, 43 Nebraska, 632; State v. Paysson, 47 La. Ann. 1029. As to dead animal contracts see Alpers v. San Francisco, 32 Fed. Rep. 503; Fertilizer Co. v. Lambert, 48 Fed. Rep. 458. See also following cases relating to garbage contracts and ordinances. Walker v. Jameson, 140 Indiana, 591; Grand Rapids v. De Vries, 123 Michigan, 570; Dupont v. Dist. of Col., 20 App. D. C. 477; People v. Gardner, 100 N. W. Rep. (Mich.) 126; State v. Orr, 68 Connecticut, 101, 110; Ex parte Casinello, 62 California, 538; Kilvington v. Superior, 83 Wisconsin, 222, 226; People v. Gordon, 81 Michigan, 570.

The orders are not invalid because they confer an exclusive privilege. Slaughter House Cases, 16 Wall. 36, 66. It was necessary to grant an exclusive privilege in order to have the work properly done. For exclusive garbage and dead animal contracts upheld see cases cited supra and re Vandine, 6 Pick. 187; Louisville v. Wible, 84 Kentucky, 290, 295. A similar rule applied as to text books. Bancroft v. Thayer, 5 Sawyer, 502; Dickinson v. Cunningham, 37 So. Rep. (Ala.) 345; Lupes v. State, 103 Tennessee, 500; Cooley, Const. Lim., 5th ed., 225, note.

The ordinances are not invalid as taking private property without compensation. The material has no value when gathered by scavengers and has no value until considerable expense and outlay shall have been incurred. That these ordinances do not violate property rights see People v. Gardner, 100 N. W. Rep. (Mich.) 126; Dupont v. Dist. of Col., 20 App. D. C. 477; Fertilizer Co. v. Lambert, 48 Fed. Rep. 458; State v. Orr, 68 Connecticut, 101; Harrington v. Providence, 20 R. I. 235; Baker v. Brown, 12 Pick. 183, 193. And also in this court. Lawton v. Steele, 152 U. S. 133; Mugler v. Kan

sas, 123 U. S. 623, 661; Powell v. Pennsylvania, 127 U. S. 678, 685; Barbier v. Connolly, 113 U. S. 27; C., B. & Q. R. R. Co. v. Chicago, 166 U. S. 226, 255; Norfolk v. Flynn, 101 Virginia, 473; Morgan S. S. Co. v. Louisiana, 118 U. S. 455. The cases already cited hold that it was within the discretion of the municipality to grant a term of fifty years.

A municipality has the same right to exercise the police power in matters within its jurisdiction as the State. Slaughter House Cases and Louisville v. Wible, supra; see also Barbier v. Connolly, 113 U. S. 27; Yick Wo v. Hopkins, 118 U. S. 370; Ex parte Lacey, 108 California, 326; Ex parte Tuttle, 91 California, 589; Ex parte Schraeder, 33 California, 279, 284.

The orders do not interfere with the occupation of scavengers. See Iler v. Ross and Grand Rapids v. De Vries, supra; Rendering Co. v. Behr, 7 Mo. App. 345, 582.

The charges authorized to be made upon those delivering garbage do not make the orders invalid. Raymond v. Fish, 51 Connecticut, 80, 96; King v. Davenport, 98 Illinois, 305; Walker v. Jameson, 140 Indiana, 591; Meyer v. Jones, 20 Ky. Law Rep. 1632; Smiley v. McDonald, 42 Nebraska, 5, and other cases cited supra. These charges correspond to inspection fees. Willis v. Standard Oil Co., 50 Minnesota,

290.

MR. JUSTICE HARLAN, after making the foregoing statement, delivered the opinion of the court.

The defendants insist that the ordinances in question are invalid for the want of power in the Board of Supervisors to adopt them. This objection does not seem to be well taken. By the California constitution of 1849 it was provided that "the Legislature shall have power to provide for the election of a Board of Supervisors in each county, and those supervisors shall jointly and individually perform such duties as may be prescribed by law." Subsequently, by an act approved April 25, 1863, it was provided that "the Board of Supervisors of the

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city and county of San Francisco shall have power, 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 of contagious discases; to provide, by regulation, for the prevention and summary removal of all nuisances and obstructions in the streets, alleys, highways and public grounds of said city and county," etc. Cal. Stat. 1863, p. 540. Again, in the state constitution of 1879, it was provided that "any county, city, town or township may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws." Art. XI, § 11. Further, by an act, approved March 23, 1893, it was provided, among other things, that every franchise or privilege to erect or lay telegraph or telephone wires, to construct or operate railroads along or upon any public street or highway, or "to exercise any other privilege whatever hereafter proposed to be granted by the Board of Supervisors, Common Council, or other governing or legislative body of any county, city and county, city, town or district within this State, shall be granted upon the conditions in this act provided, and not otherwise." One of those conditions was that the fact that such franchise or privilege had been made, together with a statement that it was proposed to grant the same, should be advertised-the franchise or privilege to be awarded to the highest bidder. Cal. Stat. 1893, p. 288.

It may be here observed that under the charter of San Francisco the Board of Supervisors for the city and county of San Francisco constituted the legislative department for that municipality. McDonald v. Dodge, 97 California 112, 114; Harrison v. Roberts, 145 California 173.

In the above constitutional and statutory provisions is found full authority for the Board to make and enforce, within the city and county of San Francisco, all such reasonable sanitary and other regulations as are not in conflict with any general

statute or with the constitution, and which have for their object the preservation of the public health, by whatever cause endangered. It was substantially so ruled in the Circuit Court of the United States, Northern District of California, in Alpers v. City and County of San Francisco, 32 Fed. Rep. 503, Mr. Justice Field delivering the opinion of the court. The ruling in that case was followed in National Fertilizer Co. v. Lambert, 48 Fed. Rep. 458. See also The People v. Board of Supervisors of Contra Costa County, 122 California, 421.

It is said that the grant to Sharon, his associates and assigns, was, in no sense, a franchise. It is true that the title of the act of 1893 refers only to franchises. But the body of the act shows that the legislature intended to embrace privileges, exercised under public authority and not alone what may be, strictly, franchises. The exclusive right granted to Sharon, his associates and assigns, was certainly a privilege, and the Board of Supervisors had power to grant it in order to protect the public health. But independently of the above statutes the Board had power, under the constitution of the State, to make such sanitary regulations as were not inconsistent with the general laws, and that broad power carried with it the power, by contract and ordinance, to guard the public health in all reasonable ways.

The defendants criticise the ordinances because they give the exclusive privileges in question for a period of fifty years. But whether the period during which such privileges might be exercised, should be long or short, was a matter in the wise discretion of the Board and determinable wholly upon grounds of public policy. It may be that grants by public authority of privileges to be exercised for the benefit or in behalf of the public ought never to be for long periods. But it suffices to say that no such consideration can control the action of the judiciary.

The defendants insist that the ordinances in question are in violation of the Fourteenth Amendment of the Constitution, in that they deprive the householders of San Francisco of prop

erty of value, by transferring it to the Sanitary Reduction Works, without requiring compensation to be made; this, it is contended, being in violation of the Fourteenth Amendment. Chicago, B. & Q. R. R. Co. v. Chicago, 166 U. S. 226.

We do not perceive that the defendant corporation of Colorado and the individual defendants who are not householders are entitled to raise any such question. If the householders do not complain but by silence assent to what the Board did, it is not for others to say that the property of householders is taken for public use without compensation; for householders, if so minded, may waive any right they have to compensation for their property destroyed to protect the public health. The individual defendants, in their answer, claim to be householders in San Francisco. But it seems that only about six of them are householders. The presence, however, of that number as defendants makes it appropriate, to consider the objection just stated upon its merits.

In determining the validity of the ordinances in question it may be taken as firmly established in the jurisprudence of this court that the States possess, because they have never surrendered, the power-and therefore municipal bodies, under legislative sanction, may exercise the power-to prescribe such regulations as may be reasonable, necessary and appropriate, for the protection of the public health and comfort; and that no person has an absolute right "to be at all times and in all circumstances wholly freed from restraint;" but "persons and property are subject to all kinds of restraints and burdens, in order to secure the general comfort, health, and general prosperity of the State"-the public, as represented by its constituted authorities, taking care always that no regulation, although adopted for those ends shall violate rights secured by the fundamental law nor interfere with the enjoyment of individual rights beyond the necessities of the case. Equally well settled is the principle that if a regulation, enacted by competent public authority avowedly for the protection of the public health, has a real, substantial relation to that object,