Bear Creek Fertilizer Co. v. Mayor of Baltimore

Bryan, J., delivered the opinion of the Court. The appellant filed a bill in equity against the appellee. ⁹² The cause was heard on bill and answer, and the bill was dismissed by the Court pro forma. An appeal has been taken to this Court. The Bear Creek Fertilizer Company had made a contract with the Mayor and City Council of Baltimore for the removal of night-soil from the city which, according to its contention, it had the right to renew.

The object of the bill was to procure its renewal. The facts which are material to the decision of the question are all admitted. They will be stated. The Joint Standing Committee of the City Council on Health, in March, 1890, having considered a communication from the Commissioner of Health, and also a petition asking that an ordinance should be passed providing a place of deposit for night-soil, recommended the passage of a resolution which they attached to their report.

This resolution authorized and directed the Commissioner of Health to advertise for proposals for the removal of all night-soil collected in the city, with a view to awarding the contract to the lowest responsible bidder. Afterwards, on May the eleventh, the same committee after a careful review of the whole subject reported an ordinance embodying a contract, which they believed would prove most advantageous to the city, and would be a great benefit in a sanitary point of view. The ordinance, with some unimportant verbal changes was passed, and on May 24th was approved by the Mayor. The first section of the ordinance is as follows: “Section 1.—Be it enacted and ordained by the Mayor and City Council of Baltimore, That the Mayor, Comptroller of the City and Commissioner of Health be, and they are hereby authorized and directed in the name of the Mayor and City Council of Baltimore, to contract for a term of two years, with the privilege of renewal, with Messrs.

R. R. Zell & Co., for the removal of all the night-soil gathered in the city of Baltimore ; said night-soil to be transferred to air-tight barges, for removal from the city; the same to be done in an odorless and inoffensive manner, at two designated points within the city; compensation for said ⁹³ removal of night-soil to be collected from the persons dumping the same, at the rate of twenty-five cents per load of not less than one hundred and sixty and not more than two hundred gallons; and the said Messrs. R. R. Zell & Co. shall be compelled to keep at each of the above designated points, air-tight barges, under a penalty of fifty dollars per day for each day of fourteen hours the said R. R. Zell & Co. fail to comply, and shall execute a bond, with approved security, in the penalty of ten thousand dollars, to the Mayor and City Council of Baltimore, for the faithful performance of said contract.” By the third section of the ordinance the Mayor, Comptroller and Commissioner of Health were authorized and empowered to rent to Zell and Company three acres of the.city’s property in Anne Arundel County for the purpose of erecting works to receive and utilize the night-soil. The fourth section provided that if this use of the said three acres should be deemed a nuisance and should be so declared by the Commissioner of Health, that Zell and Company should remove their works upon thirty days notice from the Mayor, under a penalty of fifty dollars per day for every day the same should remain after the expiration of the notice. And finally by the fifth section, it was enacted that if the contractors should fail to comply with the specifications of the contract to the satisfaction of the Health Department, it should be the duty of the Mayor to revoke the same.

Every step in this proceeding shows that the City Council considered the subject with the deliberation and care which its gravity and importance required. It was a matter which vitally concerned the health of a large and populous city. Neglect in this respect might and properly would cause contagious disease of the most malignant character. To use the words of the Committee on Health, they desired to make a contract which should be most advantageous to the city, and of great benefit in a sanitary point of view.

The contract was made by the corporation itself, and not entrusted to the judgment and discretion of any public officer. Cer ⁹⁴ tain public officers were designated, whose duty it was to formulate the document containing the terms of the contract; but its terms and conditions and the individuals with whom the contract was made were all specified in the ordinance. The ordinance having provided for a contract which was considered advantageous and beneficial, it was determined that it should remain under the control of the corporate body, and suitable means were adapted to protect its interest. The contractors were required to give bond with approved security; if the works which they should erect on the land rented from the city should become a nuisance they were required under a heavy penalty to remove them on short notice; and in case they should not perform their contract satisfactorily it was to be revoked.

Superadded to all these precautions stipulated in the ordinance, there was the inalienable power of the corporation to abrogate the whole system of night-soil removal, when in its judgment the public health would be protected in a better manner in some other way. In the Lake Roland case, 77 Maryland, 381 , the police power which embraces the protection of the public health was said to be a high conservative power of the utmost importance to the existence of good government. And it was declared that its exercise could not be limited by contract or any other way; and reference was made to well-known and very remarkable cases in the Supreme Court of the United