# Fertilizing Company v. Hyde Park/Opinion of the Court

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* Case Syllabus
* Opinion of the Court
* Concurring Opinion Miller
* Dissenting Opinion Strong
United States Supreme Court
97 U.S. 659
Fertilizing Company v. Hyde Park
This case was brought here by a writ of error to the Supreme Court of the State of Illinois.
The alleged ground of our jurisdiction is, that the record presents a question of Federal jurisprudence. A brief statement of the facts will be sufficient for the purposes of this opinion.
The plaintiff in error was incorporated by an act of the legislature, approved March 8, 1867. The act declared that the corporation should 'have continued succession and existence for the term of fifty years.' The fourth and fifth sections are as follows:--
'SECT. 4. Said corporation is hereby authorized and empowered to establish and maintain chemical and other works at the place designated herein, for the purpose of manufacturing and converting dead animals and other animal matter into an agricultural fertilizer, and into other chemical products, by means of chemical, mechanical, and other processes.
'SECT. 5. Said chemical works shall be established in Cook County, Illinois, at any point south of the dividing line between townships 37 and 38. Said corporation may establish and maintain depots in the city of Chicago, in said county, for the purpose of receiving and carrying off, from and out of the said city, any and all offal, dead animals, and other animal matter, which they may buy or own, or which may be delivered to them by the city authorities and other persons.'
The company organized pursuant to the charter. Its capital stock is $250,000, all of which has been paid up and invested in its business.
It owns ground and has its receiving depot about three miles from Chicago. The cost of both exceeded $15,000. Thither the offal arising from the slaughtering in the city was conveyed daily. The chemical works of the company are in Cook County, south of the dividing line of townships 37 and 38, as required by the charter. When put there, the country around was swampy and nearly uninhabited, giving little promise of further improvement. They are within the present limits of the village of Hyde Park. The offal procured by the company was transported from Chicago to its works through the village by the Pittsburg, Fort Wayne, and Chicago Railroad. There was no other railroad by which it could be done. The court below, in its opinion, said:--
'An examination of the evidence in this case clearly shows that this factory was an unendurable nuisance to the inhabitants for many miles around its location; that the stench was intolerable, producing nausea, discomfort, if not sickness, to the people; that it depreciated the value of property, and was a source of immense annoyance. It is, perhaps, as great a nuisance as could be found or even created; not affecting as many persons as if located in or nearer to the city, but as intense in its noisome effects as could be produced. And the transportation of this putrid animal matter through the streets of the village, as we infer from the evidence, was offensive in a high degree both to sight and smell.'
This characterization is fully sustained by the testimony.
In March, 1869, the charter of the village was revised by the legislature, and the largest powers of police and local government were conferred. The trustees were expressly authorized to 'define or abate nuisances which are, or may be, injurious to the public health,'-to compel the owner of any grocery-cellar, tallow-chandler shop, soap factory, tannery, or other unwholesome place, to cleanse or abate such place, as might be necessary, and to regulate, prohibit, or license breweries, tanneries, packing-houses, butcher-shops, stock-yards, or establishments for steaming and rendering lard, tallow-offal, or other substances, and all establishments and places where any nauseous, offensive, or unwholesome business was carried on. The sixteenth section contains a proviso that the powers given should not be exercised against the Northwestern Fertilizing Company until after two years from the passage of the act. This limitation was evidently a compromise by conflicting parties.
On the 5th of March, 1867, a prior act, giving substantially the same powers to the village, was approved and became a law. This act provided that nothing contained in it should be construed to authorize the officers of the village to interfere with parties engaged in transporting any animal matter from Chicago, or from manufacturing it into a fertilizer or other chemical product. The works here in question were in existence and in operation where they now are before the proprietors were incorporated.
After the last revision of the charter the municipality passed an ordinance whereby, among other things, it was declared that no person should transport any offal or other offensive or unwholesome matter through the village, and that any person employed upon any train or team conveying such matter should be liable to a fine of not less than five nor more than fifty dollars for each offence; and that no person should maintain or carry on any offensive or unwholesome business or establishment within the limits of the village, nor within one mile of those limits. Any person violating either of these provisions was subjected to a penalty of not less than fifty nor more than two hundred dollars for each offence, and to a like fine for each day the establishment or business should be continued after the first conviction.
After the adoption of this ordinance and the expiration of two years from the passage of the act of 1869, notice was given to the company, that, if it continued to transport offal through the village as before, the ordinance would be enforced. This having no effect, thereafter, on the 8th of January, 1873, the village authorities caused the engineer and other employees of the railway company, who were engaged in carrying the offal through the village, to be arrested and tried for violating the ordinance. They were convicted, and fined each fifty dollars. This bill was thereupon filed by the company. It prays that further prosecutions may be enjoined, and for general relief. The Supreme Court of the State, upon appeal, dismissed the bill, and the company sued out this writ of error.
The plaintiff in error claims that it is protected by its charter from the enforcement against it of the ordinances complained of, and that its charter is a contract within the meaning of the contract clause of the Constitution of the United States. Whether this is so, is the question to be considered.
The rule of construction in this class of cases is that it shall be most strongly against the corporation. Every reasonable doubt is to be resolved adversely. Nothing is to be taken as conceded but what is given in unmistakable terms, or by an implication equally clear. The affirmative must be shown. Silence is negation, and doubt is fatal to the claim. This doctrine is vital to the public welfare. It is axiomatic in the jurisprudence of this court. It may be well to cite a few cases by way of illustration. In Rector, &c. of Christ Church v. The County of Philadelphia (24 How. 301), in Tucker v. Ferguson (22 Wall. 527), and in West Wisconsin Railroad Co. v. Board of Supervisors (96 U.S. 595), property had been expressly exempted for a time from taxation. Taxes were imposed contrary to the terms of the exemption in each case. The corporations objected. This court held that the promised forbearance was only a bounty or gratuity, and that there was no contract. In The Providence Bank v. Billings & Pittman (4 Pet. 515), the bank had been incorporated with the powers usually given to such institutions. The charter was silent as to taxation. The legislature imposed taxes. 'The power to tax involves the power to destroy.' McCulloch v. Maryland, 4 Wheat. 316. The bank resisted, and brought the case here for final determination. This court held that there was no immunity, and that the bank was liable for the taxes as an individual would have been. There is the same silence in the charter here in question as to taxation and as to liability for nuisances. Can exemption be claimed as to one more than the other? Is not the case just cited conclusive as to both?
Continued succession is given to corporations to prevent embarrassment arising from the death of their members. One striking difference between the artifical and a natural person is, that the latter can do any thing not forbidden by law, while the former can do only what is so permitted. Its powers and immunities depend primarily upon the law of its creation. Beyond that it is subject, like individuals, to the will of the law-making power.
If the intent of the legislature touching the point under consideration be sought in the charter and its history, it will be found to be in accordance with the view we have expressed as matter of law. Three days before the charter of the plaintiff in error became a law, the legislature declared that the power of the village as to nuisances should not extend to those engaged in the business to which the charter relates. The subject must have been fully present to the legislative mind when the company's charter was passed. If it were intended the exemption should be inviolable, why was it not put in the company's charter as well as in that of the village? The silence of the former, under the circumstances, is a pregnant fact. In one case it was doubtless known to all concerned that the restriction would be irrepealable, while in the other, that it could be revoked at any time. In the revised village charter of 1869, the exemption was limited to two years from the passage of the act. This was equivalent to a declaration that after the lapse of the two years the full power of the village might be applied to the extent found necessary. Corporations in such cases are usually prolific of promises, and the legislature was willing to await the event for the time named.
That a nuisance of a flagrant character existed, as found by the court below, is not controverted. We cannot doubt that the police power of the State was applicable and adequate to give an effectual remedy. That power belonged to the States when the Federal Constitution was adopted. They did not surrender it, and they all have it now. It extends to the entire property and business within their local jurisdiction. Both are subject to it in all proper cases. It rests upon the fundamental principle that every one shall so use his own as not to wrong and injure another. To regulate and abate nuisances is one of its ordinary functions. The adjudged cases showing its exercise where corporate franchises were involved are numerous. In Coates v. The Mayor and Aldermen of the City of New York (7 Cow. (N. Y.) 585), a law was enacted by the legislature of the State on the 9th of March, 1813, which gave to the city government power to pass ordinances regulating, and, if necessary, preventing the interment of dead bodies within the city; and a penalty of $250 was authorized to be imposed for the violation of the prohibition. On the 7th of October, 1823, an ordinance was adopted, forbidding interments or the depositing of dead bodies in vaults in the city south of a designated line. A penalty was prescribed for its violation. The action was brought to recover the penalty for depositing a dead body in a vault in Trinity churchyard. A plea was interposed, setting forth that the locus in quo was granted by the King of Great Britain, on the 6th of May, 1697, to a corporation by the name of the 'Rector and Inhabitants of the City of New York in Communion with the Protestant, Episcopal Church of England,' and their successors for ever, as and for a churchyard and burying place, with the rights, fees, &c.; that immediately after the grant the land was appropriated, and thenceforward was used as and for a cemetery for the interment of dead bodies; that the rector and wardens of Trinity Church were the same corporation; and that the body in question was deposited in the vault in the churchyard by the license of that corporation. A general demurrer was filed, and the case elaborately argued.
The validity of the ordinance was sustained. The court held that 'the act under which it was passed was not unconstitutional, either as impairing the obligation of contracts, or taking property for public use without compensation, but stands on the police power to make regulations in respect to nuisances.' It was said: 'Every right, from absolute ownership in property down to a mere easement, is purchased and holden subject to the restriction that it shall be so exercised as not to injure others. Though at the time it be remote and inoffensive, the purchaser is bound to know at his peril that it may become otherwise by the residence of many people in its vicinity, and that it must yield to by-laws and other regular remedies for the suppression of nuisances.'
In such cases, proscription, whatever the length of time, has no application. Every day's continuance is a new offence, and it is no justification that the party complaining came voluntarily within its reach. Pure air and the comfortable enjoyment of property are as much rights belonging to its as the right of possession and occupancy. If population, where there was none before, approaches a nuisance, it is the duty of those liable at once to put an end to it. Brady v. Weeks, 3 Barb. (N. Y.) 157.
The legislature of Massachusetts, on the 1st of February, 1827, incorporated the 'Boston Beer Company,' 'for the purpose of manufacturing malt liquors in all their varieties in the city of Boston,' &c. By an act of June, 1869, the manufacture of malt liquors to be sold in Massachusetts, and brewing and keeping them for sale, were prohibited, under penalties of fine and imprisonment and the forfeiture of the liquors to the Commonwealth. In Beer Company v. The Commonwealth, the Supreme Court of Massachusetts held that 'the act of 1869 does not impair the obligations of the contract contained in the charter of the claimant, so far as it relates to the sale of malt liquors, but is binding on the claimant to the same extent as on individuals.
'The act is in the nature of a police regulation in regard to the sale of a certain article of property, and is applicable to the sale of such property by individual and corporations, even where the charter of the corporation cannot be altered or repealed by the legislature.'
This court unanimously affirmed that judgment. In our opinion, Mr. Justice Bradley, speaking for the court, said: 'Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health, and property of the citizens, and to the preservation of good order and the public morals.' The judgment here was placed also upon another ground. Beer Company v. Massachusetts, supra, p. 25.
Perhaps the most striking application of the police power is in the destruction of buildings to prevent the spead of a conflagration. This right existed by the common law, and the owner was entitled to no compensation. 2 Kent, Com. 339, and notes 1 and a and b. In some of the States it is regulated by statute. Russel v. The Mayor of New York, 2 Den. (N. Y.) 461; American Print Works v. Lawrence, 23 N. J. L. 590.
In the case before us it does not appear that the factory could not be removed to some other place south of the designated line, where it could be operated, and where offal could be conveyed to it from the city by some other railroad, both without rightful objection. The company had the choice of any point within the designated limits. In that respect there is no restriction.
The charter was a sufficient license until revoked; but we cannot regard it as a contract guaranteeing, in the locality originally selected, exemption for fifty years from the exercise of the police power of the State, however serious the nuisance might become in the future, by reason of the growth of population around it. The owners had no such exemption before they were incorporated, and we think the charter did not give it to them.
There is a class of nuisances designated 'legalized.' These are cases which rest for their sanction upon the intent of the law under which they are created, the paramount power of the legislature, the principle of 'the greatest good of the greatest number,' and the importance of the public benefit and convenience involved in their continuance. The topic is fully discussed in Wood on Nuisances, c. 23, p. 781. See also 4 Waite, Actions and Defences, 728. This case is not within that category. We need not, therefore, consider the subject in this opinion.
Decree affirmed.
MR. JUSTICE FIELD did not sit in this case, nor take any part in its decision.
MR. JUSTICE MILLER concurred in the judgment; MR. JUSTICE STRONG dissented.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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