Omaha daily bee., 1894-03-04
GARBAGE CONTRACT KILLED
Courts Decide that it Granted q Monopoly
and is Therefore Void.
JUDGE FERGUSON RENDERS HIS DECISION
Perpetual Injunction Issued Against the
Franchise Granted to A. Macdonald by
the city Council Verdict Against
the City-Minor Court Matters.

Until the decision Of Judge Ferguson Is
reversed or disturbed by the supreme court
of the state any individual In the city Of
Omaha may engage in the business of haul
Ing garbage, so long as he complies with the
rules and regulations Of the health officers.
The celebrated Macdonald contract has
been knocked out; the demurrer to the
petition has been overruled and a perpetual
injunction has been ordered restraining
Alexander Macdonald from interfering with
persons who may want to 20 into the garbage
business. At the same time the court has
impressed upon the minds of the members
of the city council that in the future they
will be more careful and not grant exclusive
franchises and monopolies to parties who
may apply.
Last July an ordinance found its way into
the city council granting to Alexander Mac
donald the exclusive right to remove all of
the garbage within the city of Omaha for
the period of ten years from the date Of a
contract, provided for by the terms Of an
ordinance. This ordinance was passed and
in due time it reached Mayor Bemis, who,
after looking 1t over, returned 1t to the
council with his veto, holding that the
prices provided for were excessive and that
the whole matter was against public policy,
and was in the interest of monopoly. This
veto was rejected and Macdonald's contract
was approved, a majority of the members OF
the city council insisting that the mayor
was wrong in his views regarding the sub
ject.
After Macdonald had secured his contract
1t was some weeks before he made any at
tempt to engage in the work which he had
undertaken, but at last he claimed that he
was ready to start. In the meantime, how
ever, George d. Smiley, one of the heavy
property owners of the city, went before the
courts, bringing suit to restrain Macdonald
from holding the exclusive franchise as
granted by the city, He alleged That by Civ
ing Macdonald a ten-year contract to remove
garbage a monopoly had been created; that
the action of the council was unconstitu-
tional and the whole proceedings were void.
He called the matter to the attention of
Judge Ferguson, who granted a temporary
restraining order, after which the case was
argued. This was some weeks ago, and after
giving the issues careful attention the
judge handed down his opinion yes
terday, deciding that the temporary
injunction should stand. In passing
upon the case Judge Ferguson stated
that the city council might have a perfect
right to locate a dumping place and regulate
the handling of garbage, but it had no right
to create a monopoly for any person or per
sons. Such a course would have done in
England centuries ago, when 1t was the pur-
pose and object to aid monopoly, but that
time had passed, especially in Omaha. The
terms OF the ordinance and the contract, he
declared, were unconstitutional and against
public policy.
Mr.. Mcdonald was seen in regard to what
effect the decision of Judge Ferguson de-
claring his garbage contract illegal would
have, and said that he had not been able to
see his attorney to talk with him since
the decision had been handed down, and,
therefore, could not say just what steps he
would take in a legal way. One thing was
certain, and that was that he did not pro-
pose to stop handling garbage, but under
just what conditions he was unable to state.