Urbach v. City of Omaha. in England, as within the incidental authority of such corporations”—citing Boehm & Loeber v. Mayor and City Council of Baltimore, 61 Md. 259. The court also quotes River Rendering Co. v. Behr, 7 Mo. App. 345, where it was said: "The municipal legislature is especially charged with the preservation of the public health. That high duty lies in prevention rather than in cure. It would be poorly discharged, or not discharged at all, if the surest and most well-known precautionary measures were not thoroughly put in practice against the introduction of disease." The court also cited Alpers v. City and County of San Francisco, 32 Fed. 503. After these citations and quotations, this court said: "Can an ordinance be upheld and justified as broad and of so sweeping a character as the one under consideration, which includes all accumulations of ashes, stable manure, rubbish, debris, etc., many different kinds of which may properly be regarded of some utility to the owner or others and which are not per se noxious and harmful? Is a city empowered to contract with one individual, and authorize him exclusively to go upon the private premises of the inhabitants, collect and remove at the owner's expense all such substances, and to make it a penal offense for another to engage in the performance of the same kind of labor? Can the city, merely by its fiat, declare all and every substance of the kind mentioned nuisances, and direct their abatement and removal through the agency of an exclusive contractor?" The court then quotes what is said in Smiley v. MacDonald, supra, concerning the limitation of the power of the legislature preventing it from arbitrarily invading private property or personal rights; also calls attention to the fact that stable manure has a value for the purpose of fertilizing lawns and gardens, and is highly prized by the thrifty husbandman in agricultural communities because it enriches the soil and increases the yield of crops, and that cinders and ashes are regarded as useful for many purposes. It is then said: "The ordinance not only grants a monopoly, always odious in the eye of the law, without Urbach v. City of Omaha. justification or necessity therefor as a sanitary measure for the protection and preservation of the public health, comfort and welfare, but is also (always) an unwarranted invasion of the natural rights of the inhabitants of the city. It is true the banker, the merchant and the lawyer may remove from their own premises, and with their own teams, stable manure, but nothing else. The man without a team and the one who desires to earn an honest living. in removing for others these things which are not in themselves injurious to health are completely debarred. * .* Not only is the owner's property taken from him when he could perhaps dispose of it or make arrangements for its disposal to some advantage, but he is compelled to bear the expense of the taking. We cannot believe such an ordinance can be justified and upheld by the application of any sound principle of law." In Whelan v. Daniels, 94 Neb 642, it was held: "The owner should be permitted to remove such animals or to cause the same to be removed within a reasonable time fixed by such municipality, and be allowed to receive the value thereof, or to put the same to a beneficial use." In the body of the opinion it is said: "The officers of the city must be allowed a large discretion in determining when and how such garbage must be disposed of, but the rights of property in the individual must not be unnecessarily violated." This court held, as stated in the syllabus: "The city of Omaha by an ordinance, in effect, declared that the carcasses of all dead animals found within the city, which were not slain for food, should at once become the property of the public contractor, whose name was contained in the ordinance; such ordinance is void, so far as it attempts to take private property without due process of law." The ordinance under consideration is quite as sweeping as the ordinance in Whelan v. Daniels. In the instant case the language is not the same, but the effect is quite as drastic. In that case the law as declared by this court permitted the owner to remove the dead animal or to cause Urbach v. City of Omaha. the same to be removed within a reasonable time to be fixed by the municipality, and to be allowed to receive the value thereof, or to put the same to a beneficial use. The left-over part of a meal is perhaps quite as cleanly as the part that has just been eaten. If in the case of Whelan v. Daniels the owner of the dead animal was declared to have a reasonable time in which to remove it, or to apply it to a beneficial use, then the application of the same rule to the instant case does not in any way hinder the owner from removing what is of value to him, nor prevent him from selling it and realizing its value. The fallacy in the contention made on behalf of the defendant city is that only the contractor can safely be trusted with the removal of the matter to be taken away. I do not see why the man who purchases the refuse and undertakes to remove it may not be treated just as strictly as the city contractor. The power to pass by-laws gives authority to pass the same when they are reasonable in their character, within the scope of municipal authority, and not repugnant to the Constitution and general laws of the state. State v. Fer guson, 33 N. H. 424. It is no part of the franchise of municipal corporations to change the meaning of English words. Mays v. City of Cincinnati, 1 Ohio St. 268; Henback v. State, 53 Ala. 523. This being the case, left-over food of value cannot be discredited by calling it "garbage." In England every by-law must be reasonable, and not inconsistent with the character of the corporation, nor with any statute of parliament, nor with the general principles of the common law of the land, particularly those having relation to the liberty of the subject or the rights of private property. Feltmakers Co. v. Davis, 1 Bos. & P. (Eng.) 98; Sutton's Hospital, 5 Coke (Eng.) pt. 10, p. 1; City of London v. Vanacker, 1 Ld. Raym. (Eng.) 497. In the United States an ordinance passed in virtue of implied power must be reasonable, consonant with the general powers and purposes of the corporation, and not inconsistent with the laws of the state. Davis v. Town of Shick v. Johnson. Anita, 73 Ia. 325; Yick Wo v. Hopkins, 118 U. S. 356; Trustees of Schools v. People, 87 Ill. 303; In re Frazee, 63 Mich. 396; Clason v. City of Milwaukee, 30 Wis. 316; Ex parte Frank, 52 Cal. 606; State v. Higgs, 126 N. Car. 1014; Mayor of Memphis v. Winfield, 27 Tenn. 707. The ordinance in the last case directed watchmen to arrest any free negro or slave that they might "find out after 10 o'clock (at night) and lodge them in the calaboose, there to remain until next morning." In addition, if the negro arrested was a slave, he or she was to receive ten lashes "on their naked backs." It is apparent that sometimes the ordinances of the past have been oppressive, while professing to be for the good of the community and the enforcement of proper conduct. FOSTER M. SHICK, APPELLEE, V. FREDERICK H. JOHNSON, APPELLANT. FILED MAY 19, 1917. No. 19176. 1. Master and Servant: ACTION FOR INJURY: DEFENSES: ASSUMPTION OF RISK: WAIVER. In an action by an employee for damages caused by an injury incurred in attempting an act of unusual danger, if the defense is that the danger was open and notorious, and that the plaintiff assumed the risk, and if the evidence shows that the plaintiff protested against performing the service on account of the apparent danger, and that the defendant peremptorily ordered him to perform it, the defendant will be held to have waived the defense of assumption of risk. 2. -: NEGLIGENCE: EVIDENCE. When the sole ground of negligence alleged and relied upon is that the danger was known to the defendant, and was unknown to the plaintiff, and could not have been observed by him in the exercise of ordinary care and diligence, it is not necessary to prove that the defendant peremptorily ordered him to perform the service over his protest. It is sufficient in that regard if the service rendered was in the line of plaintiff's employment and was consented to by defendant without notifying plaintiff of the hidden danger. Shick v. Johnson. 3. 4. : -: ISSUES: INSTRUCTIONS. When the petition in such case contains allegations that the defendant did many things negligently, without alleging any facts that would amount to actionable negligence except in one particular, it is erroneous to give the whole petition in charge to the jury, and instruct them that if they find defendant guilty of any act of negligence alleged in the petition they shall find for the plaintiff. The court in its charge to the jury described an alleged act of the defendant that was not of itself counted upon as negligence justifying a recovery, from which the jury might infer that if that act was proved they should find for the plaintiff. This was erroneous. APPEAL from the district court for Douglas county: ALEXANDER C. TROUP, JUDGE. Reversed. James C. Kinsler, for appellant. McLaughlin & Neely, contra. SEDGWICK, J. Foster M. Shick, an employee of Frederick H. Johnson, recovered a judgment against Mr. Johnson in the sum of $13,750 for damages caused by an injury while he was in Johnson's employment. Johnson was insured as an employer by the Casualty Company of America, and the suit against him was defended by the company. Afterwards an appeal was taken to this court, but no supersedeas bond was given. Proceedings were begun against Mr. Johnson to enforce collection of the judgment, and thereupon he settled with the plaintiff by giving him two promissory notes, one in the sum of $5,000, the amount for which the Casualty Company had insured him, and the other for the remainder of the judgment. Mr. Shick then dismissed the appeal. Upon motion and showing, the court found that, by the terms of the policy of insurance, it was agreed that the company should defend in the name of the insured any action against him in which the company would be liable under the terms of its policy, and that the company had so defended the action and in the name of the insured had taken the appeal. The motion of the company for rehearing of the order permitting the dismissal of the appeal was |