receive and cremate such materials for a fixed charge. This exclusive privilege was granted for a period of fifty years, and on the faith thereof the grantee expended large sums of money, especially in the erection of a crematory. In upholding the contract, the court approvingly cites the Indiana case just referred to.

The validity of contracts or ordinances, whereby the exclusive privilege of removing and disposing of garbage is conferred upon one person, has been questioned as being in restraint of trade or as creating a monopoly. If, however, such a privilege can be considered as incident to a proper exercise of the police power, the doctrine of monopolies, as understood in ordinary trades and businesses, does not apply. "The gathering of garbage," says Justice Long in Grand Rapids v. De Vries, 123 Mich. 570, 82 N. W. 269, "is not a trade, business, or occupation in any proper sense, and such employment does not come under the doctrine in reference to monopolies, or in reference to legislation in restraint of trade. It is a matter in which the public agencies are authorized to pursue the best means to protect the public health. The charter provisions recognize the fact that certain matter may be deleterious to public health, and dangerous to persons or property, and thus become a public nuisance; and the charter makes it the duty of the common council to declare any place, thing, or matter which may be deleterious to public health, or dangerous to persons or property, a public nuisance, and the council is given power to abate such nuisance. The ordinance treats garbage or offal as deleterious to public health, and directs the manner of its disposition for the benefit of the public health. It is one of the police regulations of the city for the benefit of the public health." The power of a city to create a monopoly for the removal of garbage is also recognized in Smiley v. MacDonald, 42 Neb. 5, 47 Am. St. Rep. 684, 60 N. W. 355; Coombs v. MacDonald, 43 Neb. 632, 62 N. W. 41. In the Michigan case, the words "garbage" and "offal" are defined "to include every refuse accumulation of animal, fruit, or vegetable matter, liquid or otherwise, that attends the preparation, use, cooking, dealing in, or storing of meat, fish, fowl, fruit or vegetables. These matters, in and of themselves, are regarded as nuisances; that is, the ordinary and accepted meaning of the words 'garbage' and 'offal' is such refuse matters that in and of themselves are nuisances." While the Nebraska cases place no such limitation on the doctrine they announce as is implied in the Michigan decision from the foregoing definition of "garbage," the supreme court of Nebraska, in the principal case, ante, page 676, expressly make such limitation, and holds that a city may grant an exclusive privilege by contract to one person to collect and remove those noxious and unwholesome substances which are nuisances per se and a menace to the public health, but that it may not grant a monopoly to one individual to enter upon the premises of private persons and at their expense Am. St. Rep., Vol. 97-44

collect and remove those substances which may be regarded as of some utility to the owner and which are not in themselves nuisances when not permitted to accumulate in unreasonable quantities. Among these latter substances are mentioned ashes, cinders, stable manure, rubbish, and debris.

be

This distinction seems reasonable. Its only weakness, it would seem, consists in classifying the substances, and determining those which may, and those which may not, be the subject of a valid monopoly. That there may be such a classification, however, is recognized in In re Lowe, 54 Kan. 757, 39 Pac. 710, where Justice Allen makes this observation: "It will be observed that the ordinance under consideration authorizes the appointment of two or more persons as scavengers. It therefore places it in the power of the mayor to grant to two persons a monopoly of the scavengers' business within the limits of the city. While monopolies of any ordinary business are odious, we have seen that monopolies are upheld when deemed necessary in executing a duty incumbent on the city authorities or the legislature for the protection of the public health. It is sometimes a matter of great nicety and difficulty to determine whether a particular business or calling is in its nature so directly connected with the public welfare that the performance can safely intrusted only to someone acting under public authority. So much of the business of the scavenger as consists in removing dead animals, it would seem, under the authorities, may properly be regarded as a public function for the discharge of which a monopoly may be created. But his ordinance goes further, and gives to scavengers the exclusive privilege, also, of cleaning privy vaults and cesspools, and of removing garbage, not only from the streets, but from the private premises of the citizens. By its terms, it would prohibit the owners from performing these services for themselves, or from employing anyone else than the persons appointed. It not only makes a monopoly of the cleaning of vaults and cesspools, which are necessarily offensive to the senses, but it also includes the removal of garbage. It would be somewhat difficult to say just what is included in the term 'garbage.' Webster defines it as 'properly that which is purged or cleansed away; the bowels of an animal; refuse parts of flesh; offal; hence the refuse animal and vegetable matter from a kitchen.'. . . . These regulations must leave a way open to every person who will comply with the requirements of the ordinance to engage, at least, in so much of the business of scavengers as relates to entering on private property and removing filth and garbage therefrom."

While the language of the Kansas decision is instructive as showing that, in the determination of the question whether an exclusive privilege may be granted to collect and remove waste substances, refuse matter, and the like, regard should be had as to whether the substance is of such a character as to be a special menace to the

public health and welfare, still, in so far as the case holds that a monopoly cannot be created for the removal and disposition of filth and "garbage," as that term is defined by Webster, it is hardly supported by authority.

The bodies of dead animals, not slain for food, belong to that class of substances which call for prompt and proper action in the matter of their removal and disposition, and there is no doubt that a city may grant an exclusive privilege to a public contractor to take charge and dispose of them: Louisville v. Wible, 84 Ky. 290, 1 S. W. 605; State v. Fisher, 52 Mo. 174; Alpers v. San Francisco, 32 Fed. 503. But a proper regard must be paid to the property rights of the owner. They cannot be denied absolutely from the moment of the death of the animal. A dead animal is not a nuisance per se. The owner may still make a proper use of it, and he should be allowed a reasonable time and opportunity to do so: State v. Morris, 47 La. Ann. 1660, 18 South. 710; Underwood v. Green, 42 N. Y. 140. Accordingly, it has been held that an ordinance conferring upon one person the right to remove and appropriate all carcasses of animals found in the city, to the exclusion of the owners, is void as to carcasses that have not become a nuisance: River Rendering Co. v. Behr, 77 Mo. 91, 46 Am. Rep. 6, reversing 7 Mo. App. 345. And it has also been held that an ordinance is invalid which allows the public contractor, who has the exclusive right to remove the bodies, such fees therefor that the owner cannot pay them and still realize anything for the carcass: Knauer v. Louisville, 20 Ky. Law Rep. 194, 45 S. W. 510. An ordinance granting to one person the exclusive privilege of removing the carcasses of animals found in the city, if they are not removed by the owner or his immediate employé or servant within twelve hours after death, and requiring the owner, if he does not intend himself to remove them, immediately to deposit a notice in a box provided for by the public contractor, is not objectionable as creating a monopoly, or as depriving persons of property without due process of law: National Fertilizer Co. v. Lambert, 48 Fed. 458.

The principles upon which is based the right of a municipality to grant an exclusive privilege to collect and remove such noxious and unwholesome substances and products as menace the public health and endanger the welfare of the citizens, are so fully and clearly set forth in the principal case that we refrain from entering into their consideration, and refer the reader to the able opinion of the Nebraska court, ante, pp. 676-687.

CASES

IN THE

COURT OF ERRORS AND APPEALS

OF

NEW JERSEY.

LYNDE v. LYNDE.

[64 N. J. Eq. 736, 52 Atl. 694.]

ATTORNEY AND CLIENT Summary Jurisdiction Over Attorneys. If it appears that an attorney or solicitor has received, in his capacity as an officer of the court, any money which his duty requires him to pay over to his client, the court may exercise its summary disciplinary punitive powers to require him to do justice to his client. (p. 698.)

SUMMARY JURISDICTION Over Attorneys and Solicitors is not confined to matters arising out of litigation, but extends to any case where the employment of the attorney is so connected with his professional character as to afford the presumption that such character formed the ground of his employment by his client. (p. 699.)

SUMMARY JURISDICTION Over Attorneys.-A court will not desist from requiring its own attorney to do his duty to his client simply because the transaction in question arose in litigation in another court, nor because he is the attorney of another court practicing in the court exercising the summary jurisdiction. (p. 699.)

ATTORNEY AND CLIENT-Contingent Fee-Burden of Proof. An attorney contracting for a contingent fee from his client has the burden to prove that the contract is a fair one for the client. (p. 702.)

MARRIAGE AND DIVORCE-Alimony-Assignment of.-A wife's claim for alimony upon divorce is purely a personal, and not in any sense a property, right, and is not susceptible of assignment by her to another, nor capable of enjoyment by her in anticipation. (p. 706.)

MARRIAGE AND DIVORCE-Alimony-Contract to Charge. Alimony granted upon divorce cannot be subjected in advance to a charge in favor of the attorney through whose services it is awarded, because the subject matter is not capable of assignment, and because a contract to such end is opposed to public policy. (p. 709.)

J. M. Dickinson and E. R. Walker, for the appellant.

R. V. Lindabury, for the respondent.

739 PITNEY, J. This is an appeal by Mrs. Lynde from an order made by the court of chancery dismissing a petition filed by her, in that court, wherein she prayed that the respondent, James Westervelt, who was her solicitor in the main cause, should be required to pay into court the sum of $38,500, which he had received from the defendant in the cause in settlement of a controversy about alimony, so that out of the said sum a reasonable fee might be fixed and allowed to the solicitor for his services rendered to her, and the balance of the moneyз might be paid to Mrs. Lynde.

The learned vice-chancellor who heard the matter refused the relief prayed for by Mrs. Lynde, on the ground that the facts shown did not warrant the exercise of the summary power of the court over a solicitor.

740 The undisputed facts are as follows: In the year 1893 Mrs. Lynde obtained, in the court of chancery, a decree of divorce a vinculo matrimonii. This decree, through inadvertence in its preparation, made no provision for the allowance of alimony. In the month of January, 1896, Mrs. Lynde, for the first time, met Westervelt, who was an attorney at law and solicitor in chancery of this state, and was also an attorney and counselor of the state of New York. She employed him to take proceedings in her behalf to recover alimony from her former husband. According to her insistment no express agreement was made between her and Westervelt as to his compensation. He sets up an alleged agreement for a contingent fee based. upon the amount of the recovery. This question will be dealt with hereafter.

Whatever may have been the terms of the employment, it appears that, on the eleventh day of February, 1896, Westervelt, as her solicitor, filed a petition in the court of chancery, praying that the decree of divorce be opened and that it be amended by decreeing an allowance of alimony to Mrs. Lynde. To this petition her former husband, Charles W. Lynde, made appearance, and, after litigation, the court of chancery decided (Lynde v. Lynde, 54 N. J. Eq. 473, 35 Atl. 641) to permit Mrs. Lynde to make application, at the foot of the decree, for an allowance of alimony. From the order of the chancellor thus made an appeal was taken, and the order was affirmed by this court: Lynde v. Lynde, 55 N. J. Eq. 591, 39 Atl. 1114. Thereupon