Action for breach of contract for the sale of iron, which defendant refused to accept on account of alleged imperfections. On appeal from a verdict in plaintiff's favor, the United States supreme court reversed the judgment and remanded the cause for second trial. See 7 Sup. Ct. Rep. 958. J. W. Eaton, Jr., and Edwin Countryman, for the motion. SHIPMAN, J. This is a motion, in an action at law, that the defendant be permitted to take borings from three pigs of iron, now the property of the firm for which the plaintiff is agent, and in his possession, and to make an analysis of said borings, which analysis is to be used as evidence upon the next trial of said cause. Upon the former trial to the jury, the plaintiff introduced an analysis of the borings taken from said three pigs. The action is for an alleged breach of contract for the purchase of a large quantity of iron which was furnished and acceptance of which was refused, and of which these pigs are a part or sample. The amount of phosphorus which was contained in the iron is an important question of fact in the case. The defendant has other analyses taken from other samples. The ground upon which the motion is placed is that as the pigs have once been offered in evidence, and will undoubtedly be offered again, they are now, in a certain sense, under the control of the court. It is to be noticed that no authority is given by statute to the courts of common law of the United States or of the state of New York, to direct an inspection and examination of this species of personal property before trial. It is substantially conceded that, if the case had not once been tried, the motion would not be pressed. Ansen v. Tuska, 1 Rob. (N. Y.) 663; Miner v. Gardiner, 4 Hun, 132; Cooke v. Lalance Manuf'g Co., 29 Hun, 641. I have very serious doubts of the power of this court to make such an order before the trial, and before the articles have been offered in evidence, although they were offered upon a former trial. Upon the trial, when the articles are in court for the purposes of evidence, they will be subject, for the time being, to its direction and control. I am not clear that I have power, at the present time, to direct that the defendant shail have an inspection of the articles which are the property of the plaintiff' or of his principal, and which are to become a part of his testimony in the case. The case of Hewitt v. Pigott, 7 Bing. 400, which was a motion for the inspection of a deed which had been read upon the former trial, an inspection of which was wanted for the purpose of ascertaining its language, does not seem to be controlling. The motion is denied, with leave to renew it, if so advised, upon the trial of the case. ALPERS v. CITY AND COUNTY OF SAN FRANCISCO and another. (Circuit Court, N. D. California. September 5, 1887.) 1. MUNICIPAL ORDINANCE-REMOVAL OF DEAD ANIMALS-CONTRACT-EXCLU SIVE PRIVILEGE INJUNCTION. The city and county of San Francisco, under the power vested in all munic ipal bodies to provide for the health of their inhabitants, and by virtue of express provisions of the constitution of California, art. 11, § 11, and by the consolidation act of 1863, has power to make regulations for the removal from its limits of dead animals, not slain for human food. Pursuant to this authority, the board of supervisors entered into a contract, and passed the necessary ordinance to give it effect, known as the "Dead-Animal Contract," whereby plaintiff and his assigns were granted the exclusive privilege, for 20 years, of having and removing all dead animals not slain for food. During the existence of the contract, the board of supervisors passed a resolution directing its clerk to advertise for proposals from parties desirous of obtaining the car casses of dogs killed by the pound-keeper pursuant to the order of the board, and repealing "all orders or resolutions, or parts of orders or resolutions, in conflict with this resolution." The plaintiff asked for an injunction restraining the board from passing or carrying out such a resolution. Held, that the passage of a resolution or order or ordinance providing for the removal of dead animals by the board was a matter of legislative discretion, and an injunction restraining the passage of such a resolution, order, or ordinance would not be granted by the circuit court of the United States.1 2. SAME "DEAD-ANIMAL CONTRACT" OF SAN FRANCISCO-DUTY OF POUNDKEEPER. The contract known as the "Dead-Animal Contract," whereby plaintiff and his assigns were granted, by the board of supervisors of San Francisco, the exclusive privilege, for 20 years, of having and removing the carcasses of all dead animals, not slain for food, subject to the sanitary regulations and control of the supervisors, provides that it shall "be the duty of the keeper of the public pound to notify the plaintiff or his assigns to remove the animals destroyed by him." Held, that the plaintiff is entitled to an injunction restraining the pound-keeper from delivering, or causing to be delivered, to any other person than plaintiff or his assigns, such carcasses during the existence of the contract. The plaintiff has filed a bill against the city and county of San Francisco, its mayor, supervisors, and pound-keeper, to prevent any obstruction by them to the execution of a contract between him and the city and county, known as the Dead-Animal Contract." And he applies for a provisional injunction against the municipality to restrain the passage of any resolution, order, or ordinance, which will impair the obligat.on of that contract. The injunction is asked upon the bill and affidavits, and their allegations not being controverted, are, for the purposes of this application, to be taken as true. It appears by them that in April, 1866, the board of supervisors made a contract with one G. Wetzler, for the removal from the city limits, at his own cost and expense, for a period of 20 years, of all dead animals not slain for human food, to some In California, an injunction to restrain the anticipated action of the board of supervisors of a county in paying certain alleged illegal claims will not be granted, it being hardly claimed that the board has no jurisdiction. Merriam v. Yuba Co., 14 Pac. Rep. 137. But that courts have jurisdiction to enjoin the board of supervisors of a municipal corporation from passing an ordinance which is not within the scope of their powers, where the passage of such ordinance would work irreparable injury, see Water-Works v. Mayor, 16 Fed. Rep. 615. place where they should be disposed of in a manner so as not at any time to become a nuisance,-the manner to be at all times subject to the sanitary regulations and control of the supervisors, and the removal to be made in every instance immediately upon receiving notice of the existence of the dead animals. In consideration of the removal, the city and county agreed that Wetzler should have the exclusive right of removing all the dead animals for the period designated; such exclusive privilege to be secured by a proper ordinance requiring notice to be given to him in every case of the death of the animal; and Wetzler, on his part, agreed to keep an office or place of business in some central location, where notices might be given of the existence of any dead animal. If the contractor should fail or neglect to perform the terms of the contract, its privileges were to be forfeited, and he was to pay to the city five hundred dollars ($500) as liquidated damages. The supervisors passed the necessary ordinance to give effect to the contract; and it was ratified and confirmed by a special act of the legislature. Statutes of 1875-76, p. 866. By various mesne assignments, the contract was transferred to the complainant. In 1882, before the expiration of the 20 years, it was renewed and extended for another similar period, and in December of that year, and also in November, 1884, resolutions were adopted by the supervisors giving full effect to the renewed contract, and requiring of the contractor a bond, with sureties, in the sum of one thousand dollars, ($1,000,) for the faithful performance of all its stipulations. Among the provisions of the resolutions was one making it the duty of the keeper of the public pound to notify the plaintiff or his assigns to remove the animals destroyed by him, and of all health and police officers to give notice of the death of animals which were to be removed. The bill alleges that the plaintiff accepted the resolutions adopted, executed the bond required, and entered upon the performance of the duties under the contract, and that he and his assignors have expended twenty-five thousand dollars ($25,000) in buying lands, erecting buildings, and in purchasing horses, wagons, carts, and necessary machinery, for carrying out the contract, and have fully performed all its conditions. The carcasses of the animals were utilized by the plaintiff in many ways. Leather was made from the hides, and various articles from the bones, fat, and flesh; and it is alleged that in the prosecution of the business expensive and peculiar kinds of machinery are required, and employes expressly trained for it. Notwithstanding the contract thus made, and the interest in it held by the plaintiff, the bill alleges that, on the seventh of February of the present year, a resolution was passed by the board of supervisors, directing its clerk to advertise for proposals from parties desirous of obtaining, for a period of two years, the carcasses of dogs and other animals killed by the pound-keeper, pursuant to the order of the board, and repealing "all orders or resolutions, or parts of orders or resolutions, providing for the disposal of the carcasses of dead animals, and in conflict with the provisions of this resolution." Thereafter, pursuant to the res olution, the supervisors caused an advertisement to be made "for proposals for purchase of the carcasses of dogs and other animals killed by the pound-keeper;" and the bill alleges that, unless restrained, the board will carry out the action indicated by the resolution and advertisement, and will accept some of the proposals made, and award to the highest bidder the exclusive privilege for the period of two years, of obtaining and removing all the carcasses of animals thus killed; that the board has the physical power and instrumentalities to carry out its action; that the plaintiff will thereby be deprived of such carcasses for that period, and be subjected to great and irreparable injury; and that such action will impair the obligation of his contract, and deprive him of his property without due process of law, contrary to the constitution of the United States. The plaintiff therefore prays that the board of supervisors may be enjoined from carrying out its intended action, and from passing any resolution, order, or ordinance depriving him, or attempting to deprive him, or his assigns, of the privilege of removing the dead animals mentioned, during the period designated in his contract. The bill also alleges that, since the first of January, 1857, the board of supervisors has authorized the pound-keeper, Jacob Lindo, to disregard, and in pursuance of such authority he has disregarded, the contract of the plaintiff with the city, giving him the exclusive privilege of having and removing the carcasses of dogs and other animals destroyed by the pound-keeper, and has refused to deliver the same or any part of them to him; but on the contrary, has delivered a large number, namely, about 400 dogs, to the defendant William P. Lambert, one of the supervisors, who has received them and converted them to his own use. The plaintiff therefore prays that the city pound-keeper may be enjoined from delivering, or causing to be delivered, to any other person than the plaintiff or his assigns, such carcasses, during the period the contract has to run. Langhorne & Miller, for plaintiff. M. C. Hassett, for defendants. FIELD, Circuit Justice, (after stating the facts as above.) There is no doubt that the contract between the plaintiff and the city and county of San Francisco is one within the competency of the municipality to make. It is within the power of all such bodies to provide for the health of their inhabitants by causing the removal from their limits of all dead animals not slain for human food, which otherwise would soon decay, and, by corrupting the air, engender disease. And provisions for such removal may be made by contract, as well as the performance of any other duty touching the health and comfort of the city; its authorities always preserving such control over the matter as to secure an observance of proper sanitary regulations. In addition to this general power, the constitution of the state of California which was in force when the contract with the plaintiff was renewed, declares that "any county, city, or township may make and enforce within its limits all such local police, sanitary, and other regulations as are not in conflict with general laws." Article 11, § 11. And the consolidation act of 1863, still in force, provides that the board of supervisors shall have power "to authorize the summary abatement of nuisances; to make all regulations which may be necessary or expedient for the preservation of the public health, and the prevention of contagious diseases; to provide by regulation for the prevention and summary removal of all nuisances and obstructions in the streets, alleys, highways, and public grounds of said city and county, and to prevent the running at large of dogs, and to authorize the destruction of the same when at large, contrary to ordinance." The contract in question does not appear to be open to any serious objection; none is alleged against its provisions. It imposes no burden upon the municipality. The removal of the dead animals is to be made without any expense to it. The compensation of the party making the removal is found in the uses to which the animals are or may be put. Their hides are converted into leather, from some of which, shoes, from others, gloves are made. Of their bones, buttons or handles for knives may be manufactured; from their flesh and fat, various oils may be distilled for use in the arts. And in case of horned animals, glue from their hoofs and combs from their horns may be made. Indeed, all parts of the animals may be put to some useful purpose. It requires, however, for such uses, special and somewhat expensive machinery, and also, it is said, the employment of hands trained to the business. All these facilities the bill alleges have been provided by the plaintiff. While there can, by contract, be no such restriction imposed upon the power of a municipal corporation as to preclude legislation required by the health of its people, yet a contract having for its object to secure such health is not to be disregarded, and its provisions set aside, where no charge justly lies that the purposes of the contract are not accomplished. It is not pretended in this case that the plaintiff has failed in any respect to comply with his contract, and that the duty assumed by him has not been fully performed. The municipality cannot disregard its contract obligations upon mere caprice, or because a pecuniary advantage may be thereby secured. When that is attempted, the courts will come to the relief of the contractor, if the party committing the injury is, with reference to the matter complained of, subject to their jurisdiction. There can be no doubt that the pound-keeper may be reached and enjoined from delivering the animals destroyed by him to any other party than the plaintiff, or his assigns. And should the board of supervisors, by its legislation, attempt to destroy the contract, or to deprive the plaintiff of its benefit, the enforcement of such legislation may be arrested. The difficulty presented in the case before us is that the application to enjoin the passage of any resolution, order, or ordinance, which may tend to impair the obligation of the contract, is an application to enjoin a legislative body from the exercise of legislative power, and to enjoin the exercise of such power is not within the jurisdiction of a court of equity. This no one will question as applied to the power of the legislature of the state. The suggestion of any such jurisdiction of the court over that body would not be entertained for a |