Bear v. City of Cedar Rapids

• Decision Date: 10 May 1910
• Citation: 126 N.W. 324,147 Iowa 341
• Parties: BEAR ET AL. v. CITY OF CEDAR RAPIDS ET AL.
• Court: Iowa Supreme Court

147 Iowa 341

126 N.W. 324

BEAR ET AL.

v.CITY OF CEDAR RAPIDS ET AL.

Supreme Court of Iowa.

May 10, 1910.

Appeal from District Court, Linn County; Milo P. Smith, Judge.

Suit in equity to enjoin the enforcement of a city ordinance. A temporary writ of injunction issued as prayed, which, upon defendants' motion, was dissolved. Plaintiffs appeal. Reversed and remanded.Deacon, Good, Sargent & Spangler, for appellants.

Redmond & Stewart and F. C. Byers, for appellees.

DEEMER, J.

The city council of defendant city adopted an ordinance, whereby it assumed the power and authority to require any and all persons selling milk or cream within the city limits of said city to apply for a license therefor from the city, and assumed the power to issue such license and to determine to whom such licenses should be issued. The city by said ordinance, also assumed the right and authority to inspect the herds of such licensees from time to time by their veterinarian or other officer, and in such inspection to use what is known as the tuberculin test as a diagnostic agent for the detection of tuberculosis, and also the licensees were prohibited from selling milk or cream within said city while any contagious disease existed in the family of the licensee or the family of the keeper of the herd. The licensee was required to pay a license fee, and in addition to pay all costs of inspecting his herd, including the cost of applying the tuberculin test. A penalty of not less than $1 nor more than $100 was provided for violation of the ordinance.

Defendant city is organized under what is known as the commission plan of government, and its city council is the board of health of the city. On March 27, 1909, the council passed the ordinance in question, its title being: “An ordinance providing for inspection and testing of milk, cream, dairy, dairy herds, and to license and regulate the sale of milk and cream in the city of Cedar Rapids.” This ordinance provided that: “All persons desiring to sell milk or cream within the limits of the city must make application in writing under oath to the board of health of said city for a license to carry on said business, the application to state the exact location where applicant's cows were kept, their number, whether owned or kept by the applicant, and the manner in which the applicant intended to dispose of his milk and cream; that by the filing of said application, said applicant authorized said city to inspect applicant's dairy and dairy herd, and requires the board of health of said city, through its veterinarian or other officer, to make such inspection, and to use in such inspection what is commonly known as the tuberculin test, and to tag each animal in such a way as to make a permanent record of such inspection and its result.” It also provided that: “Said board of health, after investigation, ‘whether from a consideration of such report, or from other sources, shall adjudge and determine what applicant or applicants may be entitled to obtain a license to sell milk and cream within said city,’ and shall license such persons so selected, such license to pay the cost of inspecting his dairy and dairy herd, and one dollar for such license and each renewal thereof; that all veterinarians and officials of said board of health shall have the right at any and all times to enter the premises of any person so licensed to inspect the dairy and dairy herd of such licensee, and said board is required to cause such inspection to be made from time to time, and is required to cause such inspection and test to be made at least once in each year.” The ordinance further provides that: “No licensee ‘will be permitted to sell, keep for sale, or offer for sale, any milk or cream from said designated cows or herds when measles, chicken pox, scarlet fever, diptheria, typhoid fever, small pox or other infectious or contagious disease exists, either at the place where said cows or herd are kept or in the family of the keeper of the same, until permitted so to do by the board of health, after proper fumigation under supervision of said board,’ and provides that a violation of any of the provisions of the ordinance shall be punishable as a misdemeanor and subject the person so violating it to fine not to exceed $100.00 and imprisonment, and to a cancellation of his license at the discretion of said board of health.”

We have not set forth the entire ordinance, for it is long, and many parts of it are unimportant, and need not be considered in this opinion. Appellants contend that this ordinance is invalid for the following reasons: “(1) No authority to enact said ordinance has ever been conferred upon the city of Cedar Rapids by the Legislature of Iowa, but on the contrary, the authority to license city milk dealers and dairymen is conferred by chapter 13 of the Code of Iowa of 1897 upon the Dairy Commissioner of the State of Iowa. (2) That the ordinance is unreasonable in its provisions. (3) That the ordinance is not of a general character, but grants to the board of health discretion to determine who of the applicants who comply with its provisions shall receive license. (4) That the ordinance is void because in violation of article 14 of the Constitution of the United States, and section 6, art. 1, of the Constitution of Iowa.”

The statutes of the state do not confer express powers upon a city to regulate, license, suppress, or restrain the sale of milk, and the only sections which are relied upon by appellee are 680, 2568, 2525, and 4989 of the Code, and sections 4999a22 and 5028j of the Code Supplement of 1907. There is also a rule of the State Board of Health upon which some reliance is placed, to which we will hereafter make reference. Section 680 reads as follows: “Municipal corporations shall have power to make and publish, from time to time, ordinances, not inconsistent with the laws of the state, for carrying into effect or discharging the powers and duties conferred by this title, and such as shall seem necessary and proper to provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort and convenience of such corporations and the inhabitants thereof, and to enforce obedience to such ordinances by fine not exceeding one hundred dollars, or by imprisonment not exceeding thirty days.” Whilst this statute is very general in its terms, it does not give the city power to do more than impose fines. Thereunder it cannot license or provide any other remedy than that authorized by the statute itself. Des Moines v. Gilchrist, 67 Iowa, 212, 25 N. W. 136, 56 Am. Rep. 341;Foster v. Brown, 55 Iowa, 686, 8 N. W. 654;Henke v. McCord, 55 Iowa, 378, 7 N. W. 623;City of Mt. Pleasant v. Breeze, 11 Iowa, 399;Burlington v. Keelar, 18 Iowa, 59;City of Burlington v. Bumgardner, 42 Iowa, 673;City of Chariton v. Barber, 54 Iowa, 360, 6 N. W. 528, 37 Am. Rep. 209;Keokuk v. Scroggs, 39 Iowa, 447. So that we find no authority under this section for the passage of the ordinance in question.

Chapter 13, tit. 12 of the Code provides for the appointment of a dairy commission, and section 2525, which is found in that title, reads in this wise: “Any person or corporation who shall sell milk or cream from a wagon, depot or store, or sell or deliver milk or cream to a hotel or restaurant or boarding house, or any public place in any such city, shall be considered a city milk dealer. No such city milk dealer shall sell milk or cream from a wagon, depot or store in any such city without a written permit from the commissioner for each wagon, depot or store operated by him, for which he shall pay annually one dollar. All permits shall expire on the fourth day of July of each year, and no permits shall be issued for less than one dollar.” As the next section is important, we copy it here, although somewhat out of order. It is as follows: “He or his agent may open any can or vessel containing milk or cream offered for sale in such city, and inspect its contents and take samples therefrom for testing or analysis, and any city milk dealer, or employé of such milk dealer, or any other person who shall resist or interfere with the commissioner or his agent in the performance of his duties in executing any of the requirements of this chapter, shall be guilty of a misdemeanor and punished as provided in this chapter.” Code, §...