Lodes v. Dep't of Health of City of New York

• Citation: 82 N.E. 187,189 N.Y. 187
• Parties: PEOPLE ex rel. LODES v. DEPARTMENT OF HEALTH OF CITY OF NEW YORK.
• Decision Date: 01 October 1907
• Court: New York Court of Appeals

189 N.Y. 187

82 N.E. 187

PEOPLE ex rel. LODES

v.DEPARTMENT OF HEALTH OF CITY OF NEW YORK.

Court of Appeals of New York.

Oct. 1, 1907.

Appeal from Supreme Court, Appellate Division, Second Department.

Mandamus by the people of New York, on the relation of George Lodes, against the department of health of the city of New York, to compel the board of health of the respondent to rescind its action revoking permits issued to the relator to sell milk in the borough of Brooklyn. From an order of the Appellate Division (102 N. Y. Supp. 1145),¹ affirming an order of the Special Term ( 100 N. Y. Supp. 788),² granting a peremptory writ, respondent appeals. Reversed, unless the relator within 20 days elects to demand an alternative writ, in which case proceedings should be remitted to the Special Term.

Wm. B. Ellison, Corp. Counsel (James D. Bell, of counsel), for appellant.

Albert R. Moore, for respondent.

HAIGHT, J.

On the 17th day of April, 1903, the board of health of the department of health of the city of New York issued to the relator, George Lodes, six permits to sell and deliver milk from wagons and from his store in the borough of Brooklyn, which permits were revoked by the board of health, without notice to him, on the 17th day of January, 1906. Thereupon the relator applied for a peremptory writ of mandamus to compel the board of health to rescind its action in revoking the permits, alleging that there was no public necessity for the revocation of the permits; that the action of the board was arbitrary and unreasonable, tyrannical and oppressive in the extreme, and beyond the power and authority conferred upon it by law. On the hearing of such application, the board of health presented affidavits showing that the relator, his wife, and the drivers of his wagons had been four times convicted of selling, or offering for sale, adulterated milk, and that their action in revoking his permits was based upon such repeated violations of the law, and that by reason thereof they deemed him an unfit person to traffic in milk. The Special Term granted the peremptory writ prayed for, and the affirmance of that order by the Appellate Division is now brought up for review.

The Sanitary Code of the city of New York, which was continued in force by the charter of the city (section 1172, c. 466, p. 499, Laws 1901), provides: ‘Section 56. No milk shall be received, held, kept, offered for sale or delivered in the city of New York without a permit, in writing, from the board of health and subject to the conditions thereof.’ The provisions of the Sanitary Code, alluded to, have been held to be reasonable and a valid exercise of the police powers, and violative of no provision of the Constitution, either state or federal. People ex rel. Lieberman v. Vandecarr, 175 N. Y. 440, 67 N. E. 913,108 Am. St. Rep. 781, affirmed 199 U. S. 552, 26 Sup. Ct. 144, 50 L. Ed. 305. It has also been held that the board of health has power to revoke permits to sell milk, notwithstanding no ordinance had been adopted by the board authorizing such revocation. Metropolitan Milk & Cream Co. v. City of New York, 113 App. Div. 377,98 N. Y. Supp. 894, affirmed in this court 186 N. Y. 533, 78 N. E. 1107. These questions we regard as settled.

The only question remaining to be disposed of is as to whether the relator was entitled to notice and a hearing by the board of health before revoking his permits. The answer to this question may depend upon the soundness of the relator's contention that the permits issued to him were property, of which, under the Constitution, he cannot be deprived without due process of law. He maintains that he has established and built up a business of selling milk at his store and has a regular line of customers whom he supplies daily; that he has established a milk route over which his wagons are sent daily distributing milk to the inhabitants of the city in that locality; and that this established business has become property, of which he cannot be deprived. But the good will of his business, so established, must not be confounded with the permits granted to him to engage in that business. He was never licensed to sell impure and adulterated milk, and after he had obtained his permits to sell and undertook the securing of customers, he knew that he was engaging in a business which must be conducted under the supervision of the board of health of the city subject to the police powers of the state, and that such permits were subject to revocation. He knew that the permits contained no contract between the state, or the board of health, and himself, giving him any vested right to continue the business, and that it become the duty of the board to revoke his license, in case he violated the statute, or the conditions under which it was granted. Milk is an article of food extensively used by our inhabitants and is chiefly relied upon to support the lives of infant children. If impure or adulterated, or polluted with germs of dangerous or infectious diseases, its use becomes highly dangerous, and the health and welfare of the public demand speedy and, in some cases, instant prevention of its distribution to the people. While it is the duty of the board of health to watch and, through its inspectors, detect violations of the statute and the conditions imposed by it, it has been given no judicial power to hear, try, and determine such violations, but must act upon the information obtained by it through its own channels of inquiry. In Cooley's Constitutional Limitations (7th Ed.) p. 887, it is said that: ‘Dealers may also be compelled to take out a license, and the license may be refused to a person of bad reputation, or be taken away from a party detected in dishonest practices.’ In Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. Ed. 620, Mr. Justice Field says: ‘It is undoubtedly true that it is the right of every citizen of the United States to pursue any lawful trade or business, under such restrictions as are imposed upon all persons of the same age, sex, and condition. But the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community.’ In Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231, 32 L. Ed. 623, the same justice, in speaking of the interest or estate acquired by persons, says: ‘It is often of great value to the possessors, and cannot be arbitrarily taken from them, any more than their real or personalproperty can thus be taken. But there is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed by the state for the protection of society. The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure, or tend to secure, them against the consequences of ignorance and incapacity as well as of deception and fraud.’ In the case of Metropolitan Board of Excise v. Barrie, 34 N. Y. 667, Wright, J., in delivering the opinion of the court, says: ‘Licenses to sell liquors are not contracts between the state and the persons licensed, giving the latter vested rights, protected on general principles and by the Constitution of the United States against subsequent legislation; nor are they property in any legal or constitutional sense. They have neither the qualities of a contract nor of property, but are merely temporary permits to do what otherwise would be an offense against a general law.’ In other words, a license is not a contract or property, but merely a temporary permit issued in the exercise of the police powers to do that which otherwise would be prohibited. Youngblood v. Sexton, 32 Mich. 406, 20 Am. Rep. 654;Commonwealth v. Kinsley, 133 Mass. 578;Voight v. Board of Excise, 59 N. J. Law, 358, 36 Atl. 686,37 L. R. A. 292.

Matter of Lyman, 160 N. Y. 96, 54 N. E. 577, is not in conflict with the authorities above referred to. The question arose under our liquor tax law. That statute, as its title indicates, imposed a tax which was required to be paid in advance. It, however, could be transferred from one place to another, could be sold and assigned to other persons, and, in case a person who had paid the tax desired to discontinue the business, he could have a rebate for the period of time for which he had paid, accruing after he had ceased to traffic in liquor. It was therefore regarded as property, and could not be taken from the person paying the tax, except in the manner designated by the statute. Laws 1896, pp. 67, 68, c. 112, §§ 25, 26, 27.

We incline to the view that the authorities to which reference has been made are conclusive upon the subject; and, although the relator had established a business and secured customers under the permits granted to him, the permit itself cannot be treated as property in any legal or constitutional sense, but was a mere license revocable by the power that was authorized to issue it. The statute, as we have seen, has given the board of health no power to hear, try, or determine cases. Its duties are therefore not judicial, but executive or administrative, and at times must be exercised summarily, as was said in Metropolitan Board of Health v. Heister, 37 N. Y. 661: ‘The power to be exercised by this board upon the subjects in question is not judicial in its character. It falls more properly under the head of an administrative duty.’ The court in that case had under consideration the question of the abating of a nuisance, or the recovery of a penalty therefor, occasioned by the alleged maintenance of a slaughterhouse in a densely populated portion of the city in such a manner as to endanger the health of the inhabitants. But we see no reason why the...