Deems v. City of Baltimore

• Decision Date: 18 December 1894
• Parties: DEEMS v. MAYOR AND CITY COUNCIL OF BALTIMORE ET AL.
• Court: Maryland Court of Appeals

30 A. 648

80 Md. 164

DEEMS v. MAYOR AND CITY COUNCIL OF BALTIMORE ET AL.

Court of Appeals of Maryland

December 18, 1894

Appeal from circuit court of Baltimore city.

Bill by John W. Deems against the mayor and city council of Baltimore and others to enjoin the enforcement of a city ordinance. From a decree for defendants, complainant appeals. Affirmed.

Argued before ROBINSON, C.J., and McSHERRY, FOWLER, PAGE, and ROBERTS, JJ.

Thos C. Weeks, for appellant.

Thos G. Hayes, W. S. Bryan, Jr., and Jas. P. Gorter, for appellee.

ROBINSON C.J.

In addition to the general powers conferred on the mayor and city council by section 378, art. 4, Code Pub. Local Laws, to pass ordinances to preserve the health of the city, the act of 1894 (chapter 53) expressly authorizes them to provide by ordinance for the proper inspection of milk and all other food products offered for sale in the city, and to make such regulations in regard to the sale of the same as they may deem necessary to protect the public health. It was in pursuance of these powers that Ordinance No. 87, now in question, was passed. This ordinance makes it unlawful for any person to sell or offer for sale "any impure adulterated, sophisticated or unwholesome milk or other food products." It further provides that only pure unadulterated, unsophisticated, and wholesome milk shall be sold, and that such article shall be understood to be the natural product of healthy cows, and which has not been deprived of any part of its cream, and to which no additional liquid or solid preservative has been added, and which at a temperature of 60~ F. shall have a specific gravity of not less than 1.029, and not less than 12 per cent. of total solids, and not less than 3 per cent. of butter fats; and all milk kept or offered for sale in the city which shall not come up to the standard thus prescribed shall be considered impure, adulterated, sophisticated, or unwholesome. And the ordinance also provides that the term "adulterated" shall be construed to mean any artificial addition to normal constituents, and the term "sophistication" to mean the substitution of one product for another, or any abstraction of or artificial change in the normal constituents, and the term "unwholesome" to mean deleterious to health, etc. And it further provides for the appointment of a competent analytical chemist, who shall make such chemical and microscopical examinations as may be required under the ordinance; and for the appointment also of three inspectors of food. And section 6, as amended provides: "And the milk or food products in the possession of the person or persons so violating, disobeying, refusing or neglecting to comply with the provisions of this ordinance, may be confiscated and destroyed by the inspector examining the same." The bill of complaint alleges that the appellant is a dairyman, and conducts a retail business for the sale of milk, and that in the pursuit of his business he daily serves milk from his wagons to his customers at their homes in the city; that on or about the 16th July, 1894, Patrick R. Welsh, inspector, and William P. Tonry, analyst, on the public highway, took certain milk, the property of the appellant, and without making any chemical or microscopical examination thereof, and without due process of law, poured the said milk out upon the streets and down the gutters of the city, thereby wasting and destroying the said milk. The bill also alleges that the said Patrick R. Welsh and William P. Tonry, under the direction of the board of health and under color of Ordinance 87 as amended, publicly declare their intention to destroy the milk of the appellant and others which, after an inspection by them, made by means of a certain mechanical instrument known as a "lactometer," and by a test taken with "litmus" paper, they shall conclude not to be of the standard prescribed by the ordinance. The bill further alleges that the ordinance is an undue and excessive exercise of the corporation's legislative powers as conferred by law, and that section 6 as amended is absolutely void and of no effect. Besides the general relief, the bill prays that an injunction be issued restraining the mayor and city council and all the other defendants from taking and destroying without chemical or microscopical examination first made, and without due process of law first had, any milk or other dairy product the property of the complainant, etc.

We cannot agree with the counsel for the appellee that a court of equity has no jurisdiction to restrain the appellee in the enforcement of the ordinance in question, even though it may be conceded to be invalid, and that its execution would affect injuriously the rights of the appellant and others. In Page's Case, 34 Md. 558, and in Holland's Case, 11 Md. 189, and in other cases. we have said that ...