State v. Broadbelt

• Decision Date: 22 June 1899
• Citation: 43 A. 771,89 Md. 565
• Parties: STATE v. BROADBELT.
• Court: Maryland Court of Appeals

43 A. 771

89 Md. 565

STATE v. BROADBELT.

Court of Appeals of Maryland

June 22, 1899

Appeal from criminal court of Baltimore city; George M. Sharp Judge.

Henry A. Broadbelt was indicted for neglecting to register his herd of cattle with the live-stock sanitary board. From a decision sustaining a demurrer to the indictment the state appealed. Reversed.

Argued before MCSHERRY, C.J., and BRISCOE, SCHMUCKER, PEARCE, BOYD and FOWLER, JJ.

Atty Gen. Gaither and Richard M. Venable, for the State. Wm Pinkney Whyte, for appellee.

MCSHERRY C.J.

The appellee was indicted under the act of 1898 (chapter 306) passed by the general assembly of Maryland, and entitled "An act to add certain new sections to article fifty-eight of the Code of Public General Laws, title 'Live Stock,' under the new sub-title 'Dairies,' to follow section 18," etc. He demurred to the indictment upon the ground that the statute was unconstitutional. His demurrer was sustained by the criminal court of Baltimore city, the indictment was quashed, and the state has appealed. The reasons upon which he bases his claim that the statute is void are that it denies the equal protection of the laws guarantied by section 1 of the fourteenth amendment to the federal constitution, and deprives the individual of the due process of law secured by that amendment and by article 23 of the Maryland Declaration of Rights. Both of these or similar grounds of attack have of late years been very frequently resorted to in assailing the validity of state legislation enacted in the exercise of the police power, and numerous judgments have been delivered by the supreme court of the United States in cases where this method of assault has been relied on. A review of, or even a reference to, all these cases would not be practicable within the limits of this opinion, but brief citations, later on, from some of them, will serve to illustrate the principles which underlie them all. Those principles must control the final disposition of this prosecution.

By the act of 1888 (chapter 519) a "state live stock sanitary board" was created. It consists of three members, appointed by the governor, by and with the advice and consent of the senate. It is charged with various duties looking to the prevention and the spread of contagious and infectious diseases among the live stock within the state. Its powers are exercised for the preservation of the public health. The provision of the statute under which the indictment now before us was framed, reads as follows: "Sec. 19. It shall be the duty of all dairymen or herdsmen or private individuals supplying milk to cities, towns or villages, to register their herds or cattle with the live stock sanitary board; in violation of which the parties offending shall be fined not less than one dollar nor more than twenty for each offense." Section 20, and the rules which it formulates, are in these words:

"Sec. 20. It shall be the duty of the live stock sanitary board, to have inspected at least annually, without notice to the owner or those in charge of any dairy or the parties supplying milk as named in section 19 of this article, the premises wherein cows are kept, and if such premises are found in an unsanitary condition the said board may prohibit the sale and shipment of milk from such premises until such time as such premises shall conform to the following sanitary rules:

"Rule 1. No building or shed shall be used for stabling cows for dairy purposes which is not well lighted and ventilated and which is not provided with sufficient feed troughs or boxes, and suitable floor, laid with proper grades and channels to immediately carry off all drainage; and if a public sewer abuts the premises upon which such building is situated, they shall be connected therewith whenever the inspector considers such sewer connection necessary.

"Rule 2. No water closet, privy, cesspool or urinal shall be located within any building or shed used for stabling cows for dairy purpose or for the storage of milk or cream; nor shall any fowl, hog, sheep or goat be kept in any room used for such purposes.

"3. It shall be the duty of each person using any premises for keeping cows for dairy purposes to keep such premises thoroughly clean and in good repairs and well painted or whitewashed at all times.

"4. It shall be the duty of each person using any premises for keeping cows for dairy purposes to cause the building in which cows are kept to be thoroughly cleaned, and to remove all dung from the premises so as to prevent its accumulation in great quantities.

"5. Any person using any premises for keeping cows for dairy purposes shall provide and use a sufficient number of receptacles, made of non-absorbent materials for the reception, storage and delivery of milk, and shall cause them at all times to be cleaned and purified, and shall cause all milk to be removed without delay from the rooms in which cows are kept.

"6. Every person keeping cows for the production of milk for sale shall cause every such cow to be cleaned every day and to be properly fed and watered with abundance of pure clean water.

"7. Any enclosure where cows are kept shall be graded and drained, so as to keep the surface reasonably dry; no garbage, fecal matter or similar matter shall be placed or allowed to remain in such enclosure unless sufficient straw or similar good absorbent material be used to keep the enclosure clean at all times, and no open drains shall be allowed to run through it. And any person who shall ship or sell milk contrary to the aforesaid order of said board shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than one dollar nor more than twenty dollars for each day during which shipments shall be made after notice of such order."

The indictment charges that the appellee, being a dairyman engaged in supplying milk to cities, towns, and villages within this state, failed, neglected, and refused to register his herd of cattle with the live-stock sanitary board. The demurrer admits these averments to be true.

So far as the nineteenth section of the act is concerned, it is not perceived that, standing alone, it deprives the appellee of due process of law in any way whatever. This is not a proceeding under the twentieth section. The requirement of the nineteenth section would be of little value if it were not followed by, and did not form a part of, the other provisions of the statute. The entire act is strictly a police regulation, enacted for the purpose of preserving the public health. The strides which our knowledge of bacteriology has made in recent years are generally known and the ubiquitous microbe has been shown to be a potent agent in the propagation of disease. Tuberculosis, identical, it is said, with consumption in man, is caused by the organism known as "Koch's bacillus," and is readily communicable through milk. Diphtheria is another contagious disease whose specific organism finds in milk favorable conditions of growth, and there is abundant evidence to show that contaminated milk transmits this contagion. Cholera has again and again been traced to the same source, and scarlet fever is generally believed to be communicable by infected milk, and it is said that it may be even caused by an eruption on the udder. Typhoid fever bacilli have been detected in milk supposed to be wholesome. Besides conveying disease, milk occasionally contains certain germs which form poisonous products known as "ptomaines." Milk may carry the bacilli of these, and perhaps other, deadly diseases to infancy, to adolescence, and to age; to the delicate and to the robust alike; and to persons in every class and condition of society. It may receive these germs direct from the cow, if the cow be unhealthy; or it may absorb them from the dairy, the dairy utensils, or the stable, if these be uncleanly. Thorough inspections of cattle and dairies may reduce the frequency of infection. The preservation of the public health by preventing the sale of infected milk, or of milk that may come from infected sources, when milk, by reason of its almost universal use, in one form or another, as an article of food, is especially likely to spread disease, is one of the most imperative duties of the state, and obviously one most incontestably within the scope of the police power. As a means to that end,--the preservation of the public health,--a requirement that every person selling milk for consumption in cities, towns, and villages shall cause his herd or cattle to be registered with the live-stock sanitary board is a reasonable and an appropriate enactment; and the subsequent provisions are necessary parts of the scheme. The nineteenth section no more deprives the individual of due process of law than did the ordinance in Commissioners v. Covey, 74 Md. 262, 22 A. 266, which prohibited the erection of any building without a permit from the commissioners of the town; or an ordinance forbidding the keeping of swine without a permit in writing from the board of health (Quincy v. Kennard, 151 Mass. 563, 24 N.E. 860); or an ordinance requiring the written permission of the mayor of a town before any person was allowed to move a building along the streets (Wilson v. Eureka City [decided Feb. 20, 1899] 19 S.Ct. 317); or the ordinance requiring a license for the removal of the contents of privies, and subjecting the holders of such license to the orders of the board of health (Boehm v. Mayor, etc., 61 Md. 259). The constitutional limitations which declare that no person shall be deprived of his property or liberty without due process of law have never been construed as being "incompatible with the principle--equally vital, because essential to the peace and safety of...