Adams v. City of Milwaukee

• Decision Date: 10 January 1911
• Parties: ADAMS v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

144 Wis. 371

129 N.W. 518

ADAMS

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1911.

Appeal from Circuit Court, Milwaukee County; William J. Turner, Judge.

Action by John Quincy Adams against the City of Milwaukee and others to enjoin enforcement of an ordinance. From a judgment for defendants, plaintiff appeals. Affirmed.

Among other references upon the part of the appellant were the following: Const. U. S. Amend. art. 14; Const. Wis. §§ 1, 13, art. 1; State v. Burdge, 95 Wis. 390, 70 N. W. 347, 37 L. R. A. 157, 60 Am. St. Rep. 123;Potts v. Breen, 167 Ill. 67, 47 N. E. 81, 39 L. R. A. 152, 59 Am. St. Rep. 262;State v. Redmon, 134 Wis. 89, 114 N. W. 137, 14 L. R. A. (N. S.) 229, 126 Am. St. Rep. 1003;State v. Currens, 111 Wis. 431, 87 N. W. 561, 56 L. R. A. 252;State v. Whitcom, 122 Wis. 110, 99 N. W. 468;Bittenhaus v. Johnston, 92 Wis. 588, 66 N. W. 805, 32 L. R. A. 380;Lowe v. Conroy, 120 Wis. 151, 97 N. W. 942, 66 L. R. A. 907, 102 Am. St. Rep. 983;State v. Elofson, 106 Minn. 103, 90 N. W. 309;State v. Nelson, 66 Minn. 166, 68 N. W. 1066, 34 L. R. A. 318, 61 Am. St. Rep. 399;City of St. Paul v. Peck, 78 Minn. 497, 81 N. W. 389;Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885, 17 L. R. A. (N. S.) 486, 128 Am. St. Rep. 1061.

The respondent relied upon the same cases. Also State v. Chittenden, 127 Wis. 468, 107 N. W. 500;Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643;Sanders v. Commonwealth, 117 Ky. 1, 77 S. W. 358, 1 L. R. A. (N. S.) 932, 111 Am. St. Rep. 219;State v. Layton, 160 Mo. 474, 61 S. W. 171, 62 L. R. A. 163, 83 Am. St. Rep. 487;Nelson v. Minneapolis (Minn.) 127 N. W. 445;New Orleans v. Charouleau, 121 La. 890, 46 South. 911, 18 L. R. A. (N. S.) 368, 126 Am. St. Rep. 332;Black v. State, 113 Wis. 205, 89 N. W. 522, 90 Am. St. Rep. 853;Servonitz v. State, 133 Wis. 231, 113 N. W. 277, 126 Am. St. Rep. 955.Ryan, Merton & Newbury and M. A. Jacobson, for appellant.

Daniel W. Hoan, City Atty., and John J. Cook, Asst. City Atty., for respondents.

TIMLIN, J.

Plaintiff, a farmer residing in Waukesha county, and owning a number of cows and engaged in shipping milk from said cows to the city of Milwaukee to dealers in that city, brings this suit in his own behalf and in behalf of other producers and dealers in milk similarly situated and engaged, against the city of Milwaukee and its commissioner of health to enjoin the enforcement of an ordinance, the material provisions of which are as follows: “No person shall bring into the city of Milwaukee for sale, either by wagon, cart, train, or any other kind of vehicle, or keep, have or offer for sale or sell in said city, any milk or cream drawn from cows outside of said city, contained in cans, bottles or packages, unless such cans, bottles or other packages containing such milk or cream for sale, shall be marked with a legible stamp, tag or impression bearing the name of the owner of such cow from which such milk was drawn, giving his place of business, including the name of city, street and number, or other proper address, and unless the owner or owners of such cows shall, within one year from the passage of this ordinance, file in the office of the commissioner of health a certificate of a duly licensed veterinary surgeon, or of any other person given authority by the State Livestock Sanitary Board to make tuberculin tests, stating that such cows have been tested with tuberculin and found free from tuberculosis or other contagious diseases. * * * Such certificate shall be good for one year from date of its issuance. * * * Must be renewed annually. * * * Shall show in each case that the animals from which such milk was drawn are free from tuberculosis or other contagious diseases. All milk and cream from sick and diseased cows, * * * or which does not conform to all other provisions of this chapter, shall, upon discovery thereof, be confiscated, forfeited and immediately destroyed by or under the direction of the commissioner of health, bacteriologist or officer detailed, who shall, if done in good faith, be held harmless from damage therefor.”

Considerable difference of opinion appears to exist among those having a reputation for learning with respect to the efficacy of the tuberculin test for ascertaining the presence of tuberculosis in cattle. This test is made by an hypodermic injection of a toxic product of the tubercule bacilli which causes a described and recognized rise of temperature in the animal afflicted with tuberculosis, but has no effect, or a different effect, upon cattle not so afflicted. It seems to be agreed, at least in this case, that the bovine type of tubercule bacillus is in form and otherwise distinguishable from the human type by microscopic examination. It is claimed by some that the bovine type of tuberculosis is not ordinarily communicable to the human system, in the absence of abrasion, through the alimentary canal. There is also a lack of evidence to establish that tuberculosis of the human lungs, or consumption as it is commonly called, in its ordinary form is caused by the bovine type of bacillus. Nevertheless the prevention of this common and usually fatal disease is by some of the experts put forward as a ground of support for the ordinance in question. There is evidence, and also findings, to the effect that tuberculosis generally is a disease caused by micro-organisms known as “tubercule bacilli”; that there is a mammalian type of this bacteria subdivided into bovine and human bacilli, and that human beings are susceptible to infection from the bovine tubercule bacilli by ingestion, inhalation, or inoculation. This bovine tuberculosis is communicable to the human being through the medium of milk or its products taken as food. Bovine tuberculosis prevails among cattle in the country adjacent to Milwaukee. The tuberculin test, while not infallible, is the only reliable and useful means for testing cattle for tuberculosis. It is, however, not necessary to support the ordinance in question to show that human pulmonary tuberculosis is caused by drinking the milk of cows afflicted with bovine tuberculosis. If the milk of such cows produces disease of any kind, or is harmful to health, this is a sufficient basis for police regulation of its sale and distribution in the city. There is much evidence to the effect that the use of such milk as a beverage does cause in the human being, especially in infants, bovine tuberculosis, and one of the learned witnesses goes so far as to suggest that the bovine type of tubercule bacillus may or will by successive cultures or transplanting change into the human type. On the whole there is evidence to support the findings of the learned circuit court that the use of milk from such diseased cows is inimical to health. Counsel for respondents calls our attention to chapter 542, Laws of Wisconsin for 1909, and to the following statutes of other states, recognizing the efficiency of this tuberculin test: Indiana, chapter 181, Laws 1909; Delaware, chapter 122, Laws 1909; Maine, chapter 133, Laws 1909; Maryland, chapter 466, Laws 1910; Michigan, chapter 172, Laws 1909; Minnesota, chapter 392, Laws 1909; New York, pages 28, 29, vol. 1, Consol. Laws 1909; North Dakota, chapter 160, Laws 1909; Oregon, chapter 213, Laws 1909; South Carolina, chapter 131, Laws 1909; South Dakota, chapter 291, Laws 1909; Tennessee, chapter 475, Laws 1909; Vermont, No. 1, chapter 163, Laws 1908; Virginia, chapter 335, Laws 1910. We are also referred to the cases of State v. Nelson, 66 Minn. 166, 68 N. W. 1066, 34 L. R. A. 318, 61 Am. St. Rep. 399,Nelson v. Minneapolis (Minn.) 127 N. W. 445, and New Orleans v. Charouleau, 121 La. 890, 46 South. 911, 18 L. R. A. (N. S.) 368, 126 Am. St. Rep. 332.

The evidence and findings in the instant case, this legislation, and these decisions, go to show a widespread recognition of the danger of infection from bovine tuberculosis and of the efficacy of the tuberculin test. When there are conflicting scientific beliefs or theories in such matters it is for the city council to determine upon which theory it will base its police regulations, and unless it is clearly and manifestly wrong it is not for the courts to interfere on the ground that the scientific theory on which the ordinance is based is incorrect or unsound. Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643;Sanders v. Commonwealth, 117 Ky. 1, 77 S. W. 358, 1 L. R. A. (N. S.) 932, 111 Am. St. Rep. 219;State v. Layton, 160 Mo. 474, 61 S. W. 171, 62 L. R. A. 163, 83 Am. St. Rep. 487. We also consider the enactment of such ordinances, generally speaking, within the power of the common council of the city of Milwaukee under section 3 and subsections 9, 23, and 40 of chapter 4 of the city charter.

It is next contended that this ordinance is void as contrary to the Constitution of the United States and of this state in that it is partial and unequal in its operation. It applies to dealers in milk drawn from cows outside of the city of Milwaukee, while dealers in milk drawn from cows within the city are not included in the terms of the ordinance or subject to its requirements. It is not denied that reasonable classification may be resorted to, but it is argued that this is not reasonable classification. If we should consider only the danger to health or the liability to communicate tuberculosis from the bovine to the human animal this position would be unanswerable. But when we consider these two classes of milk dealers from the viewpoint of facility for inspection and regulation, important differences are at once perceptible. The city officials intrusted with the preservation of the public health cannot visit or exercise authority on the farms lying...