Associated Dairy Products Co. v. Page

• Decision Date: 06 June 1949
• Docket Number: 5158
• Citation: 206 P.2d 1041,68 Ariz. 393
• Parties: ASSOCIATED DAIRY PRODUCTS CO. v. PAGE et al
• Court: Arizona Supreme Court

206 P.2d 1041

68 Ariz. 393

ASSOCIATED DAIRY PRODUCTS CO. v. PAGE et al

No. 5158

Supreme Court of Arizona

June 6, 1949

Appeal from Superior Court, Cochise County; J. Mercer Johnson Judge.

Judgment reversed with directions.

Snell Wilmer, Walsh & Melczer, of Phoenix, for appellants.

David J. Marks, County Attorney, of Bisbee Wesley E. Polley, Chief Deputy County Attorney of Bisbee, for appellees.

Phelps Justice. La Prade, C. J., and Udall, Stanford, and De Concini, JJ., concur.

OPINION

Phelps, Justice.

This is an appeal from a declaratory judgment of the Superior Court of Cochise County involving the validity of an ordinance enacted by the board of supervisors of said county designated as a "Public Health Service Milk Ordinance." The question presented for the determination of the court is: Did the board of supervisors have the authority under the law to enact said ordinance?

The facts in the case are that the board of supervisors enacted said ordinance on August 4, 1947, the purpose clause thereof being as follows: "An ordinance defining 'milk' and certain 'milk products', 'milk producer', 'pasteurization', etc., prohibiting the sale of adulterated and misbranded milk and milk products, requiring permits for the sale of milk and milk products, regulating the inspection of dairy farms and milk plants, the examination, grading, labeling, placarding, pasteurizing, regrading, distribution, and sale of milk and milk products, providing for the publishing of milk grades, the construction of future dairies and milk plants, the enforcement of this ordinance, and the fixing of penalties."

While the ordinance is broader in scope than that indicated by the purpose clause above quoted, we feel that further details thereof are not essential to the solution of the issues involved.

The appellants are engaged in various aspects of the business of producing, purchasing, processing, selling, and distributing milk and other dairy products in Arizona. Some of the appellants reside, and are engaged in business in Cochise County and furnish the greater part of the outlet in that county for said milk and milk products produced and processed largely in Maricopa and Pinal Counties.

It is alleged in the complaint that by reason of the enactment of said ordinance, a controversy has arisen between the appellants and the board of supervisors, hereinafter called the board, and that prosecution is threatened under the penal provisions of the ordinance unless appellants comply therewith. Appellants alleged that the board was without jurisdiction or authority to enact the ordinance. The board and other appellees have interposed as their answer to appellants what amounts to a general denial. In their briefs, however, they claim that the board acted entirely within its power in enacting said ordinance, and that section 17-309, A.C.A.1939, clearly delegates to said board the power to pass such ordinance. After a stipulation narrowing the issues between the parties litigant, both appellants and appellees moved for judgment on the pleadings. The court, after having taken the matter under advisement, denied appellant's motion and granted the motion of the appellees. Thereafter judgment was entered upholding the validity of said ordinance.

In considering the question of whether or not the board had the authority, under the law, to enact such an ordinance, we feel that the issue should be approached with the fundamental principle of law in mind that the constitution of Arizona, article 4, part 1, section 1 thereof, vests the legislative authority of the state in a legislature consisting of a senate and a house of representatives, reserving however, to the people the right of initiative and referendum.

The boards of supervisors of the various counties of the state have only such powers as have been expressly or by necessary implication, delegated to them by the state legislature. Hartford Accident and Indemnity Co. v. Wainscott, 41 Ariz. 439, 19 P.2d 328; Maricopa County v. Southern Pacific Co., 63 Ariz. 342, 162 P.2d 619. Implied powers do not exist independently of the grant of express powers and the only function of an implied power is to aid in carrying into effect a power expressly granted. Therefore, unless there has been an express grant of power by the legislature to the board to enact the ordinance here involved, it must be held to be invalid, regardless of whether the subject of said ordinance is of local or state-wide concern.

We said in the case of Clayton v. State (on rehearing), 38 Ariz. 466, 300 P. 1010, that: "* * * Where the subject is one of local interest or concern, or where though not of local concern the charter or legislation confers on the city express power to legislate thereon, both jurisdictions may legislate on the same subject. Where, however, the subject is one of state-wide concern, and the Legislature has appropriated the field and declared the rule, its declaration is binding throughout the state." (Emphasis supplied.)

We reaffirmed this rule in the case of Keller v. State, 46 Ariz. 106, 47 P.2d 442. It will be observed that these cases were discussing the legislative powers of municipalities and not of boards of supervisors.

In the case of Hartford Accident and Indemnity Co. v. Wainscott, supra, this court recognized a distinction between powers and liabilities of a county and ordinary municipal corporations such as towns and cities, the reason assigned being that towns and cities are voluntary corporations organized on the initiative and by the approval of the inhabitants for special and local purposes independent of the general governmental activities of the state and inure to the benefit of said cities and towns as distinguished from that of the state, while counties are created by the legislature regardless of the wishes of the inhabitants of the area for the purpose of exercising a certain portion of the general powers of the government in specified localities, citing Board of Commissioners of Jasper County v. Allman, 142 Ind. 573, 42 N.E. 206, 39 L.R.A. 58.

While we have stated the distinction between the powers and liabilities of counties and cities and towns, we will disregard such differences in discussing the issues here presented in order to give the most favorable view to the position of the appellees herein. The question of public health is so clearly one of statewide concern that no citation of authorities should be necessary to support it. We stated in Gardenhire v. State, 26 Ariz. 14, 221 P. 228, 230: "That the preservation of the public health is a matter of public and governmental concern was recognized by the Legislature of the territory of Arizona, when, in 1903 (chapter 65, Laws of 1903), there was enacted a law providing for state, county and city boards of health * * *."

Certainly any product designed for human consumption placed upon the markets of the state which may contain germs that are injurious to the health or bring about an epidemic of contagious disease is one of state-wide interest, and it is the concern of the state in the exercise of its police powers to see that such steps are taken as may be necessary to protect the health of its citizenry.

The question then presents itself: Has the state legislature appropriated the field to the exclusion of boards of supervisors? This question finds an affirmative answer in the provisions of chapter 82, Laws of the Regular Session, 1931 Legislature, sections 50-901 to 50-954 inclusive, A.C.A.1939. An examination of this act discloses that it is designed to provide a complete coverage of the matter of production and processing of milk and milk products in Arizona, placing such restrictions thereon as the legislature deemed necessary to protect the public health. There is to be found in this law provisions (stated in different and less restrictive language) substantially covering every phase of the production and processing of milk that is to be found in the ordinance itself. We therefore hold that the legislature has fully occupied the field to the exclusion of boards of supervisors by enacting legislation relating to the production and processing of milk deemed by it to be necessary for the protection of the public health unless it has plainly, directly, and explicitly conferred upon such boards express power to enact the ordinance in question. Has the legislature done this?

Appellees rely upon the following provisions of section 17-309, A.C.A.1939 to sustain their contention that said ordinance is valid:

"* * *. -- The board of supervisors, under such limitations and restrictions as are prescribed by law, may:

* * *

"17. Adopt provisions for the preservation of the health of their respective counties as necessary, and provide for the expenses thereof;

* * *

"20. Make and enforce such rules and regulations for the government of their body, the preservation of order and the transaction of business as necessary;

* * *

"22. Do and perform all other acts and things necessary to the full discharge of the duties as the legislative authority of the county government; but a supervisor shall not vote upon any measure in which he, or any member of his family, or partner, may be pecuniarily interested;

"23. Make and enforce all local, police, sanitary and other regulations not in conflict with general laws."

May there be gathered from the language above quoted an express grant of power to the board of supervisors to enact an ordinance regulating the production, processing, distribution and sale of milk and milk products in Cochise County authorizing inspection by the health officer of Cochise County of herds, dairy barns,...