Board of Health of Covington v. Kollman

• Decision Date: 09 December 1913
• Citation: 156 Ky. 351
• Parties: Board of Health of Covington, et al. v. Kollman.
• Court: Kentucky Court of Appeals

Page 351

156 Ky. 351

Board of Health of Covington, et al. v. Kollman.

Court of Appeals of Kentucky.

Decided December 9, 1913.

Appeal from Kenton Circuit Court (Common Law & Equity Division).

STEPHENS L. BLAKELY for appellants.

ROBERT C. SIMMONS for appellee.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER — Reversing.

In the year 1909 the general council of the city of Covington enacted an ordinance covering the sale of milk and other dairy products and regulating the sanitary condition of dairies and milk depots and the condition and use of utensils, vehicles, etc., used in handling, manufacturing or sale of milk and dairy products in Covington, Kentucky, and repealing certain ordinances of the city of Covington. The ordinance conferred on the board of health powers of inspection and examination. It further provides as follows:

"Upon the Board of Health of the city of Covington being satisfied that the place or places where the milk or milk products are to be kept or offered for sale, or from which they are obtained, are sanitary, or that the cows from which said milk is obtained are free from disease and kept in a sanitary place and manner, said board of health shall grant a permit to the applicant conditioned upon his compliance with the terms of this ordinance and the rules and regulations of the State Board of Health and Board of Health of the city of Covington. Said permit may be revoked at any time, by the Board of Health of Covington, Ky., should the holder thereof fail or refuse to comply with the provision of this ordinance."

On January 31, 1912, the Board of Health of the city of Covington adopted the following rule:

"Be it resolved by the Board of Health of the city of Covington, State of Kentucky, that the following regulations are necessary for the public health and are, therefore, regulations of this board.

"Section 1. No person or dealer in milk and no servant or agent of such dealer in milk except such as may sell for consumption upon the premises where sold, shall give, furnish, sell or offer for sale or deliver any whole milk, skimmed milk or cream in quantities less than one (1) gallon, unless said milk or cream be in sanitary transparent glass bottles or other receptacles of similar character as may be approved by this board, the same to be sealed with a suitable cap or stopper, the said bottle or other receptacle shall be sealed immediately after filling the same, which sealing and filling shall only be done in a milk house or creamery, the sanitary condition of which has been approved by this board.

"Section 2. It shall be unlawful to fill or refill with sweet milk or cream any glass jar or bottle or other receptacle with intent to sell or vend such milk unless such glass jar or bottle be first thoroughly cleaned and sterilized unless a non-refillable receptacle be used, and they must be perfectly sterile when filled.

"Section 3. No person, dealer, servant or agent of such dealer, shall give, furnish, sell or offer for sale milk, skimmed milk or cream in quantities exceeding one gallon unless the can or receptacle be filled in milk room or creamery the same to be immediately and securely sealed by a tight fitting top or cap.

"Section 4. No person shall transfer any milk from one can, bottle or other receptacle to another on any street, alley or thoroughfare or upon a delivery wagon or other vehicle or in any exposed place in the city of Covington, Kentucky.

"Section 5. This ordinance shall take effect and be in force from and after May 1st, 1912."

Plaintiff, Henry Kollman, a dairyman engaged in the business of selling milk by retail in the city of Covington, refused to comply with the regulation of the board of health in regard to bottling his milk, and for this reason was refused a permit to sell milk in the city of Covington. Alleging that the regulation of the board of health with reference to the bottling of milk was invalid plaintiff brought this action to enjoin the board of health and its health officer from prosecuting him for selling milk without a permit, and to compel the board of health to issue him a permit.

The case being submitted on the pleadings, exhibits and agreed facts, plaintiff was granted the relief prayed for, and from the judgment so entered the board of health and J. M. O'Maley, its health officer, appeal.

It is the contention of plaintiff that the powers conferred on local boards of health do not authorize them to adopt a regulation of the character of the one in question, and that being true the board of health of the city of Covington, which was a mere administrative agent of the city, to look after the enforcement of the ordinance enacted by the general council, has no power to enact rules and regulations in addition to and inconsistent with the provisions of the ordinance under which it acts. In this connection it is pointed out that the ordinance in question is very comprehensive. It deals with every phase of the...