City of Des Moines v. Fowler, 42317.

• Court: Iowa Supreme Court
• Writing for the Court: DONEGAN
• Citation: City of Des Moines v. Fowler, 218 Iowa 504, 255 N.W. 880 (Iowa 1934)
• Decision Date: 23 June 1934
• Docket Number: No. 42317.,42317.
• Parties: CITY OF DES MOINES v. FOWLER et al.

218 Iowa 504

255 N.W. 880

CITY OF DES MOINES

v.FOWLER et al.

No. 42317.

Supreme Court of Iowa.

June 23, 1934.

Appeal from District Court, Polk County; A. A. Herrick, Judge.

Under an information charging them with a violation of an ordinance of the city of Des Moines, the defendants were tried in the municipal court of said city and found guilty. Defendants appealed to the district court of Polk county, which reversed the judgment of the municipal court, found that the ordinance was void, and discharged the defendants. From the judgment of the district court, the city of Des Moines appeals.

Reversed.

F. T. Van Liew, City Sol., and H. W. Hanson, Sp. Counsel, both of Des Moines, for appellant.

Walter R. Dyer, of Boone, for appellees.

DONEGAN, Justice.

In January, 1933, an information was filed in the municipal court of the city of Des Moines, Iowa, charging the defendants with unlawfully violating section 3 of city milk ordinance No. 3982, by selling cream in the city of Des Moines without a permit. A plea of not guilty was filed by the defendants and upon trial in the municipal court the defendants were found guilty. From the judgment of the municipal court, the defendants appealed to the district court of Polk county, Iowa, and, after hearing, it was adjudged by the said district court that said section 3 of said ordinance is invalid, and that the conviction of the defendants by the municipal court of said city was without authority in law and is void. From this judgment, the city of Des Moines appealed to this court.

As stated in the opinion filed by the district judge, “The single question involved in this case is, has the city power by ordinance to require a permit from the City Health Department as a prerequisite to selling milk, etc., (including cream) in the City of Des Moines?” Section 3 of the ordinance in question is as follows:

“It shall be unlawful for any person to produce, bring into or receive into the City of Des Moines, or its police jurisdiction, for sale, or to sell, or offer for sale therein, or to have on hand, any milk or milk product defined in this ordinance, who does not secure a permit from the health department of the City of Des Moines. Such permit number shall appear in a conspicuous place on the dairy barn, milk truck, milk plant, milk wagon or store. Such permit may be revoked by the health officer for violation by the holder of any of the terms of this ordinance and/or in any emergency when in the judgment of the health officer the milk supply has become a public menace, provided that the holder of the said permit shall, after complying with such revocation, have the right of appeal to the board of health of the City of Des Moines for reinstatement. All permits shall expire as of July 1st of each year.”

In a memorandum opinion filed by the judge of the district court along with the judgment it is stated that this case is governed by the case of Bear v. City of Cedar Rapids, 147 Iowa, 341, 126 N. W. 324, 327, 27 L. R. A. (N. S.) 1150. In that case there was involved an ordinance requiring all persons selling milk or cream within the city to procure a license. The question upon which the decision in that case turned was, whether or not the city had power to enact such an ordinance. After referring to all the provisions of the statute of the state under which it might be claimed that such power had been given to the city, and finding that the power to license milk dealers had been by the statutes conferred upon the state dairy commissioner and had not been delegated to the city, this court said:

“* * * It is manifest that none of them give, either to the city or to the board of health, power to license milk dealers. That power seems to be conferred on the dairy commissioner. * * * The universal rule, not only for this state but everywhere, is that: ‘Municipal corporations can exercise such powers only as are expressly granted, and such implied ones as are necessary to make available the powers expressly conferred and essential to effectuate the purposes of the corporation, and these powers are strictly construed.’ * * *

Even if the city has power to punish by fine or to regulate the milk business, this would not authorize it to exact a license. City [of Burlington] v. Bumgardner , supra. No implied power exists, for the reason that the state itself has attempted to regulate the matter, and has provided for licensing the business.”

Appellant admits that at the time the Bear Case was decided no statute of this state had delegated to cities the power attempted to be exercised by the ordinance involved in that case, but contends that since the decision in the Bear Case, legislation has been enacted conferring upon cities the power which the city of Des Moines is attempting to exercise in this case. Such legislation is contained in section 5747, Code 1931, which is as follows:

“5747. * * * Cities and towns, in addition to powers already granted, shall have within their corporate limits the power by ordinance to:

1. Provide for the inspection of milk, skimmed milk, buttermilk, and cream, for domestic or potable use.

2. Establish and enforce sanitary requirements for the production, handling, and distribution of milk, skimmed milk, buttermilk, and cream for domestic or potable use.

3. Compel the tuberculin test by an accredited veterinarian for dairy cattle supplying milk for human consumption.

4. Provide for the pasteurization of milk, skimmed milk, and cream. * * *”

[1][2] It is not claimed by appellant that the statute gives to the city the express power to prohibit the sale of milk by those not having permits issued as provided in the ordinance, but it is contended that the issuance of such permits is a necessary incident to the exercise of the powers conferred in subdivision 2 of the statute. As stated in Bear v. City of Cedar Rapids, supra, loc. cit. 349 of 147 Iowa. 126 N. W. 324, 328:

“The universal rule, not only for this state but everywhere, is that: ‘Municipal corporations can exercise such powers only as are expressly granted, and such implied ones as are necessary to make available the powers expressly conferred and essential to effectuate the purposes of the corporation, and these powers are strictly construed.’ Or, as stated in other cases, cities of this state have these powers: First, those granted by the Legislature in express words; second, those necessarily or fairly implied or incident to the powers expressly conferred; and, third, those essential to the declared objects and purposes of the corporation-not simply convenient, but indispensable.”

Many cases are cited by both parties to this appeal, but a great many of such cases are of very little assistance in determining the question now before us. The appellees place much reliance upon the decision in the Bear Case, supra. In City of Des Moines v. Manhattan Oil Co., 193 Iowa, 1096, 184 N. W. 823, 831, 188 N. W. 921, 23 A. L. R. 1322, we had before us the constitutionality of a statute authorizing cities to establish restricted residence districts, and also the validity of the ordinance purported to have been enacted pursuant to authority delegated by such statute. In holding the ordinance valid we said:

“It (the ordinance) does not prohibit the erection within the restricted district of business buildings, shops, factories, gasoline stations, or any other class of buildings. It does provide, however, that the described area shall constitute a residence district, and that no buildings shall thereafter by erected therein except residences, schoolhouses, churches, and similar structures, without first procuring from the city council a permit therefor. In other words, the provision so made is a regulation and not a prohibition. That the regulation is, to this extent, a legitimate and reasonable exercise of the city's police power is supported by a practically unbroken array of authority.”

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