City of Flagstaff v. Associated Dairy Products Co.

• Decision Date: 30 March 1953
• Docket Number: No. 5656,5656
• Citation: 75 Ariz. 254,255 P.2d 191
• Parties: CITY OF FLAGSTAFF et al. v. ASSOCIATED DAIRY PRODUCTS CO. et al.
• Court: Arizona Supreme Court

Page 191

255 P.2d 191

75 Ariz. 254

CITY OF FLAGSTAFF et al. v. ASSOCIATED DAIRY PRODUCTS CO. et al.

No. 5656.

Supreme Court of Arizona.

March 30, 1953.

Orinn C. Compton, City Atty., Flagstaff, for appellants.

Snell & Wilmer, of Phoenix, for appellees.

PHELPS, Justice.

From a judgment of the superior court of Coconino County in favor of plaintiffs-appellees after granting their motion for summary judgment, defendants appeal.

The Associated Dairy Products Company, a corporation, Arizona Milk Producers Association, a corporation, and Lloyd Loftus, hereinafter referred to as plaintiffs, brought an action in the above court against the city of Flagstaff, a municipal corporation, the mayor and common council, and others, hereinafter referred to as defendants, seeking a declaratory judgment as to the validity of Resolution No. 273 adopted, and Ordinance No. 342 passed by the common council of the city of Flagstaff in 1946, purporting to establish rules and regulations as the 'Milk Code' of the city of Flagstaff, and providing penalties in said ondinance for the violation thereof.

The ordinance and resolution in question are sweeping in character and provide, among other things, for the inspection by the health officers of the city of Flagstaff of all dairy plants (wherever situated) from which milk or milk products were to be consumed within the city; that if such inspection of said milk plant or plants should result in a degrading of said farm or milk plant or plants that the distribution, sale and consumption of milk or milk products therefrom should be forbidden within the city.

The ordinance and resolution further purported to regulate the construction of dairy barns wherein cows were milked, to regulate the surrounding area including cow yards, milk houses and their construction, requiring that toilets be made available in the dairy barns, regulate the water supply thereto and provide for the method of taking care of milking utensils to be used in connection with the dairy, including the method of cleaning, storage and handling thereof; the manner of milking the cows and the preparation of cows for milking, regulating the clothing of milkers, milk stools to be used, etc. They completely regulate and govern production and handling of milk and milk products from the time it is taken from the cow until it reaches the consumer, despite the fact that the plants from which plaintiffs procure their milk are located in Maricopa and Pima Counties.

The action was originally instituted in 1950 as being in conflict with the provisions of article 9, chapter 50, A.C.A. 1939, sections 50-901 to 50-954 inclusive.

During the pendency of such action the Twentieth Legislature passed chapter 153, Session Laws of 1951, which constituted a new dairy code, repealing article 9, chapter 50, A.C.A.1939, in its entirety. Plaintiffs thereafter filed a supplemental complaint asking for a declaratory judgment concerning the validity of said resolution and ordinance when considered in connection with chapter 153, supra. Defendants did not answer but both defendants and plaintiffs filed motions for summary judgments in their behalf upon the ground that there were no genuine issues as to any material fact alleged in the supplemental complaint. The court denied defendants' motion and granted plaintiffs' motion for summary judgment and ordered judgment for plaintiffs entered thereon declaring the ordinance and resolution void.

Defendants assign two errors, (1) that the court erred in overruling defendants' motion for summary judgment, and (2) that the court erred in granting plaintiffs' motion therefor and entering judgment thereon.

The primary question for our consideration is whether the legislature in enacting chapter 153, Laws of 1951, regulating the production, processing, distribution and marketing of milk and milk products, appropriated the field pertaining to milk legislation to the exclusion of municipalities.

Starting with the premise (1) that municipalities have only such legislative powers as have been expressly, or by necessary implication, delegated to them by the legislature, and (2) that the powers so delegated will be strictly construed, Clayton v. State, 38 Ariz. 135, 297 P. 1037, we will examine the statutes to see what legislative powers have been delegated to cities and towns incorporated under the general laws of the state under which the city of Flagstaff was incorporated.

Defendants rely in part upon section 16-207, subd. 26, A.C.A.1939, providing that the common council shall have power:

'To do all other acts, and prescribe all other regulations, which may be necessary or expedient for the prevention or suppression of disease'. (Emphasis supplied.)

and section 16-601, subd. 7, A.C.A.1939, providing that:

'In addition to the powers already vested in cities by their respective charters and by the general laws, cities and their common councils shall have the following powers:

* * *

* * *

'7. To regulate the sale of meats, poultry, fish, butter, cheese, lard, fruit, vegetables and other provisions, and to provide for and regulate the inspection and the place and manner of selling the same, and for the inspection of hay, grain, flour, meal and other provisions;'

It will be observed that in neither section 16-207, subd. 26, nor section 16-601, subd. 7, supra, is there any express authority given to municipalities to pass such an ordinance as the one in question relating to the regulation of production, processing, distribution and marketing of milk and the regulation of dairy equipment. We find nothing in the record to make the enactment of the ordinance passed by the city council of Flagstaff attempting to exercise the broad powers therein enumerated regulating construction of dairy barns, etc., in the various counties of the state 'necessary or expedient for the prevention or suppression of disease'. Nor are we able to read into the above provisions an express delegation of power lelating to the public health from which the grant claimed by defendants can be implied. As we have stated in Associated Dairy Products Co. v. Page, 68 Ariz. 393, 206 P.2d 1041, 1043:

'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. * * *' See Skelly Oil Co. v. Pruitt & McCrory, 94 Okl. 232, 221 P. 709; City of Madison v. Daley, C.C., 58 F. 751, 755.

"An express authority is one given in direct terms, definitely and explicitly, and not left to inference or to implication, as distinguished from authority which is general, implied, or not directly stated or given.' Fergus v. Brady, 277 Ill. 272, 115 N.E. 393, 396 * * *.'

By the term 'express power' is meant:

'that authority which confers powers to do a particular thing set forth and declared exactly, plainly and directly with well defined limits. * * *' Associated Dairy Products Co. v. Page, supra.

It is contended by defendants that the cases of City of Phoenix v. Breuninger, 50 Ariz. 372, 72 P.2d 580; and Gardenhire v. State, 26 Ariz. 14, 221 P. 228, are authority for their position. We pointed out in Associated Dairy Products Co. v. Page, supra, that those cities were operating under a freehold charter which gave them express authority to pass such ordinances and that in the Breuninger case the legislature in...