City of Milwaukee v. Childs Co.
| Decision Date | 07 February 1928 |
| Citation | 195 Wis. 148,217 N.W. 703 |
| Parties | CITY OF MILWAUKEE v. CHILDS CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Municipal Court of Milwaukee County; George A. Shaughnessy, Judge. Affirmed.
The defendant, Childs Company, was prosecuted for violating an ordinance of the City of Milwaukee, relating to the sale of milk. From a judgment of conviction, it brings this appeal.Edgar L. Wood and John C. Warner, both of Milwaukee, for appellant.
John M. Niven, City Atty., and Andrew W. Brunhart, Asst. City Atty., both of Milwaukee, for respondent.
Section 789.1 of the ordinances of the city of Milwaukee provides:
“It shall be unlawful for any person, within the limits of the city of Milwaukee, to sell milk in any way whatsoever for consumption on the premises where sold, excepting in original containers well capped or sealed, served intact in such container or opened in the presence of the person served, and containing only the quantity of milk intended for use of the person served, and all milk so served shall, in every instance, be bottled either at a dairy or milk plant.”
The defendant operates a restaurant in the city of Milwaukee. He was convicted of serving milk to a patron of said restaurant in violation of the terms of this ordinance. He contends that the ordinance is void for the following reasons: (1) The state has delegated the control of restaurants to the state board of health, and its power is exclusive; (2) the state cannot delegate, and has not delegated, the power to control restaurants to the city of Milwaukee; (3) the ordinance was not adopted as a charter ordinance, and hence chapter 160 of the Wisconsin Statutes remains in full force, and superior to this ordinance; (4) even assuming that the city has the power to adopt this ordinance, it is unreasonably exercised in this ordinance, which is so vague, arbitrary, and unreasonable as to be unenforceable; (5) the ordinance was not violated as a matter of fact; and (6) the regulation violates appellant's constitutional guaranties, and hence cannot be a valid enactment of either the state or the city.
[1] The charter of the city of Milwaukee confers upon the common council of that city abundant power to pass reasonable ordinances relating to the sale of milk. Such power is to be found in section 3 of chapter 4 of the city charter. For instance, subdivision 9 confers upon the common council power “to regulate butchers, and to regulate and restrain the sale of game, poultry, fresh meat, vegetables, fish, butter, fruit, eggs, milk and other provisions in the city”; by subdivision 23 of that section the common council is authorized “to do all acts and make all regulations which may be necessary and expedient for the preservation of health and the suppression of disease”; and by subdivision 40, “to tax, license, regulate and restrain hawkers, peddlers and vendors of milk.”
[2] The ordinance, if reasonable, is well within the power of the city to enact. Properly construed, the ordinance is a reasonable regulation. The language of the ordinance would authorize a very sweeping construction,--a construction which would make it impossible to serve any article of food of which milk was the dominant element, such as milk toast, an oyster stew, or milk to be used in tea or coffee, or upon pudding or fruits or breakfast foods. To give the ordinance such a construction would make the reasonableness thereof very doubtful, and we are disposed to construe it as prohibiting merely the sale of milk for beverage purposes except as therein prescribed. As so construed, the regulation is not unreasonable.
[3][4][5] It is a matter of common knowledge that milk is a prolific source of disease and that it is easily contaminated. Every regulation relating to the handling of...
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...As a general rule, additional regulation to that of a state law does not constitute a conflict therewith.” See, also, Milwaukee v. Childs Co., 195 Wis. 148, 217 N.W. 703. This brings us to consideration of the provision of the ordinance fixing open shop hours. The question of municipal powe......
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...Similarly, in Johnston v. Sheboygan (1966), 30 Wis.2d 179, 184, 140 N.W.2d 247, 250 this court, quoting Milwaukee v. Childs Co. (1928), 195 Wis. 148, 151, 217 N.W. 703, stated: ". . . municipalities may enact ordinances in the same field and on the same subject covered by state legislation ......
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Wis. Carry, Inc. v. City of Madison, 2015AP146
...subject covered by state legislation where such ordinances do not conflict with ... the state legislation." City of Milwaukee v. Childs Co. , 195 Wis. 148, 151, 217 N.W. 703 (1928). We have developed a disjunctive list of considerations that assists us in determining whether a local legisla......
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