City of New Orleans v. Charouleau

• Decision Date: 22 June 1908
• Docket Number: 16,967
• Citation: 46 So. 911,121 La. 890
• Court: Louisiana Supreme Court
• Parties: CITY OF NEW ORLEANS v. CHAROULEAU

46 So. 911

121 La. 890

CITY OF NEW ORLEANS v. CHAROULEAU

No. 16,967

Supreme Court of Louisiana

June 22, 1908

Rehearing Denied June 30, 1908.

Appeal from Fifth Recorder's Court, City of New Orleans; Fred. Deibel, Recorder.

N Charouleau was convicted of violating a city ordinance, and appeals. Affirmed.

Henriques & Dunn, for appellant.

William Lee Hughes, for appellee board of health of city of New Orleans.

PROVOSTY J. BREAUX, C. J., concurs.

OPINION

PROVOSTY J.

Ordinance No. 16,204 (C. S.) § 14, provides as follows:

"No cow shall be used in any dairy or dairy farm unless the same shall have undergone the tuberculin test or which is known to be suffering from tuberculosis, splenic fever, anthrax, or any local or general disease which is liable to render the milk from said cows unwholesome, and every person keeping a milch cow for dairy purposes shall permit it to be examined, without cost to the owner, from time to time, as to its freedom from disease, by a veterinarian designated by the health authority, nor shall any cow be brought into and sold within the city of New Orleans for dairy purposes, and no milk therefrom sold unless said cow shall have passed the required inspection by the local health authority and subjected to the tuberculin test. Nothing in this section contained shall be construed as preventing the sale of any milch cow brought to the city for sale, but no milk from such cow shall be sold until said cow shall have passed the required inspection.

"All cows found on examination by the veterinarian designated by the health authority, to be free from disease, shall be tagged and registered with said health authority, and it shall be unlawful to remove said tag or put it on any other cow, nor shall any cow so tagged be removed from any dairy or dairy farm unless the dairyman or owner notify the health authority of said removal and designation, where it shall be again registered and held subject to the regulations herein provided. All cows found to be suffering from disease liable to render the milk from said cow unwholesome shall be at once removed from the herd and isolated, and shall not be again used for milch purposes until cured, or if said disease be incurable or tuberculosis, shall be at once taken to the slaughtering pens and there slaughtered and its carcass destroyed under the supervision of the health authority."

Defendant refused to permit the veterinarian of the board of health to administer the tuberculin test for tuberculosis to one of his cows for ascertaining whether it was affected with the disease, and was prosecuted and convicted under this ordinance, and has appealed.

His first contention is that the said ordinance is null, because the city council had no authority to pass it. The provision of the city charter under which the ordinance was passed reads as follows:

"The council shall have the power * * * to maintain its [the city's] cleanliness and health, and to this end * * *

"(c) To regulate the location of, and inspection and cleansing of, dairies, stables, cattle-yards, landings and pens, slaughter houses, soap, glue, tallow and leather factories, depositories for hides, and all places of business likely to be or become detrimental to health, and to adopt such ordinances and regulations as shall be necessary or expedient for the protection of health and to prevent the spread of disease, and to maintain a good sanitary condition in the streets, public places and buildings, and on all private premises. The common council shall provide for the frequent inspection of all premises by persons to be designated, either by the common council or by the board of health in the city. They shall also prescribe what water supply shall be provided by the owners of private premises, and that all premises, yards, streets and alleys shall be kept in a cleanly condition; shall provide for the punishment of any violation of such ordinances or regulation, by fine or imprisonment, or both; and all such fines, when recovered, shall be paid over to the board of health to assist in its maintenance.

"(e) To prevent the sale of adulterated...