City of Phoenix v. Breuninger

• Decision Date: 18 October 1937
• Docket Number: Civil 3869
• Citation: 50 Ariz. 372,72 P.2d 580
• Parties: CITY OF PHOENIX, a Municipal Corporation of the State of Arizona; R. W. HUSSONG, Health Officer of the City of Phoenix; M. B. MORRISON, Chief of Police of the City of Phoenix; and I. A. JENNINGS, City Attorney of the City of Phoenix, Appellants, v. Mrs. C. W. BREUNINGER and W. A. BARRY, Appellees
• Court: Arizona Supreme Court

72 P.2d 580

50 Ariz. 372

CITY OF PHOENIX, a Municipal Corporation of the State of Arizona; R. W. HUSSONG, Health Officer of the City of Phoenix; M. B. MORRISON, Chief of Police of the City of Phoenix; and I. A. JENNINGS, City Attorney of the City of Phoenix, Appellants, v. Mrs. C. W. BREUNINGER and W. A. BARRY, Appellees

Civil No. 3869

Supreme Court of Arizona

October 18, 1937

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment reversed and cause remanded with instructions.

Mr. I A. Jennings, City Attorney, and Mr. Hess Seaman, his Assistant, for Appellants.

Mr John C. Lee, for Appellees.

OPINION

LOCKWOOD, J.

On the 4th day of August, 1936, the City of Phoenix adopted Ordinance No. 2375, being one regulating the sale of milk and milk products within the City of Phoenix. Said ordinance contained among other things, section 8, which reads:

"Grades of Milk and Milk Products Which May be Sole. From and after the date on which this ordinance takes effect no milk or milk products shall be sold or disposed of to the final consumer or to a restaurant, soda fountain, grocery store, or similar establishment, except grade A pasteurized milk and/or certified milk that has been pasteurized or milk products that result in the process of manufacturing milk products."

It will be seen from the section that it, in effect, prohibits the distribution of any except pasteurized milk within the City of Phoenix.

W. A. Barry, who is a dairyman duly licensed by the state of Arizona to produce and distribute raw milk under the provisions of chapter 82, Session Laws of 1931, and Mrs. C. W. Breuninger, who is a citizen of Phoenix residing at 327 Laurel Avenue within said city, brought suit against the city and its health officer, chief of police and city attorney, claiming that the ordinance in question, and particularly section 8 thereof, was unconstitutional under the Fourteenth Amendment of the Constitution of the United States, and article 2, section 4 and 13, of the Constitution of the State of Arizona, and chapter 82, Session Laws of 1931. The prayer was that the defendants be enjoined from enforcing said ordinance; that the court declare it unconstitutional, invalid, and void; and that a declaratory judgment be entered declaring the right to the plaintiffs and those similarly situated.

The defendants appeared, demurring on the ground that neither of the plaintiffs had legal capacity to sue; that there was a defect of parties plaintiff; and that the amended complaint did not state facts to constitute a cause of action. The court overruled the demurrer, and, defendants having stated that they elected to stand upon the demurrer, the court rendered judgment that Ordinance No. 2375 was void and of no effect, and that the defendants be enjoined from enforcing it, whereupon this appeal was taken.

There are two questions raised by the demurrer, the first being the procedural one of whether plaintiffs had the right to maintain an action of this nature, and the second the substantive one of whether the City of Phoenix had the constitutional right to adopt the ordinance, and particularly section 8 thereof.

Defendants have stated that, while they believe the judgment should be set aside upon the procedural question, both they are plaintiffs are desirous of obtaining a judicial determination of the validity of the ordinance, and particularly section 8 thereof, and would prefer a decision upon the merits.

We are of the opinion, after examining the entire record and considering it, that our decision can and should be based on the merits and, therefore, we do not consider nor discuss the procedural question involved, as it is unnecessary.

The contention of plaintiffs in regard to the invalidity of the ordinance is twofold: (a) That by chapter 82, Session Laws of 1931, the legislature had preempted and exclusively appropriated the field of milk legislation so as to prohibit even the home rule cities, such as Phoenix, from legislating further upon that subject; and (b) that, even if such were not the case, the ordinance was unconstitutional as in violation of Amendment 14 of the federal Constitution, and sections 4 and 13 of article 2 of the Constitution of Arizona. We consider the first contention. On examining the chapter above referred to, we find it to be entitled:

"An Act relating to dairies and dairy products, and creating the office of dairy commissioner," and that it is a very complete code relating to the distribution and sale of dairy products within the state of Arizona. Under it no person may distribute dairy products without a license to do so, and the standard to which such products must conform is set forth in the chapter. We find, however, that there are three places in the chapter which clearly recognize that some, at least, of the municipalities of the state had already attempted to legislate upon the same subject, and impliedly, if not expressly, approving of such legislation and permitting it to continue in effect, notwithstanding the provisions of the chapter.These three provisions are subdivision (f) of section 1, sections 5 and 14 of the act, which read, in part, as follows:

"Section 1. Definition of Terms.... (f) the United States public health service standard milk ordinance herein referred to shall mean that particular United States public health service standard milk ordinance as passed and adopted by the commission of the city of Phoenix, the twenty-fifth day of April, 1928, and designated as ordinance No. 1087."

"Section 5. Producer's Permit. No person shall produce market milk without permit to do so. Any person holding a permit from any municipality operating under the standard milk ordinance of the U.S. bureau of public health shall be deemed as having sufficient permit for the requirements of this act."

"Section 14. Designating Market Milk by Grade.... In all cases where the requirements of such standard ordinance shall exceed or equal those of the state dairy law such ordinance requirements shall be in effect within the jurisdiction of such communities as shall be operating under such ordinance. In all cases where the requirements of such state law shall exceed those of such standard ordinance such state law shall be in effect."

It is clear from reading these sections that the legislature recognized the existence of a certain milk ordinance of the City of Phoenix; and that the city was issuing permits under said ordinance, and expressly approved thereof. Section 14 particularly implies that a municipality might desire to impose more rigid terms on the distribution of milk than those imposed by the state, and that, if it did so, the provisions of the ordinance, rather than the state law, would govern, but, if the city established a milk code less exacting in its terms than that of chapter 82, supra, the latter takes precedence. In other words, the legislature said to the city, in effect, "you may do more than the state in regard to regulating the distribution of milk products, but you may not do less."

Section 2 of Chapter 4, subdivision 23, of the Charter of the City of Phoenix, confers the following powers on the city:

"To provide for and regulate the inspection of meats, poultry, fish, game, butter, cheese, lard, eggs, vegetables, breadstuffs, milk and other food products offered for sale in the city; to provide for the taking and summarily destroying of such products as are unsound, spoiled, adulterated or unwholesome; to regulate and prevent the bringing into the city or having or keeping within the city of any such spoiled, unsound, adulterated or unwholesome products."

We think this is a definite and specific grant to the city of the right to regulate the sale of milk within the city, and to prevent bringing into it any spoiled, unsound, adulterated, or unwholesome milk.

This court, in the case of Clayton v. State, 38 Ariz. 135, 297 P. 1037; Id., 38 Ariz. 466, 300 P. 1010, had before it the question of to what extent the municipalities of this state could legislate upon a subject which had been covered by the legislature. Therein we said:

"Where the subject is one of local interest or concern, or where though not of local concern the charter or legislation confers on the city express power to legislate thereon, both jurisdictions may legislate on the same subject. Where, however, the subject is of statewide concern, and the Legislature has appropriated the filed and declared the rule, its declaration is binding throughout the state." (Italics ours.)

We have reaffirmed this principle in American-La France & Foamite Corp. v. Phoenix, 47 Ariz. 133, 54 P.2d 258, Northeast Rapid Transit Co. v. Phoenix, 41 Ariz. 71, 15 P.2d 951, and State v. Jaastad, 43 Ariz. 458, 32 P.2d 799.

Since the City of Phoenix had the express charter power to regulate the sale of milk within the city, we think, under the authority of the cases above cited, it had concurrent power with the state to legislate upon the subject, provided, always, of course, that such legi...