Com. ex rel. Allegheny County v. Shenot

Decision Date24 March 1966
Citation218 A.2d 76,207 Pa.Super. 351
PartiesCOMMONWEALTH of Pennsylvania ex rel. COUNTY OF ALLEGHENY v. J. W. SHENOT.
CourtPennsylvania Superior Court

Leonard A. Mazer, Pittsburgh, for appellant.

Maurice Louik, County Solicitor, Francis A. Barry, First Asst. County Solicitor, James Victor Voss, Asst. County Solicitor, Pittburgh, for appellee.

Before ERVIN, P.J., and WRIGHT, WATKINS, MONTGOMERY, JACOBS and HOFFMAN, JJ.

JACOBS, Judge.

On May 4, 1964, an employee of the Milk Division of the Allegheny County Health Department purchased one gallon of unpasteurized milk from appellant at his farm in Wexford, Allegheny County. The employee supplied his own container and paid sixty-four cents for the gallon. Appellant had been operating the farm for 46 years, selling from 50 to 200 gallons of unpasteurized milk a week to consumers who supplied their own containers. On August 5, 1964 an alderman found appellant guilty of violating two of the Rules and Regulations of the Allegheny County Health Department by (1) offering milk for sale for direct human consumption in Allegheny County without a county permit and (2) offering unpasteurized milk for sale for direct human consumption in Allegheny County. He was fined $100 for each violation and ordered to pay the costs of prosecution. An appeal was taken to the County Court of Allegheny County.

On February 10, 1965 after a hearing before Judge McCARTHY, appellant was found guilty of both counts and his fine was reduced to $50 on each count.

In this appeal appellant challenges the constitutionality of the following two regulations for violations of which he was convicted:

'504. PERMITS

A. Issuance. Only persons who comply with the requirements of these Rules and Regulations of the Health Department of Allegheny County and the laws of the Commonwealth of Pennsylvania, pertaining to the sanitation of milk and milk products shall be entitled to receive and retain a permit. It shall be unlawful for any operator of a milk plant, milk distributor, milk hauler or any other person who does not possess a permit from the Director, to bring into, send into, or receive in the County of Allegheny, or to sell therein, any milk or milk products * * * 505. ONLY PASTEURIZED MILK OR MILK PRODUCTS MAY BE SOLD FOR HUMAN CONSUMPTION. It is unlawful for any person to sell milk or milk products in the County of Allegheny unless pasteurized in accordance with these Rules and Regulations, except that milk for pasteurization may be sold to milk plants.'

I.

In considering the subject of milk regulation and sanitation, we must begin with the state legislature's declaration that 'the production, transportation, manufacture, processing, storage, distribution, and sale of milk in the Commonwealth is a business affecting the public health and affected with a public interest * * *.' Act of April 28, 1937, P.L. 417, art. I, § 101, 31 P.S. § 700j--101. In the exercise of its police power, the legislature has enacted the Milk Control Law, Act of April 28, 1937, P.L. 417, as amended, 31 P.S. §§ 700j--101 to 700j--1302, setting up the independent administrative Milk Control Commission and providing a scheme of regulations for the licensing and bonding of milk dealers and for the weighing, testing and pricing of milk. It has also enacted numerous statutory provisions, commonly referred to as the Milk Sanitation Law, dealing with the inspection of dairy farms, the issuance of permits, the handling of raw milk, pasteurization, sanitation, distribution, etc., and charging the Department of Agriculture with enforcement. See 31 P.S. §§ 511--683. The legislature, however, has not prohibited local governing bodies from promulgating local milk sanitation regulations which are at least as strict as the state regulations. The Act of July 2, 1935, P.L. 589, as amended by Section 6 of the Act of October 13, 1959, P.L. 1301, 31 P.S. § 660 b provides:

'The provisions of this act, and the regulations made thereunder, shall not be taken nor deemed to repeal existing municipal ordinances, nor to prevent municipalities or counties which have established or joined in establishing county departments of health from enacting and enforcing new ordinances or regulations for the further protection of the public health: Provided, That this act shall be considered as establishing uniform requirements and regulations, and that nothing herein contained shall be deemed to prevent municipalities or counties which have established or joined in establishing county departments of health from ordaining and enforcing such additional requirements in excess of the requirements and regulations hereunder as may be deemed necessary, from time to time for the preservation of public health, and to require applications from, and to issue permits to, such persons as may be defined by local ordinances or regulations.'

Thus the Allegheny County Health Department, created on January 1, 1957, under the authority of the Act of August 24, 1951, P.L. 1034, 16 P.S. § 12001 et seq., known as the Local Health Administration Law, was not without power to enact Article V of its Rules and Regulations, which contain 22 sections regulating milk and milk products.

We would have little trouble with this case if all that the county health department did was to prescribe equally stringent or more stringent sanitation requirements for the issuance of permits for the sale of milk, Section 6, as above quoted, as well as Philadelphia Department of Licenses and Inspection v. Weber, 394 Pa. 466, 147 A.2d 326 (1959); Western Pennsylvania Restaurant Association v. City of Pittsburgh, 366 Pa. 374, 77 A.2d 616 (1951); and Retail Master Bakers Association v. Allegheny County, 400 Pa. 1, 161 A.2d 36 (1960), all sanction such additional regulation. But in this case we are faced with an attempt by a local governing body to prohibit entirely the sale of unpasteurized or raw milk in Allegheny County and are presented with two prior Allegheny County decisions sustaining such attempts. See Allegheny County v. Brunner, 28 Dist. & Co.R.2d 32 (1961) and Dairymen's Association v. Pittsburgh, 91 Pitt.L.J. 169 (1943). These two decisions reasoned that since the state statute did not treat exclusively on the subject of pasteurization, local governing bodies could prescribe, to insure the health of the public, a requirement 'in excess of the requirements and regulations' under the state statute, viz., that all milk sold within their limits be pasteurized.

We have scrutinized these decisions and must reject their reasoning. Section 505 does not merely prescribe a requirement 'in excess' of the state's requirements and regulations of pasteurized milk; nor does it prescribe a requirement 'in excess' of the state's requirements and regulations of unpasteurized or raw milk. It dictates that All milk for human consumption must be pasteurized and legislates out of Allegheny County any other milk. The assumption underlying this prohibition, viz., that unpasteurized milk is not and cannot be made safe enough for human consumption, has been rejected by the state legislature which has designated four categories of milk, 'Certified Milk', 'Raw Milk', 'Milk for Pasteurization' and 'Pasteurized Milk', Act of October 13, 1959, P.L. 1301 § 4, as amended, 31 P.S. § 651, and has enacted a section on 'Raw Milk', setting forth fairly detailed sanitation regulations governing the productions and handling of this type of milk, regulations which were toughened in 1959 and 1961. 1 This legislative action, particularly the 1959 and 1961 amendments making more strict the standards for the producing and handling of raw milk, indicates a legislative judgment that not only pasteurized but also raw milk can be safely sold to the people of Pennsylvania provided certain requirements are met. If even the most recent state requirements are not strict enough to satisfy a local governing body's concern for the health and well-being of its citizens, the proper solution is to make the sanitation requirements more strict, not ban the product entirely. The record is devoid of any justification whatsoever for such a ban, which is inconsistent with the state legislation regulating raw milk and thus cannot be sustained. Western Pennsylvania Restaurant Association v. Pittsburgh, supra.

Chief Justice STERN, writing for a unanimous court in Otto Milk Company v. Rose, 375 Pa. 18, 21--22, 99 A.2d 467, 469 (1953), shed light on the subject of milk regulation with these words:

'This case raises a grave constitutional question. It is self-evident that the right of property includes not only that of owning and possessing it, but also of selling and transferring it to others. No one would contend that any State or municipality would have the constitutional right to deny to a merchant the right to sell, within its jurisdiction, any ordinary items of personal property, wares or merchandise not requiring supervisions under the police power. The only limitation to that right as far as milk or other articles of food are concerned is that regulations to insure the purity and wholesomeness of the product may be adopted as a condition to the granting of permission for its sale or distribution. Indeed there can be no question but that, under the provision of section 18 of the Act of July 2, 1935, P.L. 589, 31 P.S. § 660 b, the City of Johnstown is authorized to enact such regulations, even though they may be additional to, and more...

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2 cases
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    • February 20, 1967
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