Crank v. Mclaughlin

Decision Date24 November 1942
Docket NumberC. C. No 656.
CourtWest Virginia Supreme Court
PartiesCRANK et al. v. McLAUGHLIN, Commissioner of Agriculture.

23 S.E.2d 56

CRANK et al.
v.
McLAUGHLIN, Commissioner
of Agriculture.

C. C. No 656.

Supreme Court of Appeals of West Virginia.

Nov. 24, 1942.


[23 S.E.2d 57]
Syllabus by the Court.

Under our "Uniform Declaratory Judgments Act", Chapter 26, Acts of the Legislature, 1941, courts may enter judgments or decrees declaratory of the law, in cases of actual and existing controversies, such as might be the basis of litigation through the ordinary or extraordinary processes of law or equity, and not otherwise.

Certified from Circuit Court, Kanawha County.

Proceeding under the Declaratory Judgments Act by Basil Crank and others for a decree declaring illegal and void the action of J. B. McLaughlin, Commissioner of Agriculture, in abrogating and annulling certain ordinances of the City of Charleston, which intervened as a party defendant. A demurrer to the petition was overruled by the Circuit Court, and it certified the case to the Supreme Court of Appeals.

Order overruling demurrer reversed, and proceeding dismissed.

Ritchie, Hill & Thomas and Townsend & Townsend, all of Charleston, for plaintiff.

William S. Wysong, Atty. Gen., and Julius Cohen, Sp. Asst. Atty. Gen., for defendant.

FOX, President.

In this proceeding, under the Uniform Declaratory Judgments Act, the petitioners seek a decree declaring illegal and void the action of J. B. McLaughlin, as Commissioner of Agriculture of the State of West Virginia, in abrogating and annulling certain ordinances of the City of Charleston, with respect to the sale of milk and cream within said city.

On the 4th day of January, 1928, the Standard Milk Ordinance of the United States Public Health Service, as modified, was adopted by the council of the City of Charleston. Sections three and eleven of the said ordinance, as appears from the brief of the defendant, contained the following provisions: Section three makes it "unlawful for any person, firm, association, or corporation to bring into or receive into the City of Charleston, for sale, or to sell, or offer for sale therein, or to have on hand any milk or milk product * * * who does not possess an unrevoked permit from the health officer of the City of Charleston * * *." And section eleven prescribes that "no milk or cream shall be sold in the City of Charleston that has been pasteurized outside of the County of Kanawha, except as may be authorized by the health officer." These ordinances remained in force and effect, unquestioned, until the 10th day of November, 1941, when J. B. McLaughlin, as Commissioner of Agriculture, assuming to act under sections 1, 2 and 10, article 2, chapter 19 of the Code, as last amended by Chapter 3, Acts of the Legislature of 1939, promulgated the following regulation:

"Under and by virtue of the authority conferred upon me by law, and particularly that contained in Sections 1, 2 and 10 of Article 2, Chapter 19 of the Code of West Virginia, as last amended, I, J. B. McLaughlin, Commissioner of Agriculture of the State of West Virginia, do hereby find:

"1. That the Standard Milk Ordinance of the City of Charleston, West Virginia, with respect to certain provisions thereof hereinafter mentioned, unduly restricts the

[23 S.E.2d 58]

flow of an adequate supply of wholesome milk at fair and reasonable prices to the Charleston area, by unreasonably restricting fair competition in said area, and in effect creating a condition in said area, which is wholly detrimental to the interests of the consuming and producing public, as well as legitimate competitors not now established in said market;

"2. That said provisions of said ordinance hereinafter mentioned operate only incidentally as a safeguard for the health of the consuming public, by reason of the fact that adequate State and Federal laws, rules and regulations insure to the consuming public in the Charleston area an ample supply of wholesome milk without the benefit of the provisions of the said Milk Ordinance of the City...

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