Crank v. McLaughlin

• Decision Date: 24 November 1942
• Docket Number: C. C. No 656.
• Parties: CRANK et al. v. McLAUGHLIN, Commissioner of Agriculture.
• Court: West Virginia Supreme Court

23 S.E.2d 56

125 W.Va. 126

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

C. C. No 656.

Supreme Court of Appeals of West Virginia.

November 24, 1942

Ritchie, Hill & Thomas and Townsend &amp 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 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 of Charleston, hereinafter referred to, inasmuch as the Standard Milk Ordinance adopted by the Federal Government, as well as by the State Government, amply protects the consuming public in this regard;

"3. That it is necessary, in order to provide the consuming public in the Charleston area with a uniform grade and quality of milk and milk products at a fair and reasonable price, that said Milk Ordinance of the City of Charleston, in the respects hereinafter specifically mentioned, be abrogated and be declared to be null and void and of no effect whatsoever, they being in direct contravention to the established policy of the State, and in conflict with the statutes of the State in relation thereto.

"Wherefore, I, the said J. B. McLaughlin, Commissioner of Agriculture as aforesaid, do hereby establish and promulgate the following regulations:

"That sections 3 and 11 of the Standard Milk Ordinance, as modified and adopted by the Common Council of the City of Charleston, West Virginia, and now in force and effect, be and the same are hereby abrogated, modified, and are declared to be null and void and of no force and effect whatsoever, to the following extent:

"(1) Sec. 3. Any milk or milk products mentioned in this section with respect to which the Commissioner of Agriculture is advised as having been approved by the proper authorities of the State of West Virginia, shall be eligible to be brought into and received into the said City of Charleston, for sale or for offer of sale, to the same extent as if an unrevoked permit were issued by the Health Officer of said City of Charleston.

"(2) Sec. 11. The provisions of this section are abrogated and declared null and void and of no effect in their entirety.

"Given under my hand, and promulgated at the State Capitol at Charleston, West Virginia, this the 10th day of November, 1941."

It will be observed that under this regulation, the only requirements as to the sale of milk and cream in the City of Charleston is that the products be approved by the proper authorities of the state, and, if so approved, no permit is required of the city; and further, that the provision of the city ordinance requiring all milk and cream sold in the city to have been pasteurized in Kanawha County is abrogated and declared null and void.

The petitioners, who are engaged in the business of producing and selling milk in the City of Charleston, filed their petition in the Circuit Court of Kanawha County asking that the action of the said commissioner be declared illegal and void. They aver that they have expended large sums of money in equipping their dairies and placing themselves in a position to comply with the ordinances of the City of Charleston, and that they are prejudiced by the action of the commissioner. The manner of their prejudice is not clearly explained, the principal point being that they might, if they sell milk in Charleston without having complied with the city ordinance, subject themselves to the danger of fines and penalties, which might be imposed by the proper authorities of the city. It is quite apparent that the real ground upon which their claims of prejudice rest is that, having accustomed themselves to having their milk and cream pasteurized in Kanawha County, to open up that market to persons engaged in the same business, and whose milk is pasteurized in other sections of the state, would be to deprive them of some commercial advantages which they now possess.

The defendant Commissioner of Agriculture appeared and demurred to the petition of the plaintiffs on the following grounds (1) that the named defendant was not a proper or necessary party defendant, and that those who are proper parties to a controversy of this nature have not been named as such; (2) that the petition, on its face, shows lack of the presence of a justiciable controversy essential to establish jurisdiction under the Declaratory Judgments Act, Chapter 26, Acts of 1941, for the reason that there is no adverse interests between the plaintiffs and the defendant, and that no rights, status or legal relationship, which could be made the basis of any relief, was created by the ordinance of the city; (3) that the sections of the municipal ordinance relied upon by the plaintiffs as having...