Dorssom v. City of Atchison
| Decision Date | 11 April 1942 |
| Docket Number | 35387. |
| Citation | 155 Kan. 225,124 P.2d 475 |
| Parties | DORSSOM et al. v. CITY OF ATCHISON et al. |
| Court | Kansas Supreme Court |
Rehearing Denied May 18, 1942.
Syllabus by the Court.
A permit or license fee imposed by city ordinance on producers of milk to meet expenses of regulation is not an "occupation tax" within statute prohibiting cities from imposing occupation taxes upon producers and growers of farm products. Gen.St.1935, 12-1617.
A city of first class to secure general health of inhabitants may enact ordinances not repugnant to statutes regarding production, handling and sale of milk for human consumption. Gen.St.1935, 13-401, 13-415, 13-436; 65-701 to 65-718, as amended Gen.St. Supp.1941, 65-707.
The statute prohibiting cities from imposing license or occupation taxes upon producers and growers of farm products was not intended to prevent enforcement of health regulations. Gen.St.1935, 12-1617.
A permit or license fee imposed by city ordinance upon producers of milk to defray expenses of regulation is not a "license tax" within statute prohibiting cities from imposing license taxes upon producers and growers of farm products. Gen.St.1935, 12-1617.
A city may require owner of dairy herd selling milk within city to have cows tuberculin tested, and compliance with such regulation at owner's expense is a "condition precedent" to sole of milk. St.1935, 47-633.
A city ordinance requiring tuberculin testing of cows to be made by licensed veterinarian approved by livestock sanitary commission is not invalid as a delegation of "delegated power". Gen.St.1935, 13-401 et seq., 47-633.
1. The governing body of a city of the first class, in order to prevent the introduction and spread of contagious diseases into the city and to secure the general health of its inhabitants, has power to enact ordinances, not repugnant to the laws of the state, regulating the production, handling and sale of milk intended for human consumption.
2. A permit or license fee fixed on producers of milk in such an ordinance is not within the purview of G.S.1935, 12-1617 which denies to the city the right to impose a license or occupation tax upon producers and growers of farm products.
3. Under authority of G.S.1935, 47-633, the city has the power to require the owner of any dairy herd offering for sale any milk within the city to first subject the cow, from which milk is derived, to examination and test for tuberculosis and where such a regulation is made compliance therewith is a condition precedent to the lawful sale of any such milk.
4. Under the statute last above mentioned, no person other than one indicated for that purpose by the livestock sanitary commissioner shall inject any tuberculin into any cow for the purpose of making a test for tuberculosis, and a city ordinance providing that the test shall be made by such a person is not to be stricken down as the delegation of a delegated power.
Appeal from District Court, Atchison County; Lawrence F. Day, Judge.
Action by George Dorssom and others against the City of Atchison and others for a declaratory judgment to determine the validity of a city ordinance. From a judgment plaintiffs appeal.
J. W Lowry, of Atchison , for appellants.
Karl W. Root, of Atchison (Maurice P. O'Keefe, of Atchison, on the brief), for appellees.
This appeal involves the validity of parts of an ordinance of the city of Atchison.
The record discloses that in 1938, the city duly enacted an ordinance regulating the production and sale of milk which, among other things, made provisions for certain permits and for tuberculin tests of cattle, more particularly mentioned later. The plaintiffs are farmers living in Atchison county who are engaged in producing milk which is sold to distributors in the city of Atchison. In 1939 the plaintiffs complied with the provisions of the ordinance of which complaint is made, but did not do so in 1940 and 1941, and they are threatened with prosecution on that account. They instituted an action for a declaratory judgment to determine the validity of those parts of the ordinance. The city answered. The cause was submitted on a stipulation of facts, and the trial court upheld validity of the attacked portions of the ordinance. The plaintiffs appeal.
Two questions are presented:
(1) Does the city have authority to enact an ordinance which charges producers a permit or license fee, and
(2) Does the ordinance require the producer to provide at his own expense a certificate that his cows have been tuberculin tested, and if so, does the city have authority to delegate its inspectional powers to third persons?
Without going into detail it may be said the ordinance deals comprehensively with the production and sale of milk within the city. Twenty-one words and terms used in the ordinance are defined, provisions are made for the permits hereafter specifically mentioned, also for labeling and placarding the containers in which the product is sold, for periodic inspection of dairy farms and milk plants, for the examination of the milk according to specified standards, for grading of the milk, for testing of cows, more specifically referred to hereafter, and generally for certain standards as to places of production, sanitary conditions of plants and equipment used, methods and conditions of bottling, etc.
Referring to the particular portions of sections under attack, we note that section 3 of the ordinance makes it unlawful for any person, who does not possess a permit from the health officer, to bring into the city or offer for sale or to sell any milk product, provision being made for revocation of such permit under conditions not here material. It is then provided:
Appellants direct our attention to G.S. 1935, 12-1617, which reads "That the powers of the cities of the first, second and third classes within this state to impose license or occupation taxes upon peddlers and venders shall not be construed so as to apply to, or create the power to impose...
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Felt v. City of Des Moines, 48974
...a license tax on the occupation of dairymen carrying on or doing business within the city.' In the Kansas case of Dorssom v. City of Atchison, 155 Kan. 225, 124 P.2d 475, 477, the court stated: 'Not only does the above statute recognize, but it is generally known that it is necessary to the......
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...have been passed by cities to prevent the maintenance of poultry and livestock within the city limits.”); Dorssom v. City of Atchison, 155 Kan. 225, 124 P.2d 475 (1942) (upholding city authority to require tuberculosis testing of cows within city). Finally, in Smith v. Steinrauf, 140 Kan. 4......
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...Co., 184 Kan. 674, at page 678, 339 P.2d 12, at page 15; City of Beloit v. Lamborn, 182 Kan. 288, 321 P.2d 177; Dorssom v. City of Atchison, 155 Kan. 225, 124 P.2d 475; and the list of authorities could easily be greatly The defendant stresses the case of City of Beloit v. Lamborn, supra, w......