Gardenhire v. State

• Decision Date: 22 December 1923
• Docket Number: Criminal 576
• Citation: 221 P. 228,26 Ariz. 14
• Parties: FRANK GARDENHIRE, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

221 P. 228

26 Ariz. 14

FRANK GARDENHIRE, Appellant, v. STATE, Respondent

Criminal No. 576

Supreme Court of Arizona

December 22, 1923

APPEAL from a judgment of the Superior Court of the County of Yuma. Fred L. Ingraham, Judge. Affirmed.

Messrs Timmons & Westover, for Appellant.

Mr John W. Murphy, Attorney General, Mr. A. R. Lynch, Mr. Earl Anderson and Mr. E. W. McFarland, Assistant Attorneys General, and Mr. H. H. Baker, County Attorney, for the State.

OPINION

ROSS, J.

The appellant appeals from a conviction of violating section 9 of Ordinance No. 70 of the town (now city) of Yuma, entitled:

"An ordinance regulating the sale of milk, cream, condensed or evaporated milk or cream in the town of Yuma, and providing for the inspection of milk, cream, condensed or evaporated milk or cream, dairies, cows, cow-stables, milk-houses, milk vessels and vehicles."

The ordinance consists of nineteen sections, and has for its object the securing for the inhabitants of the corporation of a clean, pure and wholesome quality of milk and milk products. The duty of issuing permits to sell milk and its products and of inspection and general control is placed in the city board of health. The ordinance prescribes numerous rules and regulations to aid in carrying out this object, and makes their violation a misdemeanor and a ground for revoking permit or license.

The appellant's misdeed, as set forth in the complaint consisted of doing what is forbidden and punished by section 9 of said ordinance, reading as follows:

"It shall be unlawful for any person to offer for sale milk, cream, condensed milk, evaporated milk, butter milk or skimmed milk to which any chemical or foreign substance has been added for the purpose of adulterating, modifying or preserving the same, such as, formaldehyde or its preparations, boric acid, salicylic acid, benzoate of soda, or any other preparation containing these or substances of like nature."

That is, he had offered for sale milk containing boric acid. From a conviction in the police court of the city of Yuma he appealed to the superior court of Yuma county, where, upon a trial de novo, he was again convicted.

This appeal is prosecuted under section 1156 of the Penal Code of 1913, the appellant questioning the validity of section 9 of said Ordinance No. 70. He contends that the corporation was without power to pass said section 9, and we suppose, although he does not so state, that his objection goes to the whole ordinance, for it is obvious that if the rest of Ordinance No. 70 is valid section 9 thereof must also be.

The general powers of a municipal corporation are very well stated by Mr. Chief Justice WAITE in Ottawa v. Carey, 108 U.S. 110, 27 L.Ed. 669, 2 S.Ct. 361, as follows:

"Municipal corporations are created to aid the state government in the regulation and administration of local affairs. They have only such powers of government as are expressly granted them, or such as are necessary to carry into effect those that are granted. No powers can be implied except such as are essential to the objects and purposes of the corporation as created and established. 1 Dill. on Mun. Corp., § 89 (3d ed.) and cases there cited. To the extent of their authority they can bind the people and the property subject to their regulation and governmental control by what they do, but beyond their corporate powers their acts are of no effect."

The rule is stated by Dillon as follows:

"It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation -- not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied." 1 Dillon on Municipal Corporations, 5th ed. 237.

The town of Yuma was incorporated under chapter 9, title 11, Revised Statutes of 1901, and as incorporated possessed the powers therein granted, as well as any others conferred by the legislature, directly or indirectly, upon towns of its class. Ordinance No. 70 was passed by the town council in 1908. The powers conferred upon the common councils of the towns incorporated under chapter 9 are set out in paragraph 545 thereof, and it is in subsection 28 of said paragraph that the respondent claims is set forth the authority to pass Ordinance No. 70. That subsection reads as follows:

"To do all other acts, and prescribe all other regulations, which may be necessary or expedient for the prevention or suppression of disease."

The two preceding subsections (26 and 27) give specific authority to the corporation to adopt preventative measures against the introduction therein of contagious, loathsome or infectious diseases, as, by quarantining, by requiring owners and occupants to keep premises clean, and by prohibiting certain enumerated businesses, such as distilleries, slaughterhouses, tanneries, soap factories, etc., from being carried on within the town or within two miles thereof.

Appellant would also have us limit the powers conferred under subsection 28 to the making of quarantine regulations for the purpose of preventing or suppressing disease. It is certainly capable of such construction; but why it should be thus limited is not easy to see, since previous provisions fully cover that particular subject. We would rather think the sweeping grant of power in subsection 28 was given to the legislative body of the town so that it might adopt other regulations than those enumerated in subsections 26 and 27 to prevent and suppress diseases, or, putting it conversely, for the purpose of protecting the health, comfort and welfare of the public.

It seems to have been a common practice for legislatures, in providing what powers municipal corporations should be allowed to exercise to enumerate specifically most of such powers, concluding, however, with what the courts have called "a general welfare clause," the evident purpose of which was to supply the corporation, in the event such power may have been overlooked in specific grants, power of self-protection or self-defense. The form of such welfare clause is usually much broader than subsection 28, and instead of being a grant of power "to do all other acts, etc., for the prevention or suppression of disease," the grant is in some such words as these: "To make all regulations which may be necessary or expedient for the preservation of the public health." Whichever wording is adopted, the purpose is the same and must necessarily be accomplished by the same means. If disease is prevented or suppressed, it is to preserve the health of the people. In Johnson v. Simonton, 43 Cal. 242, under the general welfare clause, the legislative body of the city of San Francisco passed an ordinance forbidding any person from selling in the city milk of any cow fed upon still slops. It was objected that such body was without authority to pass the ordinance. The court said:

"If it indeed be a fact that the milk of cows, fed in whole or in part upon still slops, is unwholesome as human food, there can be no doubt of either the authority or the duty of the board to enact the ordinance in question. . . ."

Under a general welfare clause worded "to do all acts, make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease," an ordinance regulating, and in case of minors prohibiting, the sale of cigarettes was held to be within the powers granted to the city of Chicago. Gundling v. City of Chicago, 176 Ill. 340, 48 L.R.A. 230, 52 N.E. 44. In that case the court used this language:

"The regulation of the police power is hardly susceptible of exact definition, as the exigencies of each case are varying, and the cases are innumerable where the health of the inhabitants of the municipality may be in some degree endangered. When the city council considers some occupation or thing dangerous to the health of the community, and in the exercise of its discretion passes an ordinance to prevent such a danger, it is the policy of the law to favor such legislation as being humane and essential to the preservation and protection of the community. Municipalities are allowed a greater degree of liberty or legislation in this direction than any other. The necessity for action is often more urgent, and the consequences of neglect are more detrimental to the public good, in this than in any other form of local evil."

In the case of City of St. Louis v. Schoenbusch, 95 Mo. 618, 8 S.W. 791, quoted in Ex parte Simmons, 5 Okl.Cr. 399, 115 P. 380, the court said:

"These cases serve to show that general welfare clauses are not useless appendages to the charter powers of municipal corporations. They are designed to confer other powers than those especially named. The difficulty in making specific enumeration of all such powers as may be properly delegated to municipal corporations renders it necessary to confer such powers in general terms. Ordinances relating to the comfort health, good...