Grant v. Leavell

• Decision Date: 19 April 1935
• Parties: GRANT v. LEAVELL, Director of Health.
• Court: Kentucky Court of Appeals

82 S.W.2d 283

259 Ky. 267

GRANT v. LEAVELL, Director of Health.

Court of Appeals of Kentucky

April 19, 1935

Rehearing Denied June 7, 1935.

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Suit by Raymond Grant, as owner and operator of the Grantwood Farms Dairy, against Dr. Hugh Rodman Leavell, Director of Health of the City of Louisville. From a judgment of dismissal plaintiff appeals.

Reversed with instructions.

Trabue Doolan, Helm & Helm and Wm. H. Crutcher, Jr., all of Louisville, for appellant.

Mark Beauchamp, Thomas A. Ballantine, and Robert P. Hobson, all of Louisville, for appellee.

PERRY Justice.

This case involves the interpretation and validity of a milk ordinance of the city of Louisville. The parties are in practical agreement as to the facts disclosed by the record being as set out by appellant in brief.

These, so far as material to the question here involved, are that Dr. Grant, a citizen of Louisville, has, since the passage of the ordinance in 1931, built a modern dairy plant on his farm, located on the Jefferson-Oldham county line, and has now applied to the appellee, the health director of the city, for a permit to sell grade A raw milk, produced at this plant, in Louisville, under the provisions of this milk ordinance, which by its terms permits the sale of both pasteurized and raw milk under stated conditions and regulations therein provided. The appellee, as health director of the city of Louisville, has refused to issue appellant the applied for permit required for the sale of grade A raw milk to Louisville consumers.

Dr. Grant's written application for this permit recited that, since the passage of the city's milk ordinance in May, 1931, he had constructed a modern, sanitary milk plant upon his farm, for which he had procured a duly tested and high-grade herd of milk cows, and had further, in all respects, complied with the provisions of the ordinance, and contends that under its provisions he is entitled to sell and distribute in the city his grade A raw milk produced thereon. The requested permit was refused by the appellee health director upon the grounds that no permits for the sale of grade A raw milk, produced in rural milk plants constructed since the passage of the ordinance, have been issued, for the reason that it is contrary to the policy of the city's health department to grant permits to any more distributors of raw milk produced from plants located outside of the city or in the rural districts of the county than were at that time so operating, as they felt that sufficient raw milk was furnished by them for the few people demanding it.

This milk ordinance of 1931, by its section 16, which is interpreted by the health director as providing for and warranting its adopted policy of thus restricting the sale of raw milk, by refusing the issuance of permits for its sale to all the operators who have constructed rural milk plants since the passage of the ordinance, provides: "All dairies and milk plants from which milk is supplied to the City of Louisville which are hereafter constructed shall conform in their construction to the requirements of the health officer which shall not be less than the Grade 'A' requirements of this ordinance. No milk plants hereafter constructed beyond the corporate limits of the City of Louisville shall be allowed to supply milk to the City of Louisville except as may be specially permitted by the health officer."

The department's refusal of a permit to appellant for sale of raw milk is rested solely upon the ground that he has constructed his plant since the ordinance was passed and that it is not located within the city, where it would be more accessible for easy and frequent inspection.

The milk ordinance in question is clearly one passed by the city in the exercise of its police power to regulate the sale and distribution of milk, to the end that the health of the community may not be endangered by the sale to its citizens of milk which is unwholesome and impure. Its restrictive regulations are based upon its recognition of the fact that milk is one of the oldest and most generally used foods, whose total annual production and consumption is steadily increasing, making the matter of its supply one involving and having capacity to hurtfully affect and endanger the welfare and health of a whole community, should it be permitted to become impure, adulterated, or of unwholesome quality.

To the end that the city's milk consumers might be protected against this threat and danger, the ordinance expressly prohibits the sale of impure or adulterated milk or misbranded milk products. It also recognizes that raw milk has been, for a period time out of mind, sold, and was then being delivered and sold in the city, and that it was a popular and needed food commodity required by many of its citizens, which was being supplied them at the time of the passing of the ordinance by ten or more milk plants located outside of the city.

The city's right as well as duty to control, by adequate, yet reasonable, regulation, the sale and distribution of milk to its citizens, is universally upheld, and has frequently been so declared (as is conceded by appellant) by this court and generally. Board of Health of Covington v. Kollman, 156 Ky. 351, 160 S.W. 1052, 49 L. R. A. (N. S.) 354; City of Owensboro v. Evans, 172 Ky. 831, 189 S.W. 1153, 1157.

The ordinance as passed was made responsive to this demand for raw milk, and, recognizing the established commerce therein, it, by its terms, expressly provides for its continued sale under its protective regulations, that only A-grade raw milk should be sold and that it "shall be bottled at the source of production."

Milk, as contended by appellant, being a legitimate article of commerce, any citizen has the right to handle or trade in the commodity, subject only to the limitation imposed by considerations of public welfare. The right to sell milk, unlike that to sell liquor, which is a privilege, should only be restricted or regulated as the safeguarding of the public health may require. 26 C.J. pp. 756, 757. In Hahn v. City of Newport, 175 Ky. 185, 194 S.W. 114, 117, the court, in considering the validity of an ordinance, purporting to regulate the sale of meats, approved it as being a reasonable regulation, saying: "All the authorities agree that so long as the regulation is reasonable it is within the authority of the regulating power to make it. Nor is there any discrimination, as contended to be found in the ordinance. Every one is prohibited from selling meats in the particular manner denounced, but neither appellant nor any other person is prohibited from selling meat within the city in the manner not denounced."

Or as later said in the Evans Case, supra: "The right to engage in a lawful business which may affect the public health does not carry with it the absolute right to conduct the business in any manner that may please the person so engaged. His right is subject to the paramount right of the state or municipality in which he conducts his business to regulate the business in the interest of the public health."

The general rule as to the regulations in the sale of ordinary articles of commerce, such as milk, is only that they must be reasonable to be valid. A-Loaf Baking Co. v. Pace (Tex Civ. App.) 19 S.W.2d 459; City of Des Moines v. Fowler (Iowa) 255 N.W. 880; Whitney v. Watson et al., 85 N.H. 238, 157 A. 78, 80. In the last-mentioned case, the principles applicable to regulation of the sale of milk were thus stated: "Dairy products are normally legitimate subjects of commerce, interference with which is justifiable only so far as the protection of the...