Independent Dairymen's Ass'n v. CITY AND CTY. OF DENVER
Decision Date | 26 June 1944 |
Docket Number | No. 2860.,2860. |
Citation | 142 F.2d 940 |
Parties | INDEPENDENT DAIRYMEN'S ASS'N, Inc., v. CITY AND COUNTY OF DENVER et al. |
Court | U.S. Court of Appeals — Tenth Circuit |
Louis E. Gelt and Irving Zveitel, both of Denver, Colo., for appellants.
Malcolm Lindsey and Frank L. Hays, both of Denver, Colo. (Thomas E. Boyles, of Denver, Colo., on the brief), for appellees.
Before PHILLIPS and HUXMAN, Circuit Judges, and RICE, District Judge.
The City and County of Denver1 is a municipal corporation created by Art. XX of the Constitution of Colorado as a home rule city with exclusive power to legislate on matters of local and municipal concern.2
Independent Dairymen's Association, Inc.,3 is a Colorado nonprofit corporation. Its members are dairymen within the State of Colorado. Among its objects are the recommending, fostering, and obtaining of laws, in relation to the distribution of dairy products, which are fair and just to the dairy interests. The Purity Creamery, a copartnership, The Broadway Creamery, a copartnership, and The Health Creamery, a Colorado corporation, are engaged in the bottling, selling, and distribution of milk and cream in standard gallon-size bottles in the city. The Association and the three creameries brought this action for a judgment declaring Ordinance No. 39 of the city to be null and void and enjoining its enforcement.
Ordinance No. 39 was enacted by the city on August 23, 1943. Section 1 thereof amended § 1030 of The Municipal Code of the city to read as follows:
Section 2 thereof provided that such ordinance should be effective immediately after its "passage and final publication." It was approved by the Mayor of the city on August 25, 1943, and final publication was on August 28, 1943. The trial court entered a judgment dismissing the action. It granted an injunction against the enforcement of the ordinance until the determination of this appeal.
It is common knowledge that milk is easily contaminated, and that contaminated milk is a prolific source of disease. The regulation of the sale and distribution of milk is within the police power of the city.4 The extent to which the sale and distribution of milk may be regulated under the police power is well stated in Koy v. City of Chicago, 263 Ill. 122, 104 N.E. 1104, 1107, Ann.Cas.1915C, 67, where the court said:
The evidence adduced at the trial established these facts: When milk was first sold in gallon bottles in Denver, the type of bottle used was a small-mouthed bottle. Such a bottle was difficult to thoroughly clean and sterilize. Shortly after the beginning of sales in gallon bottles, representatives of the city conferred with the dairymen and the dairymen agreed to eliminate the use of the small-necked bottle, to use large-necked bottles, and to install mechanical equipment for capping. Experience demonstrated, however, that large-necked bottles are also difficult to clean and sterilize and that mechanical-capping equipment will not work well on such bottles. The caps do not seat perfectly and the thumb of the operator is frequently used to seat them. Furthermore, after the large bottles have been sterilized, there is a disposition on the part of dairy employees to insert their fingers in the top of the bottles when handling them. These practices subject the milk to danger of contamination from the employees' hands. This is not true when smaller bottles are used. Furthermore, gallon bottles when heated to a high temperature often break and there is a temptation to neglect complete sterilization in order to avoid breaking the bottles. The large-mouthed gallon bottles have a tendency also to chip and break around the mouth. Half-gallon and smaller bottles are more readily sterilized, are less apt to chip and break, can be capped without the use of human hands, and are less apt to be contaminated in handling.
Our sole inquiry is whether a rational factual basis for the legislative requirement is so wanting as to make it unreasonable and purely arbitrary.5 We may not test in the balances of judicial review the weight and sufficiency of the facts to sustain the conclusion of the legislative body. We may only inquire whether it so lacks any reasonable basis as to be arbitrary.6 Debatable questions as to reasonableness are not for the courts, but for the legislature, which is entitled to form its own judgment.7 We may not set aside the ordinance because compliance with it is burdensome.8
A legislative enactment does not violate the Equal Protection Clause merely because it is not all-embracing. The legislature is free to recognize degrees of harm and may confine its restrictions to those classes of cases where the need is deemed to be clearest.9
With the wisdom or expediency of the legislative enactment we are not concerned. Those are questions exclusively for legislative determination.10
The burden of establishing the want of a rational factual basis for the legislative requirement and that the legislative enactment is unreasonable and arbitrary was on the plaintiffs.11
When the classification made by the legislature is challenged, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of the existence of that state of facts, and one who assails the classification has the burden...
To continue reading
Request your trial-
KANSAS CITY, KAN. FRAT. ORDER v. City of Kansas City
...enactment we are not concerned. Those are questions exclusively for legislative determination. Independent Dairymen's Ass'n, Inc. v. City and County of Denver, 142 F.2d 940, 942 (10th Cir.1944). Clearly, the arguments advanced by defendants constitute a reasonable basis for enacting this or......
-
National Foundation v. City of Fort Worth, Texas
...Lindsley v. Natural Carbonic Gas Co., supra, 220 U.S. at pp. 78-79, 31 S.Ct. at p. 340. See also: Independent Dairymen's Ass'n. v. City and County of Denver, 10 Cir., 142 F.2d 940 (1944); Ex Parte Rubin, Tex.Cr.App., 362 S.W.2d 331, 334 The Court is of the opinion that there is nothing unre......
-
National Foundation v. City of Fort Worth
...v. Natural Carbonic Gas Co., supra, 220 U.S. at pp. 78-79 31 S.Ct. 337. See also: Independent Dairymen\'s Ass\'n. v. City and County of Denver, 10 Cir., 142 F. 2d 940 (1944); Ex Parte Rubin, Tex. Cr.App., 362 S.W.2d 331, 334 "The Court is of the opinion that there is nothing unreasonable or......
-
Atkinson v. City and County of Denver
... ... Independent Dairymen's Ass'n v. Denver, 10 ... Cir., 142 F.2d 940, 942, where the ... ...