Korth v. City of Portland

• Decision Date: 29 November 1927
• Parties: KORTH v. CITY OF PORTLAND ET AL. [*] GEORGESON v. CITY OF PORTLAND ET AL.
• Court: Oregon Supreme Court

261 P. 895

123 Or. 180

KORTH v. CITY OF PORTLAND ET AL. ^[*] GEORGESON v. CITY OF PORTLAND ET AL. ^[*]

Supreme Court of Oregon

November 29, 1927

In Bank.

Appeal from Circuit Court, Multnomah County; George Rossman, Judge.

Separate suits by Paul Korth and by J. Georgeson against the City of Portland and others. From decrees for defendants, plaintiffs appeal, both suits being consolidated in the briefs by stipulation. Affirmed.

E. B. Seabrook, of Portland (Malarkey, Seabrook &amp Dibble, of Portland, on the brief), for appellants.

Frank S. Grant, City Atty., of Portland (H. M. Tomlinson and R. A Imlay, deputy City Attys., both of Portland, on the brief) for respondents.

PER CURIAM.

Involved in this decision are two cases commenced against the city of Portland and its officers, seeking to restrain the enforcement of ordinance No. 48244, relating to furnishing milk for the consumption of the inhabitants of the city. One of these suits was instituted by Paul Korth, the other by J. Georgeson. Both plaintiffs produce milk on dairy farms owned by them outside of and in the neighborhood of Portland, but dispose of their products to residents within the city. Each plaintiff contends that the ordinance exacts a license fee from him before he can be allowed to sell milk within the city, whereas the general laws of the state of Oregon prohibit the enforcement of any such requirement. Likewise, they contend that the ordinance invests the city health officer with arbitrary power unregulated by anything but his own whims and caprices. The plaintiff Korth maintains that the milk which he produces conforms to the standard of purity fixed by the ordinance, but that, in producing the same on his dairy farm outside of Portland, he does not have any walls ceiled or painted in the milkroom or washroom, he does not bottle or cap by machine, but does so by hand, and there are no stationary hand basins supplied with running water or connected with any sewer.

The substance of his plaint is that, inasmuch as his milk is admitted by the demurrer to be of standard purity, as he avers, it is unreasonable and oppressive to compel him to spend large sums of money in changing his dairy buildings so as to conform to the requirements of the ordinance. Georgeson contends, not only that the milk he produces conforms to the standard of purity prescribed by the general laws of Oregon but also that his equipment and dairy likewise comply with those laws, although they do not meet the requirements of the ordinance. The essence of his contention is that, the state having prescribed a standard of purity of the milk and regulations for the operation of dairies, the city cannot enforce different or additional requirements or standards.

After alleging the existence of the city of Portland as a municipality and the official character of its officers the complaint avers the enactment of the ordinance, No. 48244, approved by the mayor of the city November 13, 1925. The pleading goes on to state, in substance, that the plaintiff for some years has been operating a dairy in Multnomah county, but outside of the city of Portland, and does now transport and has been transporting the milk produced at said dairy into the city, selling and distributing it to customers therein, stating that the milk so produced by plaintiff at said dairy and so sold has always been and now continues to be of a standard equal to that prescribed by said ordinance," giving in terms the 8.5 per cent, solids not fat and not less than 3.5 per cent. milk fat, and has a maximum bacterial count of less than 20,000 per cubic centimeter. The plaintiff then goes on and avows that he does not have any ceilings in his barn, nor are the walls ceiled or painted; neither are the walls or ceilings of the milkroom or washroom operated in said dairy ceiled or plastered or painted; that he bottles the milk by hand and not by machine; that he does not have in his milk shed and cow barn operated at said dairy any stationary hand basins supplied with running water or connected with any sewer; that the floors of his dairy barns are not constructed of concrete or other impervious material, nor has the material of which said floors are constructed or the floors themselves been approved by the health officer of the city of Portland. Various other instances of noncompliance with the ordinance are avowed, including the fact that he does not possess a permit to take his milk into the city or offer it for sale there, nor has he obtained a license from the health officer for that purpose. He says that the city officers threaten to enforce the ordinance against the plaintiff by arresting him and charging him with violation of the same in one or more particulars, in which he admits he has failed to obey the ordinance. He also urges that the ordinance is void, in that it takes his property without due process of law; that it is arbitrary and unjustly discriminatory between persons in similar situations; that it vests arbitrary and unlimited power in the health officer, and is in conflict with the laws of the state of Oregon in requiring licenses and permits to sell milk in the city. He charges that all the requirements with which he has not complied are arbitrary and unreasonable, having no purpose except to make the business of dairying more burdensome to small producers of his class. He prays for an injunction against the enforcement of the ordinance, except so far as it prescribes a standard for milk, and provides for punishment for violation of that standard, and that upon final hearing the injunction be made permanent. The circuit court sustained a general demurrer to the complaint, standing upon which and refusing further to plead, the plaintiffs suffered the dismissal of their bill and were cast in costs. They appealed.

After defining "milk," "butter fat," "cream," and other forms of lacteal products, the ordinance proceeds to define "adulterated milk" and how adulteration may be accomplished. Notably, it is that produced from diseased cows, fed on improper food, drawn from dirty cows in unsanitary buildings by milkers whose clothes or hands are not clean, placed in contaminated receptacles, not covered to protect the same from outside contamination, and the like. Other terms are defined and section 3 of the ordinance prescribes that no person shall, within the city limits of the city of Portland, produce, sell, offer, or expose for sale, or have in his possession with intent to sell, any milk or milk product which is adulterated within the meaning of the ordinance. Further on, the city law declares it to be unlawful to sell or offer for sale within the city for human food any milk or milk products without obtaining a license therefor from the health officer of Portland. Among other essentials in an application for a license must appear the name and residence of the applicant, whether he is the producer or not, the exact location of the dairy producing the milk, the number of cows in each herd, as well as other data. Upon filing the application, the health officer is required to cause an inspection of the dairy and herd to be made to ascertain if the same conform in all respects to the ordinance.

Certain details of inspection are required and certain fees are exacted for a license to dispose of milk within the city. The health officer is required to inspect samples of milk from each milk producer distributor once every six months. Various specifications are laid down relative to lighting, air space, floors, gutters, ceilings, walls, and utensils. The requirements for cleanliness of buildings, cows, utensils, and operators are quite numerous.

One of the principal contentions of the plaintiff is that the ordinance is an attempt to exercise extraterritorial power. A careful reading of the ordinance, however, despite its many specifications and requirements discloses that the city does not undertake to exercise any authority outside of its municipal limits. As said by Mr. Justice Bean in Sterett & Oberle Packing Co. v. Portland, 79 Or. 260, 269, 154 P. 410, 413:

"* * * But in so far as the ordinance prohibits the sale within the city of the products of those places, unless the regulations have been complied with, it is enforceable, and a compliance with the regulations is exacted as a condition precedent to the selling of such products in the city."

Likewise, as declared in Norfolk v. Flynn, 62 L. R. A. 771, in section 1 of the syllabus (101 Va. 473, 44 S.E. 717, 99 Am. St. Rep. 918):

"An ordinance requiring the inspection of milk sold within the limits of the city, and providing for the licensing of vendors, is not void as affecting persons beyond the limits of the municipality, where it only touches those who bring or send their milk into the city for sale."

All other things being equal, the city by virtue of the police power which has been conferred upon it by its charter may say to individuals who bring milk into the city for sale:

"You will be required to operate with herds and appliances prescribed by the ordinance in the production of the milk which you bring into the city for sale to the inhabitants thereof, and the city demands, also, the right to inspect for itself for the benefit of its people the plant which you are operating, to ascertain if, indeed, the milk is produced by the processes required."

In State v. Nelson, 66 Minn. 166, 68 N.W. 1066, 34 L. R. A. 318, 61 Am. St. Rep. 399, Mr. Justice Mitchell discussed this point, an extract from which was quoted approvingly by Mr. Justice Keith in Norfolk v. Flynn, supra, using this language:

"* * * The objection is that the provisions of the ordinance are not within the limits prescribed for it by the statute, for the reason that it is attempted

...