Leach v. Coleman

• Decision Date: 02 May 1945
• Docket Number: No. 9494.,9494.
• Citation: 188 S.W.2d 220
• Parties: LEACH v. COLEMAN et al.
• Court: Texas Court of Appeals

188 S.W.2d 220

LEACH v. COLEMAN et al.

No. 9494.

Court of Civil Appeals of Texas. Austin.

May 2, 1945.

Rehearing Denied May 30, 1945.

Appeal from District Court, 126th District, Travis County; Roy C. Archer, Judge.

Suit by C. R. Leach against Dr. J. M. Coleman and the City of Austin to enjoin defendants from enforcing an ordinance regulating the sale of milk and milk products and from enforcing the orders of the City Health Officer degrading the milk of plaintiff and revoking his permit to sell milk and milk products in Austin. Judgment denying relief, and plaintiff appeals.

Affirmed.

Raymond Furr, of Austin, for appellant.

W. T. Williams, City Atty., and Joe B. Roberts, Asst. City Atty., both of Austin (J. M. Patterson, of Austin, of counsel), for appellees.

BLAIR, Justice.

Appellant, C. R. Leach, sued appellees, the City of Austin and its City Health Officer, Dr. J. M. Coleman, to enjoin them from enforcing an ordinance regulating the sale of milk and milk products, and from enforcing the orders of the City Health Officer degrading the milk of appellant and revoking his permit to sell milk and milk products in Austin.

Appellant alleged and here contends that the ordinance is unconstitutional and invalid because:

1. It fails to provide for any notice or hearing to revoke a permit to sell milk and milk products, in violation of Sec. 19 of Art. 1 of the Texas Constitution, Vernon's Ann.St., relating to due course of law.

2. It attempts to vest either the City of Austin or its City Health Officer with judicial power to adjudicate the standards and conditions under which milk or milk products may be sold in violation of Sec. 1 of Art. 5 of the Texas Constitution, vesting judicial power exclusively in the courts, and fails to provide adequate standards for grading same; and authorizes the revocation of a permit to sell milk upon grounds not within the police power of the City of Austin.

3. It conflicts with the provisions of Art. 165—3, setting up different standards and specifications for grade A milk, and authorizing regulation only of the sale of milk and milk products directly to the consumers; and conflicts with Sec. 5 of Art. 1146, and Art. 1165, by providing for a fine of more than one hundred dollars for violation of the provisions of the ordinance.

We are of the view that neither of the foregoing contentions is tenable. As a preface to a discussion of them a preliminary statement of the facts and of the applicable provisions of the Charter of the City of Austin and of the ordinance and statutory law involved will be here made.

The facts giving rise to the litigation are not in material dispute. Beginning in March, 1944, and from time to time during the intervening months to November 20, 1944, the inspectors of both the City of Austin and the State Health Departments made numerous tests of the milk and milk products being sold by appellant in Austin, and Dr. Coleman, either in his capacity as City Health Officer or as County Health Officer of Travis County notified appellant by registered letter of the results of the tests, which showed that the average bacterial plate count exceeded the 50,000 bacteria per cubic centimeter prescribed by the standards and specifications fixed by the State Health Officer and by the ordinance in question for grade A raw milk. The letters warned appellant of these conditions, tendered the services of the City Health Department to remedy them, informing appellant that the last four samples for tests showed an average bacterial plate count of 190,000, and that the last on October 2, 1944, showed a count of 8,300,000 bacteria per cubic centimeter. On that date the City Health Officer notified appellant that his milk had been temporarily degraded from A to B grade, effective October 6, 1944. During the month of October, 1944, four complaints were filed against appellant, three in the corporation court and one in the justice of the peace court, charging him with misbranding or mislabeling his milk as grade A; and in each case the jury found him guilty. Thereafter, on November 10, 1944, the State Health Officer revoked appellant's permit to grade and label his milk to be sold in Austin; and on November 20, 1944, the City Health Officer notified appellant that his permit to grade and label his milk for sale in Austin was revoked, effective on November 25, 1944, because of violations of the grading and labeling provisions of the ordinance, and because of violations of certain sanitary provisions of the ordinance at the dairy farm or plant of appellant relating to the production of grade A milk. The orders degrading the milk and revoking the permit of appellant were made without notice or hearing at which appellant was confronted with the witnesses who made the tests of his milk, or the inspector who inspected and found his dairy farm or plant to be unsanitary, or as not meeting the sanitary standards required to produce grade A milk. No appeal was taken by appellant from either of the orders here complained of either to the City Council or to the State Health Officer, as provided by the ordinance. On November 27, 1944, appellant filed this proceeding to declare the ordinance and the foregoing orders void, and obtained a temporary injunction restraining the City of Austin and its Health Officer from enforcing the ordinance and the orders degrading his milk and revoking his permit to grade and label his milk to be sold in Austin; which injunction was dissolved on final hearing and all relief sought by appellant denied.

The City of Austin is a Home Rule City, having adopted its charter under authority of Sec. 5 of Art. 11 of the Texas Constitution, and what is now Art. 1175, R.S. 1925. The charter grants to the governing body power to make and enforce rules and regulations to promote and protect the health of the people, to suppress disease, and to "determine the mode of inspecting milk" within the city and its police jurisdiction. This charter power was ratified by the general validating acts of 1925 and 1929, Art. 1174a, Vernon's Ann.Civ.St. Art. 165—3, Acts 1937, Vernon's Ann.Civ. St., is a general statute and authorizes the regulation of the production and sale of milk and milk products in the interest of the public health by the State Health Officer; requires him to promulgate rules, regulations, standards, and specifications therefor; defines various kinds of milk and milk products; provides for permits for use of labels in advertising or labeling milk for sale to the public; and authorizes city and county health officers to issue such permits to persons who comply with the specifications and regulations promulgated by the State Health Officer as to grading and labeling of milk and milk products before sale thereof; and authorizes the State Health Officer to revoke or regrade permits issued by such local health officers whenever the milk being sold is found not to comply with the standards and specifications fixed by the State Health Officer. The statute also provides that:

"Any city adopting any specifications and regulations for any grade of milk shall be governed by the specifications and regulations promulgated by the State Health Officer, as herein authorized." § 2.

And further provides that:

"The governing body of any city in the State of Texas may make mandatory, the grading and labeling of milk and milk products sold or offered for sale under the United States Standard Milk Ordinance within their respective jurisdictions as defined herein according to Definition (P) Section 1 for grades `A', `B', `C', and `D' Raw milk or Milk Products, and Definition (Q) for grades `A', `B', and `C' pasteurized milk or milk products by adopting an ordinance to that effect and by providing the necessary facilities for determining the grades and for the enforcement of this Act. Provided, however, the provisions of this Section shall apply only to milk or milk products, sold or offered for sale by any person, partnership, or corporation directly to the consumer of such milk or milk products." § 7.

Act 165—3 became effective in April, 1937. On July 1, 1937, the governing body of the City of Austin, acting under its foregoing charter power and the authority given by Art. 165—3, passed the comprehensive though somewhat involved ordinance in question, regulating the grading and labeling of milk and milk products to be sold within the police jurisdiction of Austin. The ordinance was twice amended in 1942, apparently to comply with the rules, regulations, standards, and specifications promulgated by the State Health Officer on March 1, 1942, because the ordinance adopted those of them here involved without change with respect to grading and labeling of milk and milk products to be sold in Austin, and the sanitary rules required for grading and labeling same in their respective classifications. Sec. 3 of said State Health Officer's rules and regulations further provides:

"Permits—It shall be unlawful for any person to bring into or receive into a city which has adopted these grade specifications, or its police jurisdiction, for sale, or to sell, or offer for sale therein, or to have in storage where milk or milk products are sold or served, any milk or milk product defined in this promulgation, who does not possess a permit from the health officer of the city.

"Only a person who complies with these requirements shall be entitled to receive and retain such a permit.

"Such a permit may be suspended by the health officer, or revoked after an opportunity for hearing by the health officer, upon the violation by the holder of any of these specifications and requirements."

The ordinance provides that the City Health Officer shall enforce the provisions thereof, including the issuance of permits to label milk and milk products to be sold in Austin, and provides that:

"Such a permit may be revoked by the City Health Officer upon the violation by the holder of any of the terms...