Loftus v. Russell
| Decision Date | 05 December 1949 |
| Docket Number | No. 5246,5246 |
| Parties | LOFTUS v. RUSSELL et al. |
| Court | Arizona Supreme Court |
Mangum & Flick, of Flagstaff, Mark Wilmer, of Phoenix, for petitioner.
Neil V. Christensen, County Attorney of Coconino County, F. M. Gold, of Flagstaff, for respondents.
Stewart L. Udall, of Tucson, amicus curiae.
LA PRADE, Chief Justice.
At the instance of Lloyd Loftus, petitioner above, there was issued out of this court an alternative writ of prohibition directed to the above-named respondents, The Superior Court of Coconino County, Arizona; H. L. Russell as Judge thereof; and Neil V. Christensen, as County Attorney, commanding them to refrain from taking any further proceedings in a certain criminal case pending in said court wherein the petitioner was being proceeded against by information charging him with unlawfully distributing and causing to be distributed in Coconino County milk and milk products without first obtaining a permit so to do from the County Superintendent of Health as required by Regulation No. 4 theretofore adopted by the Coconino County Board of Health, purportedly pursuant to the provisions of Section 68-205, A.C.A.1939. When the information was filed a warrant of arrest was regularly issued and executed by the sheriff by taking petitioner into custody, after which he was admitted to bail. A motion to quash the information was filed, presented, and denied, the basis of the motion being that the court had no jurisdiction of the offense charged or of the person of the defendant.
Upon denial of this motion the court set the cause for trial, which ruling prompted petitioner to seek the alternative writ in this court. The petition alleges that the respondents assert jurisdiction in the court to continue with the prosecution, and that unless prohibited by the writ sought would proceed with the prosecution 'to the great loss, detriment, and damage of petitioner,' and 'That the real parties in interest herein in addition to Petitioner are milk producers and distributors of Maricopa County and Pinal County, Arizona, and merchants selling milk at retail in Coconino County, Arizona outside of incorporated cities; that Petitioner respectfully alleges that additional prosecutions under said Regulation No. 4 have been instituted in Coconino County, Arizona, by Respondent Neil V. Christensen against grocers and other distributors of milk and that said Respondent threatens to institute further and additional prosecutions under said Regulation.'
The petition for the writ further alleges that the court was without jurisdiction in the premises in that the regulation was void and unconstitutional for the following reasons:
'(a) That the same attempts to vary, amend, extend and alter an existing state statute legislating upon the subject matter thereof, to wit: Chapter 50, Article 9, A.C.A.1939;
'(b) For the reason that said Board of Health is without jurisdiction or authority to enact a county-wide ordinance in an attempted exercise of the police power of the State of Arizona;
'(c) That Article 2, Chapter 68, A.C.A.1939, entirely fails to confer upon said County Board of Health any authority to enact a regulation of the type and character of said Regulation No. 4;
'(d) That any delegation of authority to said County Board of Health under said Article 2, Chapter 68, asserted or claimed to exist conferring upon said County Board of Health authority to enact such a regulation would constitute an unlawful delegation of power in violation of the provisions of the Arizona State Constitution, Article 4, Section 1, thereof;'
Chapter 68 of the 1939 Code, Laws 1941, Ch. 105, Sec. 68-101 et seq., 1939 Code Cum. Pocket Supp., is entitled 'Public Health.' Article 1 of this chapter is entitled 'State Department of Health,' Article 2 'Local Boards of Health.' The creation, powers, and duties of county boards of health are established in the following sections:
* * *'
(Emphasis supplied.)
* * *' (Emphasis supplied.)
It will be noted that the authority conferred in this last-named section is to adopt regulations concerning nuisances, sources of filth, and causes of sickness, as are necessary for the public health and safety of the inhabitants. In addition to this specific grant of authority there is the grant by reference contained in Section 68-202, supra, conferring upon county boards of health within their respective counties, outside of the corporate limits of cities having a city board of health, the powers theretofore granted to the State Board of Health. This regulation of the County Board of Health under consideration was adopted September 28, 1946. At this date, Article 1 of Chapter 68, A.C.A.1939, relative to the State Board of Health had been repealed and a new law enacted. See Chapter 105, Laws 1941. Section 2 of this last-named chapter was again amended in 1947, 2nd S.S., Chapter 22, Section 1, same now appearing in the 1939 Cum. Pocket Supp. as Section 68-108, reading as follows:
The rule-making authority granted to the State Department of Health was contained in the Laws 1941, Chapter 105, Section 6, now Section 68-112, Cum. Pocket Supp. Subdivision (a) of this section provides: '(a) The board shall have power to adopt, promulgate, repeal, and amend rules and regulations consistent with law to: 1. define and control communicable diseases; 2. prevent and control public health nuisances; 3. regulate sanitation and sanitary practices in the interests of public health; 4. cooperate with local boards of health and health officers; 5. protect and promote the public health and prevent disability and mortality; 6. isolate any person affected with and prevent the spread of any contagious or infectious disease; 7. govern the transportation of dead bodies; 8. establish quarantine; and, 9. carry out the purposes of this act.'
With this resume relating to the creation and powers of county boards of health, we shall now proceed to examine what the county board did and the basis for the present attempted prosecution of petitioner. The adopted regulation is entitled:
'Regulating the Production, Transportation, Processing, Handling, Bottling, Examination, Grading, Labeling, Regrading and Sale of Milk and Milk Products, the Inspection of Dairy Herds, Dairies and Milk Plants, the Issuing and Revocation of Permits to Milk Producers and Distributors, Placarding of Restaurants and Other Establishments Serving Milk or Milk Products and the Fixing of Penalties.'
Section 1 of the regulation in part provides: (Emphasis supplied.)
Section 2 defines three grades of raw milk and three of pasteurized milk, and then provides that no milk or milk products shall be sold to final consumer or to restaurants, etc., except grades A, B, C, raw or pasteurized, and that when any milk distributed fails to qualify for one of the above grades the health officer is authorized to revoke the permit, or degrade the milk, etc. Section 3 declares the violation of any provision of this regulation to be a misdemeanor.
The 1939 issue of the United States Edition of Public Health Service Milk Ordinance adopted by reference in the regulation is printed on seventeen pages of Public Health Bulletin No. 220. Section 1 of Part II contains definitions; 13 different kinds of milk and milk products...
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