Nelson v. City of Minneapolis
| Decision Date | 29 July 1910 |
| Docket Number | 16,570 - (169) |
| Parties | OLE B. NELSON and Others v. CITY OF MINNEAPOLIS and Another |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county by twelve plaintiffs engaged in the milk business to enjoin defendant city and its health commissioner, its servants, agents, and inspectors under its control, from seizing milk belonging to plaintiffs. The answer set out the ordinance mentioned in the opinion and justified the seizure and destruction of milk under the ordinance of the city, and the city admitted that it was its intention to continue seizing milk and destroying it under the ordinance. The reply alleged that the ordinance was unreasonable and void, that the milk seized and destroyed was wholesome and free from any disease germs, and admitted plaintiffs owned no herds and were in the business of buying and selling milk at wholesale and retail. The case was tried before Brooks, J., who made findings and as conclusions of law found that plaintiffs were not entitled to an injunction or any relief whatsoever, and that defendants were entitled to judgment that the complaint be dismissed. From an order denying plaintiffs' motion for a new trial, they appealed. Affirmed.
Milk ordinance -- test of purity.
An ordinance of the city of Minneapolis, prescribing as a test of purity and wholesomeness of milk brought into the city for sale that drawn from cows previously subjected to the tuberculin test and found free from disease, held not in conflict with the statutes of the state, and a valid police regulation. Following State v. Nelson, 66 Minn. 166.
Question legislative, not judicial.
The methods to be adopted to insure a supply of pure milk, and the standard by which the same shall be determined, is a legislative, and not a judicial, question.
Destruction of impure milk.
An ordinance authorizing the summary seizure and destruction of milk not conforming to the standard fixed by law is not violative of the constitutional rights of the citizens, nor a taking of property without due process of law.
Gjertsen & Lund, for appellants.
Frank Healy, A. C. Finney, and Clyde R. White, for respondents.
Action by plaintiffs, dairymen, for an injunction restraining and enjoining defendant city and certain of its officers from seizing and destroying the milk brought by them into the city for sale to their customers. The action was tried in the court below without a jury, and resulted in an order for judgment in defendants' favor. Plaintiffs appealed from an order denying their motion for a new trial.
Acting under the authority of section 1749, R.L. 1905, by which municipalities of this state are empowered to prescribe among other things, the terms and conditions upon which milk, cream, and butter may be exposed for sale therein, and to affix penalties for a violation of the restrictions imposed, the city council of Minneapolis duly enacted an ordinance, section 10 of which provides, in effect, that no person shall bring into the city for sale, or offer for sale therein, any milk unless the owner of the cows from which the same is drawn shall first file in the office of the commissioner of health of sad city a certificate of a duly licensed veterinary surgeon, stating therein that such cows have been by him inspected and examined, and tested with the tuberculin test, as provided in section 9 of the ordinance, and found free from tuberculosis and other contagious diseases. Section 9 referred to provides for the annual application of this particular test, and the issuance of a license to the owners of cows thus tested and certified as free from disease. The ordinance included other provisions pertinent to this subject, and imposed a penalty of fine or imprisonment for a violation thereof. Subsequently the city council amended the ordinance by adding section 13, by which it was provided that any adulterated milk, or milk drawn from cows not tested in the manner required by section 9, brought into the city and there exposed for sale, might be summarily seized and destroyed by the health department of the city.
The several plaintiffs are engaged, both at wholesale and retail, in selling and disposing of milk in the city of Minneapolis, and handle and dispose of large quantities thereof daily. They secure their supply from cows not inspected and tested as required by the ordinance, and bring the same into the city for distribution among their customers. On April 21, 1908, the officers of the city health department seized and destroyed six cans of milk so brought into the city by the plaintiffs, and threaten and intend to so continue in the future, unless plaintiffs shall in all respects comply with the ordinance. This action was brought to restrain and enjoin further acts and proceedings in this direction.
1. The purpose of the action being, not to restrain a criminal prosecution for a violation of the ordinance, but to enjoin the continued seizure and destruction of milk shipped into the city, the action is brought within the rule laid down in Cobb v. French, 111 Minn. 429, 127 N.W. 415, and may be maintained. The distinction between actions of the character of this one and those brought to restrain prosecutions for the violation of penal laws is clearly pointed out in the opinion referred to, and requires no further discussion.
2. All questions respecting the validity of the ordinance, in so far as it requires the tuberculin test of cows from which dealers in milk obtain their supply, are disposed of by the case of State v. Nelson, 66 Minn. 166, 68 N.W. 1066, 34 L.R.A. 318, 61 Am. St. 399. The power of the city to impose this test as a police regulation was there expressly affirmed. We follow and apply the decision there made.
3. The further question as to the validity of section 13, by which authority is conferred upon the health department to seize and destroy milk taken from cows not inspected and tested under the requirements of the ordinance, was not involved in the Nelson case, and is now before us as an original proposition.
It is the contention of plaintiffs that the powers conferred upon the health department in this respect are unreasonable, unnecessary, and in violation of their constitutional rights, and hence unenforceable. In support of this position plaintiffs offered evidence tending to show, and the trial court found as a fact, that the pasteurization of milk will render the same pure and wholesome, and without deteriorating or lessening its food value; that pasteurization consists in heating the milk to a certain temperature, thereby destroying all germs of impurity. But the court further found that pasteurization, while theoretically possible, has not, so far as disclosed by the evidence, become a practicable method of destroying harmful bacteria in milk, when attempted for commercial purposes. A motion to strike out this finding, and insert in its place one to the effect that pasteurization of milk is feasible and inexpensive, was denied. The refusal of the court to so find is assigned as error.
The question of the public health is one of first importance in the regulation and control of human affairs, and all laws or ordinances enacted for that purpose, when not so arbitrary as to be unnecessarily destructive of individual property rights, are uniformly upheld by the courts. Milk constitutes one of the principal articles of our food supply, and the purity thereof, and its freedom from disease germs, is of serious concern to consumers. The methods, regulations, and restrictions to be imposed to attain, so far as may be results consistent with the public welfare, are purely of legislative cognizance....
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