Peoples Dairy v. City of Lackawanna

• Citation: 1 Misc.2d 700,149 N.Y.S.2d 392
• Parties: PEOPLES DAIRY, Plaintiff, v. CITY OF LACKAWANNA, Defendant.
• Decision Date: 01 March 1956
• Court: United States State Supreme Court (New York)

Page 392

149 N.Y.S.2d 392

1 Misc.2d 700

PEOPLES DAIRY, Plaintiff, v. CITY OF LACKAWANNA, Defendant.

Supreme Court, Erie County.

March 1, 1956.

George J. Saab, Lackawanna, for plaintiff.

Rudolph S. Weinstein, Lackawanna, for defendant.

Leonard N. Lakser, Buffalo, amicus curiae.

VANDERMEULEN, Justice.

The following ordinance was enacted by the Common Council of the City of Lackawanna and became effective about April 5, 1954:

'That Chapter XIX of the Ordinances of the City of Lackawanna is hereby amended by adding thereto, a new section to be known as Sections 2 and 3 and to read as follows:

'Section 2--Whereas, the coin-vending machines dispensing milk appear on the outside of any building and are located near street proper and are usable at all hours with no one at attendance and since they are locked and cannot be inspected, and

'Whereas, such condition makes it impossible to properly inspect and supervise with reference to correct weight and quality by the sealer of weights and measures of the City of Lackawanna, and

'Whereas, it is possible that milk may be of a lower standard than represented and may be impure or otherwise unfit for human consumption and it is impossible for the Health Inspector and/or Sealer of Weights and Measures and/or Inspector of the Department of Agriculture of the State of New York to inspect, govern and supervise the milk and dairy products so designed without giving advance warning to the proprietors of such devices, and

'Whereas, their vicinity to the public highway further creates traffic hazards and congestion, therefore, in the interest of public health and safety, the Common Council of the City of Lackawanna enacts as follows:

'Any mechanical device, operated by the insertion of a coin and used for the purpose of dispensing milk is hereby prohibited unless said machines are located within a regular place of business at which place and at all times said machines are in use, there is a proprietor in attendance who could open said machine for the purpose of inspection by the Sealer of Weights and Measures of the City of Lackawanna and/or Inspector of the Erie County Health Department and/or Inspectors of the New York State Department of Agriculture.

'It being the intent of this Ordinance to prohibit said coin operated milk dispensing machines from being located outside of any building.

'Section 3--Any violation of the provisions of Section 2 of this Chapter shall constitute disorderly conduct and may be punished by a fine not to exceed fifty dollars ($50.00) and in case the person, firm or corporation so fined and convicted does not immediately pay such fine, he or she may be committed to the Erie County Penitentiary for a term of one (1) day for each and every dollar of such fine not paid.'

The plaintiff, a licensed milk dealer, on or about January 26, 1954, installed on private property in the City of Lackawanna, New York, a coin-operated refrigerated insulated milk vending machine, in a place out-of-doors and not within a regular place of business and no operator being present. The Plaintiff brings this action seeking judgment declaring the ordinance to be unconstitutional, void and discriminatory and restraining its enforcement by the defendant City.

There are numerous cases in which the courts have upheld the constitutional right to exercise some control over the milk industry. The authors of this ordinance have attempted to bring it within the decisions which have upheld laws and ordinances seeking to control the milk industry, basing such on the right of the Courts to protect the public welfare, health and safety of the inhabitants of the United States or a particular section thereof. But in an endeavor to protect, the courts have also been careful to protect parties from arbitrary, capricious and illegal acts.

It was said in Cowan v. City of Buffalo, 247 App.Div. 591, 288 N.Y.S. 239, 242:

'If the legislation is to be upheld, it must be upon the theory that it is a proper exercise of the police power of the state. But to justify the ordinance upon that ground, it must have for its object the improvement of the social, moral, physical, or economic condition of the public in general, and the means employed must be reasonably necessary for the accomplishment of that end. [Citing cases.]

'It is beyond the power of the state to arbitrarily interfere with private business or to impose unreasonable or unnecessary restrictions thereon, under the guise of promoting public welfare.' [Citing additional cases.]

'Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded, and the determination of the legislature is not final or conclusive. If it passes an act ostensibly for the public health, and thereby destroys or takes away the property of a citizen, or interferes with his personal liberty, then it is for the courts to scrutinize the act and see whether it really relates to and is convenient and appropriate to promote the public health.' Matter of Application of Jacobs, 98 N.Y. 98, at page 110.

See also People v. New York Carbonic Acid Gas Co., 196 N.Y. 421, at page 435, 90 N.E. 441, at page 446.

The Supreme Court of the United States said in Nebbia v. People of State of New York, 291 U.S. 502, at page 525, 54 S.Ct. 505, at page 510, 78 L.Ed. 940:

'The Fifth Amendment, in the field of federal activity, and the Fourteenth, as respects state action, do not prohibit governmental regulation for the public welfare. They merely condition the exertion of the admitted power, by securing that the end shall be accomplished by methods consistent with due process. And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.'

The case of People ex rel. Moskowitz v. Jenkins, 202 N.Y. 53, 94 N.E. 1065, 35 L.R.A.,N.S., 1079, involved a section of the General Municipal Law which provided that no person shall conduct a transient retail business in any store in any city of the third class, village or town of this state for the sale of goods which shall be represented or...