Pure Milk Producers & Distributors Ass'Ns v. Morton
| Decision Date | 10 February 1939 |
| Citation | 276 Ky. 736 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Pure Milk Producers & Distributors Ass'ns et al. v. Morton et al. |
1. Constitutional Law; Food. — The regulation of milk production, marketing, and sale is proper exercise of state police power in interest of public health, and, if there is room for reasonable differences of view as to legislative prohibition, classification, or regulatory provisions, court will accept legislative determination.
2. Food. — Milk producers engaged in sale and distribution of milk in city of second class were not exempt from payment of license fee under ordinance exempting "farm products," on ground that "dairy products" were "farm products" notwithstanding milk was produced on farms outside city (Ky. Stats., secs. 3058, 3058-2).
3. Food. — Distributors of dairy products in city of second class were "milk dealers" within meaning of statute authorizing city of second class to license "milk dealers," notwithstanding milk was produced on farms outside city (Ky. Stats., secs. 3058, 3058-2).
4. Food. — An ordinance exacting a license fee of $20 per year from milk dealers was not invalid on the ground that the license fee was unreasonable, where it appeared that the total amount of revenue produced from license fees would be less than one-half of the cost of enforcing the ordinance.
5. Municipal Corporations. — "License fees" are not a "tax" within meaning of constitutional requirement that ordinance specify purpose for which a "tax" is levied (Constitution, sec. 180).
6. Municipal Corporations. — A substantial compliance must be had with statute requiring that ordinances of cities of second class levying taxes and license fees specify purpose thereof, in order that ordinance be valid (Ky. Stats., sec. 3175).
7. Municipal Corporations. — Amendatory ordinance of city of second class setting forth in full as amended only the particular section amended became part of original ordinance, as if written in when original ordinance was adopted (Ky. Stats., sec. 3059; Constitution, sec. 51).
8. Food. — Amendatory ordinance of city of second class exacting license fees from milk dealers was referable to provisions in original ordinance requiring that money derived from taxes thereunder become part of general fund and hence was not void for failure to specify purpose of the license fees (Ky. Stats., sec. 3175).
9. Municipal Corporations. — Taxes and license fees and other revenue collected by the city are primarily for purpose of paying general expenses of operation and constitute primarily the "general fund" unless otherwise provided by ordinance or statute.
10. Food. — An ordinance of city of second class exacting license fees from milk dealers for payment into "general fund" was not void because city allegedly had no properly created "general fund," since city need not specifically set apart or establish by ordinance or otherwise a "general fund."
11. Municipal Corporations. — Statute requiring that ordinance be fairly recorded in journal of proceedings does not require that ordinance be copied in full on the journal, but requires merely that synopsis or minute be made of its passage (Ky. Stats., sec. 3063).
12. Municipal Corporations. — Ordinances of city of second class which were published in full in official newspaper, and copies of which were placed in loose-leaf "Ordinance Book" in clerk's office, were not void because not recorded in full by clerk on his journal or minute book (Ky. Stats., secs. 3063, 3235dd-16 et seq.).
Appeal from Fayette Circuit Court.
J.A. EDGE and LENA M. CRAIG for appellants.
C.D. ADAMS, WILLIAM A. MINIHAN and ROBERT M. ODEAR for appellees.
Affirming.
The appellants, Pure Milk Producers and Distributors Association, a non-profit corporation, and certain individuals doing business under the name of W.S. Jones & Sons, and P.E. Karaker and others doing business under the name of Southworth & Karaker, as plaintiffs below, brought this suit in the Fayette circuit court against Paul Steele Morton, City Manager of the City of Lexington, and Clyde O. Burton, Police Judge of the City of Lexington, seeking a writ of prohibition to restrain the defendants from prosecuting the plaintiffs in the police court of the City of Lexington, Kentucky, for the sale and distribution of milk and perhaps other dairy products in the city of Lexington without paying the license fees of $20 and obtaining a license as required by the ordinances of the city.
The plaintiffs assert that the ordinances under which defendants seek to enforce against them, and under which certain prosecutions have been instituted, are void for the following reasons: (1) The City had no legal authority over the subject matter of the ordinances; (2) that the ordinances failed to specify the purpose or purposes for which the license fees are levied as required by section 180 of the Constitution and Section 3175 of the Kentucky Statutes; and (3) that the requirements as to recordation of the ordinances were not complied with.
By subsequent pleadings and stipulations the issues were made, the cause submitted to the chancellor for final judgment, whereupon the chancellor held the ordinances valid and dismissed the plaintiff's petition. This appeal follows.
(1) Sections 3058, 3058-2, of the Kentucky Statutes, authorizes a city of the Second Class to license milk dealers. But it is insisted for the plaintiffs that they are not milk dealers in the sense of that statute because their farms where the milk is produced are outside the corporate limits of Lexington. It is stipulated:
"That the plaintiffs are bona fide farmers of Fayette County and that the milk sold by them is produced by them and a part of their farming operations, and were so, at all times mentioned herein and that in emergency occasions, some of them will borrow or buy from a neighboring farmer and co-plaintiff a few gallons of milk to meet a momentary shortage."
The contention is that plaintiffs have the right to sell the products of their farms in the Lexington market on terms of equality with tobacco, corn, grain, or other farm products without license or hindrance by the City of Lexington by imposing upon them a license fee for so doing, and that under the provisions of Ordinance No. 101 exempting farm products from a license tax, they are immune from the tax on the theory that their dairy products come within the class of farm products.
In support of appellants' position they cite and rely on In re Luther Snyder, 10 Idaho 682, 79 P. 819, 68 L. R.A. 708. In that case, Snyder, who was a farmer, killed a beef and sold the beef in Boise City by retailing it to the inhabitants from door to door. He was prosecuted under an ordinance providing for licensing "peddlers, hawkers and solicitors," and prescribing a penalty for the violation thereof. He questioned the validity of the ordinance and refused to pay the license and was committed to jail and sought release by habeas corpus. The Idaho court held that a farmer engaged in that business with no other trade or occupation, because he slaughters his cattle, hogs or sheep on his farm and retails them in the city, is not a "hawker or peddler" within the ordinary meaning of those words.
We do not think the Idaho case, supra, analogous or applicable to the present case. And we think it is contrary to the weight of authority dealing with such questions even as to the distribution and sale of meat within a city. But conceding, arguendo, that that opinion is sound in the light of the particular subject it deals with, it does not follow that the same rule is applicable in respect of the sale of milk. Under our jurisdiction and practically all others so far as we have ascertained, legislative bodies, state and municipal, may impose upon milk dealers and distributors more stringent rules than perhaps on other food products which are not so susceptible or likely to spread disease and contaminate the public health.
In Shelton v. Shelton, 111 Conn. 433, 150 A. 811, it is held that milk is peculiarly liable to contamination and adulteration. Therefore, in the interest of the public health and safety the regulation of its production, marketing and sale is held to be within the proper exercise of the police power of the state and if there be room for reasonable differences of view as to the legislative prohibition, classification or regulatory provisions, the court will accept the legislative determination, and not impose their own will. See also McQuillen on Municipal Corporations, Vol. 3, section 954 (889), which deals at large with the powers of legislative bodies to place restrictions, regulations, etc., upon the distribution and sale of food products, and particularly the handling, sale and distribution of milk. Section 1067 of the same authority specifically recognizes the right of municipalities to compel vendors of milk to register with health officers and pay registration fees and prohibit the sale of milk without a permit from the proper authorities. Also in the recent Kentucky case of Grant v. Leavell, 259 Ky. 267, 82 S.W. (2d) 283, 285, there was involved the question of the right of the city of Louisville to control the sale or distribution of milk to its citizens. That case and cases cited therein is conclusive of this question in this jurisdiction. In that opinion, quoting with approval from City of Owensboro v. Evans, 172 Ky. 831, 189 S.W. 1153, 1157, it is said:
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