Salt Lake City v. Howe

• Decision Date: 10 January 1910
• Docket Number: 2050
• Court: Utah Supreme Court
• Parties: SALT LAKE CITY v. HOWE

106 P. 705

37 Utah 170

SALT LAKE CITY v. HOWE

No. 2050

Supreme Court of Utah

January 10, 1910

Appeal from District Court, Third District; Hon. Geo. G. Armstrong Judge.

H. E Howe was convicted of selling milk without obtaining a permit, in violation of a municipal ordinance, and he appeals.

AFFIRMED.

D. W Moffat for appellant.

H. J. Dininny and P. J. Daly for respondent.

STRAUP, C. J. FRICK and McCARTY, JJ., concur.

OPINION

STRAUP, C. J.

A complaint was filed against the defendant in the city court of Salt Lake City, in which it was alleged that the defendant was engaged in the purchase and sale of milk in that city, and that he brought milk into that city and there had in his possession and offered it for sale, and sold it, without obtaining a permit from the food and dairy commissioner of the city, contrary to the provisions of section 256, chap. 19, as amended, of the Revised Ordinances of the city. From a judgment of conviction the defendant took an appeal to the district court. Upon a trial de novo in that court the defendant was again found guilty, and adjudged to pay a fine of fifty dollars. From that judgment the defendant has taken an appeal to this court.

He claims the ordinance is invalid. The ordinance among other things, provides for the appointment of a food and dairy commissioner of the city, and gives him power "to enforce in Salt Lake City" all ordinances and laws "regarding the production, manufacture or sale of dairy and creamery products, or the adulteration of any article of food, and regarding the use of skimmed or adulterated milk, and the feeding of unwholesome food to cattle, and the keeping of cattle having infectious or contagious diseases," and confers other duties and powers on him with respect to the inspection of premises where cows are kept for the production of milk, and the inspection and sale of milk and other food products. The section of the ordinance alleged to have been violated is as follows: "It shall be unlawful for any person to bring or send into Salt Lake City, for sale, either at wholesale, or retail, or to offer for sale, or have in possession, with intent to sell therein, any milk without having obtained from the said commissioner, annually a permit in writing so to do; and shall then pay to said commissioner the annual license provided by ordinance for carrying on such business. Such permit shall be given by said commissioner (when) upon inspection of the premises where cows are kept, and inspection of the vessels used to hold such milk, and test of the milk, it shall appear that said premises and vessels are kept in good sanitary condition, and that the milk meets the requirements of the ordinances and the rules of the Board of Health of the city, and upon condition that none but pure unadulterated milk shall be sold." It is urged that the municipality was without power to pass the ordinance. It is conceded, as is stated by the appellant, that a municipality can exercise such powers only as have been either expressly or by necessary or fair implication conferred upon it, or such as are essential to the declared objects and purpose of the municipal corporation. Among the general powers conferred upon municipal bodies are the following (subdivision 44, sec. 206, Comp. Laws 1907): "To provide for the place and manner of the sale of meats, poultry, fish, butter, cheese, lard, vegetables, and all other provisions, and regulate the selling of the same." (Subdivision 45:) "To provide for and regulate the inspection of meats, fruits, poultry, fish, butter, cheese, lard, vegetables, flour, meal, and all other provisions." (Subdivision 65:) "To make regulations to secure the general health of the city, to prevent the introduction of contagious, infectious, or malignant diseases into the city, and to make quarantine laws and enforce the same within the corporate limits, and within twelve miles thereof. To create a board of health and prescribe the powers and duties of the same." Subdivision 88: "To pass all ordinances and rules, and make all regulations, not repugnant to law, necessary for carrying into effect or for discharging all powers and duties conferred by this title (title 13, secs. 169-313x2, Comp. Laws 1907), and such as are necessary and proper to . . . preserve the health . . . of the inhabitants" of the city. It is observed that milk is not enumerated with the specifically enumerated articles mentioned in subdivisions 44 and 45, and because of that, and the further contention that it is not included in the term "other provisions" it is urged that no power was conferred upon the municipality to provide for the manner of sale, or for the inspection of milk, or to regulate the sale of the same. We think it is included in the term "other provisions."

It is true, as was said by the court in the case of Gundling v. City of Chicago, 176 Ill. 340, 52 N.E. 44, 48 L. R. A. 230, where the court had under consideration a provision similar to those of subdivisions 44 and 45 of our statute, "the term 'other provisions,' by a familiar canon of construction, can extend only to articles of the same character as those specifically enumerated. When general words follow an enumeration of particular things, such words must be held to include only such things or articles as are of the same kind as those specifically enumerated." But we think, as was there held, that the term includes all articles or products of food for man. So holding is but applying it to "such things or articles as are of the same kind as those specifically enumerated."

Furthermore we are of the opinion that ample power is also conferred upon the municipality to regulate the sale of milk, and to require a permit to be obtained by persons selling or offering to sell it within the city, as provided by the ordinance, because of the provisions of ...