Shelton v. City of Shelton

• Decision Date: 02 June 1930
• Citation: 111 Conn. 433,150 A. 811
• Court: Connecticut Supreme Court
• Parties: SHELTON v. CITY OF SHELTON ET AL.

150 A. 811

111 Conn. 433

SHELTON v. CITY OF SHELTON ET AL.

Supreme Court of Errors of Connecticut.

June 2, 1930

Case Reserved from Superior Court, Fairfield County; Carl Foster Judge.

Action by Daniel B. Shelton against the City of Shelton and others for an injunction and a declaratory judgment, brought to the superior court and reserved upon stipulated facts for the advice of the Supreme Court of Errors.

Question answered.

The essential facts as stipulated are as follows: The plaintiff is now and for many years prior to January 1, 1929, has been a registered producer of milk under the laws of this state and a licensed milk dealer under the ordinances of the defendant city of Shelton, and has invested many thousands of dollars in property used in this business, and has built up a valuable milk route within Shelton. The plaintiff has complied with the laws of the state, the rules and regulations of the state milk regulation board and the ordinances of Shelton referring to the production, handling and sale of milk and cream, excepting certain provisions of an ordinance of the city of Shelton adopted November 19 1928, and amended on December 10, 1928, in part as follows:

" Section 1. After the first day of January, 1929, it shall be unlawful for any person, firm or corporation, within the City of Shelton, either by himself, agent, servant, or other representative, to sell at retail any milk or cream except from tuberculin tested cattle, as certified by the State Commissioner on Domestic Animals, or pasteurized, according to the State Statutes provided for pasteurization of milk.

Section 2. No person, firm or corporation shall sell within the City of Shelton any milk from tuberculin tested herds until he has furnished the Board of Health satisfactory evidence that the cattle producing such milk have been approved by the State Commissioner on Domestic Animals, provided that if the State Commissioner on Domestic Animals is unable by reason of lack of appropriation or time to make the desired tests, then if such producers have signed an application with such Commissioner, to subject their cattle to such tuberculin test, they may engage in such business until the 1st day of October, 1929.

Section 3. Any person, firm or corporation before selling or offering for sale within the City of Shelton, any milk as pasteurized, shall furnish the Board of Health with satisfactory evidence that he is complying with the requirements of the State Statutes provided for pasteurization of milk."

The parties agree that section 4 of this ordinance clearly indicates that the ordinance applies only to retailers and not to wholesale distributors of milk or cream. The milk produced and sold by the plaintiff has been tested and analyzed periodically by both the state of Connecticut and the city of Shelton, and has been found to be particularly clean and pure, and not detrimental to public health in any way.

The city of Shelton, through its duly constituted officers, has threatened and is threatening to enforce these provisions of the ordinance and has threatened to arrest the plaintiff if he fails to conform to them. The parties agree that by the provisions of this ordinance it is unlawful for the plaintiff to sell at retail any milk or cream except from tuberculin-tested cattle, as certified by the state commissioner of domestic Animals, or unless the same shall have been pasteurized according to the laws of this state.

The charter of Shelton, passed by the General Assembly in 1915 (17 Sp. Laws, p. 646) gives the board of aldermen, under the provisions of section 66, power and authority to adopt ordinances, " to license milk dealers and to regulate the sale and manner of distribution of milk and to prohibit the sale thereof, unless in accordance with such regulations." In the same section, in dealing with foodstuffs, it gives the board of aldermen the further power and authority to adopt ordinances " and to prohibit the sale thereof when in such condition as to endanger the public health."

Section 2486 of the General Statutes provides that the milk regulation board may make " rules and regulations concerning the * * * marketing or sale of milk or cream within the state, to protect the public from the use of milk or cream which is unsanitary or detrimental to public health." Section 2491 of the General Statutes provides: " No provisions of sections 2485 to 2492 inclusive shall affect the authority of any * * * city * * * to enact ordinances or by-laws for the control, regulation, sale or distribution, within its limits, of milk which is detrimental to public health." This section was repealed by chapter 272 of Public Acts of 1929, but reenacted as section 1 of that chapter, except that " may be detrimental" was substituted for " is detrimental."

MALTBIE and HAINES, JJ., dissenting.

William F. Healey and Patrick B. O'Sullivan, both of Derby, for plaintiff.

Joseph G. Shapiro, Harry Allison Goldstein, and Charles S. Brody, all of Bridgeport, for defendants.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

WHEELER, C.J. (after stating the facts as above).

Milk is in universal use as a food. It is peculiarly liable to contamination and adulteration. Therefore in the interest of public health and safety the regulation of its production, marketing, and sale are held to be within the proper exercise of the police power of the state. This the state may effectuate directly by its statute, or it may delegate its regulatory power to an official board or officer, or to a municipality. It may exercise this power directly and completely, or it may delegate it directly or completely to either of these agencies, or it may act in the exercise of this regulatory power in concurrence with the municipality. The state may determine the standard of quality, prohibit the production, sale, or distribution of milk not within the standard, divide it into classes, and regulate the manner of their use, so long as these standards, classes, and regulatory provisions be neither unreasonable nor oppressive. The many recorded instances in which the courts have sustained this power of regulation bear witness to the liberality of their viewpoint where the public health and safety are concerned. If there be room for a reasonable difference of view as to the legislative prohibition, classification, or regulatory provisions, courts will accept the legislative determination and not impose their own will.

It must be conceded that the General Assembly has, by granting in section 66 of the defendant's charter the right to it " to license milk dealers and regulate the sale and manner of distribution of milk and to prohibit the sale thereof," delegated to it a certain measure of its police power. Neither can it be denied that in many statutes the General Assembly has exercised its power of regulation of the production, sale, and distribution of milk.

We have in the case before us an instance where the police power is to be exercised concurrently by the state in major part and by the municipality in minor part.

The single question which must be decided upon this reservation is whether the city of Shelton possessed the power to enact this ordinance which in effect provides that no milk or cream shall be sold by retail dealers in the city of Shelton unless it is produced from tuberculin-tested cows or pasteurized. The power of the city to enact this ordinance depends primarily upon whether it is in conflict with, or inconsistent with, the statutes of the state relative to the regulation of the production and sale of milk and cream, unless there has been an express grant of power to it or the matter be one of purely local and municipal concern which the Constitution has committed to the city. The enactment of this ordinance by this city does not fall within these exceptions. This general rule of law has long been our accepted doctrine, certainly since Southport v. Ogden, 23 Conn. 128. If the general law be enacted after the ordinance covering the same field, it will take the place of the ordinance and supersede it. If the ordinance be enacted after the general law in conflict with it, the ordinance will be void. State v. Stokes, 91 Conn. 67, 70, 98 A. 294. In State v. Tyrrell, 73 Conn. 407, 408, 47 A. 686, we held that an ordinance which purported to prevent the sale and consumption of impure and adulterated milk within the city limits, when the same subject-matter was fully covered by the General Statutes, would be void. Where the statute and ordinance deal with the same subject-matter, the statutory power will prevail, to the exclusion of the ordinance, so far as they conflict. State v. Welch, 36 Conn. 215, 217. The danger from according to the state and the municipality concurrent power over police regulation of matters of public concern is emphasized in Conn. Co. v. Haven, 103 Conn. 197, 211, 130 A. 169, and Central Ry. & El. Co.'s Appeal, 67 Conn. 197, 217, 35 A. 32, and the supremacy of the enactment of the state over the municipal ordinance upheld. Ordinances, subject to the exceptions noted, must not conflict with the statutes and must be in harmony with the general law of the state and with its public policy as expressed in its legislation and its law. McQuillan, Municipal Corporation (2d Ed.) § § 683, 685; Schneiderman v. Sesanstein, 121 Ohio.St. 80, 167 N.E. 158, note to this case, 64 A.L.R. 993; note to Korth v. Portland, 58 A.L.R. 672; note to State of Minnesota v. Fairmont Creamery Co., 42 A.L.R. 556; Ex parte Daniels, 183 Cal. 636, 192 P. 442, note to this case, 21 A.L.R. 1186.

Milk or cream coming from tuberculin-tested cows is one of the kinds of milk or cream which under the statute can be sold or offered for sale, but only...