Sleeth v. Dairy Products Company of Uniontown, 7039.

• Decision Date: 27 December 1955
• Docket Number: No. 7039.,7039.
• Citation: 228 F.2d 165
• Parties: Clark K. SLEETH, as Health Officer of Monongalia County, West Virginia, Appellant, v. DAIRY PRODUCTS COMPANY OF UNIONTOWN, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

228 F.2d 165 (1955)

Clark K. SLEETH, as Health Officer of Monongalia County, West Virginia, Appellant, v. DAIRY PRODUCTS COMPANY OF UNIONTOWN, Appellee.

No. 7039.

United States Court of Appeals Fourth Circuit.

Argued November 15, 1955.

Decided December 27, 1955.

George R. Farmer, Morgantown, W. Va. (Cletus B. Hanley, Asst. Atty. Gen. of West Virginia, and Albert M. Morgan, Prosecuting Atty., Monongalia County, Morgantown, W. Va., on the brief), for appellant.

Glenn Hunter, Morgantown, W. Va. (Charles McCamic, Wheeling, W. Va., on the brief), for appellee.

Before PARKER, Chief Judge, SOPER, Circuit Judge, and R. DORSEY WATKINS, District Judge.

SOPER, Circuit Judge.

This suit was brought in the District Court by Dairy Products Company of Uniontown, a Pennsylvania corporation, against Roger A. Kennedy, Health Officer of Monongalia County, West Virginia,¹ to secure a judgment commanding the Health Officer to approve an application of the company for a permit to distribute milk in the county and forthwith to issue the permit. There was also a prayer for an injunction to restrain the Health Officer from prosecuting the company, criminally or otherwise, for selling milk in the county without a permit and from arresting its agents because of any such sale; but the suit was not pressed on the latter ground. Jurisdiction is based on the ground that the action was of a civil nature between citizens of different states wherein the controversy exceeds the sum of $3,000, and the purpose of the suit is to restrain the defendants from interfering with the company in carrying on its lawful business in Monongalia County in the course of interstate commerce.

The principal question at issue is whether the Dairy Products Company had conformed to milk regulations issued by the Public Health Council of the State of West Virginia on January 5, 1944, under the power conferred by Ch. 16, Art. 7, § 5 of the Code of West Virginia. It was alleged in the complaint that the Dairy Products Company had complied with the laws and regulations of the State of Pennsylvania regarding the distribution of milk and also with the milk regulations of the City of Pittsburgh which are more stringent than those of the State, and that these laws and regulations were equivalent to the regulations of the State of West Virginia; and that the Company had applied to the Health Officer of Monongalia County for a permit to sell milk in the county, but that he had arbitrarily and unreasonably refused to issue it. The suit was defended on the ground that the Pennsylvania and Pittsburgh regulations were not equivalent to the regulations of West Virginia and therefore the Dairy Products Company was not entitled to the permit. The District Judge found that there was equivalency and therefore held that the refusal of the Health Officer of the county to grant a permit to the county was an unwarranted obstruction to interstate commerce in milk and milk products, and violated the plaintiff's constitutional rights.

The validity of Ch. 16, Art. 7, § 5 of the West Virginia Code, which directs the Public Health Council to adopt regulations to provide clean and safe milk and milk products to be enforced by local health authorities throughout the state, is not questioned. Nor is the validity of the regulations themselves challenged. In Dean Milk Co. v. City of Madison, Wis., 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329, the Supreme Court of the United States recognized the appropriateness of the local regulation of the sale of milk as within the powers of the states, even though interstate commerce may be affected, in the absence of federal legislation; and in State v. Bunner, 126 W.Va. 280, 27 S.E.2d 823, the Supreme Court of West Virginia held that the West Virginia statute did not involve an unconstitutional delegation of legislative authority and that the regulation forbidding the sale of milk without a permit from the county Health Officer was valid, although no statute expressly authorized the Council to make the permit a prerequisite of sale. The court also held that the regulation providing that only persons complying with the regulations should be entitled to a permit did not confer on the Health Officer arbitrary power or discretion to grant or refuse a permit; and the court added that if it should be that any regulation was unreasonable or invalid, the applicant should not be required to comply therewith; but the method of procedure in such case was to apply to a proper court to compel the issuance of the permit rather than to operate in defiance of the regulations.

The regulations issued under the authority of the statute are sweeping in scope and elaborate in detail. Amongst other things, it is provided in § 5 that at least once during each grading period, in no case to exceed six months, the Health Officer shall inspect all dairy farms and all milk plants whose milk or milk products are intended for consumption within the State of West Virginia. Section 6 provides for the taking and examination by the Health Officer of at least four samples of the product from each dairy farm and milk plant during each grading period. Section 7 provides for the announcement every six months by the Health Officer of the grades of milk and milk products to be delivered by producers and distributors; and the standards for the grading of the milk, the conditions under which it is produced and handled, and the pasteurization of the product are meticulously prescribed. Section 11 of the regulations with which we are particularly concerned, provides that milk and milk products from points beyond the limits of routine inspection of the state may not be sold therein, unless produced and pasteurized under provisions equivalent to the requirements of the West Virginia regulations, provided that the Health Officer shall satisfy himself that the Health Officer having jurisdiction over the production and processing is properly enforcing such provisions. Penalties are provided by § 16 for violations of the regulations.

It is manifest that the duty imposed upon the county Health Officer of West Virginia by the statutory regulations involves the construction and application thereof, and the exercise of judgment and discretion in their enforcement. His duties are not so plainly marked as to amount to a positive command, and hence the well established rule applies that the courts will not issue a mandamus or other order to control the action of an executive or administrative officer in the discharge of statutory duties involving the exercise of judgment or discretion, unless the attempted performance of the duty amounts to an abuse of discretion.

Mandamus will lie where there is a clear legal right to the performance of a particular act or duty at the hands of the respondent, and such act or duty is of a ministerial nature² rather than one involving the exercise of discretion.³ It will lie to compel officers with discretionary duties to take action,⁴ but it will not interfere with the exercise of their discretion unless their action is illegal,⁵ or is an arbitrary or capricious abuse of such discretion.⁶ This remedy is available only when all administrative remedies...