State ex rel. Nowotny v. City of Milwaukee

• Decision Date: 03 June 1909
• Citation: State ex rel. Nowotny v. City of Milwaukee, 140 Wis. 38, 121 N.W. 658 (Wis. 1909)
• Parties: STATE EX REL. NOWOTNY v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

140 Wis. 38

121 N.W. 658

STATE EX REL. NOWOTNY

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

June 3, 1909.

Appeal from Circuit Court, Milwaukee County; John C. Ludwig, Judge.

Certiorari by the State, on the relation of Joseph Nowotny, against the City of Milwaukee and G. A. Bading, as Commissioner of Health, etc.From the judgment, respondents appeal.Reversed and remanded, with directions to quash the writ.John T. Kelly, City Atty.(Clinton G. Price, Asst. City Atty., of counsel), for appellants.

Carl Runge, for respondent.

WINSLOW, C. J.

The health commissioner of Milwaukee granted the relator a license to peddle milk in said city for one year; the license being by its terms “subject to revocation” according to the provisions of the city ordinances.The license having been in form revoked by the health commissioner, because relator had been convicted of selling impure milk, the relator brought an action of certiorari in the circuit court, and the action of the commissioner was reversed, whereupon the city and the health commissioner appealed to this court.

The question is whether the revocation was lawful.In addition to broad general police powers, the common council of the city of Milwaukee had power under the city charter “to regulate and restrain the sale of * * * milk,” also to “tax, license, regulate, and restrain * * * vendors of milk; to fix and regulate the amount of license under this subdivision,” etc.Subsections 9 and 40 of section 3 of chapter 4, Charter of Milwaukee, being chapter 184, p. 311,Laws 1874, as amended.By chapter 13 of the charter the duties of the commissioner of health are defined and made very broad and sweeping.He is given power to summarily abate nuisances of all kinds, destroy diseased or infected food, clothing, and other like articles, establish temporary hospitals in case of epidemics, and, in fine, to exercise very broad and autocratic powers in all matters relating to the conservation of the public health, and section 16 of the chapter further provides that the council may “further define” his duties and pass such ordinances in aid of his duties as may tend to promote and secure the general health of the inhabitants of the city.

A health officer who is expected to accomplish any results must necessarily possess large powers and be endowed with the right to take summary action, which at times must trench closely upon despotic rule.The public health cannot wait upon the slow processes of a legislative body, or the leisurely deliberation of a court.Executive boards or officers, who can deal at once with the emergency under general principles laid down by the lawmaking body, must exist if the public health is to be preserved in great cities.Lowe v. Conroy, 120 Wis. 151, 97 N. W. 942, 66 L. R. A. 907, 102 Am. St. Rep. 983.It is well said in People v. Vandecarr, 175 N. Y. 440, 67 N. E. 913, 108 Am. St. Rep. 781: “The vesting of powers more or less arbitrary in various officials and boards is necessary if the work of prevention and regulation is to ward off fevers, pestilence, and the many other ills that constantly menace great centers of population.”

There is nothing of greater importance relating to the food supply of a great city than that the milk sold should be pure and wholesome, and the common council of Milwaukee, realizing this fact, and realizing also that it was imperative that action should be quick and decisive if it is to be efficient, passed ordinances requiring under penalties that all milk sold...