State v. Elofson

• Decision Date: 02 May 1902
• Docket Number: Nos. 12,908-(19).,s. 12,908-(19).
• Parties: STATE v. CHARLES ELOFSON.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 103

86 Minn. 103

STATE v. CHARLES ELOFSON.¹

Nos. 12,908-(19).

Supreme Court of Minnesota.

May 2, 1902.

Defendant was convicted in the municipal court of Minneapolis, Dickinson, J., of selling milk without a license from the city health commissioner, in violation of an ordinance of the city of Minneapolis. From an order denying a motion for a new trial defendant appealed. Reversed.

John W. Arctander, for appellant.

Frank Healy and Edward F. Waite, for the State.

COLLINS, J.

This appeal involves the validity of one of the ordinances of the city of Minneapolis. This ordinance provides for the issuance of licenses to venders of milk within the city limits, and, as a condition precedent to the securing of licenses as venders, that the animals producing the milk to be sold must be inspected. Such as are located within the county of Hennepin are to be inspected under the direction and supervision of the city health commissioner, free of charge. If the animals from which the applicant for the license obtains his milk are located outside of Hennepin county, they must be inspected by some local veterinarian, acceptable to the city health commissioner, residing in the county where the herds are located, and the inspection must be without expense to the city of Minneapolis. Unless this inspection is had, no license can be issued to the applicant, and he is prohibited from selling.

The defendant kept no cows himself, but secured his milk from about two hundred fifty animals kept by persons in counties other than Hennepin. The owners of these animals refused to bear the expense of inspection themselves, and therefore it devolved upon defendant to pay the charges of the veterinarian, — about fifty cents per animal in this particular case; in the aggregate, about $125. This charge might be much more per head, for no fee is prescribed, nor could there be in this ordinance. The facts were agreed upon, and, among other things, it was stipulated that the defendant had been duly licensed by the state dairy commissioner to sell milk within the limits of the city of Minneapolis, for which he had paid the required fee, in accordance with the provisions of G. S. 1894, §§ 7004, 7005.

It is contended by defendant's attorney that the ordinance is void as to persons selling milk obtained from dairy herds outside of Hennepin county, for four reasons, as follows:

"1. For the reason that it is ultra vires, unauthorized, and clearly in the teeth of the express prohibition of the enabling act. Laws 1895, c. 203.

"2. For the reason that the provisions of the ordinance complained of come under the inhibition of the enabling act, in that they are in conflict with the spirit and letter of G. S. 1894, §§ 7004, 7005.

"3. For the reason that the said ordinance as amended is unreasonable, arbitrary, and unlawfully discriminates between dairies and dairy herds located in Hennepin county and those located in adjoining counties.

"4. For the reason that the ordinance, as amended, operates in restraint of trade."

But, as we regard this case, it is unnecessary to consider all of these points. Under that part of the first section of said chapter which empowers city councils to pass milk ordinances, and to authorize their boards of health to enforce all laws and ordinances relating to the production and sale of milk and the inspection of dairy herds producing milk for sale or consumption within said city limits, it is clear that a city council may, by ordinance, require the inspection of dairy herds outside of the city limits. In fact, one contention covered by the first of the above objections might as well be made against that part of the ordinance which requires and provides for inspection of all herds in Hennepin county, whether kept within or without the city limits, for we take judicial notice of the fact that the city of Minneapolis does not include all of Hennepin county, and that a very large part of the same is outside of the city limits. One branch of this subject is fully discussed and completely disposed of in State v. Nelson, 66 Minn. 166, 68 N. W. 1066, a Minneapolis case, in which was examined the power of its council to adopt such reasonable police regulations as to outside dairy herds as would prevent the sale of unwholesome milk within the city. As was there said, the inspection required of herds outside of the city limits is wholly voluntary on the part of the owner of the dairy or dairy herds, and if "he does not choose to submit to such inspection the result merely is that he, or the one to whom he furnishes milk, cannot obtain a license to sell milk within the city." The conclusion was that the ordinance then in question, since amended and now before us, had no extraterritorial operation,...