State v. Normand

• Citation: 76 N.H. 541,85 A. 899
• Parties: STATE v. NORMAND et al.
• Decision Date: 07 January 1913
• Court: Supreme Court of New Hampshire

85 A. 899

76 N.H. 541

STATE

v. NORMAND et al.

Supreme Court of New Hampshire. Hillsborough.

Jan. 7, 1913.

Exceptions from Superior Court, Hillsborough County; Wallace, Judge.

Aime Normand and another were convicted of a statutory offense, and they except Exceptions overruled.

Defendants were convicted in the police court of the city of Manchester under a charge of violating chapter 15, Laws of 1911, in not complying with a rule of the state board of health requiring loaves of bread exposed for sale to be wrapped in paper. The case was tried without a jury. The court found upon the evidence submitted that the rule of the board of health regarding the wrapping of bread is a practicable one and is necessary and reasonable. Defendants excepted to the conviction and to the ruling that the board was legally authorized to make the rule in question.

James Patterson Turtle, Atty. Gen., and Patrick H. Sullivan, County Solicitor, both of Manchester, for the State.

Thorp & Abbott, of Manchester, for defendants.

WALKER, J. Section 1, c. 15, Laws 1911, provides: "The existence or maintenance of any unclean, unhealthful, or unsanitary condition or practice in any establishment or place where food is produced, manufactured, stored, or sold, or of any car or vehicle used for the transportation or distribution thereof, is forbidden." In section 2 it is provided that "unclean, unhealthful, or unsanitary conditions or practices shall be deemed to exist * * * if food in the process of production, storage, sale, or distribution is unnecessarily exposed to flies, dust, or dirt, or to the products of decomposition or fermentation incident to such production, storage, sale, or distribution, * * * or if there is any other condition or practice which shall be deemed as endangering the wholesomeness of food." Section 3 gives to the state board of health, or its inspectors or agents, "full power and authority at all times to enter and inspect every building, room, or other place occupied or used for the production, storage, sale, or distribution of food, and all utensils and appurtenances relating thereto. And if any person, firm, or corporation is found to be violating any of the provisions of this act, then the state board of health shall issue an order to the aforesaid to abate the condition or practice in violation, within such time as may be deemed reasonably sufficient therefor." Section 4 empowers the state board of health "to make all necessary rules and regulations for the enforcement of this act" A penalty is imposed in section 5 for the violation of "any of the provisions of this act," or for the failure of any one "to comply with the lawful orders and requirements of the state board of health duly made and provided in sections 3 and 4 of this act."

Under this statute the state board of health adopted certain rules and regulations designed to carry out the purpose of the statute, among which is the following: "Whereas, bread is an article eaten without being subjected to any preparation, and commonly undergoes frequent and objectionable handling and exposure in connection with its distribution, sale, and delivery from bakeries, stores, and wagons, it is ordered that all bread loaves, before removal from the baking room, shall be wrapped in clean, unused paper, unprinted or printed on one side only. The use of newspapers or of any unclean paper for the wrapping of any articles of food is prohibited." The defendants, although requested to do so, refused to comply with this order of the board of health, and, being prosecuted under the statute, were found guilty. No exception was taken to the form of the complaint, and its sufficiency in this respect must be assumed. Nor is the defendants' exception to the finding that the rule regarding the wrapping of bread is a practicable, necessary, and reasonable one, on the ground that it is not supported by the evidence, entitled to much consideration. Much evidence was presented upon the question of the reasonableness of the rule in its application to the bakery business, and the finding or ruling of the court upon that issue seems to be amply justified. The mere fact that the wrapping of the loaves of bread in paper before they are offered for sale is attended with some expense does not prove that the rule is unreasonable. Health Department v. Rector, 145 N. Y. 32, 40, 39 N. E. 833, 27 L. R. A. 710, 45 Am. St. Rep. 579. Evidently the expense is very small in view of the object which the rule was intended to subserve. It is not apparent how that object could be attained at less expense. The wrapping of bread in paper when exposed for sale would seem to be the most feasible way of protecting it from the contamination caused by handling and by the presence of dust and flies and perhaps other noxious insects. If the board had the legal authority to make regulations in respect to this subject, the rule in question does not appear to be unreasonable.

But the defendants insist that, as the Legislature cannot delegate to individuals the power to legislate (State v. Hayes, 61 N. H. 264), it could not for that reason authorize the board of health to decide that such a rule was desirable and to impose its observance upon the people of the state. It is claimed that such procedure is an attempt to delegate legislative power. If that position is sound, the rule is invalid, and the defendants were illegally convicted. If the Legislature had incorporated in the statute the substance of the rule requiring bakers to wrap their bread in paper before offering it for sale, the statute would have been a constitutional exercise of the police power for the protection of the public health. Unless it is clear that a statute purporting to have been enacted for the protection of the public health and public morals has no relation to those objects, it cannot be set aside as unconstitutional and void. State v. Roberts, 74 N. H. 476, 479, 69 Atl. 722, 724 (16 L. R. A. [N. S.] 1115). It is said in that case that the power of the Legislature "to regulate restrain, and prohibit whatever is injurious to the public health and morals is universally recognized, and nowhere more distinctly than in this state." If upon a reasonable construction of the act there appears to be some substantial reason why the observance of its provisions will promote the public health, it will be sustained as a valid exercise of the police power. State v. Ramseyer, 73 N. H. 31, 36, 58 Atl. 958, 6 Ann. Cas. 445. "The constitutional authority of the Legislature, in the exercise of the police power of the state, to enact such regulations as are deemed reasonably necessary for the security and protection of the lives and health of all persons within the state, is unquestioned." State v. Forcier, 65 N. H. 42, 17 Atl. 577. For other illustrations of the recognized extent of the police power, see State v. White, 64 N. H. 48, 5 Atl. 828; State v. Campbell, 64 N. H. 402, 13 Atl. 585, 10 Am. St. Rep. 419; State v. Marshall, 64 N. H. 549, 15 Atl. 210, 1 L. R. A. 51; State v. Pennoyer, 65 N. H. 113, 18 Atl. 878, 5 L. R. A. 709; State v. Griffin, 69 N. H. 1, 39 Atl. 260, 41 L. R. A. 177, 76 Am. St. Rep. 139.

One of the evident purposes of the Legislature, as disclosed by the act in question, was to secure greater cleanliness in food when exposed for sale and to protect the public health, so far as practicable, from the danger incident to the unclean and unsanitary conditions to which food is often exposed; and, to be more specific, it is declared in section 2 that such conditions "shall be deemed to exist * * * if food in the process of production, storage, sale, or distribution is unnecessarily exposed to flies, dust, or dirt." In view of the well-recognized medical facts that the germs of disease are distributed by flies when they come in contact with food designed for human consumption, like loaves of bread, and that typhoid fevers are often traced to that cause, it is clear that the statute has direct reference to the public health. Such a condition or practice is a constant danger to the health of the community; and the statute was enacted to protect the people from that danger, and if enforced it would manifestly have that effect Hence it is within the police power of the Legislature and is a constitutional enactment, so far as its purpose is concerned. State v. Cate, 58 N. H. 240; Watertown v. Mayo, 109 Mass. 315, 319, ...