State v. Stone

• Decision Date: 01 February 1894
• Docket Number: 11,316
• Citation: 46 La.Ann. 147,15 So. 11
• Court: Louisiana Supreme Court
• Parties: STATE OF LOUISIANA v. JOHN STONE

15 So. 11

46 La.Ann. 147

STATE OF LOUISIANA v. JOHN STONE

No. 11,316

Supreme Court of Louisiana

February 1, 1894

APPEAL from the First Recorder's Court, City of New Orleans. Whitaker, J.

Frank McGloin Attorney of Board of Health, for Plaintiff and Appellee.

Jas. C Walker, for Defendant and Appellant.

OPINION

BREAUX, J.

The defendant appeals from a sentence of the First Recorder's Court condemning him to pay a fine of $ 25, and in default of payment to suffer imprisonment for thirty days on the charge of selling adulterated milk in violation of an ordinance of the city.

His ground of appeal is that the ordinance provides for the conviction of dairymen by means of evidence forbidden by the Constitutions of the State and the United States by ordaining that they shall furnish, under the penalty of fine and imprisonment gratuitously, samples of milk whenever required so to do by the health officers, to be subjected to analysis.

The defendant on the trial objected to the introduction of proof as to the quality of the samples of milk.

The defendant delivered to the inspector two samples, one from each can of the milk he had for sale. Each sample consisted of a mall quantity, less than a pint, which the inspector handed to the chemist of the Board of Health.

After the analysis the inspector made an affidavit against the defendant, charging him with having violated city ordinance 6596, relating to adulterated milk.

As a witness on the trial the chemist testified that the milk was below the standard. With reference to the analysis he testified that it was accurate, and explained the method followed in testing the milk; that he had examined a large number of samples of natural milk, and that in no instance had he found them less than the standard adopted, except where the cows were diseased, or just before or after parturition.

The constitutionality of the ordinance is questioned.

The facts, as disclosed by the record, do not prove that the defendant was compelled to be a witness against himself and furnish samples of milk.

While in order to retain a right in opposition to any demand in execution of a law, on the ground of its illegality, there is no necessity to resort to downright resistance or to a display of combativeness; there should be sufficient objection manifested to render it certain that assent was not intended.

The facts upon this point are in evidence and have been considered.

They prove compliance and in consequence exclude certain constitutional objections that would necessitate a decision if the defendant had been forced to give up the samples.

Moreover "Where power is expressly given to municipal authorities to license and regulate trades and callings generally, or certain specified trades and callings, or where power to exact licenses is implied, it will be found that such authorities have very commonly prohibited certain employments which affect closely the public health or safety, except the persons engaged therein take out licenses to prosecute such employments. This restriction is usually applied to the business or employment of architects, bakers, dealers in old rags or in meats and provisions, or in milk, or in spirituous liquors, or in dangerous articles," and other trades and occupations. Parker and Worthington, p. 298.

License itself is one of the means of regulation.

It has the effect of lessening the number that would, without it, engage in the trade or occupation licensed and thereby to a corresponding extent decreases competition.

By the license the trade or occupation is brought more directly within the scope of the police power.

This...