Sterrett & Oberle Packing Co. v. City of Portland

• Decision Date: 25 January 1916
• Citation: 79 Or. 260,154 P. 410
• Court: Oregon Supreme Court
• Parties: STERRETT & OBERLE PACKING CO. ET AL. v. CITY OF PORTLAND ET AL.

154 P. 410

79 Or. 260

STERRETT & OBERLE PACKING CO. ET AL. v. CITY OF PORTLAND ET AL.

Supreme Court of Oregon

January 25, 1916

On Petition for Rehearing, February 15, 1916.

In Banc.

Appeal from Circuit Court, Multnomah County; William N. Gatens Judge.

Action by the Sterrett & Oberle Packing Company and others against the City of Portland and others. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal. Reversed.

On June 10, 1914, the city council of Portland passed Ordinance No 29063, designed to regulate the slaughtering of animals and the sale of carcasses and parts thereof which are intended for consumption in the city, and providing a penalty for the violation thereof. It prescribes regulations for the sanitation and inspection of slaughterhouses located within one mile of the city and outside its limits. As regulations they are not binding, because the council has no power to legislate for territory beyond the city boundaries. The provisions respecting such slaughterhouses amount only to conditions imposed upon the right to sell in the city the meat of animals slaughtered within the one-mile zone. The sale of such meat in the city is prohibited unless those regulatory provisions are complied with. The plaintiffs are engaged in the business of selling meat in Portland. Some of them own and operate slaughterhouses which are located outside of and within one mile of the city, and their supply of meat originates from animals killed at such establishments by persons who slaughter more than five animals a week.

The plaintiffs instituted this suit for the purpose of enjoining the enforcement of the ordinance on the ground that it is void because it contravenes the Constitution of the United States and of the state of Oregon in the following particulars: (1) It abridges the privileges and immunities of citizens of the United States; (2) it grants to a class of citizens privileges and immunities which upon the same terms do not equally belong to all citizens; and (3) it discriminates unlawfully against the class of meat sellers to which the plaintiffs belong, and no reasonable grounds exist for such classification and discrimination. The complaint alleges in substance as follows: That meat which originates from animals slaughtered at places more than one mile from Portland and which originates from animals slaughtered within a mile of the city, but slaughtered by persons who do not kill more than five animals a week, is sold as a regular business in the city of Portland. That only one concern in the state of Oregon has federal inspection of its meat and slaughterhouses which are located outside of and more than one mile from the city, and that it sells its meat and meat products within the municipality. That persons whose slaughterhouses and meats are inspected by the United States Department of Agriculture are entirely excepted and exempted from every provision of the ordinance.

Plaintiffs claim that the allegations of the complaint show that this ordinance operates to deprive them of their lawful privilege of selling meat in Portland on the same terms that are accorded to their competitors, consisting of two other classes of meat sellers created by the ordinance. It also appears from the complaint: That by the ordinance all persons who have slaughterhouses within a mile of the city, except those who do not kill more than five animals a week, must comply with the many expensive regulations set out in the ordinance as to sanitation, construction, and maintenance of their slaughterhouses, and as to the ante mortem and post mortem inspection of the animals and carcasses slaughtered and must obey the orders and dictations of the municipal inspectors; otherwise, their meats are prohibited from being sold in the city. That all persons who slaughter animals at places more than a mile from Portland, and those who within one mile thereof kill not to exceed five animals a week, are not required to comply with the expensive regulations of the ordinance as to sanitation, construction, and maintenance of their slaughterhouses, nor submit their animals to an ante mortem inspection, but may bring them to the city and have them pass a post mortem inspection there, which right is denied to carcasses slaughtered within one mile of the city where more than five animals a week are killed.

A demurrer was filed to the complaint, on the ground that the facts stated entitled plaintiffs to no relief. This was sustained. Plaintiffs refused to plead further, and a decree was rendered, dismissing the complaint, from which plaintiffs appeal.

E. B Seabrook, of Portland (Malarkey, Seabrook & Dibble, John F Logan, and J. J. Fitzgerald, all of Portland, on the brief), for appellants. W. P. La Roche and Henry A. Davie, both of Portland, for respondents.

BEAN, J. (after stating the facts as above).

The question for determination upon this appeal is whether the facts so alleged in the complaint and admitted by the demurrer show that the ordinance has the improper and illegal effect claimed by the plaintiffs; that is, does the ordinance abridge any lawful privilege of the plaintiffs, or grant any special franchise to other classes of meat sellers which is not allowed the plaintiffs on the same terms or unreasonably discriminate against them. Counsel for the plaintiffs contend that the ordinance in question is unenforceable and void. It is claimed by the city that the purpose and aim of the ordinance is to preserve and protect the public health, which renders it necessary and convenient to classify meat sellers into three different classes, as follows:

The first consists of all persons engaged in the city in selling meats which have been inspected by the United States Department of Agriculture or which have been slaughtered in an establishment inspected by it. This class, which is styled by the plaintiffs as the "more favored" one, is wholly excepted from the provisions of the ordinance by section 2 thereof.

The second class consists of those engaged in Portland in selling meat which has been slaughtered outside of and more than one mile from the city, or, if slaughtered outside of and within a mile of the municipality, meat slaughtered by persons who kill no more than five animals a week. This class may sell such meat within the city, provided they present the carcasses for inspection at some place therein in accordance with section 12 of the ordinance, without complying with the provisions thereof as to permits for slaughterhouses, sanitation, inspection, etc. These the plaintiffs term the "less favored" class.

The third class consists of all persons engaged in the city in selling meat which has been slaughtered outside of and within one mile of the city by persons who kill more than five animals a week. They are prohibited from selling such meat within the city unless they comply with the several sections of the ordinance. They are not permitted, as the second class is, to have their meats inspected within the city, but are expressly excluded from so doing by the provisions of section 12. The plaintiffs term this last class, to which they belong, the "unfavored and burdened."

Plaintiffs maintain that the classifications made by the ordinance stifle competition and are positively detrimental and opposed to the allowed purpose of protecting the public health. It is asserted on behalf of the city that at the present time, and for many years past, the city of Portland has had in operation several ordinances designed to protect the public health from the ravages of disease spreading through food products. There are sanitary ordinances, market ordinances, and an ordinance prohibiting the slaughtering of animals within the city limits. The proprietors of butcher shops, delicatessen stores, restaurants, and other eating places are required to observe certain regulations with respect to the conduct of their business, and are prohibited from selling or offering for sale any food products which are unfit or unwholesome for human food. With the growth and expansion of the city, it has become a difficult problem for the officials in charge to see to it that these several regulations are strictly observed and the prohibitions enjoined are not violated to the injury of the public. These circumstances gave rise to additional legislation upon the subject of health protection, and it was found that stricter compliance with the sanltary and health regulations of the city could be effected by the enactment of an ordinance requiring a thorough inspection of food products before the same were admitted to the city to be offered for human consumption. Experience showed that contagious and infectious diseases are communicated in a great majority of cases through milk and meat products. Accordingly, some time ago, the city of Portland enacted an ordinance requiring a thorough inspection of dairy herds and of milk produced therefrom before such milk could be even brought into the city for the purpose of offering the same for sale therein.

The meat inspection ordinance is designed to provide for a thorough inspection of all meat and meat products before the same are admitted to the market places of the city to be offered for sale for human consumption, in order to protect the public health. The elimination of slaughterhouses from the city limits naturally caused their location a short distance from the municipal boundaries. It is conceded that the slaughterhouses from which the city's supply of meat is chiefly derived are located within the prescribed one-mile zone, with the exception of one under federal regulation.

The enactment of laws for the inspection of foodstuffs is within the police power of the state. This is not questioned....