Whitney v. Watson

• Decision Date: 03 November 1931
• Citation: 157 A. 78
• Parties: WHITNEY v. WATSON et al., Board of Health.
• Court: New Hampshire Supreme Court

157 A. 78

WHITNEY

v. WATSON et al., Board of Health.

Supreme Court of New Hampshire. Hillsborough.

Nov. 3, 1931.

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

Petition for mandamus by John G. Whitney against Maurice Watson and others, Board of Health of Manchester, to compel the issuance to the plaintiff of a license to sell milk, skim milk, and cream within the City of Manchester. On the conceded facts the court ruled that plaintiff was entitled to a license, and defendants bring exception.

Exception overruled.

Wyman, Starr, Booth & Wadleigh, of Manchester (Winthrop Wadleigh, of Manchester, orally), for plaintiff.

Omer H. Amyot, City Sol., of Manchester, for defendant.

SNOW, J.

Public Laws, c. 163, § 8, subjects to a penalty "whoever goes about in carriages or makes a business of selling milk, skim milk or cream in any such city or town," without a license obtained under the provisions of section 4 thereof, which reads: "The boards of health of cities and the selectmen of towns may grant to any person who applies therefor and pays the sum of two dollars a license to sell milk, skim milk and cream within their city or town, until June first next following, and may renew such license annually in the month of May upon application and the payment of a like fee; provided, that said applicant will satisfy the board of health or selectmen that he understands the care and handling of said product, and files the name and address of all his producers, and gives reasonable assurance that the cows from which the milk is taken are healthy and properly fed and cared for. Any person selling only the product of his own cows shall be exempt from paying any fee for such license."

The plaintiff owns and operates a milk farm in Bedford, six miles from the city of Manchester. He sells the product of his cows in bulk to a dealer in said city whose bottling plant is licensed by the board. Desiring to sell said product direct to consumers in Manchester, the plaintiff, on July 3, 1931, applied for a license under the statute. He filed his name and address, satisfied the defendants that he understood the care and handling of said product, and gave them reasonable assurance that the cows from which the milk was to be taken were healthy and properly fed and cared for. The defendants refused to grant a license for the combined reasons that the plaintiff's plant was outside of Manchester, and he did not hold a license on March 26, 1928, on which date the board had voted "that no more distributors' licenses to sell milk in Manchester be granted to nonresidents of Manchester; * * * This vote is not to affect licenses in force at this date." The board has since granted licenses, which are still in force, to other nonresidents of Manchester whose plants are farther removed from the city than those of the plaintiff. It is understood, however, that these are renewals of licenses held on March 26, 1928, and that the board, both in granting such renewals and in denying the plaintiff's application, consistently applied the rule laid down in its said vote. The question presented, therefore, is whether the adopted rule is a valid regulation under the statute.

The manifest purpose of the statute is to protect the public health. The power of the Legislature to so regulate the sale of dairy products as reasonably to insure their purity is not open to doubt. State v. Campbell, 64 N. H. 402, 13 A. 585, 10 Am. St. Rep. 419; State v. Ball, 70 N. H. 40, 46 A. 50; Slayton v. Marshall, 64 N. H. 549, 551, 552, 15 A. 210, 1 L. R. A. 51. Nor is any question raised as to the reasonableness of the three conditions which the statute imposes upon the granting of licenses.

The contention of the defendants that the conditions laid down by the statute as prerequisite to granting a license, being preceded by the word "may" instead of "shall," are merely minimum requirements to which the board in its discretion may add others, cannot be maintained. An unguided and unrestrained discretion in the board would make the act unconstitutional. Village Precinct of Hanover v. Atkins, 78 N. H. 308, 310, 99 A. 293; 12 A. L. R. 1436; 54 A. L. R. 1104. It is because the statute does direct and limit the aclion of the board that the act can be justified. Sundeen v. Rogers, 83 N. H. 253, 260, 261, 141 A. 142, 57 A. L. R. 950. It is true that the Legislature might have authorized the boards to make uniform and reasonable rules designed to carry out the purposes of the statute. State v. Normand, 76 N. H. 541, 543, 545, 85 A. 899, Ann. Cas. 1913E, 996. Instead, it saw fit to specify definite conditions controlling their action. See State v. Cohen, 73 N. H. 543, 546, 63 A. 928. The requirements having been fixed by the Legislature, the function of the board is limited to determining whether the applicant complies therewith. Douglas v. Noble, 261 U S. 167, 169, 170, 43 S. Ct. 303, 67 L. Ed. 590, 593. It may not arbitrarily impose a limitation not authorized by the statute. Idem.; Picone v. Com'r of Licenses, 241 N. T. 157, 161, 149 N. E. 336; Larkin Co. v. Schwab, 242 N. Y. 330, 151 N. E. 637.

It is a familiar rule of statutory construction that the word "may" shall be construed to mean "shall" when such appears to be the intention of the Legislature. Instance, Pub. St., c. 124, § 1. State v. Cohen, supra, 73 N. H. 544, 547, 63 A. 928; Silverman v. Gagnon, 74 N. H. 502, 503, 69 A. 886; Muhlin v. Rowell, 77 N. H. 183, 89 A. 840.

The typical case for the application of the rule is one where the public interest and right are concerned and the public or third persons have a claim de jure that the power shall be exercised. Blake v. Railroad, 39 N. H. 435, 437; Rogers v. Bowen, 42 N. H. 102, 107; Robertson v. Railroad, 63 N. H. 544, 548, 3 A. 621. Such a situation is presented here. Dairy products are normally legitimate subjects of commerce, interference with which is justifiable only so far as the protection of the public health requires. To that extent the Legislature may regulate and limit their sales. Beyond this, the marketing of such products is a matter of right. It is in the interest of the purchasing public as well as of the producer that a license be granted the latter when he has fulfilled the legislative requirements. The argument that the substitution, here, of "may" for "shall" in the parent act (Laws 1883, c. 42), imports an enlarged discretion loses force when we consider that the grant of licenses under the earlier statute was authorized subject to no proviso or limitation, while here, as we have seen, the word precedes a definite specifica-tion of the prerequisite conditions. It was the intention of the Legislature to make the issue of licenses mandatory when the conditions have been complied with.

The contention of the defendants in support of the rule is based upon the claim that examinations of the plants of applicants are essential to the performance of their duties; that without such examinations the protection intended by the statute would be ineffective; that the finances of the board do...