
    REGULATION REQUIRING BOTTLING OF MILK BY DAIRYMEN VALID.
    Common Pleas Court of Montgomery County.
    Henry Klopfer v. Board of Health of the City of Dayton. 
    
    Decided, August 30, 1909.
    
      Boards of Health—Exercise of Police Power by—In the Regulation of the Sale of Milk—May be Extended to Milk which is Possibly, but not Certainly, Injurious to Health—Regulations Held to be Reasonable and of Uniform Operation—Section 1586-780.
    
    1. A hoard of health has the power in Ohio to make such reasonable regulations with reference to the sale of milk as will prevent the sale of milk which is possibly, hut not certainly, injurious to health.
    2. A regulation which requires that all milk or cream, with certain exceptions, shall be kept and sold in tightly closed and capped bottles, or in other receptacles of a similar character which shall be approved by the board of health, does not fail of uniform operation because of the exceptions contained therein.
    
      Mattern & Brumbaugh, for plaintiff.
    
      Philo G. Burnham, City Solicitor, and Walter V. Snyder, Assistant City Solicitor, contra-.
    
      
       Similar judgment affirmed by the Supreme Court without report October 12, 1909, in the Cleveland case of Stass v. the State.
      
    
   Snediker, J.

This is an action in injunction and is submitted to the court on its merits for decision.

The plaintiff says in his petition that he is the owner and proprietor.of a long established dairy business; that in carrying said business on he has acquired a regular route of customers; that he sells at both wholesale and retail, his retail trade being largely to families from sanitary metal cans; that he conducts his business legally and in accord with all the fules and regulations affecting the business. He complains because the board of health of the city of Dayton has passed the following regulations :

“Section. 1. No person,-firm or corporation, except such as may sell for consumption on the premises where sold, and dealers in dairy products exclusively, shall sell, offer for sale, expose or keep with the intention of selling any milk or cream, or both, in the city of Dayton, Ohio, unless such milk or cream is kept, offered for sale, exposed for- sale, or sold-in tightly-closed and capped botfles or receptacles of a similar character, .which may be approved by the board of health of said city; the owners and operators of dairies and, all drivers of wagons who. sell milk or cream at retail or deliver the same from wagons, shall carry, selT-and deliver-such milk and cream only in bottles-or- other approved'receptacles as-aforesaid. All milk and-cream so sold in bottles' or-' other receptacles, not to be consumed on -the premises where sold, shall' be taken and carried to-'the residence of the purchaser or place where intended for- use in ;the. said bottles- or receptacles, and not, otherwise. •
. :“Section 2-. No milk or,cream shall be-sold,.-offered for sale, exposed -for sale, or- kept,, .with the intention, of selling in or at any piilk depot, creamery, store or other place of business, unless, such- milk depot,- creamery, store or other place of business shall be equipped- for keeping said milk and cream, and the same shall be kept therein, at a temperature-of fifty degrees or lower Fahrenheit.
“Section 3. The provision of- Section 1 of .this regulation shall not apply to -bona fide dealers in milk and cream at wholesale, who shall sell at any one time a quantity of not less .than two gallons of milk or two quarts of cream, and who shall each have a separate room in which said milk and cream shall be kept or offered for sale, with a floor space at least ten feet square, with suitable ventilation', and provided also with an additional room in which shall be washed and cleaned all- cans, bottles or other receptacles, and utensils of every kind used in connection with' said business, all -of which shall be subject tó the approval of the board of health. -
“Section 4. This regulation shall take effect and be in force On and after-December 15, 1903, and shall thereupon-supersede and' repeal the regulation adopted on July 14, -1908, relating to the same, subject matter. . -
“Adopted, by the board of health of the city of Dayton, Ohio, the 10th day of November, A. D. 1908.”

The plaintiff’s complaint is that this regulation of the board of health is unconstitutional -and void; that it is unreasonable; that it, is burdensome; that it. is partial and does not. act with uniformity upon persons of the same class and makes unjust discriminations between them; that it destroys vested property rights without due process of law. And plaintiff says the enforcement of the regulation will destroy the property right and value of his business route, together with the business of many others similarly situated.

To this petition the board of health filed its answer, in which, admitting the claim of the plaintiff with reference to the conduct of his business, etc., it denies that the regulation referred to is unconstitutional and void, as .averred by the plaintiff. It dénies that plaintiff’s method of doing business is sanitary. It claims that such method is unsanitary; that in delivering milk and cream in the manner used by plaintiff the butter fats are not evenly distributed; that dirt, dust and disease germs come in contact with and mingle with the milk in his cans and in ..the receptacles used by customers; that these evils will be corrected by an obedience of the regulation.

It will be observed that the question here presented to the court is solely a question of law. Is the regulation here enacted and attempted to be enforced constitutionally and legally valid? Let us first consider the natfire and authority of the board passing the regulation complained of. The police power, which includes the control over everything essential to the public health, is left by our national Constitution to the individual states. The delegation of the “right to provide for the public health,” foun'd in our municipal code, and the laws generally and ’ specifically establishing and defining the duties of boards of health, found in the revised statutes, are a sufficient vesting of that power by the state in the municipality and in a board.

As to the board of health, we find it provided by Section 1536-730:

“The board of health of any city * * may make such orders and regulations as it may deem necessary for its own government for the public health, the prevention or restriction of disease and the prevention, abatement' or suppression of nuisances. ’ ’ * * *

This is a general grant of a power almost arbitrary in terms, but which may not be exercised arbitrarily. It is always subject to the rule that such regulations and orders must not violate the supreme law of the land—the Constitution—must be consistent with the law of the state and reasonable so far as they affect the general, public or individual rights. Beach on Public Corporations, Volume 2, Section 983.

If our regulation passes these tests it is unobjectionable. On the contrary, if it is found to be either unconstitutional, inconsistent with the law of the state or unreasonable, it must be declared inoperative. To determine if it is inconsistent with the law of the state, we look further and find that by Section 1536-756 the board of health has been given power with reference to the very 'food product here in question. This section reads in part:

“And the board may make such orders as it deems necessary to prevent the sale of impure and adulterated and unwholesome milk or milk liable to carry disease.”

. What did the Legislature intend by this? It may be contended that it meant that the board could, by its orders, prevent the sale of milk known to be impure, etc., except perhaps in a case of an epidemic, when the power might be extended, but this does not seem to be the interpretation of our Supreme Court. In the case of Benjamin Kaiser v. Edivard Walsh, Assistant Milk Inspector, etc., affirming the Court of Common Pleas of Plamilton County, which the Supreme Court did on June 1st, 1909, they must have held in sustaining the lower court that the board of health had the constitutional and legal right from this section, at any time not only to enforce, but also to enact a. regulation making unlawful the sale of milk which possibly but uot midoubtedly was liable to carry disease. Their decision could not have referred such power to the provisions of Section 1536-730 for the reason that no such right exists.under a general grant of power to a local authority. In /file., case, referred to the regulation being with reference to the "temperature of the milk, was intended by reduction of temperature to prevent the possibility of the increase of pathagenie or injurious bacteria, if any were contained in the milk.

Under.this decision any board of health in this state has the right to pass any regulation which reasonably accomplishes the same purpose, i. e., the prevention of the sale of milk possibly but not undoubtedly injurious to the health.

Having found that the board had both the legal and constitutional right to pass a regulation of this character, we- have only left to determine whether or not,- as passed, it is a reasonable and uniform exercise of the power.

First, let us consider whether it is reasonable. The question here presented is whether it is so unreasonable as to amount in law .to an abuse of discretion. The business with reference to which the regulation was made is confined locally to the use of bottles and cans, and the testimony in the case was - directed solely to those, so that we will speak only of them, although the regulation refers to “receptacles of a similar character.” The purposes for which the regulation was passed are given in defendant’s answer as follows: first, to bring about an equal distribution of the butter fats; second, to prevent the'delivery of milk to customers in unclean vessels furnished by them; third, to prevent dirt, dust and disease germs from coming in contact with and mingling with the milk.

In so far as the first purpose is concerned, the seller is not required to distribute the butter fats equally among his customers. If he brings his deliveries up to the standard required by the Revised Statutes, Section 4200-12, he has met all the law of the state demands, besides any violation on his part in this regard may be detected by the inspectors of the board, which the Legislature has wisely provided for.

As to the second ground, it certainly isn’t fair to impose regulations on one man because of the negligence or folly of another.

This brings us to the third and principal reason given by the board. That dirt, dust and disease germs do come in contact with milk in a can being continually opened, and when used open in a public highway can not be denied, and was testified to very fully on the trial. The number of such disease germs no man can tell. Only by inference may it be stated that in a city of this size many are likely to exist. That there is some danger to the public from such germs settling in milk sold from cans, is apparent. Of its magnitude we can not judge from the evidence. There was, it is time, testimony in the case with reference to the bacterial count both in bottles and cans, but this does not help us for the reason that no witness, including the city bacteriologist, could tell us the number of the pathagenic germs in any count. Not knowing this, the court can base no certain judgment as their number on the testimony, and we may not, with reference to it in the absepce of any clear testimony, substitute our discretion for that of the board, which has quasi judicial powers, but are required by law to accept their view in the matter, which is that the danger is great enough to require regulation. Beach on Public Corporations, Volume 2, Section 994.

This being true, does' the regulation requiring the sale of milk in “tightly closed and capped bottles” tend to remove that danger? This question answers itself. A regulation need not cut off all possible way of incurring danger provided it greatly reduces its likelihood.

That the regulation is or may be burdensome is not a sufficient reason for holding it invalid, if it be necessary, as the board has declared, for the public good. It is upon this principle that the whole body of the law of police power is founded.

The objection that the regulation destroys vested property rights is answered by the same rule, which counsel will find the court applied in the case of Kaiser v. Walsh, before alluded to.

This brings us to the objection made by the plaintiff that the regulation is not uniform in its operation. This contention is based on the fact that it excepts from the requirements of Section 1 ‘ ‘ such as may sell for consumption on the premises where sold and dealers in dairy products exclusively.” By “dealers in dairy products exclusively” is meant those referred to in Section 3. Plaintiff’s point is that this places on a retailer and dealer in dairy products exclusively who sells from a wagon certain burdens, expense and conditions which it does not place on dealers by Section 3. By -the Bill of Rights- privileges can not be granted to one person and denied to- another of the same class, nor can burdens be imposed, on some and not on others of a class. As said by our Supreme Court in State v. Gardner, 58 O. S., 610:

.“A statute which imposes special restrictions or burdens or grants special privileges to the persons engaged in the same business under the same circumstances can not be sustained because it is in contravention of the equal right which all are entitled to in the enforcement of laws and in the enjoyment of liberty, and in the enjoyment of an equal right in the acquisition and possession of property, and so is not of uniform operation.”

The same essential principle of law governs the exercise of the police power and in the enactment of a regulation this board is controlled by it. Are the dealers who sell from wagons, “in-the same business under the same circumstances” as the dealers “who sell at wholesale not less than two gallons of milk or two quarts of cream and who have each a separate room in which such milk and cream shall be kept and offered for sale with a floor space of at least ten feet square with suitable ventilation and provided also with an additional room in which shall be washed and cleaned all cans, bottles and. other receptacles and utensils of evéry kind in connection with said business?”

We think this inquiry is answered in the negative by the very words of the-regulation. It is apparent that the danger from outside pathagenic contamination is never as great in an establishment so conducted as in the open street or -alley. This being true the regulation conforms- to the rule that where restraint is confined to a. special class of acts or occupations that .class must present the danger dealt with in a more marked and uniform degree than the classes omitted.

The Supreme Court of the United States-in the 113th U. S., Justice Field deciding the case, says in the body of the opinion that the rule requiring uniformity

“Was not designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people, and to legislate so as to increase the industries of the state, develop its resources and add to its wealth and prosperity.
“Regulations for these purposes may press with more -or less weight upon one than upon another, but they -are designed not to impose unequal or unnecessary restrictions upon any one, but to promote with as little individual inconvenience as 'possible the general good. Though in many respects necessarily special in their character they do not furnish just ground of complaint, if they operate alike upon all persons and property under the same circumstances and conditions. Class legislation discriminating 'against some and favoring others is prohibited, but legislation which in carrying out a public purpose is limited in its application, if within the sphere of its operation it affects all persons similarly situated is not within the mile.”

Also see 63 O. S., page 202, 9 and 10.

"We find ourselves unable to determine that any of the reasons assigned for the invalidity of the regulation complained of are well founded in law. The relief prayed for is therefore denied and the plaintiff’s petition, is dismissed at his costs.  