
    The People of the State of New York ex rel. Simon Lieberman, Appellant, v. John E. Vandecarr, Warden of the City Prison, Respondent.
    
      Permit to sell milk in the city of New York—section 66 of the Sanitary Code was made valid by section 1172 of the revised charter — the Legislature had power to authorize its enactment—unjust discrimination is not authorised by it —presumption in favor of the action of the board of health — test of statutes and ordinances enacted under the police power.
    
    Section 66 of the Sanitary Code of the city of New York, which provides, “ No milk shall be received, held, kept, offered fór sale, or delivered in the city of New York without a permit in writing from the board of health and subject to the conditions thereof,” and which was enacted prior to the adoption of the revised charter of the city of New York and remained unaltered January 1,1902, when such revised charter took effect, was rendered valid by section 1172 of such charter (Laws of 1901, chap. 466), even although previous to that time its validity may have been open to question on account of an irregularity in, or want of authority for, its enactment.
    It was competent for the Legislature, under the police power of the State, to authorize the enactment of section 66 of the Sanitary Code, so far as such section is intended to regulate the actions of dealers in milk and not those of consumers thereof.
    That section properly construed does not permit the board of health, to act arbitrarily or to make an unjust discrimination when issuing permits thereunder.
    In the absence of evidence to the contrary, it will be presumed that the action of the board of health, in revoking a permit issued to a milk dealer and in declining to issue a new permit, was warranted by the facts.
    The test of the validity of statutes and ordinances enacted under the police power of the State is whether they are reasonable; The determination of this question does not depend upon what has been done or may be done by officials acting thereunder arbitrarily or in disregard of their duty, but upon what may lawfully be done thereunder.
    
      Appeal by the relator, Simon Lieberman, from an order of the-Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3 d-day of December, 1902, dismissing the writ of habeas corpus allowed herein and remanding the relator to the custody of the warden of the city prison.
    
      Frank Moss, for the appellant.
    
      Frederick W. Stelle, for the respondent.
   Laughlin, J.:

Thé relator was arrested on a warrant issued by a magistrate charging him with a violation of section 66 of the Sanitary Code of the city of New York. On being arraigned, he pleaded not guilty; and on the preliminary hearing before the magistrate he was held to answer for the crime, and -a commitment was issued committing him to the custody of the warden and keeper of the city prison in default of bail, which had been fixed at $100. After giving bail he was surrendered by the sureties, whereupon he sued out the writ of habeas corpus. The relator was a milk dealer, and prior to the 9th day of July, 1902, he held two permits — presumably for two wagons, but the fact does not appear—from the board of health under section 66" of the Sanitary Code, which provides as follows:

“ Section 66. No milk shall be received, held, kept,, offered for sale, or delivered in the City of New York without a permit in writing from the Board of Health and subject to the conditions thereof.’-’

These permits were revoked on that day by resolution of the board. The relator again applied for permits under that section, but his application was denied. Neither the grounds of revocation nor of the denial of the second application were shown.

in the absence of evidence to the contrary, it will be presumed that the facts warranted the action of the board in revoking the permits and in declining to issue new permits (People ex rel. Nechamcus v. Warden, etc., 144 N. Y. 529), and this is not seriously questioned by the relator, his contention being that said section 66 of the Sanitary Code is unconstitutional and void.

This section of the Sanitary Code was adopted by the board of health on the 16th day of February, 1898, but prior to that time it had existed as section 221.of the Sanitary Code, adopted on the 21st day of January, 1896. ' The adoption of said section 221- of the Sanitary Code was expressly ratified and continued in force, except as the same might be revised, altered, amended or annulled by the board, by section 1172 of the Greater New York charter (Laws of 1897, chap. 378). By said section 1172 and section 1168 of the Greater New York charter the board of health- was authorized and empowered to add to or alter, amend or annul any part of the Sanitary Code. The board of health ‘ merely re-enacted this section as it formerly existed, giving it a different number; and after that the Legislature, by section 1172 of chapter 466 of the Laws of 19.01, declared that the Sanitary Code “ which shall be in force in the city of New York the first day. of January, nineteen hundred and two, and all existing provisions of law fixing penalties for violations of said Code are hereby declared to be binding and in force in the city of New York, and shall continue to be so binding and in force, except as the same may from time to time be revised, altered, amended or annulled as herein provided, * * * The board of health may embrace in said Sanitary Code all matters and subjects to which and so far as the power and authority of said department of health extends, not limiting their application to the subject of health only. Any violation of said Sanitary Code .shall- be treated and punished as a misdemeanor.” Section 66 of the Sanitary Code having been enacted prior to the adoption of this provision of law by the Legislature, and having remained unaltered on the 1st day of January, 1902, was thereby ratified by the Legislature and became a valid ordinance, even though its validity on account of any irregularity in or want of authority for its-enactment was open to question before. (People v. Davis, 78 App, Div. 570; 79 N. Y. Supp. 747.)

The relator’s point, therefore, resolves itself into the question as to whether it was competent for the Legislature to expressly authorize the enactment of this ordinance. His counsel contends that it is apparent on the face of the ordinance that it is unreasonable and void in that it makes it Unlawful for hotels or even private consumers to have milk in their possession in this city without a permit from the board of health. . It may be observed, although the question is not presented for judicial determination, that the ordinance appears to have been designed to require only those dealing in milk to obtain such a permit (People v. Timmerman, 79 App. Div. 565), and'it would seem to be susceptible of the construction that it'is intended as a regulation of those offering milk for sale rather than of consumers. Nevertheless, the relator was a dealer in milk, and it appears that. he offered milk for sale after his permits were revoked. If the Legislature can require those dealing in milk to obtain a permit, but the act would be unconstitutional if extended to consumers, the ordinance should be construed as applicable to the former only in order to sustain its validity. (People ex rel. Nechamcus v. Warden, etc., supra.) The authority of the Legislature to require those dealing in milk and other food products that are liable to become deleterious to health to obtain licenses under reasonable regulations designed to secure the health of the community is amply sustained by the decisions, and it will be presumed that the facts warranted such legislation. (People ex rel. Larrabee v. Mulholland, 82 N. Y. 324; City of Chicago v. Bartee, 100 Ill. 57; Mayor, etc., v. D. D., E. B. & B. R. R. Co., 133 N. Y. 104; People v. West, 106 id. 293.)

This ordinance was enacted under the police power of the State, and the test of the validity of statutes and ordinances thus enacted is whether they are reasonable. (City of Brooklyn v. Nassau El. R. R. Co., 38 App. Div. 365; Barry v. Village of Port Jervis, 64 id. 268.) The validity of a law or ordinance, however, does not depend upon what has been done or may be done by officials acting thereunder arbitrarily or in disregard of their duty, but upon what may be done lawfully thereunder. (People ex rel. Nechamcus v. Warden, etc., supra; City of Rochester v. West, 164 N. Y. 510; Gunning System v. City of Buffalo, 75 App. Div. 31; Barry v. Village of Port Jervis, supra; Gundling v. Chicago, 177 U. S. 183.)

. It is manifest that dealing in milk cannot be too carefully regulated in a great city, and it was clearly lawful for the Legislature itself to prohibit, or vest the board of health with authority to enact an ordinance prohibiting, any person from dealing in milk without first obtaining a license under reasonable conditions and restrictions with reference to the source of supply, the manner of transporting and keeping the milk, and such supervision of the same as may tend to insure the delivery of wholesome milk to consumers, who are helpless to protect themselves in this regard. Such regulations, however, should be uniform, and the board should - not act arbitrarily; and if this section of the Sanitary Code vested in them arbitrary power to license one dealer, and refuse a license- to another similarly' situated, undoubtedly it would be invalid (Yick Wo v. Hopkins, 118 U. S. 356; Gundling v. Chicago, 177 id. 183; Noel v. People, 187 Ill. 587 Dunham v. Trustees of Rochester, 5 Cow. 462; City of Brooklyn v. Breslin, 57 N. Y. 591); but such was not its purpose, nor is that its fair construction.

It is unnecessary now to determine whether the action of the board in refusing or revoking such a permit would be judicial and thus reviewable by mandamus or certiorari, or whether, if the authority should be arbitrarily or improperly exercised, the only remedy would be an application for the removal of the officers; for those are questions that may arise in the administration of the. law, but do not go to its validity. The section, properly construed, does not permit unjust discrimination and, therefore, it is valid.

It follows, therefore, that the order should be affirmed.

Van Bbunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.

■ Order affirmed.  