
    Court of Common Pleas of Montgomery County.
    Jacobs v. City of Dayton.
    
    Decided March 2, 1928.
    
      C. J. Mattern and Albert J. Diuyer, for plaintiff.
    
      Jno. Harshman, city solicitor, and Walter V. Snyder, asst, city solicitor, for the City of Dayton.
    
      
       Affirmed by the Supreme Court February. 6, 19,29.
    
   Snediker, J.

This action was brought by this plaintiff on his own behalf and on behalf of all persons similarly situated* asking a decree of the court finding Sections 735 and 737 of the meat inspection ordinance of the city of Dayton, as amended Decembér 28, 1927, to be unlawful and unconstitutional, and that the defendants, the Citji Manager and Director of the Department of Welfare of the city be enjoined from collecting any further fees or charges from plaintiff and from those similarly situated under these sections, and from taking any proceedings or action thereunder in enforcement thereof.

The claims of the plaintiff are that the power, attempted to be exercised by the city in the passage of this ordinance and in its enforcement, is not authorized by the Constitution of Ohio; that the ordinance is unlawful and unconstitutional because it is not based upon a uniform-rule, is not based upon a proper subject matter for taxation, is based upon an artificial and unwarranted classification for said purpose, is not of equal application to all persons similarly situated, and is an attempt on the part of the city to levy a tax in excess of the fifteen mills on each dollar of tax valuation of said city; that as an attempted exercise of police power it is unlawful for the reason that it is excessive and unreasonable and places a burden on plaintiff not borne by other persons similarly situated and relieved thereof by an unlawful and improper classification; that the amount of money raised by the ordinance is beyond the sum necessary for the expense of inspection; that the ordinance is not an emergency measure as claimed, and was unlawfully passed as such.

These charges of the plaintiff with respect to illegality and unconstitutionality are denied by the city, both generally and specifically, and the broad averment is made that the ordinance is a health measure enacted by the city in the exercise of its police powers to protect the public health by means of requiring regulation of slaughtering animals intended for human consumption, the packing of meat and ¿he preparation of food products in which meat is used; that the regulation is conducted by the Division of Health, and that by means of the inspection, together with the general enforcement of the ordinance and its penalties, that' division of the city government is enabled to and does protect the public health of the inhabitants of the city of Dayton and those purchasing meat and meat products in the markets thereof and prevents the sale thereon of immature, unwholesome, diseased and unhealthy meat and meat products.

• It is unnecessary to quote or recite the detailed aver-ments of the answer contradictory of the claim found in the petition, which details cover a number of pages.

The facts in the case with respect to which there is little controversy appear to be these: In the year 1913, under favor of constitutional provision, the city of Dayton adopted a charter providing for a Commission Manager form of government. In this government the legislative functions were delegated to a Commission. The administrative head of the city was designated a City Manager. Among the departments created was that of Public Welfare. This was placed under the management of a Director of Public Welfare, who acts “subject to the supervision and control of the City Manager in all matters.” As director of the public welfare the manager of that department had the duty to “enforce all laws, ordinances and regulations relative to the preservation and promotion of the public health, the prevention and restriction of disease, the prevention, abatement and suppression of nuisances and the sanitary inspection and supervision of the production, transportation, storage and sale of food and food stuffs.”

At the time of the adoption of this charter there was not among the ordinances of the city of Dayton a law providing for the inspection of meats, and no such inspection was regularly made, reliance evidently being had upon the criminal law of the state for the punishment of all persons who sold or offered for sale meat unfit for consumption. On June 16, 1920, a meat inspection ordinance was passed. This ordinance provided for a permit fee, but made no charge for inspection. The law remained thus, and the operations of the Welfare Department in this behalf were so carried on until December 28, , 1927, when the ordinance which is here made the subject of attack, was passed by the city Commission.

We need not incorporate in this opinion a copy of this entire ordinance with its amendment of February .1, 1928. So far as this case is concerned, the . preamble and those provisions which have been objected to are sufficient for our purpose.. The ordinance, which is No. 13464, contains the following preamble:

“Whereas, in order to protect. the public health and safety and to provide for the daily operations of the Department of Public Welfare, it is necessary that certain changes be made in the sections of the Code of General Ordinances regulating meat inspection.
“Be it Ordained by the City Commission of the city oDayton: .
“Sec. 2. That Section 735 be amended to read as follows-:
“Section 735. Slaughtering — Permit—Inspection fees. The proprietor or operator of each slaughtering, packing, meat-canning, rendering or similar establishment located within the corporate limits of the city and engaged in the slaughtering of cattle, calves, sheep swine or goats, or in the packing, canning or other preparation of a,ny food product into which the meats or any food products or any part of such animal enter, either in part or in whole for Dayton market, shall make written application to the Division of Health for a permit so to do; said application shall state the location of the establishment, the address of the owner or authorized agent of thé samé, the kind of animals slaughtered, the day and hour of slaughter, the time per day consumed in slaughtering, an estimate of the number of animals of any species slaughtered per day eacweek, an estimate of the amount of meat or meat food products' received from other establishments, and th.e character, quantity and proposed disposition of the products of said establishments, and such other information as may be required by the Health Officer. Upon the filing of such an application with the Division of Health and the payment of the fee therefor, which shall be $5, or $2.50 in case an application is made at any time after July 1 in any year, the Health Officer shall cause an inspection of such establishment to be made, and if the same shall be found to comply with the provisions of-the regulations, whether state or municipal, relative to the construction, equipment and cleanliness of such establishrüents, a permit shall be issued entitling the licensee or grantee. of such permit to conduct the business thus licensed for the period as hereinafter provided, but the payment of said fee shall not be construed to relieve or excuse the payment of thé inspection fees as provided herein for the inspection of animals slaughtered or to be slaughtered.
“All permits issued hereunder shall expire on the 81st day of December following date of issue, and shall be renewable annually upon payment by applicant of the fee herein required and compliance with all the requirements of the laws of the state of Ohio, and with the requirements :of the ordinances and the health regulations of the city of Dayton to the satisfaction of the Health Officer, but upon failure, neglect or refusal of applicant so to do, the Health Officer shall refuse to grant permit, as herein provided, and may revoke a permit already granted.
“Any person, firm or corporation paying the fee required by this section and receiving permit hereunder, .shall not be. required to take out permit and pay the fee therefor as required by Section 17 of the “regulations relating to meat” adopted by the. Board of Health of the city of Dayton, July 13, 1909.
“Each animal slaughtered in an establishment licensed pursuant to this section shall be subject to inspection by the Health Officer or his representative and the following fees shall be paid therefor: beef, fifty cents (50c) per animal; all other animals twenty-five cents (25c) per head, and each such licensee shall pay the fees thus accumulated at least twice monthly. The fees for such inspections made during the first half of each calendar month shall be paid on or before the twenty-fifth day of such month and those for the second half of the month shall be paid on or before the tenth day of the following month, failing which in either event inspections of animals at such establishment shall cease.
“Nothing herein shall be construed as obligating, requiring or making it the duty of the Health Officer or his representatives to furnish or conduct inspections, as herein provided, of animals slaughtered by any proprietor or operator as described in this section located beyond the corporate limits of the city.”

Section 737, which is included in the prayer of the petition, .we do not quote, for the reason that the farmers and stockmen to which, it refers are not similarly situated to this plaintiff and their case is not now before this court. The provisions of Section 737 may be referred to in this opinion, but only for the same purpose, if at all, which led to the introduction of testimony relative thereto by counsel and to their reference to the section in the argument. Section 6 of the ordinance provides “For the reasons stated in the preamble this ordinance is declared an emergency measure and shall become effective upon its passage.” After this ordinance became a law, the Welfare Department, through the Health Officer, Dr. Peters, and through inspectors, undertook to and did put it into effect by an inspection of the kill of the slaughter houses conducted by this plaintiff and all other persons doing a like business whose product was sold in the markets of this city and consumed by the inhabitants.

Prior thereto the Director of Public Welfare, using past experience for purposes of computation, estimated the amount of money which would be necessary to carry on the inspection of meat in the slaughter houses in this city. That computation took into account a portion of the salaries of some of the officials of the department, the salaries of the inspectors, the purchase and use of automobiles and equipment necessary to reach the places to be visited and there make inspections. This computation was conservative, and the actual charges made under the ordinance to those whose places have been inspected during the months of January and February of this year, make a return which will show a loss to the department on account of inspections. It appears that meat inspection was the last thing taken on by the Welfare Department, that in the operation of that department financial retrenchment was necessary and that either a charge had to be made for inspection or inspection must cease. The testimony shows that the three largest packing houses in the city of Dayton have not been subjected to inspection under this ordinance. These, because they are engaged in interstate commerce, are inspected by the Department of Agriculture of the Government of the United States. For this inspection no fee is charged. The evidence shows that during the year 1927 their kill amounted to 35,000,-000 pounds of all kinds of meat; that from 65 per cent, to 75 per cent, of that product is sold on the markets of the city of Dayton; that the kill of this plaintiff and those on behalf of whom he brings this action, is sold in the city of Dayton, and is of a much less quantity and necessarily comes into competition with the slaughter houses which are afforded Government inspection.

The evidence discloses thaíf the fees charged by the department of welfare in making its inspection will be a considerable additional expense to some' of the larger complaining slaughter houses of one of which this plaintiff is the owner. On account of this condition, and because of the fact that he believes this ordinance to be defective in. the respects which he recites in his petition, he asks an intervention of this court to prevent its enforcement.

In presenting his case, the plaintiff does not dispute the right of the city of D '.ton to pass an ordinance for the inspection of meat. He >. les not dispute the right of the city to charge him with the license fee provided for in the ordinance, but confines himself to a complaint that the fee for inspection is a tax measure, that it discriminates against him and such slaughter houses as have general government inspection and are protected by inspection recognized by our Board of Health; that it delegates power unlawfully to the Health Officer and leaves to him a discretion which he cannot exercise; that the fees charged are unreasonable and confiscatory and in excess of the amount needed, and that the ordinance does not state a fact when it recites that it is an emergency measure.

In order to intelligently discuss the questions before us, it will not be improper for the court to review, in a manner, the fundamental rules by which the city is governed in its legislation in this behalf. Elliot in his work on Municipal Corporations, at page 49, says: “The protection of the health of the people is one of the principal purposes for which municipal corporations are created, and every presumption will be indulged in favor of an ordinance having this for its object.” Cooley, in his book on Municipal Corporations, says.: “The preservation of the health of the population is uniformly recognized as the most important municipal function, and the power to adopt and enforce sanitary regulations appropriate to this end is inherent in a municipality.”

The limitation placed upon a city which has adopted a charter such as that of the city, of Dayton, in the passage of regulations like the one we have before us, is found in Article 18, Section 3 of our Constitution: “Municipalities shall have authority to exercise all powers of local self-government, and to adopt and enforce .within their limits such local, police, sanitary and other similar regulations as are not in conflict with general laws.” By “general laws” is, of course, here meant the Constitution and the enactments of the Legislature.

Subsequent to the passage of the Hughs-Griswold law, which is found at Section 1261-16 et seq. of the General Code, the city of Dayton became a city health district, and as such had authority to pass a reasonable regulation for the inspection of meat in its slaughter houses and on its markets. There is not found in the General Code a provision for a fee to be collected by the health districts for inspection. A charge of that kind by the city of Dayton must stand the test of the objections that are made by the plaintiif.

Early in the history of our state the question of a charge for inspection of a commodity used by the people was before the supreme court in the case of the Cincinnati Gas Light & Coke Co. v. The State. In rendering the opinion, Judge Brinkerhoff said:

“The enactment of laws for the inspection of commodities, is the exercise of a legislative power recognized and sanctioned by long and unquestioned usage here and elsewhere, and is included in the general grant of legislative power conferred by the constitution upon the general assembly; and among the general, and I believe the invariable, incidents and characteristic features of this class of laws, is the imposition of a charge upon the owners pr possessors of the commodities inspected for the services of the inspector, although these services may have been rendered in .invitum as to such owner or possessor.- It is the legitimate- exercise of governmental supervision over the business .of the manufacturers and vendors of certain commodities, in order to protect the public at home and abroad against imposition and fraud, and incidentally to protect the manufacturers and vendors themselves against unfounded and unjust claims of vendees and consumers, as well as against the consequences of their own short-sighted cupidity.”

The Supreme Court of the United States, in the case of Patapsco Guano Co., Appellant, v. Board of Agriculture of North Carolina, Appellee, found in 171 U. S., at p. 345, held that inspection laws are valid under the constitution. Quoting from previous decisions, Chief Justice Fuller says in this case:

“The object of inspection laws is to improve the quality of articles produced by the labor of a country; to 'fit them for exportation, or it may be, for domestic use.”
“Bouvier defines inspection as the examination of certain articles made by law subject to such examination, so that they may be declared fit for commerce.”
“The removal or destruction of unsound articles is undoubtedly an exercise of that power.”
“The object of the inspection laws is to protect the community, so far as they apply to domestic sales, from frauds and impositions.”
“Whenever inspection laws act on the subject before it becomes an article of commerce, they are confessedly valid.”
“No doubt can be entertained of this where the inspection is manifestly intended, and calculated in good faith, to protect the public health, the public morals, or the public safety.”

The city health district being subordinate to and carrying into effect as an agency of the state, the policy and purpose of the State Health Department, has authority, therefore, if otherwise unobjectionable, to charge for an inspection of a commodity in general use among the people. But, counsel for plaintiff say that this is a tax. Their argument in this respect is based upon the theory that the money raised by inspection is intended for general use in the Welfare Department and that, had there not been a requirement of economy, the inspection fee had never been charged. The testimony does not show, and cannot be construed so as to convey the idea that the money raised by this fee is intended for general use in the department, but on the contrary, reveals that it will be entirely consumed in accomplishing the object for which it is charged, and may, as we have before indicated, show a deficit.

In the case of City of Norfolk v. Flynn, 101 Va., p. 473, there was before the Supreme Court the, question of a fee for the inspection of the milk of that city, and the claim was made that the fee was a tax, fine and penalty, but the court held that it was “a legitimate fee designed as compensation for service rendered and to enable the city to bear the expenses of a valid police regulation.”

In accord with the Virginia case, and quoting it with approval, is that of Carpenter v. Little Rock, 101 Ark., 238-246. In the opinion, we find this language:

“As a means to the end in view, it is necessary to have proper inspection of the milk and meat before it is sold, and the fee required to be paid the inspector is not required as a license or prerequisite to the right of the seller to carry on his business, but it is to cover th® cost of inspection. It is a fee for services rendered by the inspector. The charge is made for specific services rendered by the inspector to the seller, and the inspection fees are not in the nature of a- license fee, as that word is used in the statute.”

But, counsel for plaintiff say that this charge is excessive, and the plaintiff and other witnesses testified as to the amount which will be realized by the city, as they claim, during the year, from their respective. kills. We do not find á preponderance of evidence to the effect thát the city will' make money by the inspection, and even if the income exceeds the outlay, there ought- not to be any complaint unless it is an amount which shows unfairness. The Supreme Court of Ohio, in the case of Castle v. Mason, 91 O. S., 296-305, says:

“It is not necessary that the Legislature determiiie with exact nicety the amount of the inspection charges required to carry its purpose into execution. This is manifestly impossible owing to the varying fluctuations of trade. Mere excess in net surplus revenues; is¡ of itself no warrant in disturbing the law, nor would we feel disposed to hold that a flagrant excess in a single year over the expenses would invalidate it. What we do hold is, that under the facts disclosed here, where it appears that the fees are not only excessive but are being continued, yielding each and every year increasing net revenues, the natural operative effect of the inspection act thus shown is in direct violation of Article I, Section 10,. of the United States Constitution, and consequently void.”

As we have said, the case at bar does not show any such condition of things as warrants an .application of the closing statement of the court in the opinion just quoted from.

Does the ordinance discriminate against the plaintiff and those similarly situated, in favor of the slaughter houses having general government inspection?

The language used is, “Each animal slaughtered in an establishment licensed pursuant to this section shall be subject to inspection by the Health Officer or his representative, and the following fees shall be paid,” etc.

The testimony shows that the three large slaughter houses favored by Government inspection procured from the city of Dayton a license to do business locally. Therefore, under the terms of this ordinance they are “subject to inspection by the Health Officer or his representative,” and, if inspected, would, of course be called upon to pay the fee. Section 743 of the General Ordinances of the city provides, “All meats and meat-food products offered for sale in the city of Dayton shall be subject to reinspection, * * * at any and all times by the Division of Health. * * *” Inspection has not been made of the kills where Government inspection is had. It may be taken as an admitted fact that the regularity and severity of Government inspection and requirements make .it unnecessary for the city of Dayton, for its protection, to follow up the inspection of the government. The testimony in this case shows a local organization, with headquarters at the Federal Building, which has charge of this work, which is complete in all its machinery and daily as well as monthly makes a report to the Department of Agriculture at Washington, D. C., of its inspections under government regulation. The testimony further shows that these slaughter houses are required by the government to furnish and change from time to time their equipment so as to conform to the strictest requirements as to cleanliness and health, and that all sanitary regulations in these slaughter houses are so supervised by the government that there is no opportunity for improvement by inspection on the part of the city of Dayton.

But, counsel for plaintiff say that there is here a delegation of authority to the Health Officer by the city which the law does not permit, and this they rest upon the wording of the ordinance, “shall be subject to inspection by the Health Officer,” etc. In other words, they say that this language means only that there is a liability to inspection and not a certainty of its being had, and that it is left to the Health Officer to say whether or not it shall be furnished. •

We understand the limitation which rests upon municipal powers, i. e., that they shall be executed by the municipality itself, or by such agencies or officers as the statute has pointed out, and that there cannot be a delegation of functions to some other body or persons than the responsible agency charged with such duty, and especially that the exercise of a power with which any branch of the government of the municipality is charged, cannot be delegated so far as discretion and judgment are concerned, to its subordinates. But we do not understand that a health officer as such has any value or can effectively work without the exercise of judgment. Judgment is the first requisite of a health officer, and its exercise is indispensable to the performance of the duties of his office. He must determine. He must decide. The general law of the state imposes that duty upon him. The fact that he does use judgment does not invalidate this ordinance. The complaint here is, not that he refuses to give inspection to the plaintiff, but that he neglects to inspect somebody else, although the language of the ordinance is “shall be subject to inspection.”

If the Health officer is improperly discriminating’ as between this plaintiff and the slaughter houses inspected by the government, the remedy is not found in this case. The complaint ought to be made to those having authority over the Health Officer, for the reason that it is the manner of enforcement and not the ordinance itself which causes the complaint. If the Health Officer refused this plaintiff inspection he then might be in a position, if others similarly situated were inspected, to complain because of discrimination. But that is not this case; nor does the ordinance provide that others may have what plaintiff cannot. The fees are the same with respect to all inspections made within the health district. The service is accorded to all persons requiring it in their business. The discrimination, if any, with respect to inspection, is made outside of the terms of the ordinance. The Health Officer of the city of Dayton is given the power to enforce this ordinance. The power to supervise the Health Department cannot be exercised in detail by the City Commission, nor by the City Manager, nor by the Director of Welfare. The details are too numerous and their purpose is too important to entrust solely to the heads of departments. The exercise of judgment in permission or refusal is not the exercise of a legislative function by the Health Officer. The purpose for which it is called into requisition being, and the individual or officer designated, being named, who is to represent the city, the decision is in enforcement of legislation, and not legislation itself, nor an unreasonable or unlawful exercise of judgment. Stripped of this privilege, the Health Officer becomes a man of straw.

We come now to the objection that the ordinance was passed as an emergency measure which in fact it is not. On its face the ordinance shows that it was passed by the City Commission. These men have knowledge of the needs of the city and the duties of their office and are representatives of all the inhabitants of the city of Dayton, They are acquainted with conditions and possibilities, and in a formal way declare that this law should immediately go into effect. There is nothing in the evidence to indicate that they are mistaken. It would, therefore, not become this court without, and perhaps not with, evidence to that effect, to review this deliberate declaration of necessity on the part of the legislative body of the city. There is a sense in which that is none of our business for the reason that by law the determination of the question involved is left to the City Commission and does not become the duty of the court.

Another objection urged against the ordinance is that the fee charged by the inspectors is unreasonable, and, therefore, is in excess of the necessary fee for the purpose to be accomplished, so as to offend the constitution. Slaughter houses which are in interest with this plaintiff, are located mostly in the extreme east and west ends of the city; some are in close proximity to each other. Some are widely separated. In making these inspections, the testimony shows that oftentimes when the inspectors are at one end of town calls are made to go to the other. The services of inspectors are not required all day at any one place. They get their information and arrive in time to make their inspections and depart to some other locality. The men who have been appointed inspectors are qualified for that purpose by an education which makes their employment professional. That class of men cannot be secured for the purpose at an insignificant price, nor can they be called upon to punch a clock every time they make an inspection and charge for their time. We have already considered this objection in part in other discussions in this opinion.

In connection with the presentation of the questions raised by the issue in this ease, reference has been made to Section 734 of the ordinance, which reads as follows:

“No person, firm or corporation, shall ship, send, bring, or cause to be brought into the city of Dayton, the meat of any cattle, sheep, lambs, goats, or swine which does' not bear the meat-inspection brand or other mark of identification recognized by the Division of Health of the City of Dayton.”

Since the enactment of the Hughes-Griswold law, which is general in its application throughout the state, there has been a re-formation of health units over Ohio. Every city, which is a town over five thousand inhabitants, under the Constitution, is made a city health unit. The townships and villages in each county are combined into a health district, and for purposes of law are known as a general health district. There may be a union of two general health districts, or a union of a general health district and a city health district, or any and all of these may work separately for the benefit of the public. Each unit may have its health commissioner or officer who shall be the executive officer of the board of health, and shall carry out its orders. He is charged with the enforcement of all sanitary laws and regulations within the district, and has all the powers conferred by law upon health officers of municipalities.. The establishment by law of general health districts outside of the cities makes it unnecessary, where the law has been fully complied with, and there has not been a union of the city .with the general health district, as there has not been in this county, for the city health officer to inspect outside of the city. Under circumstances prevailing in this county, if he does so, it is a matter of grace and not of right to those who are given the benefit of inspection. There may have been in the minds of the commission the thought that inspection would be had in the general health district of the county, and, if it was, being a compliance with the law of Ohio, it would be entitled to be recognized by the Division of Health of the city of Dayton. This application of Section 734 makes it a very wise provision and not an invasion of the rights of anyone.

There has been an effort by the plaintiff to charge to that part of the ordinance which relates to health officers within the city, the objections which arise in the minds of counsel, because of the provisions of the ordinance which relate to territory within the general health district. In other words, which refer to features in Sections 734 and 737. Even if these sections were found to be unconstitutional, that part of the law which refers to the control of the health officer over the business of the plaintiff and those similarly situated, if it does not offend the Constitution, may be upheld.

Black, in his work on Constitutional Law, says:

“It frequently happens that some parts, features, or provisions of a statute are invalid, by reason of repugnancy to the constitution, while the remainder of the act is not open to the same objection. In such cases it is the duty of the court not to pronounce the whole statute unconstitutional, if that can be avoided, but, rejecting the invalid portions, to give effect and operations to the valid portions. The rule is that if the invalid portions can be separated from the rest, and if, after their excision, there remains a complete, intelligible, and valid statute, capable of being executed, and conforming to the general purpose and intent of the legislature, as shown in the act, it will not be adjudged unconstitutional in toto, but sustained to that extent.”

Following out this general rule in the case of the City of Piqua v. Zimmerlin, 35 O. S., p. 507, the Supreme Court held:

“A part of an ordinance may be void and the remainder valid.”

Let it be understood that we do not find or seek to infer that Section 734 or 737 are invalid, but we mean to say that since we have found those provisions which are applicable to plaintiff free from objection, they are not subject to any infirmity, if one exists, found in Sections 734 and 737.

It has been urged by counsel that this inspection is a burden upon a useful business, and, therefore, objectionable. The authorities which we have quoted, favoring and establishing the right to inspection and permitting the charging of fees therefor, warrant the imposition of a reasonable burden upon a business of the kind conducted by the plaintiff. We have not found that the burden is unreasonable.

In view of all the facts in this case and of the circumstances and conditions under which the Health Department, is ot this time working in this regard, we are unable to find that the fee charged is in excess of the service rendered.

It is the opinion of the court that the prayer of the petition ought to be denied, which is accordingly done. 
      
      The sections used in this opinion appear • by quotation and reference.
     