
    The State, ex rel. Hanna, v. Spitler et al., Board of Health of City of Findlay.
    (Decided July 1, 1933.)
    
    
      
      Messrs. Axline S Pendleton, for relator.
    
      Mr. Fred B. Hover, for defendants.
   Guernsey, J.

This is an action in mandamus brought in this court by the relator, Ed Hanna, who is a resident of the city of Findlay, Hancock county, Ohio, and has for a number of years been the owner of a milk route and engaged in the business of selling and distributing milk and milk products at retail in said city, to compel the defendants, constituting the board of health of said city, to cause an inspection to be made of his sources of milk supply, and to act thereon, in accordance with the provisions of an ordinance of said city of Findlay passed and adopted by the council of said city in the month of December, 1932, amending and revising a certain ordinance theretofore in effect in said city, regulating the sale of milk and milk products within said city, and requiring a permit for such sale.

No pleadings were filed by any of the defendants, and the case was submitted to the court on its merits, on an agreed statement of facts, and on additional testimony offered by the defendants which was undisputed by the relator.

The statement of facts and the testimony are to the following effect:

The several defendants are members of, and together constitute, the board of health of the city of Findlay, as alleged in the petition; the relator Ed Hanna has for many years been and now is a resident of the city of Findlay, and has for a number of years been the owner of a retail milk route, or routes, and has been engaged in the business of selling at retail and distributing milk and milk products in said city; the relator until about three years ago procured his supply of milk and milk products from the Findlay Dairy Company, then in business in said city, but which discontinued its milk business about three years ago; that at- the time of such discontinuance the relator procured a new source of supply for milk and milk products for distribution to his trade from White Mountain Creamery Company of Lima, Ohio, which company has since that time delivered its product each day to the relator in Findlay for distribution to relator’s customers;- that during said time said city had in force and effect a certain ordinance regulating the sale and distribution of milk and milk products within said city, and requiring a permit for said purpose, and the relator was until the event hereafter mentioned a holder of such permit; and that on or about December, 1932, the council of said city duly passed a certain ordinance containing revisions and amendments to said ordinance, the sections which are necessary to be considered in this case being as follows:

“Sec. 359. No person or persons shall sell milk or cream within the City of Findlay without first having been granted a permit therefor by said board, as hereinafter provided.
“Sec. 360. Every milk and cream vendor, selling or offering for sale, exchanging or delivering milk or cream within the limits of the City of Findlay, shall pay for a permit so to do, the sum of fifty cents. Said fee shall be paid when application is made for a permit under the provisions of said rules and regulations, and shall be paid, except as provided in the General Code, twice each year.
“Sec. 361. On or before the first day of January and July of each year, permits will be granted by the Board of Health for the half year or fraction thereof ensuing, to all applicants therefor, who have complied with the provisions of this ordinance; but before the issuance of any permit to any vendor of milk or cream, or either, he shall make an application thereof on a printed blank provided by the Board of Health for that purpose, on which it shall be stated under oath:
“(1) The name, residence, postoffice address of the applicant and the location of dairy or business place for which the permit is desired.
“(2) If the applicant be a producer of milk or cream, the average number of cows kept from which milk is produced for sale, and the kind of feed which the cows are given.
“(3) If the applicant is a vendor only, the source of his milk or cream supply, and the average number of gallons purchased daily for trade purposes.”
“Sec. 363. The said Board of Health shall not issue any such permit until they are satisfied, after inspection, with the cleanly and sanitary condition of the stables, cows, vehicles, store or place of business of the applicant therefor and of all the utensils used by him from which his milk or cream is obtained or into which it may be placed, and that the food given to the cows is pure and wholesome, and that all persons engaged in the caring of the cows and the handling of the milk or cream are free from any contagious disease, and that said persons use proper cleanliness in their work. Such application shall be signed by the applicant, and when received by the Board of Health shall be placed on file and the name of such applicant shall be entered in a book of registration kept for such purpose. The filing of such application for a permit shall authorize such applicant to continue the prosecution of his business until the Board of Health takes official action thereon, and either issues a permit to such applicant for sale of milk or cream or refuses so to do.”
“Sec. 365. Any such applicant or any person from whom such applicant obtains his milk shall permit and cause to be made by an authorized officer or agent of the Board of Health an inspection and examination of the dairy and dairy herd of such applicant or the dairy and the dairy herd of the person from whom such applicant obtains his milk, and of each and every animal by them or either of them, owned, controlled, or used for the purpose of producing milk for sale in said city, and any refusal upon the part of such applicant or the person from whom such applicant obtains his milk to permit such inspection by the Board of Health or its authorized agent shall be sufficient grounds for the refusal of the Board of Health to issue a permit to such applicant.”

The statement of facts and the testimony are further to the effect: That thereafter, on December 29, 1932, relator duly signed an application prepared for him by said defendant board of health for a permit permitting him to continue his business of selling and distributing milk and milk products in Findlay, and at the top of said application, which bears the date above mentioned, appears the name Ed Hanna (White Mountain Creamery Company) as the name of the applicant; that in seeking the issuance of said permit the relator, attended by. a representative of said White Mountain Creamery Company, appeared personally before a meeting of the defendants, and said representative in said meeting and on behalf of relator verbally offered to pay the reasonable expenses of the defendants in making the inspections of relator’s sources of supply, as required by said amended and revised ordinance; that the defendants, at their meeting held December 14, 1932, determined not to make the inspections requested by relator, and advised plaintiff and White Mountain Creamery Company that the defendants would make no inspections of any sources of supply outside of or not immediately adjacent to the boundary lines of Hancock county, Ohio; and that at a regular meeting of the defendants held January 25, 1933, said defendants, acting upon relator’s application, rejected the same and advised relator that no permit would be issued to him.

It was admitted in open court by all the parties that the sources of supply of milk and milk products of White Mountain Creamery Company, from which the relator was receiving and proposed to receive his supply of milk and milk products, were in Allen, Putnam and Auglaize counties, Ohio, and not adjacent to the boundary lines of Hancock county, Ohio.

It was stipulated by the parties that the only question for determination by the court is whether the defendants have the right to refuse to make inspections at the expense of relator of sources of milk supply not within or adjacent to the boundary lines of Hancock county, Ohio, under the terms and provisions of said revised and amended ordinance.

According to the Ohio statutes, “mandamus is a writ issued, in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding, the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.” Section 12283, General Code. It is fundamental that the act must be one which the law specifically enjoins as a duty resulting from an office, trust, or station, or, as has sometimes been stated, the duty, performance of which is to be enforced, must be mandatory.

The converse of this proposition is equally true; mandamus does not lie to compel the performance of an act which is not specially enjoined by law as a duty resulting from an office, trust, or station. 25 Ohio Jurisprudence, 995 and 996.

The question then is whether the act, the performance of which on the part of the defendants as constituting said board of health is sought in this action, is one the performance of which the law specifically enjoins upon the defendant board as a duty resulting from their office.

In order to determine this question it is necessary to consider the jurisdiction of the council of the city of Findlay, the jurisdiction of the defendants over the subject-matter of said ordinance, and the duty of the defendants in carrying out the provisions thereof. While the defendants are referred to in the petition and the agreed statement of facts as constituting the board of health of the city of Findlay, it is clearly the intention of the parties that the defendants shall constitute the board of health of the city of Findlay health district, as there are now under the statutes of this state no municipal boards of health.

Apart from powers that may be delegated to it from time to time by the Legislature, a municipal corporation derives its right to adopt and enforce sanitary and other similar regulations from Article XVIII, Section 3, of the Constitution of Ohio, which reads as follows: “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.”

Section 3652 of the General Code is the only section of the Code specifically conferring on municipal corporations powers over the subject-matter of the ordinance above mentioned. This section reads as follows: “To provide for the inspection of spirits, oils, milk, breadstuffs, meats, fish, cattle, milk cows, * * * and all food products.” This section was adopted in 99 Ohio Laws, 8.

The act relating to health districts was adopted in 108 Ohio Laws, 236, and amended in 108 Ohio Laws, 1085, and is now contained in Section 1261-16 et seq. of the General Code. Section 1261-16 provides, in part: “For the purposes of local health administration the state shall be divided into health districts. Each city shall constitute a health district and for the purposes of this act shall be known as and hereinafter referred to as a city health district.”

Section 1261-30 of the same act provides: “The district board of health hereby created shall exercise all the powers and perform all the duties now conferred and imposed by law upon the board of health of a municipality, and all such powers, duties, procedure and penalties for violation of the sanitary regulations of a board of health shall be construed to have been transferred to the district board of health by this act. The district board of health shall exercise such further powers and perform such other duties as are herein conferred or imposed.”

Section 4413 of the General Code relates to the power of a board of health to make orders, and, in part, reads: ‘ ‘ The board of health of a city may make such orders and regulations as it deems necessary for its own government, for the public health, the prevention or restriction of disease, and the prevention, abatement or suppression of nuisances. Orders and regulations not for the government of the hoard, hut intended for the general public shall he adopted, advertised, recorded and certified as are ordinances of municipalities * * *.”

The jurisdiction of district boards of health over milk and milk products is conferred by the provisions of Sections 4458 to 4466, both inclusive, General Code, and it will be noted that under the provisions of these sections power is specifically conferred upon a board to adopt regulations similar to the subject-matter of the ordinance adopted by the council in the case at bar.

We find no provision of law making a board of health of a city health district subject or amenable in any way to the government of the municipality with which the district is coextensive, except that appointments of members of the board are made by the mayor of such municipality, and such board, under the law, constitutes a governmental agency separate and distinct from such municipality and not in any way subject to the jurisdiction of the municipality. It is said in 20 Ohio Jurisprudence, 572, that: “Local health officers in the exercise of the power delegated to them are plainly engaged in a purely public service, in the performance of strictly governmental duties. They cannot in any sense be considered as the agents of the corporation, which is, accordingly, not liable for their negligence or misdoings.”

By the constitutional provision above mentioned, the power of municipalities to adopt and enforce sanitary and other similar regulations is restricted to the limits of such municipality, and the same restriction in reason applies to similar powers delegated to a municipality by the Legislature, so it cannot be said that any act incidental to the enforcement of such regulation which cannot be done within the limits of such municipality is specifically enjoined by law on any officer as a duty resulting from an office, trust or station.

As under the provisions of the General Code above mentioned power is specifically conferred upon a board of health of a municipal health district to adopt regulations similar to the subject-matter of the ordinance adopted by the municipal council in the instant case, which under the law such board of health in its discretion may or may not exercise, and such city district board of health constitutes a separate and distinct government agency which is not required by law to enforce the provisions of an ordinance of the city the boundaries of which are coextensive with such health district covering the same subject-matter, there is no duty on the part of such board under such ordinance the performance of which can be compelled by mandamus.

Holding these views, judgment will be entered for defendants.

Judgment for defendants.

Crow, P. J., and Klinger, J., concur.  