McBroom v. City of Flint

Edward M. Sharpe, J. August 11, 1932, tbe city commission of the city of Flint adopted an ordinance known as ordinance No. 426 which was an amendment of ordinance No. 199, § 5. Tbe amended ordinance was to take effect September 1, 1932, and reads as follows: ‘ ‘ Tbe city of Flint ordains: “That the temperature used in pasteurizing milk shall be' recorded by an accurate thermometer and automatic recording device. Tbe records made by *680 this recording device shall he accurate and shall be made on a daily chart which shall be dated and preserved for the inspection of the milk inspector who shall cause his initials to be placed thereon at the time the records are inspected. All pasteurization plants pasteurizing milk to be used within the city of Flint, except plants of producers who distribute milk from their own dairy farm, which farm must be classed as grade ‘A’ farm, shall be located within the city limits of the city of Flint, Michigan.” August 31,1932, plaintiff filed a bill of complaint in the circuit court of Genesee county against the city of Flint, a municipal corporation, and an injunction was issued restraining the enforcement of the above-mentioned ordinance. May 1, 1933, the above ordinance was amended to read as follows (ordinance No. 443): “The city of Flint ordains: “Section 1. That section five of ordinance No. 199 entitled ‘An ordinance to define grades of market milk and to regulate the bottling, handling, and care of market milk sold in the city of Flint,’ approved November 25, 1925, is hereby amended to read as follows: “Section 5. That the temperature used in pasteurizing milk shall be recorded by an accurate thermometer and automatic recording device. The records made by this recording device shall be dated and preserved for the inspection of the milk inspector who shall cause his initials to be placed thereon at the time the records are inspected. All pasteurization plants pasteurizing milk to be used within the city of Flint shall pay an inspection fee of 20 cents per mile to be figured from the city hall of the city of Flint to the pasteurization plant so inspected, and return, for each inspection made of said plant, which may be not more than one for each day and not less than one for each week. The inspection fees *681 are due and payable on Monday of each week, and it shall be unlawful for any person, firm or corporation to sell milk within the limits of the city of Flint while any of the inspection fees above mentioned are unpaid. It shall be the duty of the chief inspector to notify all pasteurization plants selling milk within the limits of the city of Flint of the amounts due for inspections for the preceding week, and he shall collect such inspection fees and shall see that this ordinance is enforced. ‘ ‘ Section 2. Ordinance No. 426 is hereby repealed. ‘ ‘ Section 3. This ordinance is to take effect on the 11th day of May, A. D. 1933.” February 4, 1933, the trial court issued a permanent injunction restraining the city of Flint from enforcing ordinance No. 426 and it is from this order that defendant appeals. Ordinance No. 443, adopted May 1, 1933, by the city commission of the city of Flint providing for the inspection of pasteurization plants outside as well as inside the city of Flint disposes of all questions raised in the case at bar. Where an ordinance is repealed by a later ordinance governing the same subject matter and the earlier ordinance is therefore no longer in existence, the validity of the earlier ordinance becomes a moot question, the determination of which would profit no one. The appeal is dismissed. Inasmuch as the ques-: tion is one of a public nature, no costs will be taxed. Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, and Butzel, JJ., concurred. Bushnell, J., did not sit.