Deems v. Mayor of Baltimore

Robinson, C. J., delivered the opinion of the Court. In addition to the general powers conferred on the Mayor and City Council by sec. 378, Art. 4, Code Public Local Laws, to pass ordinances to preserve the health of the city, the Act of 1894, chap. 53, expressly authorizes them to provide by ordinance for the proper inspection of milk and all other food products offered for sale in the city, and to make such regulations in regard to the sale of the same as they may deem necessary to protect the public health. It was in pursuance of .these powers that Ordinance No. 87, -now in question, was passed. This ordinance makes it unlawful for any person to sell or offer for sale “ any impure, adulterated, sophisticated or unwholesome milk or other food products.” It further provides that only pure,- unadulterated, unsophisticated and wholesome milk shall be sold, and that such article shall be understood to be the natural product of healthy cows, and which has not been deprived of any part of its cream, and to which no additional liquid or solid preservative has been added, — 171 — and which, at a temperature of 6o° F., shall have a specific gravity of not less than 1.029 an<^ not ^ess ^3-11 twelve per cent, of total solids, and not less than three per cent, of butter fats. And all milk kept or offered for sale in the city, which shall not come up to the standard thus prescribed, shall be considered impure, adulterated, sophisticated or unwholesome. And the ordinance also provides that the term adulterated shall be construed to mean any artificial addition to normal constituents, and the term sophisticated to mean the substitution of one product for another, or any abstraction of or artificial change in the normal constituents, and the term unwholesome to mean deleterious to health, etc. And it further provides for the appointment of a competent analytical chemist, who shall make such chemical and microscopical examinations as may be required under the ordinance, and for the appointment also of three inspectors of food. And section 6, as amended, provides, “And milk or food products in the possession of the person or persons so violating, disobeying, refusing or neglecting to comply with the provisions of this ordinance may be confiscated and destroyed by the inspector examining the same.” The bill of complaint alleges that the appellant is a dairyman, and conducts a retail business for the sale of milk, and that in the pursuit of his business he daily serves milk from his wagons to his customers at their homes in the city. That on or about the 16th July, 1894, Patrick R. Welsh, inspector,- and William P. Tonry, analyst, on the public highway, took certain milk, the property of the appellant, “ and without making any chemical or microscopical examination thereof, and without due process of law, poured the said milk out upon the streets and down the gutters of the city, thereby wasting and destroying the said milk.” The bill also alleges that the said Patrick R. Welsh and William P. Tonry under the direction of the Board oí Health and under color of Ordinance 87 as amended, publicly declared their intention to destroy the milk of the appel — 172 — lant and cithers, which, after an inspection by them, made by means of a certain mechanical instrument known as a “Lactometer,” and by a test taken with “ Litmus ” paper, they shall conclude not to be of the standard prescribed by the ordinance. The bill further alleges that the ordinance is an undue and excessive exercise of the corporation’s legislative powers as conferred by law, and that sect. 6 as amended, as absolutely void and no effect. Besides the general relief, the bill prays that an injunction be issued restraining the Mayor and City Council and all the other defendants from taking and destroying, without chemical or microscopical examination first made, and without due process of law first had, any milk or other dairy product, the property of the complainant, &c. We cannot agree with the counsel for the appellee, that a Court of Equity has no jurisdiction to restrain the appellee in the enforcement of the ordinance in question, even though it may be conceded to be invalid and that its execution would affect injuriously the rights of the appellant and others. In Page's case, 34 Md. 558, and in Holland’s case, 11 Md. 186, and in other cases, we have said that “ where an ordinance is void and its provisions are about to be enforced, any party whose interests are to be injuriously affected thereby may and properly ought to go into a Court of Equity and have the execution of the ordinance stayed by injunction.” An action at law, it is true, would not lie against the city authorities to recover damages for the wrongful acts of its officers in the execution of the ordinance, and for the reason that the police power to pass such ordinances, is delegated by the State to be exercised not for the benefit or in the interest of the city in its corporate capacity, but for the public good. Boehm's case, 61 Md. 259. There is a broad distinction, however, between an action at law against the city authorities to recover damages for the wrongful acts of its officers, and the power of a Court of Equity to restrain the enforcement of an ordinance admitted to be — 173 — invalid, and the execution of which affects injuriously private rights. Nor can there be any question as to the power of the appellee to provide by ordinance for the inspection of milk offered for sale within its corporate limits, and to forbid the sale of any milk which does not come up to the standard or test prescribed by the ordinance. And the real question it seems to us under the demurrer, is whether it has the power to direct that milk which is found upon inspection not to come up to the standard, as thus prescribed, shall be destroyed? What is termed the police power has been the subject ot a good deal of consideration by both the Federal and State Courts, and all agree that it is a difficult matter to define the limits within which it is to be exercised. Every well organized government has the inherent right to protect the health and provide for the safety and welfare of its people. It has not only the right, but it is a duty and obligation which the sovereign power owes to the public, and as no one can foresee the emergency or necessity which may call for its exercise, it is not an easy matter to prescribe the precise limits within which it may be exercised. It may be said to rest upon the maxim, “ Salus popidi suprema lex,” and the constitutional guarantees for the security of private rights relied on 'by the appellant have never been understood as interferring with the power of the State to pass such laws as may be necessary to protect the health and provide for the safety and good order of society. “ Property of every kind,” says Mr. Justice Story, “ is held subject to those general regulations which are necessary for the common good and general welfare. And the Legislature has the power to define the mode and manner in which every one may use his property.” 2 vol. Story Const. And in the late case of Mugler v. Kansas, 123 U. S. 62, after considering the constitutional limitations which declare that no person shall be deprived of his property or liberty without due process of law, the Supreme Court says these — 174 — limitations “ have never been construed as being incompatible with the principle equally vital, because so essential to the peace and safety, that all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community.” To justify such interference with private rights, its- exercise must have for its immediate object the promotion of the public good, and, so far as may be practicable, every effort should be made .to adjust the conflicting rights of the public and the private rights of individuals. At the same time the emergency may be so great,'and the danger to be averted so imminent, that private rights must yield to the paramount safety of the public, and to await, in such cases, the delay necessarily incident to ordinary judicial inquiry, in the determination of private rights, would defeat altogether the object and purposes for which the exercise of this salutary power was invoked. Whatever injury or inconvenience one may suffer in such cases, he is, in the eye of the law, compensated by sharing the common benefit resulting from the summary exercise of this power, and which, under the cireumstancés, was absolutely necessary for the protection of the public. The use of milk as an article of food enters largely, as we all know, in the daily consumption of every household, and there is no more fruitful source of disease than the use of adulterated and unwholesome milk. And if the appellant’s contention be right, that the question whether or not milk, which is daily offered for sale in every part of a large and populous city, comes up to the standard prescribed by the ordinance, must be determined by the ordinary process of judicial investigation or by chemical analysis, it would be impossible to prevent the danger to the public health necessarily resulting from impure and unwholesome milk. And it is absolutely necessary, therefore, that the appellee should have the power to provide for its inspection by proper means and instruments, and if upon such inspection itshall be found not to come up. to the standard prescribed by the — 175 — ordinance, to direct that the offending thing shall be destroyed. The exercise of such a power is, we think, fully sustained both on principle and authority. In Blazer v. Miiller, 10 Hun. 432, an ordinance, like the one now before us, authorized the inspector to destroy milk offered for sale which, upon inspection, was found to be below the proper standard, was sustained on the ground that the destruction of the offending thing was necessary to prevent the imminent danger to life and health, which would result from the use of impure milk: And in Mugler v. Kansas, to which we have heretofore referred, Mr. Justice Harlan says: “ The exercise of the police power by the destruction of property, which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law.” It is in the exercise of this power that quarantine laws, which not only interfere with private rights, but with the liberty of persons, are passed ; and also, laws which provide for the destruction of infected clothing to prevent the spread of contageous diseases. And as to the extent and the summary manner in which this power may be exercised to protect the public health, we may refer to Boehm’s case, 61 Md. 264; Train v. Boston Disinfecting Co., 144 Mass. 523, and Newark v. Hart, 50, N. J. L. 308. The Act of 1894, authorizing the appellee to provide for the inspection of milk, and to make such regulations in regard to the same as it may deem necessary, also authorizes the appellee to provide, by a fine of not more than one hundred dollars, for the punishment of all persons violating such regulations. The amount of the fine was left to the discretion of the appellee; provided, however, it was not to exceed one hundred dollars. The ordinance in question provided a fine of not more than fifty dollars, as a punishment for persons violating its provisions, and as the amount — 176 — of the fine, not to exceed, however, one hundred dollars, was left to its discretion, there can be no objection to the ordinance on this ground. (Decided December 18th, 1894.) Order affirmed.