Wisconsin Ass'n of Master Bakers v. City of Milwaukee

Owen, J. An ordinance of the city of Milwaukee provides that no person, association, or corporation shall man [303] ufacture, offer for sale, or sell food as designated in the ordinance without a license. This action is brought by the Wisconsin Association of Master Bakers, and by a number of individuals engaged in the business of conducting bakeries in the city of Milwaukee, to restrain the enforcement of this ordinance. From an order sustaining a demurrer to the complaint and dissolving a temporary restraining order plaintiffs appeal. Numerous objections are made to the validity of .the ordinance, first of which is that the city is without power to require a license of those engaged in the business of conducting bakeries. It is fundamental, of course, that a municipality has only such power as is expressly or impliedly conferred upon or delegated to it by the legislature. It is admitted that no provision of its charter expressly authorizes the city to license, or to exact a license fee from, those engaged in the business of conducting bakeries. A number of provisions of the city charter are referred to under which it is claimed such power is conferred. Among such provisions is one “to regulate butchers, and, to regulate and restrain the sale of game, poultry; fresh meat, vegetables, fish, butter,' fruit, eggs, milk and other provisions in the city;” another, “to regulate the sale of bread within said city, and prescribe the size and weight of bread in the loaf, and the quality of the same.” It would require most liberal construction indeed to spell out of any of these provisions power on the part of the city to enact an ordinance requiring those engaged in the business of conducting bakeries to take out a license. In view of the general law providing for licensing of bakeries by the state, the power of a city located within the state to exact an additional license should appear by clear-and express provision. The history of the regulation of bakeries within the state makes it clear that such power was deliberately withheld from all cities of the state.- [304] Ch. 230, Laws of 1903, provided quite comprehensively for the sanitary regulation of bakeries and confectionery establishments. By sec. 6 thereof it was provided that “In cities of five thousand inhabitants or over the common councils thereof may, for the more perfect enforcement of the provisions of this act, provide by ordinance for the issuing of licenses to the owners or managers of bakeries and other establishments for the manufacture or sale of bread and other food products, provided, however, that the license fee to be required shall not exceed one dollar for any single establishment per annum.” By ch. 486, Laws of 1907, ch. 230, Laws of 1903, was amended in many particulars, and the provision above quoted authorizing cities of over 5,000 inhabitants to license the owners or managers of bakeries was expressly stricken out, and there was inserted in lieu thereof the following: “No building, room or apartment shall be used for the purpose of establishing a bakery or confectionery establishment for the manufacture of bread and other food products, unless a license is secured as provided in this act. Application for a license shall be made to the commissioner of labor and industrial statistics by any person, firm or corporation desiring to establish or conduct a bakery or confectionery for the manufacture of bread and other food products.” This provision now appears in sec. '98.27, Stats., the only change being that the license shall now be issued by the dairy and food commissioner. It will thus be seen that when the legislatiire provided for the issuance of such licenses by the state it expressly repealed the authority theretofore granted to cities to issue such licenses. In view of this legislation, the power of cities to require an additional license cannot rest in implication and should not be accorded by construction. Furthermore, no necessity for a municipal license ap [305] pears. An examination of se.cs. 98.16 to 98.30, inclusive, Stats., all of which relate to the sanitary regulation of bakeries,, indicates that the health commissioner of the city of Milwaukee enjoys all the power of inspection under the state law that is accorded to him by this ordinance, and the imposition of an additional license fee upon the bakers of Milwaukee is a burden not warranted by law, but would seem to be most unnecessary and unreasonable in fact. It follows that the demurrer to the complaint was improperly sustained and the restraining order erroneously dissolved. Both orders must be reversed. By the Court. — So ordered.