123 N.Y.S. 1065 | N.Y. App. Div. | 1910
The defendant appeals from á judgment against him of $150 damages besides costs, being the amount of ten penalties of $15 each, alleged to have been incurred on ten successive days for selling milk in the city of Hudson in violation of an order or ordinance of the board of health of said, city prohibiting such sales without a' license. '
Defendant admits that he sold milk in contravention of the said ordinance, but he challenges the validity of the same, and one of the grounds of his challenge is that the board of health has unlawfully delegated its power or authority to grant such license.
The first three sections of the ordinance,,so far as material to this discussion, are as follows:
“ Section 1. No person, firm or corporation shall sell, peddle or deliver milk or cream within the City of Hudson, unless and until he shall first have obtained a license so to- do from this Board of Health, as hereinafter provided. Any person violating this section shall incur a penalty of $15.00 for each offense. * * *
“ Sec. 2. Every person, firm or corporation applying for a license as mentioned in Section 1, shall do so upon a blank furnished by the -City Clerk; said application shall state his name, residence and farm or other place where his cows are kept and maintained, and the. name and residence of any person or persons from whom applicant shall, at the time, be purchasing milk or cream to be sold within said city, and such’ other.information relating to the source of supply and quality of the milk or cream to be sold as this Board may require. * * *
“ Sec. 3. Upon any. application being made to said clerk for a milk dealer’s license, it shall be referred to the milk and dairy inspector'or other authorized agent off this Board of Health, who shall investigate the conditions under which the milk or cream is being produced on the farm named in same* application and at the dairy store, -or other place in said city, if any there be, where said milk is to be handled in said city, and' if he reports that the' milk or cream is being produced or handled according to the rules and régulations of said city, and upon the payment to said clerk, of*329 the license fee hereinafter' provided for, the clerk shall, issue a license to said applicant. Said license fee shall be paid by the clerk to the City Treasurer of said city.”
The fair and reasonable construction of this ordinance requires . us to hold that the board has delegated its licensing power to a “ milk and dairy inspector, or other authorized agent ” appointed by itself. A system has been devised whereby an application for a license is to be made to the city clerk, who furnishes the necessary blank therefor. Such application is then referred to the “ milk and dairy inspector, or other authorized agent,” who investigates the conditions under which the milk is being produced, “ and if he reports that the milk or cream is being produced or handled according to the rules and regulations of said city ” the clerk shall issue the license upon payment to him of a fee provided therefor. The system thus devised works automatically between' the clerk and the' inspector and from the inspector back to the clerk. The board of health may have no information or knowledge as to the application, nor whether it has been granted or refused. That function has been conferred upon the inspector. His report is made final and conclusive, and on his recommendation the clerk issues a license without any consideration thereof by the board. If, on the other hand, the inspector withholds his recommendation, there seems to be no way provided whereby his decision may be reviewed or the matter brought before the. board of health for its determination. In other words, the inspector or agent designated by the board has been made the licensing officer, and he is vested with the sole and exclusive power of granting licenses.
If the duties of the inspector or agent in this respect are of a purely ministerial or executive nature, such delegation of power on him by the board of health may be sustained. The rule, however, is well settled that if such delegated duty involves an act of judgment or discretion, and is not merely ministerial, such duty cannot be conferred by the board or body on whom it primarily rests. (Birdsall v. Clark, 73 N. Y. 73; Matter of Emigrant Industrial Savings Bank, 75 id. 388, 393; Phelps v. Mayor, etc., 112 id. 216 ; Thompson v. Sohermerhorn, 6 id. 92; People ex rel. Board of Charities v. Davis, 15 Hun, 209 ; Burke v. Burpo, 75 id. 568.)
The legal maxim is potestas delegata non est deleganda. This
From the 3d section of the ordinance above quoted it appears that such inspector or agent is to “ investigate the conditions under which the milk or cream is' being produced ” and" to determine whether “ .the milk or cream is being produced or handled according to the rules and regulations of said city.” Such “ rules and regulations” are enumerated in the till section of-the ordinance. They are seventeen in number. Among them are the requirements that the room in which the herd of cows is kept shall be well ventilated and lighted and have a dry, well-drainéd floor; that the ceiling and side walls shall be. kept free from dust, cobwebs and filth; that no musty or dirty litter shall be used for bedding; that the food and water given the herd shall be pure, wholesome and abundant; that the herd shall be free from stable filth and loose dust; that the milkers shall have clean hands and clothing at the time of milking; that the milk immediately after being drawn shall be removed to a well-ventilated milk room; that the air of the room in which the milk is stored shall be pure and wholesome and free from contaminating odors; that the strainer shall be renewed as often as necessary to be efficient; that vehicles from which milk is delivered shall be kept clean in a manner satisfactory to the milk a.nd dairy inspector or other authorized agent; that they shall be kept covered to protect the milk from the rays of the sun in a manner also satisfactory to the milk and dairy inspector or other authorized agent; that no person who has come in contact with any infectious or contagious disease shall handle milk to be sold in the city. It seems to me that the foregoing duties cannot be classed as ministerial, but require the exercise of considerable judgment and discretion. There is no fixed standard to which every case can be referred. Conditions surrounding each application differ. Whether or not there is a fair and reasonable compliance with the rules and
The learned counsel for the city, however, contends that the board of health may delegate these duties because authorized to do so by legislative enactment. ■ The power of local boards of health is derived from section 21 of the Public Health Law (Consol. Laws, chap. 45 [Laws of 1909, chap. 49], as amd. by Laws of 1909, chap. 480), which provides in part as follows; “ Every such local board shall make and publish from time to time all such orders and regulations as they may deem necessary and proper for the preservation of life and health and the execution and enforcement of this chapter in the municipality.” Undoubtedly such boards have great powers and properly "so when it is considered that their duties involve the preservation of life and health. Granting, however, to the board all the power which it can claim from the above-quoted statutory provision, such power is nevertheless circumscribed by the requirement that the orders and regulations made by the board must be “ necessary and proper for the preservation of life and health.” Can it be said that such a delegation of duty as has been pointed out is “necessary and proper for the preservation of life and health V’ I think the answer must be in the negative. I "think we must go further and say that it is both unnecessary and improper that such duties as have been enumerated should be devolved by the board upon an agent or employee and that such delegation of duty does not tend to the “ preservation of life and health.” Clearly the judgment of a board or body of men officially selected with reference to their peculiar fitness for the duties which are conferred upon them is presumptively better than the judgment of one man
The judgments of the County Court and City Court must, therefore, be reversed, with costs.
All concurred, except Kellogg and Houghton, JJ., dissenting.
Judgments of the County Court and City Court reversed, with costs.
8ic.