Hill v. Fetherolf, 236 Pa. 70

Hill v. Fetherolf

236 Pa. 70 | Pa. | 1912

Opinion by

Mr. Justice Elkin,

The questions involved in this case have been so fully considered in the opinion of the learned court below that little need be said here in disposing of this appeal. The validity of the ordinance in question was sustained in Reading v. Miller, 45 Pa. Superior Ct. 28, and we see no reason to disturb the conclusion reached in that case. It is contended for appellant that the ordinance *77is in effect a trade regulation and not an exercise of police power. This position was sufficiently answered by the learned court below on the authority of State v. Nelson, 66 Minn. 166; and State v. Elofson, 90 N. W. Repr. 309. But it is argued that Section 5 of the ordinance provides, as a condition precedent to the granting of the license, that the applicant must secure the consents of the owners of herds and premises for the purpose of inspection within twenty miles of the city of Reading and need not secure such consents from persons residing beyond the twenty-mile limit. The effect of this limitation, it is urged, is either that no milk purchased beyond the limit can be sold in the city, or that such milk can be sold without an inspection; and, in either event, the result would be unjust discrimination. This construction would, give the section under consideration an effect not warranted by its language and not intended by the municipal authorities. Section 5 imposes the duty of inspection upon the inspector and does not relate to the licensing of applicants to sell milk. It does not provide for the inspection of herds and premises preliminary to the granting of the license; but for the inspection after a license has been granted and for a revocation of such licenses if the premises are found to be unsanitary, or if permission to inspect be refused. We therefore agree with the suggestion made by the learned court below that these “provisions of this section can become pertinent, if at all, only in a case where a license once granted is attempted to be revoked.” Then, again, the record here presented is barren of any facts upon which to raise the question of the duty of the inspector to inspect either within or without the twenty-mile limit. The duty of inspection generally is entirely foreign to the question here involved, which is the right of the inspector to refuse a license to appellant because he has not complied with the antecedent conditions upon which his application depends. The licensing of dealers in and vendors of milk is pro*78vided for by Section 6 of tbe ordinance and is dependent upon tbe provisions and requirements of that and subsequent sections, and not upon tbe provisions of Section 5, wbicb relate to tbe duties of tbe inspector after tbe license bas been granted. We agree with tbe contention of tbe learned counsel for appellee that under tbe provisions of Section 6 all premises and herds are required to be inspected before tbe issuance of tbe license without reference to tbe twenty-mile limit. This applies to every owner of a herd who desires to sell milk in tbe city of Reading, regardless of tbe number of miles be may live from tbe city. Tbe ordinance deals primarily with tbe sale of milk in tbe city and tbe inspection of herds is but incidental to this general purpose. Tbe owners of herds cannot be compelled to submit to inspection, but tbe city can say that tbe milk cannot be sold within tbe city without such inspection. It is entirely voluntary on tbe part of owners whether they shall have their herds inspected or not, but when tbe milk is offered for sale in tbe city either by tbe owner, or by a dealer, it is tbe right of tbe city under its police power to say that such sale cannot be made until there bas been a proper inspection, and that no dealer shall be licensed to sell milk from any herd no matter where located without such inspection. Tbe law and tbe ordinance are based upon tbe power of municipalities to protect tbe health of tbe people by providing for tbe sale of pure milk, and such laws have been uniformly sustained by tbe courts. If an applicant can produce tbe written consent of a single owner to inspect bis herd, and tbe inspection of that herd is satisfactory, be would be entitled to bis license, but be could only sell milk from tbe herd thus inspected, and could not under a license thus granted sell milk from herds not inspected, nor from herds, tbe owners of wbicb refused to give their consents to inspect.

Under tbe ordinance involved in this case all applicants are put upon tbe same basis and there is no such *79discrimination as was pointed out in Sayre Boro. v. Phillips, 148 Pa. 482. That case and the line of cases relied on to sustain it have no application to the facts of the present case. In no proper legal sense can what was done in the case at bar be considered a trade regulation. Under the ordinance all dealers in or vendors of milk in the city are subjected to the same regulations and must submit to the same kind of inspection. There is no discrimination and all are required to obey the provisions of the law intended as a protection to the consumers of milk.

Judgment affirmed with costs.