142 F.2d 940 | 10th Cir. | 1944
The City and County of Denver
Independent Dairymen’s Association, Inc.,
Ordinance No. 39 was enacted by the city on August 23, 1943. Section 1 thereof amended § 1030 of The Municipal Code of the city to read as follows:
“Milk or cream when sold in bottles may be sold in standard size bottles as follows: Two-quart, quart, pint, half-pint and quarter-pint or ten-ounce bottles. Sale of milk or cream in bottles of any other size or capacity is hereby prohibited.”
Section 2 thereof provided that such ordinance should be effective immediately after its “passage and final publication.” It was approved by the Mayor of the city on August 25, 1943, and final publication was on August 28, 1943. The trial court entered a judgment dismissing the action. It granted an injunction against the enforcement of the ordinance until the determination of this appeal.
It is common knowledge that milk is easily contaminated, and that contaminated milk is a prolific source of disease. The regulation of the sale and distribution of milk is within the police power of the city.
“There is no article of food in more general use than milk; none whose impurity or unwholesomeness may more quickly, more widely, and more seriously affect the health of those who use it. The regulation of its sale is an imperative duty which has been universally recognized. This regulation in minute detail is essential, and extends from the health and keeping of the cows which produce the milk, through all the processes of transportation, preservation, and delivery to the consumer. Not only may laws and ordinances require that milk offered for sale shall be pure, wholesome, and free from the bacilli of any disease, but they may and do, in order to produce this result, prescribe the manner in which such purity, wholesomeness, and freedom from disease shall be secured and made to appear. The cows may be required to be registered with a designated public authority; the dairies to be conducted and managed according to prescribed regulations, and, together with the dairy utensils, subjected to inspection; the receptacles in which milk is contained to be of prescribed character and capacity; the labels to be placed according to fixed regulations, and to contain certain required information; the milk to be prepared in the manner, at the times, and by the means directed, and at all times to be subject to inspection. These may be drastic restrictions upon a private business ; but experience and the increasing knowledge of the causes of disease and the agencies of its propagation have demonstrated the necessity of such restrictions to the preservation of the public health.”
The evidence adduced at the trial established these facts: When milk was first sold in gallon bottles in Denver, the type of bottle used was a small-mouthed bottle. Such a bottle was difficult to thoroughly clean and sterilize. Shortly after the beginning of sales in gallon bottles, representatives of the city conferred with the dairymen and the dairymen agreed to eliminate the use of the small-necked bottle, to use large-necked bottles, and to install mechanical equipment for capping. Experience demonstrated, however, that large-necked bottles are also difficult to clean and sterilize and that mechanical-capping equipment will not work well on
Our sole inquiry is whether a rational factual basis for the legislative requirement is so wanting as to make it unreasonable and purely arbitrary.
A legislative enactment does not violate the Equal Protection Clause merely because it is not all-embracing. The legislature is free to recognize degrees of harm and may confine its restrictions to those classes of cases where the need is deemed to be clearest.
With the wisdom or expediency of the legislative enactment we are not concerned. Those are questions exclusively for legislative determination.
The burden of establishing the want of a rational factual basis for the legislative requirement and that the legislative enactment is unreasonable and arbitrary was on the plaintiffs.
When the classification made by the legislature is challenged, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of the existence of that state of facts, and one who assails the classification has the burden of showing, by resort to common knowledge or other matters which may be judicially noticed, or to other legitimate proof, that the action is arbitrary.
The plaintiffs below failed to establish that a rational factual basis for the requirements of the ordinance is so wanting as to render it unreasonable and arbitrary, or that the classification is without any rational basis, or is essentially arbitrary. On the contrary, in the light of the proven facts, we are of the opinion that the ordinance has a legitimate relation to the protection of the public health and is a proper exercise of the police power of the city.
The injunction pendente lite will be dissolved and the judgment is affirmed.
Hereinafter called the city.
City and County of Denver v. Bossie, 83 Colo. 329, 266 P. 214, 216.
Hereinafter called the Association.
Witt v. Klimm, 97 Cal.App. 131, 274 P. 1039, 1041.
S. H. Kress & Co. v. Johnson, D.C. Colo., 16 F.Supp. 5, 8, affirmed 299 U.S. 511, 57 S.Ct. 49, 81 L.Ed. 378; Borden’s Farm Products Co., Inc., v. Ten Eyck, 297 U.S. 251, 263, 56 S.Ct. 453, 80 L.Ed. 669.
S. H. Kress & Co. v. Johnson, D.C. Colo., 16 F.Supp. 5, 7, affirmed 299 U.S. 511, 57 S.Ct. 49, 81 L.Ed. 378; Standard Oil Co. v. City of Marysville, 279 U.S. 582, 586, 49 S.Ct. 430, 73 L.Ed. 856.
Sproles v. Binford, 286 U.S. 374, 388, 52 S.Ct. 581, 76 L.Ed. 1167; Price v. Illinois, 238 U.S. 446, 452, 35 S.Ct. 892, 59 L.Ed. 1400; S. H. Kress & Co. v. Johnson, D.C.Colo., 16 F.Supp. 5, 8, affirmed 299 U.S. 511, 57 S.Ct. 49, 81 L.Ed. 378.
Standard Oil Co. v. City of Marysville, 279 U.S. 582, 586, 49 S.Ct. 430, 73 L.Ed. 856; Sproles v. Binford, 286 U.S. 374, 389, 52 S.Ct. 581, 76 L.Ed. 1167.
S. H. Kress & Co. v. Johnson, D.C.Colo., 16 F.Supp. 5, 9, affirmed 299 U.S. 511, 57 S.Ct. 49, 81 L.Ed. 378; Whitney v. California, 274 U.S. 357, 370, 47 S.Ct. 641, 71 L.Ed. 1095; People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 73, 49 S.Ct. 61, 73 L.Ed. 184, 62 A.L.R. 785; Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 56 S.Ct. 513, 80 L.Ed. 772.
S. H. Kress & Co. v. Johnson, D.C.Colo., 16 F.Supp. 5, 9, affirmed 299 U.S. 511, 57 S.Ct. 49, 81 L.Ed. 378; Nebbia v. New York, 291 U.S. 502, 537, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469; Kansas Gas & Electric Co. v. City of Independence, 10 Cir., 79 F.2d 32, 42, 100 A.L.R. 1479.
S. H. Kress & Co. v. Johnson, D.C.Colo., 16 F.Supp. 5, 8, affirmed 299 U.S. 511, 57 S.Ct. 49, 81 L.Ed. 378; Borden’s Farm Products Co., Inc., v. Baldwin, 293 U.S. 194, 209, 55 S.Ct. 187, 79 L.Ed. 281; Powell v. Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 1257, 32 L.Ed. 253; Weaver v. Palmer Bros. Co., 270 U.S. 402, 410, 46 S.Ct. 320, 70 L.Ed. 654; Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580, 584, 55 S.Ct. 538, 79 L.Ed. 1070.
S. H. Kress & Co. v. Johnson, D.C.Colo., 16 F.Supp. 5, 8, affirmed 299 U.S. 511, 57 S.Ct. 49, 81 L.Ed. 378; Borden’s Farm Products Co., Inc., v. Baldwin,
S. H. Kress & Co. v. Johnson, D.C.Colo., 16 F.Supp. 5, 9, affirmed 299 U.S. 511, 57 S.Ct. 49, 81 L.Ed. 378; Borden’s Farm Products Co., Inc., v. Baldwin, 293 U.S. 194, 209, 55 S.Ct. 187, 79 L.Ed. 281; Whitney v. California, 274 U.S. 357, 369, 47 S.Ct. 641, 71 L.Ed. 1095.