285 N.Y. 93 | NY | 1941
Lead Opinion
In a proceeding under article 78 of the Civil Practice Act we have granted leave to appeal and now review an order of the Appellate Division which unanimously affirmed an order of Special Term denying an application for a mandatory order directing the respondent Board of Health of the City of New York to issue to the appellant a "Class C permit" to deliver milk as an independent distributor. (Sanitary Code of the City of New York, §§ 155, subd. 3, 156; Board of Health Regulation 3-a, subd. 3-b, par. 3.)
The petitioner-appellant asserts that the sections of the Sanitary Code and the Regulation cited above, which define the conditions under which a Class C permit may be issued, contravene the equal protection clauses of the Federal and State Constitutions and that refusal by the Board of Health to issue such a permit was capricious, arbitrary and in violation of those constitutional provisions.
Success in this proceeding, wherein the performance of an alleged official duty is sought to be enforced, requires of the appellant that he establish a clear legal right to the *96
remedy he has chosen. If the action by the Board of Health by which the appellant is aggrieved involved the exercise of a discretionary power, our inquiry is limited to a determination whether the record discloses circumstances which leave no possible scope for the reasonable exercise of that discretion in the manner of which the appellant complains. (Matter of Durr v.Paragon Trading Corp.,
The Board of Health of the City of New York, in the performance of its statutory duty to protect and promote public health within the city, is authorized to promulgate rules and regulations as means to accomplish that end and, by appropriate provisions in the Sanitary Code, to exercise control and supervision over the delivery of milk and milk products to consumers. (New York City Charter, §§ 553, 556, 558, effective January 1, 1938.)
Permits for the distribution of milk are issued under section 155, subdivision 3, of the Sanitary Code and are divided into three classes as follows: Class A, are issued to dealers who operate pasteurizing plants in the city of New York; Class B, to dealers who operate milk depots; and Class C, to dealers who operate not more than one vehicle in the delivery of milk or milk products and who do not maintain a pasteurizing plant or milk depot but utilize the facilities of such a plant or depot located in the city and which is operated under a permit from the Board of Health.
The petitioner-appellant has been denied a Class C permit upon the ground that he failed to qualify within the requirements of regulation 3-a, subdivision 3-b (par. 3) promulgated by the Board of Health on July 27, 1939, under authority granted by section 558-f of the City Charter, which regulation provides that "The applicant must be a person of good character, of sufficient experience in the milk industry, and have been a bona fideindependent individual milk distributor in this city prior toJune 1, 1939." (Emphasis supplied.) *97
Concededly the petitioner was not an independent milk distributor prior to June 1, 1939; nor has he owned or operated a pasteurizing plant or milk depot which would qualify him for either a Class A or Class B permit. (Sanitary Code, § 155, subd. 3.)
By this proceeding the petitioner, for himself and others similarly situated, invokes the Fourteenth Amendment of the Federal Constitution and section 11 of article 1 of the Constitution of the State of New York in support of his challenge to the validity of that part of the regulation last quoted above which requires of an applicant for a Class C permit that he shall be of sufficient experience in the milk industry, and shall have been a bona fide independent milk distributor in this city prior to June 1, 1939.
The challenge must be sustained unless it appears that any classification which the regulation may involve has a reasonable basis within the knowledge and experience of the official body by which it was promulgated. It is needless to labor the point, long settled, that we may declare such a regulation invalid only in the event that it is so lacking in reason for its promulgation that it is essentially arbitrary. (Lindsley v. NaturalCarbonic Gas Co.,
Clearly section 558 of the New York City Charter endows the Board of Health with a broad discretion in the selection of measures by which public health may be protected within the field of its jurisdiction. In determining whether there was a reasonable basis for the action of the Board in promulgating the regulation here in question, we give consideration *98
first to the rule in Mayflower Farms, Inc., v. Ten Eyck
(
The distribution of milk is a business affected with a public interest — a phrase which has been defined as "* * * the equivalent of `subject to the exercise of the police power.'" (Nebbia v. New York,
Prior to its determination to enforce such a requirement and in its consideration of the requisite qualifications for such a permit the Board had the advantage of information bearing upon the problem possessed by its own members and gained from its employees and from data on file in the Department of Health. It also sought the views of experts in the field of public health and held public hearings to gain added information from individuals and from various groups which had manifested interest in the subject. From one or more of these sources it was learned that over a period of years certain unlicensed independent distributors, in an apparent effort to reduce the cost of the milk they delivered and thus to enable them to undersell their competitors, had indulged in various forms of unsanitary practice in the handling and delivery of milk and by various means had escaped inspection by authorized agents of the Health Department. It also appeared that if restrictive permits were not required of independent distributors their number might reasonably be expected to increase; that if their number should increase beyond the number then making retail deliveries, such increase would bring into the business of milk distribution more independent distributors than were required by the city's normal demand for milk. The resulting competition would make less likely strict adherence to the requirements of the Sanitary Code and departmental regulations and would make more difficult the enforcement of the sanitary rules designed to protect the purity of milk during its distribution. In connection with the evidence of adverse conditions likely to attend an increase in the number of unlicensed independent distributors above those then making deliveries, the Board of Health also gave consideration to the fact that in most instances the independent distributors, then unlicensed, had endeavored over a period of years to comply with the requirements of the health authorities and to that end had invested capital in facilities for cooling and delivering milk which were then available for use. *101
We regard these considerations, which influenced the Board of Health to promulgate the regulation here in question, as bearing a reasonable relation to an effort by the Board to safeguard the milk supply of the city of New York and thus to protect and promote public health. As a rational basis is thus afforded for the official action challenged by this proceeding, it follows that the order should be affirmed, with costs.
Dissenting Opinion
We submit that the time limitation created by the words "since June 1, 1939," contained in the regulation has no relation to the public health and denies to the appellants the equal protection of the law guaranteed by the State and Federal Constitutions. Petitioners apply for a license permitting them to buy sealed bottled milk from approved milk dealers and resell the same to consumers. This application is denied upon the sole ground that under the regulation in question they have not been in the business prior to June 1, 1939. (Sanitary Code of City of New York, §§ 155, 156; Board of Health Regulation 3-a, subd. 3-b, par. 3.) Previous to July, 1939, the Sanitary Code of the city prohibited the sale of milk by one who did not possess a pasteurizing plant or depot. Despite this, many subdealers bought milk in sealed bottles from those having pasteurizing plants or depots and resold it in the same sealed bottles to customers. There were from six to eight hundred of these single individuals and a regulation was adopted permitting these illegal dealers to obtain a so-called Class C license if they had thus been doing business illegally prior to June 1, 1939.
Both the approved milk dealers engaged in the business of selling to these individual distributors and individuals situated as are petitioners, object that the regulation containing as it does a time limitation of June 1, 1939, unlawfully discriminates against them in favor of other milk dealers and individuals of the same class and that no valid reason exists for the inclusion of this arbitrary time limitation. *102
To sustain the regulation the city urges that if the time limitation is removed there will exist so many individual distributors that it will be impossible to make the proper inspections. This very objection but illustrates and emphasizes the arbitrariness and the unlawfulness of the discrimination which the time limitation creates. Without passing upon the validity of the contention that the mere difficulty of adopting a suitable and effective method of inspection is sufficient to curtail the liberties of those involved, no such issue has been here determined by the Board. Instead an arbitrary date has been selected.
Nothing has been shown in the case at bar which supports the contention that there is a reasonable relationship between the distribution of sealed milk and the public health or welfare which would afford a reasonable basis upon which the local authority could determine that during the life of this law no individual or corporation shall enter the milk business as a distributor in New York city. (Mayflower Farms, Inc., v. TenEyck,
The case at bar does not fall within the category of cases where a regulatory law may be prospective in operation and may except from its sweep those presently engaged in the calling or activity to which it is directed. The absolute denial to petitioner of the right to engage in the distribution of milk which has been bottled, sealed and pasteurized at a Class A plant pursuant to Department of Health inspection *103 would seem to have no reasonable connection with public health and welfare. Nor does the power of the Board to consider the declared public policy of the State, including the burden resulting from the Workmen's Compensation Law (Cons. Laws, ch. 67) and social security laws, give to the Board power to deny petitioner his constitutional right to engage in a legitimate occupation upon the arbitrary ground that petitioner was not engaged in that business before an arbitrary date. To prescribe qualifications for entrance into a business or to prescribe regulations covering the different classes, is entirely different from proscribing the right to engage in such business altogether.
Other States have held invalid similar attempts to curtail individual liberty (Alexander v. City of Elizabeth,
LEHMAN, Ch. J., LOUGHRAN and DESMOND, JJ., concur with LEWIS, J.; FINCH, J., dissents in opinion in which RIPPEY and CONWAY, JJ., concur.
Order affirmed. *104