45 Pa. Super. 28 | Pa. Super. Ct. | 1910
filed the following opinion:
An ordinance of the city of Reading approved February 4, 1909, and entitled “An Ordinance to secure the wholesomeness and purity of milk, meat and meat products, by authorizing the inspection thereof, by providing for the licensing of persons dealing therein, by prohibiting the sale or offering for sale of milk, meat and meat food products which are impure, unwholesome or adulterated, or otherwise unfit for human consumption, by providing penalties for the enforcement of the same,” directs the appointment and qualification of a “Milk and Meat Inspector,”—defines his duties, including the visitation of places in the city and within twenty miles of its limits of persons licensed to sell milk or meat therein, its analysis, etc.,—provides for the annual licensing of such vendors after due inspection of their premises and upon payment to the city of $10.00 and presentation of the receipt therefor to the inspector,—prohibits the sale of milk or meat within the city by persons not so licensed, whether from a wagon or from a store or stand,—and imposes penalties for violation of its mandates or prohibitions ranging from not less than $10.00 not more than $25.00 for first, to not less than $50.00 nor more than $100 for repeated offenses. A milk and meat inspector was duly appointed and qualified in accordance with the ordinance. Without applying to him for or securing the license provided for, or paying the prescribed fee, the defendant engaged in the business of selling milk at a store in the city of Reading. In a suit
The last-mentioned exceptions may be disposed of with the remark that there is nothing in the ordinance which calls for an inspection as a condition precedent to the duty to apply for or obtain a license to sell milk, or to the maintenance of proceedings for selling without such: a circumstance apparently recognized by defendant’s counsel in not adverting to these grounds of objection in either his oral argument or his brief in support of the certiorari.
1. The objection of multiplicity of subjects cannot be sustained. Of course it might have been practicable, though obviously inconvenient, to deal with the matter of inspection and sale of milk separately from that of the inspection, etc., of meat, by separate ordinances. Yet upon any save the narrowest view both are but divisions of the same subject,—the inspection, etc., of animal food products. Their treatment together, as parts of a single subject-matter, in an ordinance creating an office intended to deal with both for the same purpose and by substantially the same methods and with the same result, is indicated by common sense and expediency, and is even technically unexceptionable. So to hold is not to go as far as the decision in Com. v. Rothermel, 27 Pa. Supe
2. The fact that the legislature has granted to cities the power of providing for the inspection of milk sold within its limits cannot be disputed. It is expressly conferred upon cities and boroughs generally by the Act of April 20, 1869, P. L. 81, and is clearly comprehended in the general power given to cities of the class to which Reading belongs by the Act of May 23, 1889, P. L. 277, art. V, sec. 3, cl. XXVI, “to make regulations to secure the general health of the inhabitants and to remove and prevent nuisances,”—an important branch of the police power as ordinarily understood. The argument, however, is that the matter of the sale of milk has been covered by certain statutes applicable to the entire state or to cities of the third class, and that therefore there is no longer any room for local legislation such as the ordinance here in question.
The Act of May 25, 1878, P. L. 144, forbade the sale of impure, adulterated or unwholesome milk throughout the state, and in sec. 3 directed the marking of wagons from which milk is sold in cities, etc. Then came the Act of July 7, 1885, P. L. 260, applicable to cities of the second and third classes (according to the classification of cities
Looking at the legislation above detailed applicable in cities of the third class, it seems very clear that none of it presently in force can be regarded as designed or able to destroy the power given to the city of regulating the sale of milk within its limits by ordaining an inspection of its quality and sources. It will be observed that the statutes referred to, in so far as they are in force and applicable, have reference simply to the adulteration of milk by the addition of foreign substances or the impairment of its quality by the withdrawal of constituents naturally part of it. The matter of its wholesomeness or unwholesomeness depending upon the conditions, from a sanitary standpoint, under which the animals yielding it are kept, or upon the food on which they are fed, or upon their health, is not touched upon except (with respect to the last mentioned two particulars) in the act of 1885. As has been seen that statute is to be eliminated from the list. Even including it and the whole of the legislation detailed as in force, it is evident that its design is to lay down certain' general rules and provide for their enforcement by the officers of the state. There is ho necessary incongruity between such legislation and the delegation to municipalities of the power to supplement those rules and regulate the traffic in milk within their boundaries by ordinances of their own meeting their peculiar local needs and contravening no policy or mandate found in the general law. At all events there can be no conflict between the latter and the provision for municipal inspection and regulation in so far as these refer to matters not covered by the general law. That concession is enough to sustain the ordinance of February 4, 1909, in establishing a milk inspection by the city. That the power to establish such inspection necessarily implies the power of granting or withholding, on the basis thereof, a license to sell within the municipality, to forbid' such selling without having
It may be noted in this connection that there is no similarity between this case and that of Reading v. Bit-ting, 167 Pa. 21. There the city, under its power to collect a license tax upon drays, hacks, carriages, omnibuses, carts, wagons, etc., used in the city for hire or pay, Act of May 23,1889, P. L. 277, art. V, sec. 3, cl. IV, undertook to collect the sum of $5.00 from milkmen for every
3. If what has been said in the discussion of the preceding objection is correct the contention that the milk and meat inspector has no authority under the provisions of the ordinance of February 4, 1909, relative to milk falls with it.
4. There is in the ordinance in question no attempt either to delegate to the board of health of the city of Reading the enforcement thereof, or to direct the same to make rules and regulations under it. Whatever authority the board of health may have concerning the matter of the sale of milk within the city under sec. 5 of the act of 1873, it is adequately recognized in the ordinance enjoining the observance of its rules and regulations upon the milk and meat inspector. If that section was intended or can be deemed effective to confer upon the board such powers as the city by the ordinance is assuming to exercise, that circumstance can certainly not be regarded as.destroying the right of the city under the acts of 1869 and 1889 to legislate upon a subject manifestly within the purview of those statutes, concerning which the board does not appear to have exercised the powers given to it.
It follows from what has been said that the exceptions filed afford no ground for reversing the judgment of the alderman, and therefore the writ of certiorari is dismissed and the proceedings are affirmed.
Even if it be conceded that the Act of July 7, 1885, P. L. 260, is not wholly unconstitutional, the learned president judge of the common pleas has clearly and satisfactorily shown that the ordinance of February 4, 1909, so far as its provisions are involved in the present case, can be sustained. We, therefore, may withhold an expression of decided opinion upon the constitutionality of that act. With this suggestion nothing further need be added to the opinion of the learned judge in support of the judgment.
The judgment is affirmed.