State v. Smith

| Conn. | May 14, 1896

Baldwin, J.

The charter of the city of Bridgeport, which went into effect July 1st, 1895, authorized the common council to make ordinances, not inconsistent with law, relative to commerce; to the inspection of produce brought into the city for sale, and the election of inspectors for that purpose; to the sale or offering for sale of unwholesome produce of all kinds; to “ licensing oartmen, truckmen, hackmen, butchers, bakers, petty grocers, or hucksters, and common victualers, under such restrictions and limitations as said common council may deem necessary and proper; ” to the health of the city; and to “ any and all other subjects that shall be deemed necessary and proper for the protection and preservation of the health, propertj’-, and lives of the citizens.” Special Acts of 1895, p. 532, § 41.

In the General Statutes, §§ 2658 to 2664 are grouped under the heading of “Adulteration of Milk.” A Public Act went into effect August 1st, 1895, to regulate the manufacture and sale of food products, which classes as food, under that description, “every article used for food and drink by man, horses, or cattle.” Public Acts of 1895, p. 578, Chap. 235, § 2.

General Statutes, § 2661, prohibits the sale or offer for sale of impure or adulterated milk. Section 2660 forbids the sale of any milk from which any cream has been removed, except out of a can, vessel, or package, to which is affixed, not more than six inches from the top, a metallic tag stamped “Skimmed Milk,” in letters not less than an inch in height. For any violation of these provisions the offender may be fined not more than seven dollars or imprisoned not more than thirty days, or both.

The Act of 1895 (§ 8) declares that any article of food shall be deemed adulterated if, among other things, any substance be mixed with it so as to lower or injuriously affect its quality or strength, or if any valuable constituent has been wholly or in part abstracted, or if it is in any part the product of a diseased animal; and that the Connecticut Agricultural Experiment Station shall make analyses of food products on sale which it is suspected may be adulterated, and “ may adopt or fix standards of purity, quality, or strength, when such standards are not specified or fixed by statute,” and when it finds by analysis that adulterated food products have been on sale within the State, shall notify the grand juror or prosecuting attorney of the town in which they were found. The sale or offer for sale of adulterated food, by one who knows it to be adulterated, and does not disclose this to the purchaser, is made punishable by a fine of not more than $500, or imprisonment for not more than one year.

At the same session of the General Assembly, two days later, another statute was enacted, but repealed the following week (Public Acts of 1895, pp. 588, 664), which declared the term “adulterated milk,” as used in the statute laws of the State, to have the following meaning: “ 1. milk containing more than eighty-eight per centum of water or fluids; 2. milk containing less than twelve per centum of milk solids; 8. milk containing less than three per centum of fats ; 4. milk drawn from cows within fifteen days before or five days after parturition; 5. milk drawn from animals fed on distillery waste or on any substance in a state of fermentation or putrefaction or on any unhealthy food; 6. milk drawn from cows kept in a crowded or unhealthy condition ; 7. milk from which any part of the cream has been removed; 8. milk which has been diluted with water or any other fluid, or to which has been added or into which has been introduced any foreign substance whatever; 9. all adulterated milk shall be deemed unclean, unhealthy, impure, and unwholesome.”

It is impossible to compare the ordinance of the city of Bridgeport with these statutory provisions, without seeing that in many respects they cover the same ground, and cover it in a different way.

The ordinance (§ 6) defines precisely adulterated milk, and gives conclusive effect to an analysis made by the chemist employed by the local board of health. The General Assembly, in 1895, first adopting and then repealing a somewhat similar definition, finally left the matter largely in the hands of the Connecticut Agricultural Experiment Station.

The sale of skimmed milk, by the city ordinance, is to be from cans bearing the words “ Skimmed Milk ” conspicuously stamped upon the side; by § 2660 of the General Statutes it is to be from cans bearing a metallic tag on which the same words are stamped.

The pecuniary penalties imposed by the ordinance cannot be less than $50, nor more than $100. Under the general laws, they may be considerably less, and for some offenses more, besides an additional liability to imprisonment.

The public statutes leave the business of a milkman open to all, on equal terms, throughout the State; only imposing certain regulations upon those who may undertake it, and enforcing them, when necessary, by proceedings of a criminal nature, resulting in a sentence proportioned to the gravity of the offense. The ordinance excludes every one who has not received a license from the local health officer, from participating in it, within the city of Bridgeport, under pain of a fixed pecuniary forfeiture, which, in case of a second offense is to be doubled and to entail a loss of the license previously granted. Of these differences between the provisions of the by-laws in question and the general statutes, that last mentioned, unless found to be warranted by the terms of the city charter, is decisive of the present case.

Under the Constitution of this State, even the General Assembly has not unrestricted power to provide for the grant or refusal of licenses, without which a citizen cannot engage in what is one of the eommon occupations of life. State v. Conlon, 65 Conn., 478" court="Conn." date_filed="1895-01-24" href="https://app.midpage.ai/document/state-v-conlon-6583428?utm_source=webapp" opinion_id="6583428">65 Conn., 478. It has confided to the Common Council of Bridgeport the right to make ordinances, relative to licensing cartmen, truckmen, hackmen, butchers, bakers, petty grocers or hucksters, and common victualers. Petty grocers or hucksters and eommon victualers may, as part of their business, sell milk ; but the ordinance in question relates to licenses for all who sell milk, without regard to whether they are petty grocers, hucksters or common victualers, or not. It therefore goes beyond the power specifically conferred, and the “ general welfare ” clause, with which § 41 of the charter concludes, must be read with strict reference to what precedes it. The right to license the pursuit of a lawful business, which, as usually carried on, does not endanger the public health or safety, and thus to limit the number of those who may engage in it, is one of the highest powers of sovereignty. When conferred upon a municipal corporation, the grant cannot be extended by any doubtful implication.

After giving full force to all the provisions of § 41, we are brought to the conclusion that it is, at least, doubtful whether the charter authorized the licensing of milkmen. It therefore did not authorize it; and that part of the ordinance was void upon which the complaint in the case before us was based. Crofut v. Danbury, 65 Conn., 294" court="Conn." date_filed="1894-12-01" href="https://app.midpage.ai/document/crofut-v-city-of-danbury-6583387?utm_source=webapp" opinion_id="6583387">65 Conn., 294.

There is error in the judgment appealed from.

In his opinion the other judges concurred.