No. 11,316 | La. | Feb 15, 1894
The opinion of the court was delivered by
The defendant appeals from a sentence of the First Recorder’s Court condemning him to pay a fine of $25, and in default of payment to suffer imprisonment for thirty days on the charge of selling adulterated milk in violation of an ordinance of the city.
His ground of appeal is that the ordinance provides for the con
The defendant on the trial objected to the introduction of proof as to the quality of the samples of milk.
The defendant delivered to the inspector two samples, one from each can of the milk he had for sale. Each sample consisted of a mall quantity, less than a pint, which the inspector handed to the chemist of the Board of Health.
After the analysis the inspector made an affidavit against the defendant, charging him with having violated city ordinance 6596, relatiug to adulterated milk.
As a witness on the trial the chemist testified that the milk was below the standard. With reference to the analysis he testified that it was accurate, and explained the method followed in testing the milk; that he had examined a large number of samples of natural milk, and that in no instance had he found them less than the standard adopted, except where the cows were diseased, or just before or after parturition.
The constitutionality of the ordinance is questioned.
The facts, as disclosed by the record, do not prove that the defendant was compelled to be a witness against himself and furnish samples of milk.
While in order to retain a right in opposition to any demand in execution of a law, on the ground of its illegality, there is no necessity to resort to downright resistance or to a display of combativeness; there should be sufficient objection manifested to render it certain that assent was not intended.
The facts upon this point are in evidence and have been considered.
They prove compliance and in consequence exclude certain constitutional objections that would necessitate a decision if the defendant had been forced to give up the samples.
Moreover: “ Where power is expressly given to municipai authorities to license and regulate.trades and callings generally, or certain specified trades and callings, or where power to exact licenses is implied, it will be found that such authorities have very commonly pro
License itself is one of the means of regulation.
It has the effect of lessening the number that would, without it, engage in the trade or occupation licensed and thereby to a corresponding extent decreases competition.
By the license the trade or occupation is brought more directly within the scope of the police power.
This being a fact of which it must be presumed the defendant was aware when called upon for samples, instead of objecting he delivered them to the inspector and continued selling the milk he had for sale.
He can not be heard to question the regularity or legality of the execution of the ordinance, to the execution of which be consented.
The acquiescence in the execution of the ordinance does not have the effect of defeating the plea of the illegality of the ordinance itself as violative of the Constitution and ultra vires.
The consent to a test does not make legal that which may be illegal in the ordinance under which the proceedings were instituted and the fine imposed.
The waiver of a citation and of other informalities under which a defendant may be brought in court and proof offered against him is not a waiver of illegalities of the law under which he is prosecuted and condemned. A similar rule applies to the case at bar.
The authority vel non of the municipality to pass the ordinance in question under the City Charter, and the implied power of the municipality under the charter^are remaining issues for our determination.
Under the charter the council has the power, and it is made their duty, to pass such ordinances and to see to their faithful execution as may be proper and necessary to prevent the sale of adulterated food and to punish those guilty of adulterating food and drinks.
The authority to punish the violators of ordinances drawn under
The ordinance under this authority adopts a standard by which the adulteration of milk shall be determined, and ordains that any person found guilty of selling milk below the standard shall be subject to a fine of not more than $25 for each offence, and in default of payment to imprisonment for a period not exceeding thirty days, thus conforming with the requirement of the statute delegating authority to the municipality.
The statute and the ordinance were properly directed to fixing a legal standard to which all milk is subjected; to fixing penalties for violation of the ordinance and establishes the duties of the chemists by whom the analysis is made. These details are appropriately within legislative control; they do not transcend the limits of legislative authority. They belong to the class of police regulations designed to protect health and prolong life.
The intention throughout was to prevent the sale of adulterated milk.
The provisions fixing a standard are valid, as they merely control and regulate the method of ascertaining the quality
The design being to prevent the sale of adulterated milk and to regulate an employment that must be regulated, it was -not ultra vires on the part of the council to fix a standard of quality of the milk.
The exercise of trades and occupations are subject to reasonable conditions essential to health; if the power be not express, under the implied power the council would have the authority to adopt measures to maintain a standard of purity of that article of food to the extent of preventing the evil and injurious consequences to the public or to individuals.
The question was decided in State vs. Fourcade, 45 An. 717.
Judgment affirmed at appellant’s cost.