Weigand v. District of Columbia, 22 App. D.C. 559

Weigand v. District of Columbia

22 App. D.C. 559 | D.C. Cir. | 1903

Mr. Chief Justice Alvey

delivered the opinion of the Court:.

Upon comparing the provisions of the acts of 1895 with those of the later act of 1898, such as relate to the subject-matter of this prosecution, we think it clear beyond reasonable doubt, that, § 13 of the former act has been repealed by operation and fair intendment of §§ 4, 6, 7, and 8 of the latter act of 1898; and this was simply affirmed by the last section of the act of 1898,. when it declared that all acts and parts of acts inconsistent therewith were thereby repealed. It is conceded that § 7 of the act of 1895 was repealed by the provision in the subsequent act changing the marketable standard of milk; and we think § 13 of *569the act of 1895 is also repealed, because inconsistent with the provisions of the latter act, and because the provisions of the latter act were intended to furnish the one general and sole rule upon the subject. The act of 1895, however, is only impliedly repealed by the subsequent act of 1898, so far as the provisions of the latter act are repugnant to it, or so far only as the latter statute, making new provisions, is plainly intended as a substitute for provisions contained in the former act. Henderson's Tobacco, 11 Wall. 652, 20 L. ed. 235; Fabbri v. Murphy, 95 U. S. 191, 24 L. ed. 468. It was not, clearly, the purpose or intention of Congress, in passing the act of 1898, to keep in existence two different methods of examining and testing of milk, any more than it was to keep in existence two different standards or tests of the purity of the article. The act of 1898 not only changed the previous standard of milk that could be offered for sale in the District, but it made substantial changes in the method of examining and subjecting to test the milk offered or that could be offered for sale. After the passage of the act of 1898, it was no longer necessary to make the analysis in the presence of two witnesses as previously required; that was found to be productive of delay and inconvenience. Instead of making the analysis in the presence of two witnesses, the party having the milk or other articles of food for sale is required, upon application, to furnish a sample thereof, to an officer of the health department for analysis, and the party analyzing the article is required to reserve a portion of the same, sealed, for thirty days, which in case of complaint, shall be delivered to the defendant or his attorney. It is objected that milk cannot be preserved for such length of time. But it is shown by the testimony of the chemist that, by the use of a sterilized bottle, milk may be preserved for an indefinite time. The whole subject of the retail sale and disposition of drugs and articles of food, including milk, has, by the act of 1898, been placed under the supervision and regulation of the health department of the District, subject to the control of the commissioners, as a means of protection against adulteration and impurity of the articles offered for sale. As we have seen, the health officer is required to adopt such measures *570as may be necessary to facilitate tbe enforcement of the act, and to prepare rules and regulations with regard to the proper method of collecting and examining drugs and articles of food; and this power fully embraces the method of examining and testing milk as prescribed in § 13 of the act of 1895.

2. The next assignment of error is that in regard to the supposed right of the defendant to show by evidence, and to have the jury instructed, that the provision of the act of Congress of 1898, prescribing the standard of milk for sale in this District, is unreasonable and oppressive, and therefore void. This assignment of error presents a question of the gravest importance, and one which can only be made in an extreme case. To declare an act of Congress unreasonable and oppressive and therefore void is a power that the courts cannot exercise, except where the provision of the statute is shown to be plainly violative of some provision of the Constitution. The subject-matter of the act of 1898 is plainly within the power of Congress ;• and the courts cannot amend or modify any of the provisions of that act so as to bring them within what may seem to be reasonable bounds. They cannot examine questions as expedient or inexpedient, as politic or impolitic. Considerations of that nature must, in general, be addressed to the legislature. Questions of policy determined there are conclusive with the courts. License Tax Cases, 5 Wall. 462, 475, 18 L. ed. 497, 502. If, by the plain words of an act of Congress, an impossible thing was required to be done, or some thing done in an impossible manner (if such legislation could be rationally supposed to occur), in such case, the courts would have no alternative but to declare the statute to be incapable of enforcement in the particular case. But statutes are not to be declared void because of difficulty of construction, or because of apparent hardship in their application; nor are the plain words of a statute to be refused their application upon any theory that a more reasonable provision could have been adopted for the state of case presented. All statutes must receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or an absurd conclusion. Lau Ow Bew v. United States, 144 U. S. 47, 59, 36 L. ed. 340, 345, *57112 Sup. Ct. Rep. 517; Hawaii v. Mankichi, 190 U. S. 213, 47 L. ed. 1021, 23 Sup. Ct. Rep. 787. It is true, a municipal ordinance professed to be passed under a general or implied power given by a statute, must be reasonable and lawful, and not oppressive, and if it be not so it will be declared void. But this is upon the presumption that the legislature did not intend by the general terms of the statute to authorize the making of such an ordinance. 1 Dill. Mun. Corp. § 319; Cooley, Const. Lim. 6th ed. 192-3. And it has therefore been held that an ordinance cannot be held to be unreasonable and void, which is expressly authorized by the legislature. A Coal-Float v. Jeffersonville, 112 Ind. 15, 13 N. E. 115; Cooley, Const. Lim. 241.

In this case, the offer was made to show, and the court was requested to declare, not that the act of Congress required milk to conform to an impossible standard or test, or that the milk offered for sale should contain constituents that nature did not supply, but that the standard prescribed was unreasonably high, and could not, by ordinary care, be maintained through all seasons of the year. There may be difficulty in keeping up the standard throughout the year; and more expense and greater effort may be required at some seasons of the year than at others. But the very object of the statute was to require this more than ordinary expense and labor, on the part of the owner of cows, to keep up and maintain the prescribed standard of milk, when necessary ; and this is accomplished by proper care of, and food supplied to, the animals producing the milk. Eor it is well known that the quality and richness of milk depend largely upon the condition of the animal, the care with which it is kept, and the kind and quantity of food supplied to it. It is not attempted to be shown that S/^ per cent of fat, as a constituent of good milk, is greater than can be supplied by proper care of, and good and abundant food supplied to, the cows. If the proposition of the defendant were sustained, the question of the reasonableness of the statute would be one of fact for the jury; and we should likely have different juries determining the question in different ways. We think the court was clearly right in its ruling upon this question, and in holding that the question whether the *572standard of milk prescribed by tbe statute was reasonable or not was not open to inquiry on tbe trial.

3. Tbe next question is upon tbe assignment of error upon tbe ruling of the court as to tbe extent of tbe inquiry open to tbe jury. Tbe court instructed the jury'that tbe extent and limit of their inquiry was whether tbe defendant sold tbe milk as charged, and whether in fact it contained less than 3y2 per cent of butter fat, contrary to the act of Congress. We perceive no error in thus charging tbe jury. Tbe question of intent was not involved, as it would have been if the case had been under § 7 of tbe act of March 2, 1895, before its repeal. But under § 3 of tbe act of 1898, tbe question is whether tbe sale was made of tbe article, which was in fact under tbe standard prescribed by tbe law. Tbe party making the sale is bound, at his peril, to know what be is selling, and, to keep within tbe law, be must know that tbe article complies with the standard of excellence and purity prescribed by tbe law. Unless this be so, it would be very difficult, if not impossible, ever to convict a party of a violation of tbe law. And for tbe same reason, tbe court below was right in refusing to allow the defendant to introduce evidence to show for what purpose be bad kept the milk on band, — that being entirely immaterial, if be sold tbe milk that did not bear tbe test prescribed. The question of sale, and tbe question whether tbe milk conformed to tbe standard prescribed by tbe statute were both fully and fairly submitted to tbe jury; and upon tbe finding of those facts tbe case was fully made out against tbe defendant.

In what we have said, we have embraced all tbe material questions raised by tbe assignment of errors; including the assignments made for tbe refusal of the court to g"’ant tbe first four prayers offered by tbe defendant for instructions to the jury.

We find no error, and must affirm tbe judgment; and it is so • ordered. Judgment affirmed.