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OP ADULTERATED MILK.— A city ordinance requiring public milk
yendors to furnish gratuitously, on the application of sanitary Inspec-
tors, samples of milk for Inspection and analysis, Is not unconstitu«
tlonal, as forcing such vendors to furnish evidence against themselves,
as taking private property for public use without compensation or
due process of law, as denying them the equal protection of law and
the enjoyment of their property, as denying them protection in person
and property against unreasonable seizure or search, and authorizing
invasion thereof without warrant founded on oath or affirmation, or
as subjecting them to odious, oppressive, and unreasonable exactions
in a lawful vocation. On the contrary, such ordinance is but a reason-
able regulation for the public health.

ER.— A city ordinance requiring public milk vendors to furnish gratu-

Digitized by


April, 1894.] State v. Dupaquier. 836

ftonsly, on the application of sanitary inspectors, samples of their
milk lor inspection and analysis, or suffer a penalty for refasal, is
not unreasonable, vexatious, or oppressive, but is a legitimate exercise
of the police power lor the benefit of the pnblic health.

J. C Walker^ for the appellant
F. McOloin, for the appellee.

•»* NICHOLLS, C. J. The defendant^ having been sentenced
to pay a fine of twenty-five dollars, and in default of twenty-five
dollars to suffer imprisonment for thirty days, on the charge of
refusing, in violation of ordinance No. 6576 of the city of New
Orleans, approved August 2, 1892, to furnish the officers of the
board of h^th with samples of the milk he was supplying to his
customers, has appealed.

The constitutionality of the ordinance was attacked on several
grounds by special plea in the magistrate's court, and a bill of ex-
ceptions reserved to the overruling of the same.

The ordinance violated is as follows:

"Section 1. Be it ordained by the common council of the city of
New Orleans that the standard by which the adulteration of milk
shall be considered to be such milk as shall be determined under
ordinance No. 6022, as adopted June, 1879, shall be as follows:
Normal or pure milk shall be considered to be such milk as will,
upon the test thereof, be fotmd to possess a minimum specific
gravity, actual density, of one thousand and twenty-nine (1,029)
at sixty (60* F.) degrees Fahrenheit, and shall contain not less
than thirteen (13) parts of total solids in one hundred parts of
milk, as follows: Butter fat, three and one-half (3^) per centum;
solids not fat, nine and one-half (9^) per centum; and water, not
more than eighty-seven (87) per centum.

"Sec. 2. Be it ordained, etc., that any milk falling below the test
above described, or any milk from which the cream has been re-
moved, or to which water, foreign fats, coloring matter, or any
other foreign or extraneous substance has been added, shall be
considered as adulterated under said ordinance.

"Sec. 3. Be it ordained, etc., that every vendor or establish-
ment or person who sell milk shall be obliged to furnish to any
sanitary officer or inspector of the board of health of the state for
inspection and analysis, on application therefor, a sample of the
milk '^^ sold by said vendor or establishment or person, from the
can or other vessel from which it is sold to the public; said sample
shall not exceed one-half pint, and there shall be no charge

"Sec. 4. Be it ordained, etc., that any person who shall be

Digitized by


836 State v. Dupaquieb. [LoniBianAi

found gnilty of selling milk below the standard hereinbefore fixed,
or otherwise adulterated or modified, as provided nnder section 2
of this ordinance, or refusing to furnish samples as hereinbefore
provided, shall be subject to a fine of not more than twenty-five
dollars for each and every offense, and, in default of payment
thereof, to imprisonment in the parish prison for a period of not
over thirty days; said fine or imprisonment to be enforced by any
court of competent jurisdiction within the corporate limits of the
city of New Orleans/*

Appellant contends: 1. That the ordinance deprives dairymen
of their milk without compensation and without uniform rule or
regulation; 2. It compels dairymen to be witnesses against them-
selves, and to furnish samples of milk to be used as evidence
against themselves, under penalty of fine or imprisonment; 3. It
denies them the equal protection of the law; 4. It denies them
protection in the enjoyment of their property; 5. It denies them
protection in person and property against unreasonable searches
and seizures, and authorizes the invasion of the same without war-
rant founded on oath or affirmation; 6. It subjects them to an
odious, oppressive, and unreasonable exaction, which interferes
with their vocation, which is lawful and industrial and not in-
jurious to the community; 7. It deprives dairymen of their prop-
erty without due process of law; 8. It establishes a rule of evidence
and mode of proof legislative in its character, and makes the same
conclusive evidence against parties accused thereunder.

His counsel additionally maintains that the ordinance is not
within the scope of the police power of the city; that, considered
as a health law, it bears no substantial relation thereto; that it
delegates arbitrary power to health officers without restraint or
uniform rule or regulation.

We think that the objection raised to the ordinance in question
as estabb'shing a rule of evidence is not an issue in this case. De-
fendant was not on trial for having sold adulterated milk, and
therefore "^^ no question arose in the lower court upon the ad-
missibility or effect of evidence against him based upon an
analysis made from a sample of milk taken from him, under pro-
test or by compulsion, under the provisions of the ordinance.

We find in Tiedeman's Limitations of Police Power a note, on
page 292. to the effect that the legislature has the power, in an
act forbidding the sale of impure or adulterated milk, to fix a
standard by which it shall be judged, and as supporting this propo-
sition the following citation of authorities: People v. Cipperly,
N. Y. Ct. App. February 5, 1886; State v. Smyth, 14 R L 100; 61

Digitized by LjOOQ IC

April, 1894.] State v. Dupaquibb. 887

Am. Bep. 344; Commonwealih ▼. Waite, 11 AUen, 264; 87 Am.
Deo. 711; Commonwealih t. Farren, 9 Allen, 489; Polinaky ▼•
People, 73 N. Y. 66.

In State ▼. Fonrcade, 45 La. Ann. 717, 40 Am. St. Hep. 249,
we held that, under the powers delegated to the dty of New
Orleans on the subject of the regulation of the milk traffic, the dty
council had the legal right to adopt a standard.

Referring to the adoption of a standard, Parker and Worthing-
ton, in their work on Public Health and Safety, say, in section
301 : 'In some of the states the statutes on this subject provide
that in all prosecutions under the act, if it be shown upon analysis
that the milk sold or offered for sale contained more than a certain
percentage of watery fluids, it shall be deemed, for the purposes of
the act, to be adulterated. These provisions are valid, as they
merely regulate and control the quality of an article of food in the
interest of the public health, and fix a standard of quality. The
clause does not establish a rule of evidence to the prejudice of the
accused, but creates and defines a new offense. It is the purpose
of the statutes to prohibit, not merely the dealing in milk which
has been adulterated, but also the dealing in milk of such inferior
quality as to fall below the standard required^': Citing numeroua

We will postpone a discussion of the correctness of these state-
ments until a case comes before us in which the rights of the ap-
pellant are claimed to have been illegally affected through the
ordinance as "a rule of evidence."

Most of the questions raised in this litigation were directly
passed upon in the case of Commonwealth v. Carter, 132 Mass. 12,
from which we shall quote freely later on, and the whole subject
of the regulation of the milk traffic is discussed in Parker and
Worthington's Public Health and Safety, on pages 345 to 349,
under the sections from '^** 299 to 304. The last section (sec-
tion 304) is as follows: *lt is said milk dealers may be required to
supply, from time to time, samples of milk to milk inspectors for
analysis, nnd the inspectors may be authorized to take samples for
that purpoee and to condemn and pour upon the ground, or return
to the person who supplied to the dealer, any milk which, upon in-
spection, he finds to be adulterated or below the prescribed
standard: Shivers v. Newton, 45 N. J. L. 469; Blaader v. Miller,
10 Hun, 435.'*

The question of the general powers of the dty of New Orleana
over the subject of the regulation of the sale of milk within its
limits has been several times presented to and passed upon bj this

AM. Br. B».,ToL XLIX>»

Digitized by


838 State v. Dupaquieb. [Louisiana,

court. The pres^il suit does not involve an issne upon the gen-
eral power, but upon the special application of the power as at-
tempted to be made through the ordinance whose constitution-
ality, upon the specific grounds urged, is herein attacked. We do
not think the attack upon the ordinance on the ground that it
forces a man to furnish evidence against himself is well taken.

On this point plaintiff's counsel in his brief contends as followsr
'^he object of the ordinance was not to secure evidence against
violation of the law, but simply to secure means for proper exam-
ination of the milk which is being sold upon the public streets and
places to inhabitants of New Orleans. The milk cannot possibly
be produced before the courts, being necessarily destroyed by the
very chemical process for which the ordinance provides. No law
can prevent the chemist of the board of health from chemically
analyzing the milk which vendors are selling, and from testifying
to the result of the analysis. Whether the sample analyzed waa
acquired by purchase or seizure would render the effect of the
chemists* testimony neither more favorable or unfavorable to the
one accused. The object of the ordinance is rather, if it can be
considered as contemplating the furnishing of evidence, the obtain-
ance of satisfactory evidence of the vendor's innocence than of his
guilt: State v. Davis, 108 Mo. 666; 32 Am. St. Hep. 640. In thia
instance the municipal authorities have licensed the vendors to sell
and waived inspection previous to the taking out of the wares, and,.
aa a precaution to the end of ascertaining that the privilege given
is not being abused, requires the vendors, when occasionally called
upon, to furnish a trifling sample from their stock. This is em-
phatically to gather assurance of their good faith and right to con-
tinue in the ^^ calling they ore pursuing, and not for the pur-
pose of extorting evidence against wrongdoers. It was not pre-
sumed the vendors were intending to violate the law; it is not to
be presumed that the present appellant has declined to give a sam-
ple in this case because of the fear that his milk would be found to
be adulterated had the samples been furnished. If the original
seizure or taking had been justifiable, the fact that it is possible
that the thing may serve to subsequently fasten criminal guilt
upon the possessor cannot render the taking unlawful: Langdon
V. People, 133 HI. 382. Indeed, the courts have held that eveii^
though the original taking were a trespass, the results of the tak-
ing were admissible in evidence: Oindrat t. People, 138 111.

"That the city having a right to license the selling of milk^
and the parties having availed themselves of that privilege, under

Digitized by


April, 1894.] State v. Dupaquieb. 839

the conditions stated the wares they sell become property in which
the public has an interest. It is that public interest alone in the
foods generally sold which justifies the public examination of pri-
vate property. If the public have such interest in the wares of
this character to be disposed of to them, that same public have a
corresponding right of access to such wares, to the extent necessary
for the preservation of their rights or interests. The milk sold by
the milkmen in the city of New Orleans, therefore, is public prop-
erty, as well as private, to the extent that the public have the right
to effectively provide for its purity, and, to that end, to view and
analyze it.''

In Commonwealth v. Carter, 132 Mass. 12, the supreme court
held that a statute of that state authorizing inspectors of milk to
enter all carriages used in the conveyance of milk, and, whenever
they have reason to believe any milk found therein is adulterated,
to take sppcimens thereof for the purpose of analyzing or other-
wise satisfactorily testing the same, was constitutional.

Taking up the particular objection we are now considering, it
eaid : "Neither is the power granted in violation of the provisions
of article 12 of the declaration of rights, that no man shall be com-
pelled to give evidence against himself. If the seizure is such as
is authorized by the constitution, and a law passed in pursuance
thereof, the fact that the thing seized may be used in evidence
against the person from whose possession it is taken does not ren-
der the seizure itself a violation of the declaration of rights'*:
Commonwealth v. Dana, 2 Met. 329, 337.

*»« In State v. Davis, 108 Mo. 666, 32 Am. St. Hep. 640, the
fupreme court of Missouri held that statutes of that state pro-
hibiting a druggist from selling liquor, except on the prescription
of a physician, and declaring that such prescriptions shall be care-
fully preserved and produced in court or before any grand jury
whenever required, and that on the failure of the druggist to pro-
duce the same he shall be deemed guilty of a misdemeanor, were
not in conflict with the article of the constitution providing that
no person shall be required to furnish evidence in a criminal case
against himself.

Bef erring to the claim that they were, the court said: "We
think not. The right to sell intoxicating lipuor is not a right or
privilege accorded to every citizen. The state has the right to
control, regulate, or altogether prohibit its sale. It has, therefore,
the undoubted right to impose such conditions upon those whom it
may authorize to sell such liquors as it may deem necessary to
properly regulate and control its use: Austin v. State, 10 Mo. 591.

Digitized by


340 Stat£ v. Dupaquisb. [Loaisiana,

Druggists are not giyen an unlimited right to sell intoxicating
liquors. . • . • There can be no doubt that the l^islature £ad the
right to impose its own conditions in authorizing such sales. It
undertook to do so by the prorisions of section 4621, which limits
sales to those made under the written prescription of a regularly
registered and practicing physician/'

"To prevent abuse of their authority to sell as a covering under
which to make unlawful sales^ section 4622 requires the druggist
to preserve all such prescriptions, and produce them in court or
before the grand jury when lawfully required. This duty was im-
posed as a condition upon which a sale was authorized. The pre-
scriptions thus become the license or justification to the druggist
for making sales which would otherwise be unlawful. As evi-
dence of authority to make particular sales, they would constitute
private papers of the druggist, but could not be regarded as evi-
dences of crime, but rather of innocence. The chief purpose of
their preservation, however, was evidently that they might be used
in giving aid to courts and grand juries in their proper and lawful
endeavors to control and regulate the sale of intoxicating liquors
within the limits prescribed by the legislature, and in the investi-
gation of matters of public concern. In these respects all the pre-
scriptions become public and not private papers, and the druggist
merely their custodian. It could not be insisted that the pro-
duction of the official books of a collector, treasurer, "^^ or other
public officer could not be required in the investigation of his ac-
counts, or used in evidence against him in a prosecution for official
misconduct. The obvious reason is that the books are not the
private property of the citizen, but the public records required to
be kept by the officer. The law imposing the duty upon druggists
of preserving the prescriptions of physicians left with them, and
of producing them before the grand jury, is as clearly required as
the duty imposed by law upon any public officer to keep an ac-
count of the public money which passes through his hands. Our
conclusion is that section 4622 is constitutional, and all its re-
quirements may be lawfully enforced." J

This decision was referred to in State v. Davis, 117 Mo. 614, and
the principle enunciated therein was reaffirmed.

We do not think that the objections urged by appellant to the
ordinance, that it deprives him of the equal protection of the law;
that it denies him protection in the enjoyment of his property;
that it denies him protection in person and property against un-
reasonable searches and seizures, and authorizes the invasion of
the same without warrant, founded on oath or affirmation, and

Digitized by


April, 1894.] Stats v. Dupaquibb. 841

that it deprives him of property and liberty without doe ptocesi
of law, are well founded.

Defendant has selected as a business one which^ improperly con-
ducted in the hands of unscrupulous men^ would serioxisly aU'ect
the health of the public. It is no longer a debatable question
whether callings of that character can be legally brought under
reasonable restraints and regulations through the exercise of the
police power. The object of the ordinance in question is to pro-
tect the general public against dishonest vendors of milk; its effect
will be, not only not to injure appellant, but to protect him as a
member of the public from that class of pereons, and incidentally
to save him as an honest vendor in that business from injurious
competition through fraudulent devices and ill practices. Honest
vendors could certainly see nothing to flow from the ordinance but
proper and beneficial results; they certainly should raise no
complaint at having their own actions brought to a test, when
in 80 doing they purge the business of disreputable characters.
We do not think the ordinance was beyond the scope of the
police power of the city, nor that, considered as a health ordi-
nance, it bears no substantial relation thereto.

•®® We are of the opinion that in delegating to the common
council the powers it did, the legislature contemplated that it
would adopt a reasonable system to render the power effective.
We agree with plaintiff's counsel that a reasonable method of
inspection of the milk offered for sale to the public falls legiti-
mately under the grant of power. There are two methods of
inspection. The first is to compel the vendor to exhibit the
articles he proposes to dispose of to a public officer, as a condi-
tion precedent to their sale, but inasmuch as there are certain
cases where the prior inspection would fail of accomplishing the
purpose, by reason of the facility offered for subsequently tamper-
ing with the goods inspected, a second system is often had re-
course to. Under this system the vendor is permitted to proceed
with his sales without prior inspection, but with the obligation
to submit his commodity to inspectors when the latter think it
necessary to demand an examination. The penalty is laid upon
the sale, not of unins'pected wares, but of improper ones. We are
of the opinion that the liability at any moment to a call for in-
spection, together with the dread of the penalty following de-
tection, operates strongly by way of prevention against the per-
petration of frauds, and, as counsel well says, ''are the most
effective of checks against the sale of adulterated food, and the
object of the law otherwise unattainable is accomplished.'^

Digitized by


8^2 State v. Dupaquiek. [Louiaiaiia,

We have already referred to the case of Commonwealili t*
Carter, 132 Mass. 12, as presenting issues almost identical with
those presented here in respect to statute closely resembling the
ordinance we are now considering. In that case the court said:
''It is said that the provision is unconstitutional^ because it autho-
rizes the taking of property without consent or compensation,
warrants unreasonable searches and seizures, compels one to
furnish evidence against himself, and is not within the police
power of the commonwealth. An analysis of a specimen of milk
offered for sale is an appropriate means of carrying into effect
the various provisions of the statutes regulating the sale of milk
in this commonwealth. In the case at bar, the can of milk was
taken from a carriage used in the conveyance of milk, and it is un-
necessary to consider whether the words of the section, 'place
where milk is stored or kept for sale,* may or may not include
a dwelling-house, and whether, if construed to include a dwelhng-
house, they do not purport to give a power which the legislature
could not give, because the clause authorizing an "^^ entry is
separable from that which authorizes an entry into all carriages
used in the conveyance of milk.

'If the statute had required that all milk offered for sale
should first be inspected, it would be hardly contended that the
trifling injury to property occasioned by tfiJdng samples for in-
spection would be such a taking of private property for public use
as to require that compensation be made therefor. Such an in-
jury to property is a necessary incident to the enforcement of rea-
sonable regulations affecting trade in food. Private property is
held subject to the exercise of such public rights for the com-
mon benefit, and in the case of licensed dealers in merchandise,
the injury suffered by inspection is accompanied by advantages
which must be regarded as a sufficient compensation: Bancroft
v. Cambridge, 126 Mass. 438, 441. Instead of requiring all milk
offered for sale to be first inspected, the legislature, for obvious
reasons, has permitted licensed dealers to sell milk without in-
spection, has imposed penalties for selling adulterated milk, and
has provided that, when the inspector of milk has reason to believe
that any milk may be adulterated, he may take specimens thereof,
in order that, by analysis, he may determine whether the milk has
been adulterated. Such a seizure of milk, for the purpose of ex-
amination, is a reasonable method of inspection, and does not
require a warrant. It is a supervision, under the laws of the state,
by a public officer of a trade which concerns the public health.

Digitized by


April, 1894.] State v. Dupaquieb. 843

«nd it is within the police power of the commonwealth: Common-
wealth V. Ducey, 12G Mass. 269; Jones v. Eoot, 6 Gray, 436.

'^There is nothing in this case wliich requires us to determine
the rights of the defendant if the inspector had attempted to take
« larger quantity of milk for analysis than was reasonably neces-
sary for the performance of his duties. We have not found it
necessary to consider whether the defendant, by voluntarily ac-
-cepting a license to sell milk, has not assented to the conditions
and regulations which the legislature has seen fit to impose upon
the exercise of the trade licensed: See Pitkin v. Springfield, 112
Mass. 609; Bertholf v. O'Reilly, 74 K Y. 609, 617; 30 Am. Rep.

Appellant complains that the ordinance is vexatious and op-
pressive, in that the inspectors are sul)jortod to no special and
uniform rules to control and govern their action. He claims that
it opens the door to favoritism and to the gratification of personal
spite and •*• prejudice; that the inspectors may harass the ven-
dors of milk by unnecessary and repeated demands for samples.
The mere &ct that powers under an ordinance may be abused
-does not make the ordinance itself illegal, unreasonable, or
oppressive; it is very difficult to so hedge in power conferred as
to withdraw from it opportunities for wrongdoing. If such
wrongdoing as appellant anticipates were to occur, we think that
there are ample remedies at hand to correct and punish it. In
the case at bar the efficacy of the inspection rests to a great extent

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 39 of 121)