State v. Broadbelt

43 A. 771, 89 Md. 565

Opinion

McSherry, C. J.,

delivered the opinion of the Court.

The appellee was indicted under the Act of i8g8, ch. 306, passed by the General Assembly of Maryland, and entitled “ An Act to add certain new sections to Article fifty-eight of the Code of Public General Laws, title ‘ Live Stock,’ under the new sub-title ‘ Dairies,’ to follow section 18,” &c. He demurred to the indictment upon the ground that the statute was unconstitutional. His demurrer was sustained by the Criminal Coui’t of Baltimore City, the indictment was quashed, and the State has appealed. The reasons upon which he bases his claim that the statute is void axe, that it denies the equal protection of the laws guaranteed by Sec. 1 of the XIV Amendment to the Federal Constitution, and deprives the individual of the due process of law secux-ed by that amendment and by Article 23 of the Maryland Declaration of Rights. Both of these, or similar, grounds of attack have of late yeai-s been very frequently resorted to in assailing the validity of State legislation enacted in the exercise of the police power, and numerous judgments have beep delivei-ed by the Supx-eme Court of the United States in cases where this method of assault has been relied on. A review of, or even a inference to, all these cases would not be practicable within the limits of this opinion, but brief citations, later on, from some of them, will serve to illustrate the principles which underlie them all. Those principles must control the final disposition of this prosecution.

By the Act of 1888, ch. 519, a “ State Live Stock Sanitary Board ” was created. It consists of three members appointed by the Governor, by and with the advice and consent of the Senate. It is charged with various duties looking to the prevention and the spread of contagious and infectious diseases amongst the live stock within the State. Its powers are exercised for the preservation of the public health. The provision of the statute under which the indictment now before us was framed, reads as follows : “Sec. 19. It shall be the duty of all dairymen or herdsmen or private individuals supplying milk to cities, towns, or villages, to register their herds of cattle with the Live Stock Sanitary Board ; in violation of which the parties offending shall be fined not less than one dollar nor more than twenty for each offence.” Section 20, and the rules which it formulates, are in these words : “ 20. It shall be the duty of the Live Stock Sanitary Board to have inspected, at least annually, without notice to the owner or those in charge of any dairy, or the parties, supplying milk as named in section 19 of this Article, the premises wherein cows are kept, and if such premises are found in an unsanitary condition the said board may prohibit the sale and shipment of milk from such premises until such time as such premises shall conform to the following sanitary rules :

Rule 1. No building or shed shall be used for stabling cows for dairy purposes which is not well lighted and ventilated, and which is not provided with sufficient feed-troughs or boxes, and suitable floor, laid with proper grades and channels to immediately carry off all drainage ; and if a public sewer abuts the premises upon which such building is situated, they shall be connected therewith, whenever the inspector considers such sewer connection necessary.

Rule 2. No water-closet, privy, cesspool or urinal shall be located within any building or shed used for stabling cows for dairy purposes or for the storage of milk or cream ; nor shall any fowl, hog, sheep or goat be kept in any room used for such purposes.

3. It shall be the duty of each person using any premises for keeping cows for dairy purposes to keep such premises thoroughly clean and in good repairs, and well painted or whitewashed at all times.

4. It shall be the duty of each person using any premises for keeping cows for dairy purposes to cause the building in which cows are kept to be thoroughly cleaned, and to remove all dung from the premises, so as to prevent its accumulation in great quantities.

5. Any person using any premises for keeping cows for dairy purposes shall provide and use a sufficient number of receptacles, made of non-absorbent materials, for the reception, storage and delivery of milk, and shall cause them at all times to be cleaned and purified, and shall cause all milk to be removed without delay from the rooms in which cows are kept.

6. Every person keeping cows for the production of milk for sale shall cause every such cow to be cleaned every day and to be properly fed and watered with abundance of pure clean water.

7. Any enclosure where cows are kept shall be graded and drained, so as to keep the surface reasonably dry; no garbage, fecal matter or similar matter shall be placed or allowed to remain in such inclosure unless sufficient straw or similar good absorbent material be used to keep the enclosure .clean at all times, and no open drains shall be allowed to run through it. And any person who shall ship or sell milk contrary to the aforesaid order of said board, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than one dollar nor more than twenty dollars for each day during which shipments shall be made after notice of such order.”

The indictment charges that the appellee, being a dairyman engaged in supplying milk to cities, towns and villages within this State, failed, neglected and refused to register his herd of cattle with the Live Stock Sanitary Board. The demurrer admits these averments to be true.

So far as the nineteenth section of the Act is concerned, it is not perceived that, standing alone, it deprives the appellee of due process of law in any way whatever. This is not a proceeding under the twentieth section. The requirement of the nineteenth section would be of little value if it were not followed by, and did not form a part of the other provisions of the statute. The entire Act is strictly a police regulation, enacted for the purpose of preserving the public health. The strides which our knowledge of bacteriology has made in recent years are generally known ; and the ubiquitous microbe has been shown to be a potent agent in the propagation of disease. Tuberculosis, identical it is said with consumption in man, is caused by the organism known as Koch’s bacillus, and is readily communicable through milk. Diphtheria is another contagious-disease whose specific organism finds in milk favorable conditions of growth; and there is abundant evidence to show that contaminated milk transmits this contagion. Cholera has again and again been traced to the same source; and scarlet fever is generally believed to be communicable by infected milk, and it is said that it may be even caused by an eruption on the udder. Typhoid fever bacilli have been detected in milk supposed to be wholesome. Besides conveying disease, milk occasionally contains certain germs-which form poisonous products known as ptomaines. Milk may carry the bacilli of these and perhaps other deadly diseases to infancy, to adolescence and to age; to the delicate and to the robust alike, and to persons in every class and condition of society. It may receive these germs direct from the cow, if the cow be unhealthy; or it may absorb them from the dairy, the dairy utensils or the stable, if these be uncleanly. Thorough inspections of cattle and dairies may reduce the frequency of infection. The preservation of the public health by preventing the sale of infected milk, or of milk that may come from infected sources, when milk by reason of its almost universal use in one form or another as an article of food is especially likely to spread disease, is one of the most imperative duties of the State, and obviously .one most incontestably within the scope of the police power. As a means to that end — the preservation of the public health — a requirement that every person selling milk for consumption in cities, towns and villages shall cause his herd of cattle to be registered with the Live Stock Sanitary Board, is a reasonable and an appropriate enactment; and the subsequent provisions are necessary parts of the scheme. The igth Sec. no more deprives the individual of due process of law than did the ordinance in Easton v. Covey, 74 Md. 262, which prohibited the erection of any building without a permit from the commissioners of the town; or an ordinance forbidding the keeping of swine without a permit in writing from the board of health ; Quincy v. Kennard, 151 Mass. 262 ; or an ordinance requiring the written permission of the Mayor of a town before any person was allowed to move a building along the streets ; Wilson v. Eureka City, 173 U. S 32 (decided February 20th, 1899); or the ordinance requiring a license for the removal of the contents of privies and subjecting the holders of such license to the orders of the Board of Health. Boehm v. Mayor, &c., Balto., 61 Md. 259. The constitutional limitations which declare that no person shall be deprived of his property or liberty without due process of law, have never been construed as being “ incompatible with the principle — equally vital, because essential to the peace and safety of society — that all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community. ****** The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law.” Mugler v. Kansas, 123 U. S. 623.

It was earnestly insisted that the Act of 18p8 deprives the appellee of the equal protection of the law guaranteed by the XIV Amendment. This amendment was called to the attention of the Supreme Court for the first time in eighteen hundred and seventy-two, in the Slaughter-House cases, 83 U. S. 36; and since then it has been repeatedly considered and interpreted. The scope of the amendment, in so far as it relates to the branch of the subject now under discussion, has been briefly but clearly stated by the late Judge Cooley: “The guaranty of equal protection is not to be understood, however, as requiring that every person in the land shall possess the same rights and privileges as every other person. The amendment contemplates classes of persons and the protection given by the law is to be deemed equal if all persons in the same class are treated alike under like circumstances and conditions, both as to privileges conferred and liabilities imposed. The classification must be based on reasonable grounds; it cannot be a mere arbitrary selection.” Cooley’s Princ. Con. L. 249. This is abundantly supported by the adjudged cases. Hays v. Missouri, 120 U. S. 68; Mo. P. R. Co. v. Mackey, 127 U. S. 205; Walston v. Nevin, 128 U. S. 578; Bell’s Gap R. Co. v. Pennsylvania, 134 U. S. 232; Pac. Exp. Co. v. Seibert, 142 U. S. 339: Giozza v. Tiernan, 148 U. S. 657; Col. S. R. Co. v. Wright, 151 U. S. 470; Marchant v. Penna. R. Co., 153 U. S. 380; St. Louis, &c., R. Co. v. Mathews, 165 U. S. 1. Thus in Hays v. Mo., supra, it was held, that a statute of a State which provided, that in capital cases, in cities having a population of over one hundred thousand inhabitants, the State shall be allowed fifteen peremptory challenges to jurors, whilst elsewhere in the same State the prosecution was only allowed eight such challenges, did not deny to a person tried for murder in, a city containing over one hundred thousand inhabitants, the equal protection of the laws enjoined by the XIV Amendment, and that there was no error in refusing to restrict the State’s peremptory challenges to eight. And so in the very recent case of Central Loan and Trust Co. v. Campbell Commission.Co. (decided by the Supreme Court on February 20, 1899), 173 U. S. 84; it was held that a statute permitting an attachment against anon-resident debtor without a bond, whilst requiring a bond for an attachment against a resident debtor, does not constitute a denial to the non-resident of the equal protection of the laws, because it was within the power of the Legislature to divide debtors into two classes —non-resident and' resident — and when so classified to prescribe different methods of proceeding against them. The classification, which the Legislature is authorized to make, may relate to territorial divisions of a State. Thus, ip Mo. v. Lewis, 101 U. S. 22, it was said by Mr. Justice Bradley: “ We might go still further, and say, with undoubted truth,.that there is nothing in the Constitution to prevent any State from adopting any system of laws or judicature it sees fit for all or any part of its territory. If the State of New York,' for example, should see fit to adopt the civil law, and its method of procedure, for New York City and the surrounding counties, and the common law, and its methods of procedure, for the rest of the State, there is nothing in the Constitution of the United States to prevent its. doing so. This would not, of itself, within the' meaning of the XIV Amendment, be a denial to any^ person of the equal protection of the laws.” The classification may have reference to occupations. Holden v. Hardy, 169 U. S. 366, where it was held that a State statute limiting the period of employment of workmen in underground mines, or in the smelting, reduction or refining of ores or metals, to eight hours per day,; and making its violation a misdemeanor, was a valid exercise of the police power of the State. Or, again, the classification may relate to individuals. St. Louis Ry. v. Mathews, 165 U. S. 1. But in every instance the classification, to be valid, must be based on reasonable grounds. It must not depend on distinctions which do not furnish any proper basis for the attempted classification. “ That,” as declared by the Supreme Court in Gulf. C. & S. F. R. Co. v. Ellis, 165 U. S. 150, “must always rest upon some difference which bears a reasonable and just relation to the act, in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis.” In the case just cited, a statute of Texas imposing an attorney’s fee in addition to costs upon railway companies omitting to pay certain claims within a certain time, which applied to no other corporations or individuals, was declared unconstitutional as denying to railway companies the equal protection of the laws. In the course of the Court’s opinion, Mr. Justice Brewer said : “ It is, of course, proper, that every debtor should pay his debts, and there might be no impropriety in giving to every successful suitor attorney’s fees. Such a provision would bear a reasonable relation to the delinquency of the debtor, and would certainly create no inequality of right or protection. But before a distinction can be made between debtors and one be punished for a failure to pay his debts, while another is permitted to become in like manner delinquent without any punishment, there must be some difference in the obligation to pay, some reason why the duty of payment is more imperative in the one instance than in the other.” “It is,” said the same Court in a very recent case, “the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public.” “ Indeed, the very idea of classification is that of inequality, so that it goes without saying that the fact of inequality in no manner determines the matter of constitutionality.” “While cases on either side and far away from the dividing line are easy of disposition, the difficulty arises as the statute in question comes near the line of separation.” Atchison T. & S. F. R. v. Mathews, 174 U. S. 96 (decided April 17th, 1899). Special burdens are often necessary for general benefits, particularly in respect to the preservation of the public health. “ Regulations for these purposes may press with more or less weight upon one than upon another, but they are designed, not to impose unequal or unnecessary restrictions, upon any one, but to promote, with as little inconvenience as possible, the general good. Though in many respects necessarily special in their character, they do not furnish just ground of complaint, if they operate alike upon all persons and property under the same circumstances and conditions.” Barbier v. Connolly, 113 U. S. 31.

If the Legislature of Maryland has, by the statute under consideration, made a class to which the provisions of the Act were designed to apply; and if that classification is just and reasonable and not purely arbitrary, the ruling on the demurrer was wrong. The ultimate object of the statute was, as we have seen, to protect the health of persons living in cities, towns and. villages, from the disease to which impure or contaminated milk might expose them. There is a definite and well-ascertained class of persons described in the statute, and that class comprises dairymen, herdsmen and other individuals who supply milk to cities, towns and villages. It was not the purpose of the Act to include within its purview all persons who sell milk; but it put into a class all dairymen, herdsmen and individuals who supply milk to cities, towns and villages — those who are engaged in the business of selling milk in populous communities. These persons are singled out from all others who may own cows, or who may occasionally sell milk in the country to some individual, and are grouped into a class, because they are the persons whose carelessness, wljose inattention to their herds, or whose uncleanly surroundings may originate or promote the spread of disease in populous localities. No dairyman, herdsman or individual who supplies milk to cities, towns or villages is exempted from the operation of the law, but all who are thus engaged are specifically in- eluded. There is no uncertainty as to the persons composing the class, and no dispute that the General Assembly intended to make exactly that classification.

Is the classification just and reasonable, and free from the imputation of being merely arbitrary ? The act, in respect to which the classification is proposed, is the act of supplying milk to cities, towns and villages by dairymen, herdsmen and other individuals. It is founded on the right of the State, in the exercise of its police power, to classify occupations with relation to their peculiar liability to cause injury to the inhabitants of the designated places, from the article of food employed in the business. It is identical in principle with the classification under a Utah statute, by which a conclusive presumption of negligence was made to apply to persons driving a herd of cattle over a public highway, whilst the same presumption did not apply to a person driving less than a herd. Jones v. Brim, 165 U. S. 180. There is an obvious difference between the occasional sale of milk to an isolated individual and the habitual sale of it to the inhabitants of a city, a town or a village ; and this difference is manifestly sufficient to “ furnish a reasonable basis for separate laws and regulations.” State v. Loomis, 11 5 Mo. 307. The clear purpose of the Legislature was to guard against impurities in milk furnished to residents in populous settlements, by requiring persons who supply milk to cities, towns and villages, to keep their cows and premises in a sanitary condition. The danger arising from the non-observance of the sanitary rules prescribed by the Act is increased in proportion to the increased number of the consumers of milk ; and a contagious disease introduced by contaminated milk in a thickly-settled locality is vastly more serious, because vastly farther reaching, than it can possibly be when communicated, by the same means, to an isolated individual. The duty to avoid the introduction of disease, in both cases, is unquestionably incumbent on the vendor of milk, but there is every reason why a breach of that.duty will be far more injurious in the one than in the other instance.

Though the statute furnishes no protection to persons not living in cities, towns or villages, this in no way indicates that its classification is unreasonable, or that it deprives any one of the equal protection of the laws in the sense that would annul it. Hays v. Missouri, supra. It was designed, like many other health laws, to operate in a restricted territory. There are numerous health laws which do not operate on persons living beyond the limits within which they are applicable; but it by no means follows that they are void merely because they were not made to cover a wider range of country; because a classification may be made with reference to the subdivisions of a State. Missouri v. Lewis, supra. It would not have been practicable to have made the statute broad enough to include every vendor of milk, whether he sold to cities, towns and villages, or only to a single individual; nor was it necessary, in order to reach the evil aimed at, that this should have been done. Laws relating to the inspection of milk do not operate outside of the large cities, and yet it has never been held that they are invalid on that account. The Act creates a reasonable class and bears upon all in that class alike; and it cannot be assailed because it may not, perhaps, be efficacious enough to wholly eradicate the evil it was framed to extirpate. Such a test of its constitutionality would make the validity of a measure depend upon the universality of its application and not upon the fact that the classification was just and reasonable, and was made with reference to some difference which bore a proper relation to the act in respect to which the classification was proposed.

The twentieth section of the Act does in a measure interfere with property rights, but not to such an extent or in such a way as to impair the validity of the enactment. Whilst it is undoubtedly true that the police power cannot be put forward as an excuse for oppressive and unjust legislation, it may, most certainly, be resorted to for the pur pose of preserving the public health, safety or morals, or the abatement of public nuisances; and a large discretion “ is necessarily vested in the Legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such 'interests.” Lawton v. Steele, 152 U. S. 133. As observed by Chief Justice Shaw, in Commonwealth v. Alger, 7 Cush. 84, “ Every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. * * * * Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as will prevent them from being injurious, and to such reasonable restraints and regulations established by law, as the Legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient.” “ This power, legitimately exercised, can neither be limited by contract nor bartered away by legislation.” Holden v. Hardy, supra.

The requirements of the twentieth section of the Act of 1898 are simply such regulations as the General Assembly had, in the exercise of the police power, the undoubted authority to prescribe. A dairyman has no right to sell milk that may be contaminated, or that may be given by diseased cows, or maybe kept on uncleanly premises, or in unsterilized utensils; and if he undertakes to sell milk at all to cities, towns and villages, he must submit to such reasonable sanitary regulations respecting his property used in that business, as the Legislature may deem necessary to prevent that property from being the source or origin of infectious and contagious diseases. No matter how absolute his title, he holds his property subject to this liability, that his use of it may be so regulated as that it shall not be injurious to the community. The statute does not de prive him of his property; but it does impose upon him •the duty of so using it, when employed in that business, that no injury shall result to others, most likely to be affected by a disregard on his part of the reasonable health regulations which it enacts. Almost every police regulation affects, to a greater or less extent, some property right; but there is no such invasion of a property right by this Act as other valid statutes have permitted. For example : In the Slaughter-House cases, 83 U. S. 86, a law of the State of Louisiana, vesting in a slaughter-house company the sole and exclusive privilege of, conducting a live-stock landing and slaughter-house business, and requiring that all animals should be landed at the stock-landings and slaughtered at the slaughter-houses owned by the company and nowhere else, was upheld as a valid exercise of police power, though it rendered practically valueless other property that had previously been used by its owners for slaughter-houses. See too, Northwestern Fert. Co. v. Hyde Park, 97 U. S. 650; Parker and Worthington on Pub. Health and Safety, sec. 251.

(Decided June 22nd, 1899).

For the reasons we have given, we are perfectly satisfied the Act of 1898 is a valid exercise of the, police power, and that it is entirely free from constitutional objections. There was consequently error in the ruling which sustained the demurrer. The judgment appealed from will, accordingly, be reversed, and the case will be remanded for a new trial.

Judgment reversed and new trial awarded; costs above and below to be paid by the appellee.