Alma record. (Alma, Mich.) 1878-1928, 1904-04-22
MILK ORDINANCE
WAS SUSTAINED.
CONTINUED from Page One }

record book of ordinances, as "Orhi-
nance No. Al" This ordinance pro-
vides that any person who shall desire
10 engage in the business OF selling
milk within the village shall first take
ont a license therefor. IL also provides
that before the license can be Issued the
health officer must make an investlga-
ton OF the premises and the dairy from
which milk is to be sold, and II In his
Judgment the conditions are sanitary,
The clerk OF the village shall then issue
the license. Upon this ordinance tax
ing effect several made application Tor
license, and among the number MRS
Mary Granger, of Arcadia township
Mrs. Granger sold milk under this
license from September 10, l9o3, 10
February IL, 1904, at which time her
license was revoked, further exams a-
ton having been made by the heaith
officer, and he recommending It's revoca-
ton, for the reason, that In his judge
ment the conditions required by SAID
ordinance we're being violated. FOR
some time after the revocation, Mrs
Granger sold no milk within the VII
lage, during which time the typhoid
fever patients, who were sick AZ the
no new cases developed. Subsequent TO
this, and about the first OF April, she
again, without having her license rein
stated, began to sell milk within the
village, whereupon complaint was made
by the village health officer, as required
by the ordinance, and the driver or
Mrs. Changers milk wagon, John hos
enberger. was arrested for selling milk
without license.
The case came on for trial, last Fri
day, in the justice court or john ID.
Spirney, and was told before a jury of
six men, consisting OF Ezra Smith,
Lafayette Stevens, Frank Foster, George
Pulfrey, Edwin Adams and Frank
Leonard. The case was prosecuted for
the village, by James O.. Kress, while
kelly 5. Scarf, of Ithaca, looked after
the interests of the defendant
MIR. Scarf took the position; first,
that the state Legislature had never
delegated any power to the villages TO
pass milk ordinance; second that the
common council could not delegate its
powers, if IT had any, to the village
clerk, 20 issue or revoke the license; and
third, that village could not license
the sale Of milk, as IL was an article that
was lawful to sell without.
In reply to this Mr.. Kress claimed;
first, that the village by its common
council, had full power 20 pass such an
ordinance, regulating and controlling
the sale OF milk within its corporate
limits, for the purpose of preserving the
public health, and that in doing so, 1t
was simply exercising the police powers
of the state, delegated 20 IL by legisla-
tive authority, and in support of his po-
sition cited numerous authorities, among
them Section 1859 OF Comp. Laws, anu
its subdivisions, which, together with
sub. division three, reads as follows:
Every village subject to the pro-
visions of this act shall, in addition
to such other powers as are con-
fered, have the general power and
authority granted in this chapter,
and the council may pass such or
dinances in relation thereto as 1t
may deem proper, namely:
Third, to abate nuisances and
preserve the public health"
He also claimed, that in the ordinance
10 question, the council had delegated
no power to the clerk, but that he was
simply q ministerial officer, acting for
them in all that he did in the issuing
aud revoking OF any license In sup
port OF this claim, citing New \ ork
case, wherein the mayor OF the city OF
brooklyn, was the ministerial officer 70
issue the license, wherein, on an appeal,
the supreme court Of New York, said
appellants counsel In presenting his
points on the argument OF his appeal
was mistaken in saying that the ordi.
nance on which the action was based,
was void" His reasons being because
of the delegated power to the mayor.
Mr.. Sesrls third objection was met
by Mr.. Kress, by his taking the position
that this being matter within the 20
lice powers, and for the preservation OF
the public health, IL was mere matter
OF regulation, and the license fee
charged (which is merely nominaD was
simply a means OF regulation and con-
troll. In support Of his position on this
point, he cited the only milk ordinance
case that was cited by either gentlemen
thus showing that milk ordinance cases
are not common in our courts Of last
resort. The case cited, was also New
York case, very similar to the one being
tried, in which the court said.
1.-THE license and the fee therefor
are means Of regulation and con-
troll, and the penalty is a means Of
enforcing proper restraint upon
the persons by whom milk is offered.
Being such, it was within the scope
Of the general and particular power
OF the city to make the bylaw"
Many authorities were read by both
gentlemen in their argument, each oc
Copying the attention OF the jury fol
about two hours. There was no dis
pute as TO the facts, the respondent him
self taking the stand and acknowledg
ing the sale. The case went to the jury
at six O'Clock and after being out fol
about thirty minutes they returned
verdict Of guilty, thus sustaining tn,
validity OF the ordinance, and the vii
lage in their position. An appeal ha
been taken 20 the circuit court, il bein,
the intention Of making this a test case