People Ex Rel. Lieberman v. . Vandecarr , 175 N.Y. 440 ( 1903 )

I think the judgment should be reversed. I do not believe the legislature has empowered the board of health of the city of New York to require permits to enable one to engage in the business of selling milk. (Village of Flushing v. Carraher, 87 Hun, 63.) Doubtless the board of health may prescribe such conditions relating to the character of milk offered for sale as may be necessary to secure public health, but the vending of milk is one of the ordinary vocations of life in which any one has a right to enter on compliance with the health laws and ordinances. It is unnecessary to pursue the discussion of this question, for I think the ordinance, for a violation of which the relator is prosecuted, is void for another reason. The section of the Sanitary Code under review is: "No milk shall be received, held, kept, offered for sale or delivered in the City of New York without a permit, in writing, from the Board of Health andsubject to the conditions thereof." What those conditions are does not appear in the record nor are they declared anywhere in the Sanitary Code. The learned court below has said that it must be presumed that, in the absence of proof to the contrary, the board has prescribed only reasonable conditions. This presumption does not help the matter. Specific authority to enact a Sanitary Code was first given to the board of health of the city of New York by section 82 of chapter 335 of the Laws of 1873, which provided that any violation of said Code might be punished as a misdemeanor, but this section required that the Sanitary Code should be published in the City Record. The power was continued by section 575 of the Consolidation Act (Chap. 410, Laws 1882), which provided that no alteration or amendment of the Sanitary Code should take effect or be binding or in force until the same should have been published once a week for two successive weeks in the City Record. This limitation of the power of the board of health is reproduced in section 1172 of the Greater New York charter (Chap. 378, Laws of 1897), which prescribes that "No such revision, alteration or amendment will take effect or be binding or in force, until the same has been published once a week for two successive weeks in the CityRecord." It will thus be seen that to make an ordinance of the board of health valid, so that its violation may be punished as a crime, it is not only necessary that the regulations prescribed by it should be reasonable, but that the ordinance should be published. The vice of the section of the Sanitary Code now before us is that it permits the board of health, by indorsing conditions on the permit, to prescribe regulations with reference to the sale of milk without having published the same as required by law. With such an ordinance the relator was not required to comply.

The ordinance has not been validated by subsequent legislation. The section was first enacted in 1896. Section 1172 of the Greater New York charter ratified the Sanitary Code adopted in 1873, which contained no regulation on this subject, only "as amended by law." Section 1172 (Chap. 446, Laws of 1901) provided that the Sanitary Code which should be in force on January 1st, 1902, should continue to be binding. If the section under discussion was not valid nor in force at the time of the enactment of these two statutes, neither statute assumed to render it legal or give it validity.

PARKER, Ch. J., GRAY, O'BRIEN, HAIGHT and WERNER, JJ., concur with BARTLETT, J.; CULLEN, J., dissents.

Order and judgment affirmed.