§ 38. Forcible Seizure of Samples of Milk Without a Warrant.

A statute of the State which authorizes all milk inspectors to enter all carriages used in the conveyance of milk, and, whenever they have any reason to believe any milk found therein is adulterated, to take specimens of it for the purpose of analyzing or otherwise satisfactorily testing it, is a valid exercise of the police power, and does not compel a dealer to furnish evidence of his own guilt. If the seizure is such as is authorized by the Constitution and a law passed in pursuance of it, the fact that the thing seized may be used in evidence against the person from whose possession it is taken does not render the seizure itself a violation of a clause in the usual Declaration of Rights that no man shall be compelled to give evidence against himself.1

"It is said that the provision is unconstitutional because it authorizes 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.” "If the statute had required that all milk offered for sale should first be inspected, it could be hardly contended that the trifling injury to property occasioned by taking samples for inspection would be such a taking of private property for public use as to require that compensation be made therefor. Such an injury to property is a necessary incident to the enforcement of reasonable regulations affecting trade in food. Private property is held subject to the exercise of such public rights for the common 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. Instead of requiring

1 Commonwealth v. Carter, 132 Mass. 12; State v. Doris, 117 Mo.

milk offered for sale to be first inspected, the Legislature, for obvious reasons, has permitted licensed dealers to sell milk without inspection; 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 examination 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, and it is within the police power of the commonwealth.2

There is nothing in this case which requires us to determine the rights of the defendant if the inspectors had attempted to take a larger quantity of milk for analysis than was reasonably necessary for the performance of his duties. We have not found it necessary to consider whether the defendant, by voluntarily accepting 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.''

§ 39. License to Sell Milk, Power of Municipality to Exact.

Whether or not a municipality may exact a license for the sale of milk depends upon its charter or some statute authorizing it to exact it. Usually statutes on this subject are of such certainty that little controversy can arise over the attempt to confer the power.1 But the power to exact the license does not fall within the scope of the usual general

2 Citing Commonwealth v. Ducey, 126 Mass. 269, and Jones v. Root, 6 Gray 435.

3 Commonwealth v. Carter, 132 Mass. 12; State v. Dupaquier, 46 La. 577, 15 So. 502, 26 L. R. A. 162, 49 Am. St. 334; St. Louis v. Liessing, 190 Mo. 464, 89 S. W. 611,

1 L. R. A. (N. S.) 918, 109 Am. St. 774.

1 See St. Louis V. Grafeman Dairy Co., 190 Mo. 507, 89 S. W. 627, 1 L. R. A. (N. S.) 936; as an instance of this kind, Littlefield v. State, 42 Neb. 223, 60 N. W. 724, 28 L. R. A. 588.

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welfare clause of municipal charters.2 Where a city charter authorized a city to inspect and provide against the adulteration of milk or cream sold, or bought to be sold, in the city, it was held that it did not either expressly or impliedly authorize it to demand a license from persons engaged in the sale of milk. But in New Jersey, where no express power was given to require a license fee, yet it was held that the city board of health had the power to require a license fee sufficient to pay the expenses of license and the necessary expense of inspecting the milk, under a statute authorizing it to prohibit the sale of, or having in possession for sale, any milk containing any unhealthful ingredient, or which had been transported or stored in an unclean manner or place, or which was produced from diseased cows, or cows stabled under unhealthful conditions. If the State has undertaken to regulate the sale of milk and to license the business, then a municipality can not claim implied power to require license from milk dealers.5 This is particularly true where a city charter forbids the enactment of an ordinance upon any matter which is regulated by public statute, and there is a statute which provides full regulations in respect to the adulteration of milk. In such an instance the municipality has no power to regulate the sale of impure milk by requiring a license from the owner of vehicles by means of which the business is carried on. So where a statute regulated the sale of milk and expressly provided that any ordinance passed under it should not be in conflict with it; and the State granted a license to a milk dealer, it was held that a municipality in which he was licensed to sell milk could not destroy the privilege thereby conferred on him, by refusing him a municipal license except upon payment of an inspection fee, the fee being to all intents and purposes an addi2 Bear v. Cedar Rapids, 147 Iowa 341, 126 N. W. 324, 27 L. R. A. (N. S.) 1150; Mayher v. Lexington, 8 Ky. L. Rep. 138.

3 Gray v. Wilmington, 2 Marv. (Del.) 257, 43 Atl. 94.

4 Blanke v. Board of Health, 64 N. J. L. 42, 44 Atl. 847.

5 Bear v. Cedar Rapids, 147 Iowa 341, 126 N. W. 324, 27 L. R. A. (N. S.) 1150.

6 State v. Tyrrell, 73 Conn. 407, 47 Atl. 686.

tional license. A municipality, however, under the power to license can not exercise such power to raise revenue. Such power must be exercised as a means of regulation only. Nor can the Legislature authorize the power of taxation under the pretense of sanitary regulation or other exercise of police power of the State in the interest of the public health or safety. But "such a measure will be upheld by the courts wherever it appears to have been designed to promote the welfare of the public, and the revenue derived therefrom is not disproportionate to the cost of its enforcement and the regulation of the business to which it applies.'

§ 40. Requiring Permit to Sell Milk.

A statute which provides that "No milk shall be received, held, kept or offered for sale or delivered" in a particular city "without a permit in writing from the Board of Health and subject to the conditions thereof," is valid, being a rea

7 St. Paul v. Peck, 78 Minn. 497, 81 N. W. 389; State v. Elofson, 86 Minn. 103, 90 N. W. 309; Burlington v. Bumgardner, 42 Iowa 673.

8 Littleneld v. State, 42 Neb. 223, 60 N. W. 724, 28 L. R. A. 589 (a license fee of $10 for a milkman is reasonable); State v. Hoboken, 41 N. J. L. 71; People v. Mulholland, 82 N. Y. 324, 37 Am. Rep. 568; Van Baalen, 40 Mich. 258; Chicago v. Bartie, 100 Ill. 57; Kinsley v. Chicago, 124 Ill. 359, 16 N. E. 260.

To an application for a mandamus to secure a license to sell milk, it is a good answer to allege that the applicant had been refused a license on the ground that he had been selling unclean milk. People v. Gilman (N. Y.), 103 N. Y. Supp. 954.

An ordinance made it unlawful to drive a milk wagon over the

streets of a city without a license. It also prohibited the peddling of any goods and wares in or along such streets without a license, and this paragraph was followed with a definition of a peddler, and with a proviso that the section should not apply to farmers selling the products of their own farms. The defendant resided outside the city, and was arrested while driving a milk wagon in which he had nothing but milk from cows kept on his farm, which he was selling to his customers in the city. It was held that the ordinance required him to take out a license for driving the milk wagon on the streets, and he was not excepted by the proviso, which related only to the license required to be taken as a peddler. Macoon V. Cumberland, 92 Md. 451, 48 Atl. 136.

sonable enactment, and being neither a violation of the Federal or State Constitution. "In great cities," said the court, "where, in certain sections, life exists under crowded conditions that can not be fully comprehended unless seen, and where many articles for table consumption by all classes of the community are liable to pass through processes and conditions little short of appalling unless regulated by law, the full and vigorous exercise of the police power in the interests of the public health and general welfare is absolutely essential. It is quite impossible that every offender against the provisions of the sanitary code should be accorded due process of law as embracing jury trial and the slow results of the ordinary procedure in the courts. The vesting of powers more or less arbitrary in various officials and boards is necessary if the work of prevention and regulation is to ward off fevers, pestilence and the many other ills that constantly menace great centers of population. The requirement

that the relator should not sell milk without a permit is reasonable and violates neither the Federal nor State Constitution [and] is in accordance with law and long-established precedent.""

§ 41. Registration of Milk Dealers-License.

Under an authority to provide for the inspection of milk, a municipality may require the vendors of milk to register in one of the offices, or in the office of the health commissioner, and pay a fee as one dollar-for registration; for the fact that the selling of milk is a lawful trade or business does not exempt it from reasonable police regulations. So power conferred upon a municipality to make provision for the inspection of milk, and to license occupations, authorizes it to license milk vendors as distinguished from general mer

1 People v. Vandecarr, 175 N. Y. 440, 67 N. E. 913, 108 Am. St. 781, affirming 81 N. Y. App. Div. 128, 80 N. Y. Supp. 1108, and affirmed 199 U. S. 552, 26 Sup. Ct. 144, 50 L. Ed. 305. See also Walton v. To

ledo, 23 Ohio Cir Ct. Rep. 547; Birmingham v. Goldstein, 151 Ala. 473, 44 So. 113, 125 Am. St. 33; Salt Lake City v. Howe (Utah, 106 Pac. 705; In re Watson 17 S. D. 486, 97 N. W. 463.