LA FRANCHI v. CITY OF SANTA ROSA

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District Court of Appeal, Third District, California.

LA FRANCHI v. CITY OF SANTA ROSA et al.*

Civ. 5400.

Decided: December 07, 1935

J. N. DeMeo, of Santa Rosa, for appellant. Edward T. Koford, of Santa Rosa, for respondents. H. B. Churchill, of Santa Rosa, amicus curiæ.

The plaintiff has appealed from a judgment which was rendered against him pursuant to an order sustaining a demurrer without leave to amend his complaint which applied for declaratory relief under the provisions of section 1060 of the Code of Civil Procedure. The plaintiff sought a decree declaring an ordinance of the city of Santa Rosa unconstitutional and void as unreasonable and discriminatory. It prohibits the sale of milk in the city of Santa Rosa, unless it is pasteurized within the corporate limits of that city.

The complaint alleges that Santa Rosa is an incorporated city operating under a freeholders' charter. Under the police powers conferred upon it by charter, an ordinance was adopted in 1932, prohibiting the sale of pasteurized milk in Santa Rosa unless it is pasteurized within the corporate limits of that city. It is alleged the plaintiff owns and operates a dairy which is located five miles west of Santa Rosa; that his dairy contains adequate, approved equipment by means of which milk is pasteurized at his plant outside of the city of Santa Rosa; that his dairy, milk products, and appliances are periodically examined by a duly appointed milk inspector of Santa Rosa; and that his pasteurized milk conforms in grade and score to the requirements of the statutes of California, including that portion of the Agricultural Code which applies to dairy products (St. 1933, p. 60, 130, § 451 et seq. Act 144, Deering's Supp.Laws of Calif. of 1933, p. 796, at 876); that since the adoption of the ordinance the plaintiff has been denied the privilege of selling his pasteurized milk in the city of Santa Rosa, until it is first pasteurized in some plant which exists within the corporate limits of that city; that a controversy has arisen between the plaintiff and the city of Santa Rosa regarding the validity of said ordinance, and it is asserted the ordinance is unreasonable, oppressive, discriminatory, and void. The city of Santa Rosa filed a demurrer to the complaint on the ground that it fails to state facts sufficient to constitute a cause of action. The demurrer was sustained, and leave to amend the complaint was denied. Judgment was rendered accordingly. From that judgment the plaintiff has appealed.

The appellant contends that the ordinance is unconstitutional and void as an unjust discrimination against the owners of dairies located outside of the city of Santa Rosa who desire to sell pasteurized milk to the inhabitants thereof. It is asserted the ordinance is in conflict with article 14 of the Federal Constitution and violates the provisions of article 1, §§ 1, 11, and 21, of the Constitution of California.

The respondents insist that the ordinance is a valid exercise of the police powers of the city in the interest of the health and general welfare of its inhabitants. It is also suggested that the court is without authority or jurisdiction to determine the constitutionality of an ordinance or statute under the provisions of section 1060 of the Code of Civil Procedure, for the reason that declaratory relief is confined to the construction of private documents which are contractual in their nature.

Section 1060 of the Code of Civil Procedure authorizes a court to grant declaratory relief by construing not only a deed, will, contract, or other written instrument, but also by determining the rights and duties of litigants with respect to any property interest, even though it may involve the constitutionality of a statute or an ordinance. Andrews v. City of Piedmont, 100 Cal.App. 700, 281 P. 78. Section 1060, supra, provides that: “Any person interested under a deed, will or other written instrument, or under a contract, or who desires a declaration of his rights or duties with respect to another, or in respect to, * * * property * * * may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an action in the superior court for a declaration of his rights and duties.”

The language of the statute which we have italicized for emphasis clearly authorizes the determination of the rights or duties of a litigant with respect to any property, even though that determination involves the constitutionality of a statute or an ordinance.

We are of the opinion the ordinance of Santa Rosa which prohibits the sale of pasteurized milk in that city unless it has been first pasteurized within the corporate limits thereof is not unconstitutional or void. On the contrary, we are convinced it is a valid exercise of the police powers of the city in the interest of the health and general welfare of its inhabitants. The very question of the constitutionality of a similar ordinance was determined adversely to this appellant in Witt v. Klimm, 97 Cal.App. 131, 274 P. 1039, 1040. The Witt Case appears to have determined all of the constitutional questions which are presented on this appeal. In that case the petitioner owned and operated a dairy with a pasteurizing plant incident thereto in San Mateo county of the value of $100,000. He supplied the market with pasteurized milk, complying with the requirements of law in all respects. An ordinance of the city of San Francisco prohibited the sale of pasteurized milk in that city unless it was first pasteurized within the corporate limits of that city. In a petition for a writ of mandamus it was sought to have the court determine that the ordinance was an unjust discrimination against those who operated dairies outside of the city limits. The court said:

“The provisions of the ordinance requiring that the milk be pasteurized within the city and county of San Francisco is simply a new and additional and more stringent regulation than that contained in the state law on the same subject.

“These requirements of the ordinance are not in themselves unreasonable or discriminatory and do not conflict with the state law, therefore, both may stand.”

The ordinance which is involved in the present case does not discriminate against individuals belonging to the same class. It applies to all individuals of a particular class; namely, those who operate dairies and produce pasteurized milk outside the city limits. It does not discriminate against the outside owners of dairies regarding the necessity of having the milk pasteurized within the city, for the ordinance prohibits all persons from selling milk therein unless it is pasteurized within the city.

Under the police powers authorizing the regulation of business for the benefit of the health or the general welfare of a community, a municipal ordinance may provide for the inspection of milk within its corporate limits, and it is not discriminatory merely because those who operate dairies outside of the city may also be required to submit to the pasteurizing of their milk within the limits of the city. It is not necessary that such ordinances shall apply uniformly to all persons, regardless of the location of their dairies or pasteurization plants. It is sufficient if it applies to all persons of a particular class; namely, to all persons who desire to sell their products within the city. 5 Cal.Jur., p. 826, § 189. In 3 McQuillin's Municipal Corporations (2d Ed.), p. 418, § 1067, it is said: “Milk inspection ordinance may prescribe different police regulations touching the sale and distribution of milk produced from cows beyond the municipal area and that produced from cows within the corporate limits. Such classification is justified because of the difference in the opportunity or facility for inspection inherent in the two classes.”

It is argued that because the milk inspector of Santa Rosa actually inspects the dairy of the appellant for sanitary conditions, together with other dairies outside of the city, it would require no more time or expense on the part of the city to inspect and approve his pasteurizing plant and milk at his dairy five miles west of that city. It is obvious that the inspection of a dairy and its appliances for sanitary conditions may be made periodically, while the inspection of the equipment, method, and standards of producing pasteurized milk require daily or at least more frequent visits and investigation. The city of Santa Rosa certainly has the authority under its police power, in the interest of sanitation and health, to require a standard method of pasteurization of all milk which it permits to be sold within the city. It may reasonably require this pasteurization to be performed within the city limits for the purpose of economy, thorough daily inspection and the convenience of its officers. If the city is not authorized to prohibit the sale of milk within its borders without pasteurization at some accessible plant in the city, but on the contrary must permit the appellant to sell milk within its corporate limits because his dairy is located only five miles away, then it will be required to permit the sale of all milk which may be pasteurized at remote dairies in the coast country or from the distant dairies of Humboldt county. It would be impossible for the milk inspector of Santa Rosa to visit and inspect all dairies in numerous remote places whose owners may desire to ship and sell pasteurized milk within the city.

On the authority of Witt v. Klimm, supra, and on principle, we are satisfied that the challenged ordinance is not discriminatory, unconstitutional, or void; nor is it in conflict with article 14 of the Federal Constitution, or article 1, sections 1, 11, or 21 of the Constitution of California. On the contrary, it is a valid exercise of the police powers of the city of Santa Rosa.

The judgment is affirmed.

Mr. Justice THOMPSON delivered the opinion of the court.

We concur: PULLEN, P. J.; PLUMMER, J.