ex rel. SIMON LIEBERMAN, Plff. in Err.,

v.

JOHN E. VAN DE CARR, Warden, etc..

Deft, in Err.

(See S. C. Reporter’s ed. 552-564.)

law — licensing' milk business — dis¬ cretion of board of health. — A provision of the sanitary code of the city of New York which is construed by the state courts to con¬ fer discretionary power on the hoard of health, within reasonable limits, to grant or withhold permits to sell milk in that city, cannot be deemed to be lacking in the due process of law guaranteed by the 14th Amend¬ ment to the Federal Constitution, in the absence of any showing of arbitrary or op¬ pressive exercise of such power.

of the laws — municipal regulation of milk business _ Singling out the milk busi¬

ness in the city of New York as a proper sub¬ ject for regulation does not deny the equal protection of the laws, where all milk dealers in the city are equally affected by such reg¬ ulation.

[No. 71.]

Argued and submitted November 9, 1905.

Decided December 11, 1905.

IN ERROR to the Supreme Court of the State of New York to review a judgment entered pursuant to a mandate of the Court of Appeals of that state, which had affirmed a judgment of the Appellate Division of the Supreme Court for the First Depart¬ ment, which had, in turn, affirmed an order of the Supreme Court at a special term held in and for the county of New

Note. — As to what constitutes due process of law — see notes to Kuntz v. Sumption, 2 I,.r.A. 655 ; Re Gannon, 5 Tj.R.A. 359 ; Ulman v. Baltimore, 11 L.R.A. 224 ; Gilman v. Tucker, 13 L.R.A. 304 ; People v. O’Brien, 2 L.R.A. 255 ; Pearson v. Yewdall, 24 L. ed. U. S. 436 ; and Wilson v. North Carolina, 42 L. ed. U. S.

As to the validity of class legislation — see notes to State v. Goodwill, 6 L.R.A. 621; and State v. Loomis, 21 L.R.A. 789.

As to constitutional equality of privileges, immunities, and protection — see note to Louis¬ ville Safety Vault & T. Co. v. Louisville & N. R. Co. 14 L.R.A. 579.

305

Supreme Court of the United States.

Oct. Term

York, dismissing a writ of habeas corpus to inquire into a detention on a charge of violating a section of the sanitary code of that city, prohibiting the sale of milk without a permit from the board of health. Affirmed.

See same case below, in appellate division, 81 App. Div. 128, 80 N. Y. Supp. 1103. In court of appeals, 175 N. Y. 440, 07 N. E. 913.

The facts are stated in the opinion.

Mr. Frank Moss argued the cause and filed a brief for plaintiff in error:

The language of the regulation in ques¬ tion permits unjust discrimination and favoritism, and the evils of its abuse cannot be corrected by mandamus.

Yick Wo v. Hopkins, 118 U. S. 350, 30 L. ed. 220, 0 Sup. Ct. Rep. 1004; Noel v. People, 187 Ill. 587, 52 L.R.A. 287, 79 Am. St. Rep. 238, 58 N. E. 010; Gund- ling v. Chicago, 177 U. S.- 183, 44 L. ed. 725, 20 Sup. Ct. Rep. 033; Dunham v. Rochester, 5 Cow. 402; St. Paul v. Laidler, 2 Minn. 190, 72 Am. Dec. 89, Gil. 159.

A city ordinance prohibiting the storage by any person within the city limits of in¬ flammable oils, except upon permission from the common council, leaving it to the com¬ mon council to say whether a particular place is suitable for the purpose, or a par¬ ticular person is a proper one to whom to grant permission, and allowing the permis¬ sion to be revoked at the will of the coun¬ cil, is invalid because of the power of arbi¬ trary discrimination it vests in the council.

Richmond v. Dudley, 129 Ind. 112, 13 L.R.A. 587, 28 Am. St. Rep. 180, 28 N. E.

A city ordinance making it unlawful to carry on the business of a tannery within 1 mile of the city limits without a permit from the city council, and which does not define the conditions on which tanneries may be conducted, or on which such permit shall issue, but leaves the propriety of granting such permit to the uncontrolled discretion of the board of health and com¬ mon council, is invalid.

Plymouth v. Schultheis, 135 Ind. 339, 35 N. E. 12.

A city ordinance which declares that it shall not be lawful for anyone to estab¬ lish a private market for the sale of meats, fish, vegetables, etc., without permission of the city council is illegal and void, since the discretion vested by such an ordinance in the city council is in no. way regulated or controlled, leaving it within the power of the council to grant or refuse the privi¬ lege at pleasure.

State v. Dubarry, 44 La. Ann. 1117, 11 So. 718; State v. Deffes, 45 La. Ann. 658,

12 So. 841.

306

An ordinance which provides that no person shall erect, add to, or generally change, any building without first obtain¬ ing the permission of the board of alder¬ men is void in reserving to the board the arbitrary power to refuse the application of one person and grant that of another.

State v. Tenant, 110 N. C. 609. 15 L.R.A. 423, 28 Am. St. Rep. 715. 14 S. E. 387.

When the legislature passes an act which plainly transcends the limits of the police power of the state, it is the duty of the judiciary to pronounce its invalidity, and to nullify the legislative attempt to invade the citizens’ rights.

People ex rel. Nechamcus v. Warden, 144 N. Y. 535, 27 L.R.A. 718, 39 N. E. 686.

The validity of a statute is not to be de¬ termined by what has been done in a par¬ ticular instance, but by what may be done under it.

Rochester v. West, 164 N. Y. 514, 53 L.R.A. 548, 79 Am. St. Rep. 650, 58 N. E. 673.

Mr. Theobore Connoly submitted the cause for defendant in error:

The 14th Amendment does not take away from the state the power to pass police reg¬ ulations affecting the health, safety, and morals of the people.

Barbier v. Connolly, 113 U. S. 27, 31 28 L. ed. 923, 924, 5 Sup. Ct. Rep. 357; Minneapolis d St. L. R. Co. v. Beckwith, 129 U. S. 26-29, 32 L. ed. 585, 586, 9 Sup. Ct. Rep. 207; Giozsa v. Tiernan, 148 U. S. 657, 37 L. ed. 599, 13 Sup. Ct. Rep. 721; Jones v. Brim, 165 U. S. 180-182, 41 L. ed. 677, 678, 17 Sup. Ct. Rep. 282.

The presumption which exists in favor of the constitutionality of a statute is es¬ pecially strong in the case of statutes in¬ tended for the protection of the health and comfort of the community; and it will be presumed that each state legislature has most knowledge of the needs of its people.

Poxcell v. Pennsylvania, 127 U. S. 678, 684, 32 L. ed. 253, 256, 8 Sup. Ct. Rep. 992, 1257; Atlcin v. Kansas, 191 U. S. 207- 223, 48 L. ed. 148-158, 24 Sup. Ct. Rep. 124.

There is no need of argument to prove that one of the fundamental duties of the state is to exercise the police power to protect and preserve the health of its peo¬ ple.

Com. v. Alger, 7 Cush. 53; Boston Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. ed. 989; Hawker v. New York, 170 U. S. 189, 42 L. ed. 1002, 18 Sup. Ct. Rep. 573; Jacobson v. Massachusetts, 197 U. S. 11,

49 L. ed. 643, 25 Sup. Ct. Rep. 358.

Health measures taking the form of legis¬ lative enactments or ordinances passed under legislative authority by the municipal de¬ partments of cities, which regulate the con-

199 U. S.

New York ex rel. Lieberman v. Van De Carr.

ditions unde" which the supply of milk to the community may be had, are valid police regulations.

Fischer v. St. Louis, 194 U. S. 361, 48 L. ed. 1018, 24 Sup. Ct. Rep. 673; Johnson v. Simonton, 43 Cal. 242; State v. Schlenker, 112 Iowa, 642, 51 L.R.A. 347, 84 Am. St. Rep. 360, 84 N. W. 698'; Kansas v. Cook,

38 Mo. App. 660 ; Sanders v. Corn. 25 Ky.

L. Rep. 1165, 77 S. W. 358; State v. Four- cade, 45 La. Ann. 717, 40 Am. St. Rep. 249, 13 So. 187 ; State v. Dupaquier, 46 La. Ann. 577, 26 L.R.A. 162, 49 Am. St. Rep. 334, 15 So. 502; State v. Stone, 46 La. Ann. 147, 15 So. 11; State v. Rogers, 95 Me. 94, 85 Am. St. Rep. 395, 49 Atl. 564; Deems v. Baltimore, 80 Md. 164, 26 L.R.A. 541, 45 Am. St. Rep. 339, 30 Atl. 648;

State v. Broadbelt, 89 Md. 565, 45 L.R.A. 433, 73 Am. St. Rep. 201, 43 Atl. 771;

Com. v. Farren, 9 Allen, 489 ; Com. v. Nichols, 10 Allen, 199; Com. v. Waite, 11 Allen, 264, 87 Am. Dec. 711; Com. v. Evans, 132 Mass. 11; Com. v. Luscomb, 130 Mass. 42; State v. Nelson, 66 Minn. 166, 34 L.R.A. 318, 61 Am. St. Rep. 399, 68 N. W. 1066; State v. Crescent Creamery Co. 83 Minn. 284, 54 L.R.A. 466, 85 Am. St. Rep. 464, 86 N. W. 107 ; Littlefield v. State, 42 Neb. 223, 28 L.R.A. 588, 47 Am. St. Rep. 697, 60 N. W. 724; State v.

Campbell, 64 N. H. 402, 10 Am. St. Rep.

419, 13 Atl. 585; State, Shivers, Prosecutor, v. Newton, 45 N. J. L. 469 ; Polinslcy v. People, 73 N. Y. 65; People v. Cipperly, 37 Hun, 324, 101 N. Y. 634, 4 N. E. 107; People v. West, 106 N. Y. 293, 60 Am. Rep. 452, 12 N.* E. 610; People v. Kihler, 106 N. Y. 321, 12 N. E. 795; People v. Briggs, 114 N. Y. 56, 20 N. E. 820; People v. Biesecker, 169 N. Y. 53', 57 L.R.A. 178, 88 Am. St. Rep. 534, 61 N. E. 990; People v. Bowen, 182 N. Y. 10, 74 N. E. 489; State v. Smith, 10 R. I. 258; State v. Smyth, 14 R. I. 100, 51 Am. Rep. 344; State v. Groves, 15 R. I. 208, 2 Atl. 384; Norfolk v. Flynn, 101 Va. 473, 62 L.R.A. 771, 99 Am. St. Rep. 918, 44 S. E. 717.

Similar legislation regulating the sale and standard of oleomargarine has received uniform support from the courts.

Powell v. Pennsylvania, 127 U. S. 678, 32 L. ed. '253, 8 Sup. Ct. Rep. 992, 1257 ; Plumley v. Massachusetts, 155 U. S. 461,

39 L. ed. 22$, 5 Inters. Com. Rep. 590, 15 Sup. Ct. Rep. 154; Schollenberger v. Penn¬ sylvania, 171 U. S. i, 43 L. ed. 49, 18 Sup. Ct. Rep. 757; Capital City Dairy Co. v. Ohio, 183 U. S. 238, 46 L. ed. 171, 22 Sup. Ct. Rep. 120; Re Brosnahan, 4 McCrary, 1, 18 Fed. 62; Cook v. State, 110 Ala. 40, 20 So. 360; State v. Armour Packing Co. 124 Iowa, 323, 100 N. W. 59; Slate v. Rogers, supra; McAllister v. State, 721 Md. 390, 199 U. S.

20 Atl. 143; Pierce v. State, 63 Md. 592; Fox v. State, 89 Md. 381, 73 Am. St. Rep. 193, 43 Atl. 775; Wright v. State, 881 Md. 436, 41 Atl. 795; Com. v. Huntley, 156 Mass. 236, 15 L.R.A. 839, 30 N. E. 1127; People v. Rotter, 131 Mich. 250, 91 N. W. 167 ; Armour Packing Co. v. Snyder, 84 Fed. 136; Butler v. Chambers, 36 Minn. 69, 1 Am. St. Rep. 638, 30 N. W. 308; State ex rel. Weideman v. Horgan, 55 Minn. 183, 56 N. W. 688; State v. Addington, 77 Mo. 110; State v. Boclcstruck, 136 Mo. 335, 38 S. W. 317 ; Beha v. State, 67 Neb. 27, 93 N. W. 155; State v. Marshall, 64 N. H. 549, 1 L.R.A. 51, 15 Atl. 210: State v. Collins, 70 N. H. 218, 45 Atl. 1080, 171 U. S. 30, 43 L. ed. 60, 18 Sup. Ct. Rep. 768; State v. Ball, 70 N. H. 40, 46 Atl. 50; State, Waterbury, Prosecutor, v. Newton, 50 N. J. L: 534, 2 Inters. Com. Rep. 63, 14 Atl. 604; People v. Arensberg, 105 N. Y. 123, 59 Am. Rep. 483, 11 N. E. 277; Palmer v. State, 39 Ohio St. 236, 48 Am. Rep. 429 ; State v. Ransick, 62 Ohio St. 2S3, 56 N. E. 1024; Com. ex rel. Allegheny Coun¬ ty v. Weiss, 139 Pa. 247, 11 L.R.A. 530, 23 Am. St. Rep. 182,21 Atl. 10 ; Com. v. Van¬ dyke, 13 Pa. Super. Ct. 484; Com. v. Mc¬ Cann, 14 Pa. Super. Ct. 221 ; Com. v. Die- fenbacher, 14 Pa. Super. Ct. 264 ; State v. Myers, 42 W. Va. 822, 35 L.R.A. 844, 57 Am. St. Rep. 887, 26 S. E. 539.

In a like manner, statutes regulating the production and sale of lard have been held valid as a proper exercise of the police power.

State v. Snow, 81 Iowa, 642, 11 L.R.A. 355, 47 N. W. 777 ; istate v. Aslesen, 50 Minn. 5, 36 Am. St. Rep. 620, 52 N. W.

Similar legislation affecting the produc¬ tion and manufacture of vinegar has also been sustained.

People v. Girard, 145 N. Y. 105, 45 Am, St. Rep. 595, 39 N. E. 823 ; People v. Niag¬ ara Fruit Co. 75 App. Div. 11, 77 N. Y, Supp. 805, 173 N. Y. 629, 66 N. E. 1114; People v. Henry J. Heinz Co. 90 App. Div. 408, 86 N. Y. Supp. 141; People v. Windholz, 92 App. Div. 569, 86 N. Y. Supp. 1015; People v. Worden Grocery Co. 118 Mich. 604, 77 N. W. 315; Weller v. State, 53 Ohio St. 77, 40 N. E. 10O1.

Statutes regulating the standard of bak¬ ing powder used in the making of food have also been held constitutional.

Stolz v. Thompson, 44 Minn. 271, 46 N. W. 410; State v. Sherod, 80 Minn. 446, 50 L.R.A. 660, 81 Am. St. Rep. 268, 83 N. W. 417 ; State v. Layton, 160 Mo. 474, 62 L.R.A. 163, S3 Am. St. Rep. 487, 61 S. W. 171, 187 U. S. 356, 47 L. ed. 214,’ 23 Sup. Ct. Rep. 137.

A statute of the state of New York pro-

307

557

Supreme Court of the United States.

Oct. Term,

hibiting the adulteration of coffee was held constitutional by this court in Crossman v. Lurman, 192 U. S. 189, 48 L. ed. 401, 24 Sup. Ct. Rep. 234.

The performance by boards of health of the duties intrusted to their care by the state legislature, although the fulfilment of these responsibilities carries with it the exercise of a reasonable discretion, is not a delegation of legislative power reposed sole¬ ly in the legislature, but an exercise of administrative and ministerial functions by agents best qualified to understand the conditions of the case, and to appreciate the necessities of the exercise of their power.

Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357 ; Dent

v. West Virginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231 ; Crowley v. Christ¬ ensen, 137 U. S. 91, 34 L. ed. 623, 11 Sup. Ct. Rep. 13; Marshall Field d Co. v. Clarlc, 143 U. S. 649, 36 L. ed. 294, 12 Sup. Ct. Rep. 495; Re Kolloclc, 165 U. S. 526, 41 L. ed. 813, 17 Sup. Ct. Rep. 444; Davis v. Massachusetts, 167 U. S. 43, 42 L. ed. 71, 17 Sup. Ct. Rep. 731; Wilson v. Eureka \ City, 173 U. S. 32, 43 L. ed. 603, 19 Sup. Ct. Rep. 317 ; Gundling v. Chicago, 177 U. S. 183, 44 L. ed. 725, 20 Sup. Ct.^Rep. 633; Fischer v. St. Louis, 194 U. S. 361, 48 L. ed. 1018, 24 Sup. Ct. Rep. 673; Jacobson v. Massachusetts, 197 U. S. 11, 49 L. ed. 643, 25 Sup. Ct. Rep. 358; Re Flaherty, 105 Cal. 558, 27 L.R.A. 529, 38 Pac. 981 ; Fitts v. Atlanta, 121 Ga. 567, 67 L.R.A. 893, 104 Am. St. Rep. 167, 49 S. E. 793; Blue v. Beach, 155 Ind. 121, 50 L.R.A. 64, 80 Am. St. Rep. 195, 56 N. E. 89 ; Isenhour tr. State, 157 Ind. 517, 87 Am. St. Rep. 228, 62 N. E. 40; Hengehold v. Covington, 108 Ky. 752, 57 S. W. 495; State v. Broadbelt, 89 Md. 565, 45 L.R.A. 433, 73 Am. St. Rep. 205, 43 Atl. 773; Love v. Recorder’s Ct. Judge ( Love v. Phalen) 128 Mich. 552, 55 L.R.A. 618, 87 N. W. 785;- Com. v. Plaisted, 148 Mass. n~5, 2 L.R.A. 142, 12 Am. St. Rep. 566, 19 N. E. 224; Polinsky v. People, 73 N. Y. 05; People ex rel. Necham- cus v. Warden, 144 N. Y. 529, 27 L.R.A. 718, 39 N. E. 686; State v. Briggs, 45 Or. 366, 77 Pac. 750, 78 Pac. 361.

Because officials abuse their power, the law granting them such powers is not in¬ valid and violative of the Federal Consti¬ tution.

Poioell v. Pennsylvania, 127 U. S. 678, 686, 32 L. ed. 253, 257, 8 Sup. Ct. Rep. 992, 1257; Williams v. Mississippi, 170 U. S. 213, 225, 42 L. ed. 1012, 1016, 18 Sup. Ct. Rep. 583; People ex rel. Nechamcus v. • Warden, supra.

The cases passing upon the questions of class legislation which have arisen in this court are far too numerous to include with-

308

l in the limits of a brief. For that reason . we have submitted to the court but a few 1 of the decisions in which that question has been presented to the court for considera- : tion.

s Slaughter-House Cases, 16 Wall. 36, 21 L. ; ed. 394; Missouri v. Lewis (Bowman v. i Lewis ) 101 U. S. 22, 25 L. ed. 989; Bar-

■ bier v. Connolly, supra; Soon Hing v. Crow¬ ley, 113 U. S. 703, 28 L. ed. 1145, 5 Sup.

’ Ct. Rep. 730; Missouri P. R. Co. v. Humes, 115 U. S. 512, 519, 29 L. ed. 463, 465, 6

■ Sup. Ct. Rep. 110; Hayes v. Missouri, 120

Missouri P. R. Co. v. Mackey, 127 U. S. 205, 32 L. ed. 107, 8 Sup. Ct. Rep. 1161; Powell v. Pennsylvania, 127 U. S. 678, 687, 32 L. ed. 253, 257, 8 Sup. Ct. Rep. 992, 1257; Walston v. Nevin, 128 U. S. 578, 32 L. ed. 544, 9 Sup. Ct. Rep. 192; Dent v. West Virginia, 129 U. S. 114, 32 L. ed. 623,

9 Sup. Ct. Rep. 231; Bell’s Gap R. Co. v. Pennsylvania, 134 U. S. 232> 33 L. ed. 892,

10 Sup. Ct. Rep. 533; Crowley v. Christensen, 137 U. S. 86, 34 L. ed. 620, 11 Sup. Ct. Rep.

| 13; Pacific Exp. .Co. v. Seibert, 142 U. S. 339, 35 L. ed. 1035, 3 Inters. Com. Rep. 810, 12 Sup. Ct. Rep. 250; Giozza v. Tiernan, 148 U. S. 657, 37 L. ed. 599, 13 Sup. Ct. Rep. 721; Columbus South¬ ern R. Co. v. Wright, 151 U. S. 470, 38 L. ed. 238, 14 Sup. Ct. Rep. 396; Mar- chant v. Pennsylvania R. Co. 153 U. S. 380, 38 L. ed. 751, 14 Sup. Ct. Rep. 894; St. Louis (£- S. F. R. Co. v. Mathews, 165 U. S. 1, 41 L. ed. 611, 17 Sup. Ct. Rep. 243;

< Tones v. Brim, 165 U. S. ISO, 41 L. ed. 677, 17 Sup. Ct. Rep. 282; Dapis v. Massachu¬ setts, 167 U. S. 43, 42 L. ed. 71, 17 Sup. Ct. Rep. 731 ; Central Loan d T. Co. v. Campbell Commission Co. 173 U. S. 84, 43 L. ed. 623, 19 Sup. Ct. Rep. 346; Fischer v. St. Louis, 194 U. S. 361, 48 L. ed. 1018, 24 Sup. Ct. Rep. 673; Jacobson v. Massachusetts, 197 U. S. 11, 49 L. ed. 643, 25 Sup. Ct. Rep. 358.

Mr. Justice Day delivered the opinion of the court:

Simon Lieberman was arrested and held for trial by a magistrate of the city of New York, charged with violating § 66 of the sanitary code of New York city. After being committed to the custody of the warden of the city prison, plaintiff in error sued out a writ of habeas corpus.

At the hearing before a justice of the supreme court at special term, the writ was dismissed, and the prisoner remanded to the custody of the warden. Upon ap¬ peal to the appellate division of the su¬ preme court, the order of the special term was affirmed. This judgment was affirmed by the court of appeals of the state of New York (175 N. Y. 440, 67 N. E. 913), and-

199 U. S.

New Yobk ex rel. Liebebman v. Van De Cabb.

557-559

the case remitted to the supreme court, where judgment was entered on the remit¬ titur. The case was then brought here by writ of error.

The section of the sanitary code com¬ plained of is as follows:

“Sec. 66. No milk shall be received, held, kept, either for sale or delivered in the city of New York, without a permit in writing from the board of health, and subject to the conditions thereof.”

The violation of the sanitary code is made a misdemeanor. That the board of health had power to pass the sanitary code, which includes this section, is not open to question here, as it has been affirma¬ tively decided in the state court. The ob¬ jections on Federal grounds for our con-

sideration are two-fold: *First, that -the section under consideration devolves upon the board of health absolute and despotic power to grant or withhold permits to milk dealers, and is, therefore, not due proc¬ ess of law; second, that singling out the milk business for regulation is a denial of the equal protection of the laws to people engaged therein.

The record discloses that the plaintiff in error, engaged in selling milk in the city of New York before his arrest, had a permit, which was revoked by the board of health. He was thereafter found en¬ gaged through an agent in selling milk without a permit. In the testimony it appears, in a conversation between the plaintiff in error and an inspector in the department of health, the latter admitted that Lieberman’s milk “stood well.”

The right of the state to regulate certain occupations which may become unsafe or dangerous when unrestrained, in the exer¬ cise of the police power, with a view to protect the public health and welfare, has been so often and so recently before this court that it is only necessary to refer to some of the cases which sustain the propo¬ sition that the state has a right, by rea¬ sonable regulations, to protect the public health and safety. Boston Beer Go. v. Massachusetts, 97 U. S. 25, 24 L. ed. 989; New Orleans Qaslight Co. v. Louisiana Light t£- H. P. & Mfg. Go. 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. Rep. 252; Grow- ley v. Christensen. 137 U. S. 86, 34 L. ed. 620, 11 Sup. Ct. Rep. 13; Lawton v. Steele, 152 U. S. 133, 38 L. ed. 385, 14 Sup. Ct. Rep. 499; Jacolson v. Massachusetts, 197 U. S. 11, 49 L. ed. 643, 25 Sup. Ct. Rep. 358; California Reduction Go. v. Sanitary Reduction Works, 199 U. S. 306, ante, 204, 26 Sup. Ct. Rep. 100 : Gardner v. Michigan, 199 U. S. 325. ante, 212, 26 Sup. Ct. Rep. 106.

The contention of counsel for plaintiff in error is not that a business so directly af- 199 TJ. S.

fecting the health of the inhabitants of the city as the furnishing of milk may not be the subject of regulation under the au¬ thority of the state, but that the court of appeals of New York has sustained this right of regulation to the extent of author¬ izing the board of health to exercise arbitra¬ ry power in the selection of those it may see fit to permit to sell milk under the section quoted; and, thus construed, it works the deprivation of the plaintiff in error’s lib¬ erty and property ‘without due process of

law. We do not so understand the deci¬ sion of the highest court of New York.

As we read it, the authority sustained is the grant of power- to issue or withhold permits in the honest exercise of a rea¬ sonable discretion. In the opinion of the appellate division, whose judgment was af¬ firmed in the court of appeals, it was said:

“Such regulations, however, should be uniform, and the board should not act arbitrarily; and if this section of the sanitary code vested in them arbitrary pow¬ er to license one dealer [in a lawful com¬ modity] and refuse a license to another similarly situated, undoubtedly it would be invalid (Yick Wo v. Hopkins, 118 U. S.

356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; Gundling v. Chicago, 177 U. S. 183, 44 L. ed. 725, 20 Sup. Ct. Rep. 633 ; Noel v. Peo¬ ple, 187 Ill. 587, 52 L. R. A. 287, 79 Am.

St. Rep. 238, 58 N. E. 616; Dunham v. Rochester, 5 Cow. 462 ; Brooklyn v. Breslin,

57 N. Y. 591) ; but such was not its pur¬ pose, nor is that its fair construction. It is unnecessary now to determine whether the action of the board in refusing or revok¬ ing such a permit would be judicial, and thus reviewable by mandamus or certiorari, or whether, if the authority should be arbi¬ trarily or improperly exercised, the only remedy would be an application for the removal of the officers; for those are ques¬ tions that may arise in the administration of the law, but do not go to its validity.

The section, properly construed, does not permit unjust discrimination, and, there¬ fore, it is valid.” [81 App. Div. 132, 80 N. Y. Supp. 1108.]

The court of appeals, affirming the deci¬ sion of the appellate division, did not speak with equal emphasis upon this point, -but it leaves no doubt that it sustained the stat¬ ute as authorizing the exercise of a reason¬ able discretion. While that court held that the discretion to grant or withhold permits might be vested in a board of health with opportunities to know and investigate local conditions and surroundings, it is further said:

“In the case before us the requirement of § 66 of the sanitary code, that the relator should not sell milk without a permit,

309

559-562 Supreme Court of

is reasonable, and violates neither Federal nor state Constitution, is in accordance with law and long-established precedent.

*“In the argument of this case several questions have been discussed that are not presented by the appeal. It is, for instance, argued that, even conceding a permit to be necessary, the provision that the holder is to be ‘subject to the conditions thereof’ cannot be sustained for a variety of reasons suggested.

“It is a complete answer that the form of the permit is not in the record; it does not appeaT that it has attached to it conditions reasonable or otherwise. We con¬ sequently express no opinion on the subject.

“What we have already said applies with equal force to the argument that the per¬ mit might be loaded with conditions, the nature of which is not limited or stated; that it may be used to build up monopoly, to help a favored few as opposed to the many; that there is no other statute which presents such possibilities for blackmail and oppression. These and many other like criticisms are indulged in by appellant.

“If the question was before us, the well- settled canon of construction permits of no such argument.

“It is presumed that public officials will discharge their duties honestly and in ac¬ cordance with the rules of law.”

We do not think that this language leaves any question as to the disposition of the highest court of New York to prevent the oppression of the citizen or the depri¬ vation of his rights, by an arbitrary and oppressive exercise of the power conferred. That this court will not interfere because the states have seen fit to give administra¬ tive discretion to local boards to grant or withhold licenses or permits to carry on trades or occupations, or perform acts which are properly the subject of regulation in the exercise of the reserved power of the states to protect the health and safety of its people, there can be no doubt. In Davis v. Massachusetts, 167 U. S. 43, 42 L. ed. 71, 17 Sup. Ct. Rep. 731, an ordinance of the city of Boston, providing that no person shall make any public address in or upon the public grounds, except in accordance with a permit from the mayor, was held not in conflict with the 14th Amendment to the Constitution of the United States. In Wilson v. Eureka City, 173 U. S. 32, 43 L. ed. 603, 19 Sup. Ct. Rep. 317, an ordinance

requiring persons *to obtain written permis¬ sion from the mayor or president of the city council, or, in their absence, a coun¬ cilor, before moving a building upon any of the public streets of the city, was sustained as not violative of the Federal Constitution. In the opinion of the court a number of 310

the United States. Oct. Term,

instances were given in which acts were prohibited except with the consent of an administrative board, and which were sus¬ tained as proper exercises of the police pow¬ er. In Oundling v. Chicago, 177 U. S. 183,

44 L. ed. 725, 20 Sup. Ct. Rep. 633, an ordinance was sustained permitting the mayor to license persons to deal in ciga¬ rettes when he was satisfied that the per¬ son applying for the license was of good character and reputation, and a suitable person to be intrusted with their sale.

And in the recent case of Jacobson v. Massa¬ chusetts, 197 U. S. 11, 49 L. ed. 64&, 25 Sup. Ct. Rep. 358, this court sustained a compulsory vaccination law which dele¬ gated to the board of health of cities or towns the determination of the necessity of requiring the inhabitants to submit to compulsory vaccination. And in Fischer v.

St. Louis, 194 U. S. 361, 48 L. ed. 1018,

24 Sup. Ct. Rep. 673, an ordinance of the city of St. Louis providing that no dairy or cow stable should thereafter be built or established within the limits of the city, and no such stable not in existence at the time of the passage of the ordinance should be maintained on any premises, unless per¬ mission should have been first obtained from the municipal assembly by ordinance, was sustained as a proper exercise of the police power. After sustaining the right to vest in a board of men acquainted with the local conditions of the business to be carried on, power to grant or with¬ hold permits, this court said:

“It has been held in some of the state courts to be contrary to the spirit of Amer¬ ican institutions to vest this dispensing power in the hands of a single individual (Chicago v. Trotter, 136 Ill. 430, 26 N. E.

359; Re Frazee, 63 Mich. 396, 6 Am. St.

Rep. 310, 30 N. W. 72; State v. Fiske, 9 R.

I. 94; Baltimore v. Radecke, 49 Md. 217,

33 Am. Rep. 239; Sioux Falls v. Kirby, 6 S.

D. 62, 25 L. R. A. 621, 60 N. VV. 156), and in others that such authority cannot be delegated to the adjoining lot owners (St.

Louis v. Russell, 116 Mo. 248, 20 L. R.

A. 721, 22 S. W. 470; Ex parte Sing Lee,

96 Cal. 354, 24 L. R. A. 195, 31 Am. St.

Rep. 218, 31 Pac. 245). But the authority to delegate that discretion to a board ap¬ pointed “for that purpose is sustained by the

great weight of authority (Quincy v. Ken- nard, 151 Mass. 563, 24 N. E. 860; Com... v.

Davis, 162 Mass. 510, 26 L. R. A. 712, 44 Am. St. Rep. 389, 39 N. E. 113), and by this court the delegation of such power, even to a single individual, was sustained in Wilson v. Eureka City, 173 U. S. 32,

43 L. ed. 603, 19 Sup. Ct. Rep. 317, and Cundling v. Chicago, 177 U. S. 183, 44 L. ed. 725, 20 Sup. Ct. Rep. 633.”

199 U. S.

Sjoli v. Dreschel.

562-564

These cases leave in no doubt the propo¬ sition that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power of the state is not violative of rights secured by the 14th Amendment. There is no presump¬ tion that the power will be arbitrarily ex¬ ercised, and when it is shown to be thus exercised against the individual, under sanction of state authority, this court has not hesitated to interfere for his protec¬ tion, when the case has come before it in such manner as to authorize the interfer¬ ence of a Federal court. Yick Wo v. Hop¬ kins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064. In the case of Jacobson v. Massachusetts, 197 U. S. 11, 49 L. ed. 643, 25 Sup. Ct. Rep. 358, it was insisted that the compulsory vaccination ordinance was broad enough to require a person to sub¬ mit to compulsory vaccination when his physical condition might be such as to ren¬ der such treatment dangerous to life and even cruelly oppressive. But it was held that the case presented no such situation; that the person complaining of the enforce¬ ment of the ordinance was, for aught that appeared, an adult in good health and a proper subject for vaccination; that the supreme court of Massachusetts had not sustained the authority of the board in the extreme case supposed, and that the individual complaining made no case where¬ in the operation of the statute deprived him of his constitutional right of protec¬ tion. So, in the present case, there is nothing in this record to show why the permit which had been granted to the plaintiff was revoked or the conditions upon which, in the exercise of the power conferred by § 66, a permit to carry on the business was granted or withheld. It is true that a conversation was proved in wliich the milk inspector said to Lieber-

man that the milk *sold by him “stood well;” but there is nothing to show upon what ground the action of the board was taken. For aught that appears, he may have been conducting his business in such wise, or with such surroundings and means, as to render it dangerous to the health of the community; or his manner of selling or delivering the milk may have been objec¬ tionable. There is nothing in the record to show that the action against him was arbitrary or oppressive and without a fair and reasonable exercise of that discretion which the law reposed in the board of health. We have, then, an ordinance which, as construed in the highest court of the state, authorizes the exercise of a legal dis¬ cretion in the granting or withholding of 199 U. S.

permits to transact a business which, unless controlled, may be highly dangerous to the health of the community, and no affirmative showing that the power has been exerted in so arbitrary and oppressive a manner as to deprive the appellant of his property or liberty without due process of law.

In such cases it is the settled doctrine of this court that no Federal right is invad¬ ed, and no authority exists for declaring a law unconstitutional, duly passed by the legislative authority, and approved by the highest court of the state. Nor do we think there is force in the contention that the plaintiff in error has been denied the equal protection of the laws because of the , allegation that the milk business is the only business dealing in foods which is thus reg¬ ulated by the sanitary code. All milk deal¬ ers within the city are equally affected by the regulations of the sanitary code. It is primarily for the state to select the kinds of business which shall be the subject of regulation, and if the business affected is one which may be properly the subject of such legislation, it is no valid objection that similar regulations are not imposed upon other businesses of a different kind.

Soon Hing v. Crowley, 113 U. S. 703, 28 L. ed. 1145, 5 Sup. Ct. Rep. 736; Fischer v.

St. Louis, 194 U. S. 361, 48 L. ed. 1018, 24 Sup. Ct. Rep. 673.

We find no error in the judgment of the Supreme Court of New York, and the same is affirmed.

♦Mr. Justice Holmes: I do not gather

from the statute or from the decision of the court of appeals that the action of the board of health was intended to be subject to judicial revision as to its reasonable¬ ness. But whether it was or was not, I agree that the statute, which in substance is older than the 14th Amendment, was not repealed or overthrown by the adoption of that Amendment.