State v. Broadbelt

McSherry, C. J., delivered the opinion of the Court. The appellee was indicted under the Act of i8g8, ch. 306, passed by the General Assembly of Maryland, and entitled “ An Act to add certain new sections to Article fifty-eight of the Code of Public General Laws, title ‘ Live Stock,’ under the new sub-title ‘ Dairies,’ to follow section 18,” &c. He demurred to the indictment upon the ground that the statute was unconstitutional. His demurrer was sustained by the Criminal Coui’t of Baltimore City, the indictment was quashed, and the State has appealed.

The reasons upon which he bases his claim that the statute is void axe, that it denies the equal protection of the laws guaranteed by Sec. 1 of the XIV Amendment to the Federal Constitution, and deprives the individual of the due process of law secux-ed by that amendment and by Article 23 of the Maryland Declaration of Rights. Both of these, or similar, grounds of attack have of late yeai-s been very frequently resorted to in assailing the validity of State legislation enacted in the exercise of the police power, and numerous judgments have beep delivei-ed by the Supx-eme Court of the United States in cases where this method of assault has been relied on. A review of, or even a inference to, all ⁵⁷⁵ these cases would not be practicable within the limits of this opinion, but brief citations, later on, from some of them, will serve to illustrate the principles which underlie them all. Those principles must control the final disposition of this prosecution.

By the Act of 1888, ch. 519, a “ State Live Stock Sanitary Board ” was created. It consists of three members appointed by the Governor, by and with the advice and consent of the Senate. It is charged with various duties looking to the prevention and the spread of contagious and infectious diseases amongst the live stock within the State. Its powers are exercised for the preservation of the public health.

The provision of the statute under which the indictment now before us was framed, reads as follows : “Sec. 19. It shall be the duty of all dairymen or herdsmen or private individuals supplying milk to cities, towns, or villages, to register their herds of cattle with the Live Stock Sanitary Board ; in violation of which the parties offending shall be fined not less than one dollar nor more than twenty for each offence.” Section 20, and the rules which it formulates, are in these words : “ 20. It shall be the duty of the Live Stock Sanitary Board to have inspected, at least annually, without notice to the owner or those in charge of any dairy, or the parties, supplying milk as named in section 19 of this Article, the premises wherein cows are kept, and if such premises are found in an unsanitary condition the said board may prohibit the sale and shipment of milk from such premises until such time as such premises shall conform to the following sanitary rules : Rule 1. No building or shed shall be used for stabling cows for dairy purposes which is not well lighted and ventilated, and which is not provided with sufficient feed-troughs or boxes, and suitable floor, laid with proper grades and channels to immediately carry off all drainage ; and if a public sewer abuts the premises upon which such building is situated, they shall be connected therewith, ⁵⁷⁶ whenever the inspector considers such sewer connection necessary.

Rule 2. No water-closet, privy, cesspool or urinal shall be located within any building or shed used for stabling cows for dairy purposes or for the storage of milk or cream ; nor shall any fowl, hog, sheep or goat be kept in any room used for such purposes. 3. It shall be the duty of each person using any premises for keeping cows for dairy purposes to keep such premises thoroughly clean and in good repairs, and well painted or whitewashed at all times. 4. It shall be the duty of each person using any premises for keeping cows for dairy purposes to cause the building in which cows are kept to be thoroughly cleaned, and to remove all dung from the premises, so as to prevent its accumulation in great quantities. 5.

Any person using any premises for keeping cows for dairy purposes shall provide and use a sufficient number of receptacles, made of non-absorbent materials, for the reception, storage and delivery of milk, and shall cause them at all times to be cleaned and purified, and shall cause all milk to be removed without delay from the rooms in which cows are kept. 6. Every person keeping cows for the production of milk for sale shall cause every such cow to be cleaned every day and to be properly fed and watered with abundance of pure clean water. 7. Any enclosure where cows are kept shall be graded and drained, so as to keep the surface reasonably dry; no garbage, fecal matter or similar matter shall be placed or allowed to remain in such inclosure unless sufficient straw or similar good absorbent material be used to keep the enclosure .clean at all times, and no open drains shall be allowed to run through it. And any person who shall ship or sell milk contrary to the aforesaid order of said board, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than one dollar nor more ⁵⁷⁷ than twenty dollars for each day during which shipments shall be made after notice of such order.” The indictment charges that the appellee, being a dairyman engaged in supplying milk to cities, towns and villages within this State, failed, neglected and refused to register his herd of cattle with the Live Stock Sanitary Board.

The demurrer admits these averments to be true. So far as the nineteenth section of the Act is concerned, it is not perceived that, standing alone, it deprives the appellee of due process of law in any way whatever. This is not a proceeding under the twentieth section. The requirement of the nineteenth section would be of little value if it were not followed by, and did not form a part of the other provisions of the statute.

The entire Act is strictly a police regulation, enacted for the purpose of preserving the public health. The strides which our knowledge of bacteriology has made in recent years are generally known ; and the ubiquitous microbe has been shown to be a potent agent in the propagation of disease. Tuberculosis, identical it is said with consumption in man, is caused by the organism known as Koch’s bacillus, and is readily communicable through milk. Diphtheria is another contagious-disease whose specific organism finds in milk favorable conditions of growth; and there is abundant evidence to show that contaminated milk transmits this contagion.

Cholera has again and again been traced to the same source; and scarlet fever is generally believed to be communicable by infected milk, and it is said that it may be even caused by an eruption on the udder. Typhoid fever bacilli have been detected in milk supposed to be wholesome. Besides conveying disease, milk occasionally contains certain germs-which form poisonous products known as ptomaines. Milk may carry the bacilli of these and perhaps other deadly diseases to infancy, to adolescence and to age; to the delicate and to the robust alike, and to persons in every class and condition of society.

It may receive these germs direct from the cow, if the cow be unhealthy; or it may ⁵⁷⁸ absorb them from the dairy, the dairy utensils or the stable, if these be uncleanly. Thorough inspections of cattle and dairies may reduce the frequency of infection. The preservation of the public health by preventing the sale of infected milk, or of milk that may come from infected sources, when milk by reason of its almost universal use in one form or another as an article of food is especially likely to spread disease, is one of the most imperative duties of the State, and obviously .one most incontestably within the scope of the police power. As a means to that end — the preservation of the public health — a requirement that every person selling milk for consumption in cities, towns and villages shall cause his herd of cattle to be registered with the Live Stock Sanitary Board, is a reasonable and an appropriate enactment; and the subsequent provisions are necessary parts of the scheme.

The igth Sec. no more deprives the individual of due process of law than did the ordinance in Easton v. Covey, 74 Md. 262 , which prohibited the erection of any building without a permit from the commissioners of the town; or an ordinance forbidding the keeping of swine without a permit in writing from the board of health ; Quincy v. Kennard, 151 Mass. 262 ; or an ordinance requiring the written permission of the Mayor of a town before any person was allowed to move a building along the streets ; Wilson v. Eureka City, 173 U. S 32 (decided February 20th, 1899); or the ordinance requiring a license for the removal of the contents of privies and subjecting the holders of such license to the orders of the Board of Health. Boehm v. Mayor, &c., Balto., 61 Md. 259 . The constitutional limitations which declare that no person shall be deprived of his property or liberty without due process of law, have never been construed as being “ incompatible with the principle — equally vital, because essential to the peace and safety of society — that all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community. ****** The exercise of the police power by the destruction of property ⁵⁷⁹ which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law.” Mugler v. Kansas, 123 U. S. 623 . It was earnestly insisted that the Act of 18p8 deprives the appellee of the equal protection of the law guaranteed by the XIV Amendment.

This amendment was called to the attention of the Supreme Court for the first time in eighteen hundred and seventy-two, in the Slaughter-House cases, 83 U. S. 36 ; and since then it has been repeatedly considered and interpreted. The scope of the amendment, in so far as it relates to the branch of the subject now under discussion, has been briefly but clearly stated by the late Judge Cooley: “The guaranty of equal protection is not to be understood, however, as requiring that every person in the land shall possess the same rights and privileges as every other person. The amendment contemplates classes of persons and the protection given by the law is to be deemed equal if all persons in the same class are treated alike under like circumstances and conditions, both as to privileges conferred and liabilities imposed. The classification must be based on reasonable grounds; it cannot be a mere arbitrary selection.” Cooley’s Princ.

Con. L. 249. This is abundantly supported by the adjudged cases. Hays v. Missouri, 120 U. S. 68 ; Mo.

P. R. Co. v. Mackey, 127 U. S. 205 ; Walston v. Nevin, 128 U. S. 578 ; Bell’s Gap R. Co. v. Pennsylvania, 134 U. S. 232 ; Pac. Exp. Co. v. Seibert, 142 U. S. 339 : Giozza v. Tiernan, 148 U. S. 657 ; Col. S. R. Co. v. Wright, 151 U. S. 470 ; Marchant v. Penna.

R. Co., 153 U. S. 380 ; St. Louis, &c., R. Co. v. Mathews, 165 U. S. 1 . Thus in Hays v. Mo., supra, it was held, that a statute of a State which provided, that in capital cases, in cities having a population of over one hundred thousand inhabitants, the State shall be allowed fifteen peremptory challenges to jurors, whilst elsewhere in the same State the prosecution was only allowed eight such challenges, ⁵⁸⁰ did not deny to a person tried for murder in, a city containing over one hundred thousand inhabitants, the equal protection of the laws enjoined by the XIV Amendment, and that there was no error in refusing to restrict the State’s peremptory challenges to eight. And so in the very recent case of Central Loan and Trust Co. v. Campbell Commission.Co. (decided by the Supreme Court on February 20, 1899), 173 U. S. 84 ; it was held that a statute permitting an attachment against anon-resident debtor without a bond, whilst requiring a bond for an attachment against a resident debtor, does not constitute a denial to the non-resident of the equal protection of the laws, because it was within the power of the Legislature to divide debtors into two classes —non-resident and' resident — and when so classified to prescribe different methods of proceeding against them. The classification, which the Legislature is authorized to make, may relate to territorial divisions of a State.

Thus, ip Mo. v. Lewis, 101 U. S. 22 , it was said by Mr. Justice Bradley: “ We might go still further, and say, with undoubted truth,.that there is nothing in the Constitution to prevent any State from adopting any system of laws or judicature it sees fit for all or any part of its territory. If the State of New York,' for example, should see fit to adopt the civil law, and its method of