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AGO 1950 No. 235 - March 13, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

UNIFORM FLUID MILK ACT AND CITY MILK ORDINANCES

Conflicting city milk ordinances are superseded by Uniform Fluid Milk Act (Chapter 168, Laws of 1949).

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                                                                  March 13, 1950

Honorable R. DeWitt Jones
Prosecuting Attorney, Clark County
301 Court House
Vancouver, Washington                                                                                                              Cite as:  AGO 49-51 No. 235

Attention:  Mr. Donald C. Blair, Deputy

Dear Sir:

            We are in receipt of your letter of February 14, 1950, in which you asked the following questions:

            1. Are the Vancouver ordinances preventing the sale of milk or cream in the city of Vancouver, unless inspected or produced within the limits of Clark County, Washington, superseded and rendered ineffective by the enactment of chapter 168, Laws of 1949?

            2. Does chapter 168, Laws of 1949, leave any scope of authority for a city to establish milk standards more strict than those established by that statute?

            3. Does chapter 168, Laws of 1949, leave any scope of authority for a city or local health authorities to establish milk standards, make inspections and enforce its standards with relation to milk or milk products which have been produced, pasteurized or processed outside the state of Washington in an area concerning which the Director of Agriculture has satisfied himself as to enforcement under section 11, chapter 168?

            The conclusions reached may be summarized as follows:

            1. The Vancouver ordinance permitting the sale in the city of Vancouver of milk and milk products inspected and produced only within the limits of Clark County, Washington, are ineffective and inoperative as they are in conflict with chapter 168, Laws of 1949.

             [[Orig. Op. Page 2]]

            2. Chapter 168, Laws of 1949, permits a city to establish milk standards more strict than those established by the statute provided such standards are not in conflict with the general laws of this state and do not, under the guise of health regulation, create trade barriers that would affect the economic prosperity of the whole state.

            3. Section 11, chapter 168, Laws of 1949, provides the conditions under which milk products from outside the state of Washington may be sold in the state of Washington, and when the Director of Agriculture has satisfied himself as to enforcement under section 11, there is left no scope of authority for city or local health authorities to establish milk standards, make inspections and enforce its standards as to such products.

                                                                     ANALYSIS

            A corporation has applied for a permit to sell in Clark County and the city of Vancouver milk which is processed and pasteurized in Portland, Oregon.  The local ordinances, as quoted below would prevent the issuance of such a permit:

            "Milk and cream from points beyond the limits of inspection of the City of Vancouver, and for the purposes of this ordinance the inspection limits shall be limited to Clark County, Washington, may not be sold in the city of Vancouver, except as may be authorized by the health officer."

            "Pasteurized milk and cream may not be sold in the City of Vancouver unless pasteurized in Clark County, Washington, PROVIDED, that this provision shall not apply to any person, firm or corporation who shall be engaged in furnishing or selling pasteurized milk and cream within said city at the time this ordinance takes effect, and who shall have been so engaged for not less than ten (10) days immediately prior thereto."

            "Homogenized milk and cream may not be sold in the City of Vancouver unless homogenization shall take place at the plant of pasteurization in Clark County, Washington."

             [[Orig. Op. Page 3]]

            The question is whether or not these milk ordinances are operative and controlling in view of the fact that the state has acted in the same field of legislation.  Our state Constitution, Art. II, section 2, provides:

            "Any county, city, town or township may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with the general laws."

            It is clear that if the provisions of the city milk ordinance are inconsistent and in conflict with the state law they will be rendered inoperative and unconstitutional.

            Provision is made in the Uniform Milk Fluid Act, chapter 168, Laws of 1949 (Rem. Rev. Stat. 6266-45, Supp. 1949), for the Director of Agriculture to define and set the geographical boundaries of a local milk inspection service unit.  Such unit is created under the authority and discretion of the Director on the application of any city, township or county desirous of operating an inspection unit.  If a milk producer or milk distributor intends to deliver or sell fluid milk or cream outside the jurisdiction of the particular local inspection unit in which he is located, the Director on application and investigation may designate which local milk inspection service unit shall conduct the inspections.  All milk so inspected may then be sold and delivered within the jurisdiction of any local milk inspection service unit.  (Rem. Rev. Stat. 6266-46, Supp. 1949).  The conflict between the ordinance and the statute is obvious.  A municipality is precluded from determining its geographical boundaries for milk inspection, as the state legislature has vested the determination in the Director of Agriculture.

            Rem. Rev. Stat. 6266-39, Supp. 1949, provides as follows:

            "Milk and milk products from outside the State of Washington may not be sold in the State of Washington unless produced and/or pasteurized under provisions equivalent to the requirements of this act; Provided, that the Director of Agriculture shall satisfy himself that the authority having jurisdiction over the production and processing is properly enforcing such provisions."

            The necessary interpretation of this provision is that milk may be sold in this state if it is produced under equivalent provisions and if the Director satisfies himself that there is compliance with the requirements of the act.  Again, the conflict is obvious.  The Vancouver ordinance precluding  [[Orig. Op. Page 4]] the sale of milk produced outside Clark County, if held valid, would render ineffective the statutory authority vested in the Director of Agriculture to determine whether or not milk produced outside this state is qualified for sale within.  The ordinance which is designed to limit legitimate business activities to persons within its jurisdiction is beyond the powers of a municipality.  In a similar case,Meridian, Ltd., et al. v. Sippy, 128 P. (2d) 884, a Stockton, California, ordinance prohibiting the sale of milk unless the source of supply was within the county and inspected by the local health officer was held invalid, the District Court of Appeals for the Third Circuit saying:

            "Any ordinance or statute which prevents any person from engaging in a lawful business cannot be upheld unless protection of life, health or property makes it reasonably necessary.  Such is not the case here.  The contention of respondent if approved might result in the erection of trade barriers that would affect the economic prosperity of the whole state."

            In so far as the Vancouver ordinance conflicts with the state law in the determination of the geographical boundaries of the milk inspection unit and prohibits the sale of milk from areas outside the local inspection unit it is inoperative and unconstitutional.

            It is a well-settled principle of law that a political subdivision of state may enact an ordinance upon a subject already covered by state legislation.  However, such ordinance must not conflict with the state statutes, and the fact that local legislation is more stringent or enlarges upon the provisions of a statute does not create a conflict.  The Supreme Court of this state has adopted and approved the above rule.  In re Ferguson, 80 Wash. 102; Paris v. Smith, 179 Wash. 149.

            The Washington uniform milk fluid act expressly provides that ordinances of the political subdivisions of government may be more stringent but not inconsistent with the provisions of the act, [Rem. Rev. Stat. 6266-46, Supp. 1949].  An example of what might be more stringent and not inconsistent would be that a lower bacteria count could be required than the state act sets up or that lower temperature of milk in certain plants or locations could be required and such other things which tend to protect the health of the citizens of the community.  However, it would be inconsistent with the state act if the stringent standards were set so high as to erect an economic trade barrier.

             [[Orig. Op. Page 5]]

            In Rem. Rev. Stat. 6266-31, Supp. 1949, provision is made for the Director of Agriculture to impound and dispose of adulterated, misbranded and/or ungraded milk or milk products.  Rem. Rev. Stat. 6266-32, Supp. 1949, requires every person who wishes to sell milk in Washington to have a permit issued by the Director of Agriculture or authorized inspection service as defined by the act.  The Director of Agriculture is charged with the enforcement of the act [Rem. Rev. Stat. 6266-43, Supp. 1949].  A local milk inspection unit is wholly dependent upon the Director of Agriculture for its jurisdiction and the manner in which it operates and is subject to being cancelled at any time by the Director of Agriculture for the causes stated [Rem. Rev. Stat. 6266-45, 6266-46, Supp. 1949].  The only provision in the Washington uniform fluid milk act giving a city any power whatsoever is found in Rem. Rev. Stat. 6266-46, Supp. 1949, which permits a distributor of milk to distribute milk in inspection areas outside the one in which his plant is located with the following proviso:

            "Provided, That applicable ordinances of political subdivisions of government in said jurisdiction more stringent than, and not inconsistent with, the provisions of this act are not thereby violated.  The local milk inspection service unit designated by the Director of Agriculture to render such inspection service shall issue permits in accordance with applicable provisions of all local ordinances of each city, townships or county into which fluid milk or fluid milk products are sold or delivered."

            The sections of the state law above referred to are illustrative of the comprehensive manner in which the state has preempted the field of legislation in regulating the manufacture and distribution of milk and milk products and the only power reserved to cities appears to be set forth in the proviso quoted above.

            In so far as milk products manufactured outside the state of Washington are concerned section 11 of Chapter 168, Laws of 1949 [Rem. Rev. Stat. 6266-39, Supp. 1949] sets forth the conditions under which they may be sold within the state.  When the Director of Agriculture has satisfied himself that such products are being produced and/or pasteurized under provisions equivalent to the requirements of the state law of Washington and that such provisions are being enforced, milk and milk products from outside the state may be sold within the state without becoming subject to more stringent ordinances of a city wherein they may be sold or distributed.  The proviso appearing in section 18, chapter 168, Laws of 1949  [[Orig. Op. Page 6]] [Rem. Rev. Stat. 6266-46, Supp. 1949] and quoted above must be construed as modifying the section wherein it appears and as such it has no application to milk or milk products coming from outside the state which as stated above are governed by another section of the law.

Very truly yours,

SMITH TROY
Attorney General

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