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Bob Ferguson

AGO 1949 No. 177 - Dec 12 1949
Attorney General Smith Troy


County may by ordinance require that all milk sold therein have a higher content of butter fat than that required under state law.

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                                                               December 12, 1949

Mr. Orville Peebles
Prosecuting Attorney
Grays Harbor County
Montesano, Washington                                                                                                              Cite as:  AGO 49-51 No. 177

Dear Sir:

            Your letter has been received in which you ask:

            "Can a County pass an ordinance requiring that all milk sold in said county be required to have a higher content of butter fat than that amount of butter fat required under the state law?"

            The conclusion reached may be summarized as follows:

            A resolution may be passed to the effect that all milk sold in the county be required to have a higher butter fat content than that provided by state law.


            Turning to the Washington Fluid Milk Law, section 1-A, chapter 168, Laws of 1949 (amending sections 61, 64 (9) Rem. Rev. Stat. 1943 Supp.), we find a provision that milk shall contain "* * * not less than three and one quarter percent (3.25%) of milk fat.  * * *"

            The State Constitution, section 11, article XI, 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 general laws."

            InSeattle v. Hewetson, 95 Wash. 612, it was said:  "The fact that there is state legislation relating to the sale of intoxicating liquor does not deprive the city of the power to legislate upon the same subject, as long as the city ordinance does not conflict with the general law of the state, unless the state act should show, upon its face, that it was intended to be exclusive."

            InSeattle v. Proctor, 183 Wash. 293, the court cites with approval the following quotation from 19 R.C.L. 805:

             [[Orig. Op. Page 2]]

            "'A municipal ordinance of a regulatory nature in contravention of the natural rights of individuals enacted under general charter powers is not only required to be constitutional, but it must be reasonable as well; that is, the court before which it is brought must be able to see that it will tend to promote the public health, morals, safety or welfare; that the means adopted are adapted to that end, and that it is impartial in operation and not unduly oppressive upon individuals.'"

            Though the cases cited above were concerned with city ordinances, their language is applicable to the legislative power of counties.  A county ordinance requiring a higher percentage of milk fat than that required by section 1-A above would not be in conflict with that section since the statute does not regulate the maximum milk fat content.

            We, therefore, are of the opinion that a county may pass a resolution regulating the butter fat content in milk sold within the county insofar as such regulation does not conflict with the state law and is not arbitrary or unreasonable.

Yours very truly,

Attorney General

Assistant Attorney General