UNIFORM MILK FLUID ACT ‑- COUNTIES ‑- ORDINANCES

UNIFORM MILK FLUID ACT ‑- COUNTIES ‑- ORDINANCES

Where the county has not been certified as a local milk inspection service unit, the State Uniform Milk Fluid Act does not deprive the county appeal board of its powers to review degrading orders of the local health officer made in compliance with the local ordinance and not inconsistent with the provisions of the State Act.

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                                                               December 15, 1950

Honorable Orville E. Peebles
Deputy Prosecuting Attorney
Court House
Montesano, Washington                                                                                                              Cite as:  AGO 49-51 No. 401

Dear Sir:

            This is in reply to your letter of November 27, 1950, in which you requested our opinion on the effect of the State Uniform Milk Fluid Act on the powers of the appeal board under the Grays Harbor County milk ordinance.

            It is our understanding from the office of the Director of Agriculture, that Grays Harbor County has not yet been certified as a local milk inspection service unit.  Consequently, our opinion herein is confined to the situation as it presently exists in Grays Harbor County.

            Our conclusion may be stated as follows:

            Where the county has not been certified as a local milk inspection service unit, the State Uniform Milk Fluid Act does not deprive the county appeal board of its powers to review degrading orders of the local health officer made in compliance with the local ordinance and not inconsistent with the provisions of the State act.

                                                                     ANALYSIS

             [[Orig. Op. Page 2]]

            The Washington Uniform Milk Fluid Act is found in chapter 168, Laws of 1949 (Rem. Rev. Stat. 6266-30 to 6266-49).  Whether this act has pre‑empted the field of milk regulation so as to render invalid and ineffective local regulations concerning milk products depends upon the interpretation accorded the pertinent provisions of the State act.

            Section 3, of the State act (Rem. Rev. Stat. 6266-32) requires all persons who sell, produce, or storage milk, to secure a permit from the Director of Agriculture or from a local inspection service unit, and provides that such permit may be suspended by the Director of Agriculture or the health officer of such unit.

            Section 17 (Rem. Rev. Stat. 6266-45) provides for the certification of a local inspection service unit if any city or county desires to be so certified.  If a city or county is certified, then the unit, through its health officer, shall have full authority to perform all the duties relative to enforcing the State act.  Section 8 (Rem. Rev. Stat. 6266-37) gives the Director of Agriculture power to revoke any permit or degrade a milk product for failure to maintain the established grade.

            Section 18 (Rem. Rev. Stat. 6266-46) provides:

            "(a) Whenever a milk producer or milk distributor intends to deliver or sell fluid milk or fluid cream outside the jurisdiction of his own local milk inspection service unit, the Director of Agriculture, on application and after investigation and consultation with the health officer of each local milk inspection service unit concerned, shall designate which local milk inspection service unit shall conduct the inspections.  The Director of Agriculture, in making such designations, shall in addition to other matters considered by him, take into consideration the geographical convenience of each local milk inspection service unit and the percentage of fluid milk or fluid cream sold and/or delivered within the jurisdiction of such local milk inspection service units.  All fluid milk and fluid milk products so inspected may be sold and delivered within the jurisdiction of any local milk  [[Orig. Op. Page 3]] inspection service unit:  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, township or county into which fluid milk or fluid milk products are sold or delivered."

            Paragraph (b) of Section 18 provides that in case of any protest from any producer or health officer concerning the provisions of this act, the Director of Agriculture shall hold a hearing and make findings and enter orders.

            As already noted, we are only concerned with the situation where no local milk inspection service unit has been certified.  Consequently, our analysis of the problem concerns the general effect of the State act.  Our first inquiry then, is whether the State act was intended to preclude political subdivisions from enacting legislation on the subject of milk products.  We think not.

            It is our opinion that section 18, supra, expressly recognizes that cities and counties may enact milk regulations more stringent than, and not inconsistent with the State act.  For this conclusion, we look to that portion of section 18 which provides:

            "* * *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, township or county into which fluid milk or fluid milk products are sold or delivered."

             [[Orig. Op. Page 4]]

            Consequently, we think this language was intended to have general application, and was not intended to be limited to the situation where a local inspection unit is certified and milk is sold outside the jurisdiction of such unit.

            Even in the absence of such language as quoted above, we think the same conclusion would follow.  It is stated in 37 Am.Jur., page 790, as follows:

            "The mere fact that the state, in the exercise of the police power, has made certain regulations does not prohibit a municipality from exacting additional requirements.  So long as there is no conflict between the two, and the requirements of the municipal bylaw are not in themselves pernicious, as being unreasonable or discriminatory, both will stand.  The fact that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith, unless the statute limits the requirement for all cases to its own prescription.  Thus, where both an ordinance and a statute are prohibitory and the only difference between them is that the ordinance goes further in its prohibition, but not counter to the prohibition under the statute, and the municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required, there is nothing contradictory between the provisions of the statute and the ordinance because of which they cannot coexist and be effective.  Unless legislative provisions are contradictory in the sense that they cannot coexist, they are not deemed inconsistent because of mere lack of uniformity in detail."

            Thus, having concluded that cities and towns were not precluded in the State act from enacting regulatory measures in this field, our next inquiry is whether the existence of a county appeal board is inconsistent with the provisions of the State act.  The appeal board is created in section 16 of the county ordinance and is empowered "to review the action of the health officer in issuing a degrading order."  Thus, the jurisdiction of the appeal board is limited to degrading orders.

             [[Orig. Op. Page 5]]

            In section 8, of the State act, referred to heretofore, the Director of Agriculture is empowered to degrade any producer's milk when he finds the milk is not up to standard.  This order, if made, would, of course, be based on the standards prescribed by the State's act.

            However, since the county may enact more stringent regulations, it may occur that the county health officer, acting on the basis of and pursuant to the county regulations, may be compelled to enter a degrading order against a producer that would not be inconsistent with, or violate the State standards.  In such a case, it would appear that the producer's protest of such an order would not be against the Director of Agriculture, or affect the State's provisions, but would be properly directed to the county health officer.  Consequently, the county appeal board would be the proper reviewing agency where the degrading order is based on county standards and does not result in a conflict with the standards prescribed by the State act.

            This result follows, of course, only so long as the producer has a permit.  Should the Director of Agriculture revoke a producer's permit, as provided in section 8, rather than degrade the product, then, of course, any protest against the action of the health officer would be directed to the Director of Agriculture.  Without a State permit, the producer cannot sell his product in any area in the State, and the county appeal board could not rescind or affect the action of the Director of Agriculture.  Thus, since the county appeal board has limited jurisdiction in reviewing degrading orders of the local health officer, who would only have power in the instant situation to degrade a product so as not to violate the State act, we conclude that the State Uniform Milk Fluid Act did not deprive the county appeal board of its powers within its orbit of jurisdiction.

Very truly yours,

SMITH TROY
Attorney General

ROBERT L. SIMPSON
Assistant Attorney General