valid. This phase of the question can be reached by requiring a license to sell milk and exacting of the dairyman that he will consent to an inspection of his premises.2 § 44. Destroying Impure Milk and Food. A statute or ordinance may authorize an inspector, on finding the milk offered, or intended to be offered, for sale is below the standard it fixes, or is impure, to destroy it. Such a statute or ordinance is within the police power of the State; and it may be exercised for the protection of the public. The destruction of the milk is necessary to prevent danger to life and health which would result from the use of it in an impure condition.1 So likewise impure food offered for sale, or even intended for sale, on the market may be seized and destroyed. "The right to so seize is based upon the right and duty of the State to protect and guard, as far as possible, the lives and health of its inhabitants, and that it is proper to provide that food which is unfit for human consumption shall be summarily seized and destroyed to prevent the danger which would arise from eating it. The right to seize and destroy is, of course, based upon the fact that the food is not fit to be eaten. Food that is in such a condition, if kept for sale or in danger of being sold, is in itself a nuisance of the most dangerous kind, involving, as it does, the health, if not the lives, of persons who may eat it.3 1 Norfolk v. Flynn, 101 Va. 473, 44 S. E. 717, 99 Am. St. 918, 62 L. R. A. 771; State v. Nelson, 66 Minn. 166, 68 N. W. 1066, 34 L. R. A. 318, 61 Am. St. 399; State v. Broadbelt, 89 Md. 565, 43 Atl. 771, 45 L. R. A. 433, 73 Am. St. 201; Walton v. Toledo, 23 Ohio Cir. Ct. Rep. 547; Adams V. Milwaukee 144 Wis. 371, 129 N. W. 518. 2 State v. Nelson, supra. 1 Blazier v. Miller, 10 Hun 435; Deems v. Baltimore, 80 Md. 164, 30 Atl. 648, 26 L. R. A. 541, 45 2 Ex parte Hayden, 147 Cal. 3 North American Storage Co. v. Chicago, 211 U. S. 306, 29 Sup. Ct. 101, 53 L. Ed. § 45. Revocation of Permit to Sell Milk-Notice. A statute in force in New York City provided that "No milk shall be received, held, kept, offered 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." Under this statute it was held that the Board of Health had power to revoke permits to sell milk, notwithstanding no ordinance had been adopted by the board authorizing such revocation. The permit contained a clause that it was "revocable at the pleasure of the Board" of Health. It was contended that the board could not revoke the permit, and the only recourse was to have the person to whom it was issued fined for selling impure milk, when it was sought to revoke his license for that reason. To this the court answered: "The sole authority that the health board would have, if this contention was correct, would be to prosecute the person selling the poisonous article in the shape of milk, fine him, and in the meantime such person could go on poisoning the people under a permit or license from the health authorities, a proposition which is so unreasonable that a mere statement is sufficient to refute it. There is nothing in either the Penal Code or the charter that makes such a permit irrevocable. The permit itself provides that it is revocable at the pleasure of the board, and the plaintiff accepted it with that condition. There is nothing unreasonable in this condition; and, irrespective of the general power of the board of health to revoke a permit which is being abused and under which the person accepting it and using it is persistently violating the law, it is certainly not an unreasonable condition to insert into such a permit a provision that it is revocable by the board that issues it. To hold that such a permit once granted is irrevocable would be to totally defeat the object of the statute in requiring such a permit before a person should engage in the business of supplying to the inhabitants of a city food." 1 Metropolitan Milk & Cream Co. v. New York, 113 N. Y. App. Div. 377, 98 N. Y. Supp. 894; affirmed without an opinion, 186 N. Y. 533, 78 N. E. 1107. 2 See also State v. Milwaukee, 140 Wis. 38, 121 N. W. 658. §46. Revocation of Permit to Sell Milk Without Notice Given.-Remedy by Mandamus. A statute relating to New York City provided that "No milk shall be received, held, kept, offered 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." In issuing a permit under this section the Board of Health inserted a provision in it that it was "revocable at the pleasure of the Board." This was held to be a valid provision. The board revoked six permits, having this clause in them, without notice to the licensee; and it was denied that its action was illegal. The revocation was made because the licensee had sold impure milk. The licensee contended the revocation was void because it destroyed a large business which he had for years been building up, and that such a business was property which could not be taken from him without due process of law. "But the good will of his business," said the court, "so established, must not be confounded with the permits granted to him to engage in that business. He was never licensed to sell impure and adulterated milk, and, after he had obtained his permit to sell, and undertook the securing of customers, he knew that he was engaged in a business which must be conducted under the supervision of the board of health of the city subject to the police powers of the State, and that such permits were subject to revocation. He knew that the permits contained no contract between the State or the board of health and himself, giving him any vested right to continue the business, and that it would become the duty of the board to revoke his license in case he violated the statute on the conditions under which it was granted. Milk is an article of food extensively used by our inhabitants, and is chiefly relied upon to support the lives of infant children. If impure and adulterated, or polluted with germs or infectious diseases, its use becomes highly dangerous, and the health and welfare of the without an opinion, 186 N. Y. 533, 78 N. E. 1107. 1 Metropolitan Milk & Cream Co. v New York, 113 N. Y. App. Div. 377, 98 N. Y. Supp. 894; affirmed public demand speedy, and, in some cases, instant prevention of its distribution to the people. While it is the duty of the board of health to watch and, through its inspectors, detect violations of the statute and the conditions imposed by it, it has been given no judicial power to hear, try and determine such violations, but must act upon the information obtained by it through its own channels of inquiry." The court then discusses the nature of a license, holding that it is not a contract but a mere permission, making this quotation: "Licenses to sell liquors are not contracts between the State and the persons licensed, giving the latter vested rights, protected on general principles and by the Constitution of the United States against subsequent legislation; nor are they property in any legal or constitutional sense. They have neither the quality of a contract, nor of property, but are merely temporary permits to do what otherwise would be an offense against a general law.'' The court then continues as follows: "The powers of the members of the board of health being administrative merely, they can issue or revoke permits to sell milk in the exercise of their best judgment, upon or without notice based upon such information as they may obtain through their own agencies; and their action is not subject to review either by appeal or certiorari.* If, however, their action is arbitrary, tyrannical and unreasonable, or is based upon false information, the relator may have a remedy through mandamus to right the wrong which he has suffered. If the relator can show that he and Mich. 406, 20 Am. Rep. 654; Commonwealth v. Kinsley, 133 Mass. 578; Voight v. Excise Commrs., 59 N. J. L. 358, 36 Atl. 686, 37 L. R. A. 292. 2 The court reviews at some length Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. Ed. 620; Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231, 32 L. Ed. 623; Metropolitan Board v. Barrie, 34 N. Y. 667; Metropolitan Board v. Heister, 37 N. Y. 661; People v. Board of Health, 140 N. Y. 1, 35 N. E. 320, 23 L. R. A. 481, 37 Am. St. 522, distinguishes In re Leyman, 160 N. Y. 96, 54 N. E. 57, and cites Youngblood v. Sexton, 32 3 Metropolitan Board v. Barrie, 34 N. Y. 667. 4 Citing Childs v. Bemus, 17 R. I. 230, 21 Atl. 539, 12 L. R. A. 57; State v. Doyle, 40 Wis. 230; Walbee v. Reno, 27 Nev. 71, 73 Pac. 528, 103 Am. St. 747, 63 L. R. A. 337. those acting for him have not been convicted of violating the statute and the conditions imposed in the granting of the permits, and that, consequently, he is a fit and proper person to engage in the sale and distribution of milk among the inhabitants of the city, then he would be entitled to the relief asked for. But if he desired to submit such evidence, he should have asked for an alternative, rather than a peremptory, writ. If, however, the charge of the board is true that he has been convicted of the offense charged the number of times stated, the conclusion is irresistible that he was an improper person to be intrusted with the permit of the city to dispense to the inhabitants of the city a food product that was liable, if adulterated, to endanger the health of the people. " There are a number of cases which support this case on the power of a board of health to revoke a license or permit without first giving notice to the licensee. If a statute provides for notice and hearing, then, of course, notice must be given in order to sustain the validity of the proceedings. But if it is expressly provided that no notice is necessary, anywhere to require them to give a hearing to any person before they can exercise their jurisdiction for the public welfare. The public health might suffer or be imperiled if their action could be delayed until a protracted hearing could be brought to a determination. There is no provision in the acts for calling or swearing witnesses, and there is no general law giving them power to do so." It was consequently held that the determination of the board of health as to the existence of a nuisance was not reviewable by certiorari. People v. Board of Health, 140 N. Y. 1, 35 N. E. 320, 37 Am. St. 522, 23 L. R. A. 481. |