Argument for Plaintiff in Error. 199 U. S. THE PEOPLE OF THE STATE OF NEW YORK ex rel. LIEBERMAN v. VAN DE CARR, WARDEN. ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK. No. 71. Argued November 9, 1905.-Decided December 11, 1905. A State has the right, in the exercise of the police power, and with a view to protect the public health and welfare, to make reasonable regulations in regard to such occupations as may, if unrestrained, become unsafe or dangerous, and the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on such a trade or business is not violative of the Fourteenth Amendment. There is no presumption that a power granted to an administrative board will be arbitrarily or improperly exercised, and this court will not interfere with the exercise of such a power where the record does not disclose any ground on which the board acted. It is primarily for the State to select the businesses to be regulated, and if those selected are proper subjects for regulation, those engaged therein are not denied the equal protection of the laws because other businesses are not subjected to similar regulations, provided all engaged in the same business are treated alike. Section 66 of the Sanitary Code of the City of New York, regulating the sale of milk in that city, as the same has been construed by the highest court of that state, held not violative of the Fourteenth Amendment as depriving those engaged in that business of their property without due process of law or denying them the equal protection of the laws. THE facts, which involved the constitutionality of section 66 of the Sanitary Code of the city of New York in regard to the sale of milk in that city, are stated in the opinion. Mr. Frank Moss for plaintiff in error: The section of the Sanitary Code involved in this action is unconstitutional and repugnant to the provisions of the Four teenth Amendment. It is an ordinance enforced by the State, under section 1172 of the city charter, which abridges the privileges and immunities of citizens, and deprives persons of property without due process of law, and denies to persons the equal protection of the 199 U. S. Argument for Defendant in Error. laws. It is not designed to protect the health of the public, and is not in any view necessary, but is an instrument of oppression, which gives to the unelected Board of Health, arbitrary powers, the misuse of which cannot be corrected by mandamus, appeal· or other legal proceedings. The Board of Health has unnecessarily and unduly selected this business out of many others holding similar relations to the public, and has imposed its prohibition by the permit system on it alone. Section 66 puts the holding, keeping, selling and delivering of milk under the arbitrary and absolute power of the Board of Health, without declaring any lines or limits for the exercise of its prohibitive action, and it allows the Board to load its permits with conditions, the nature of which is not indicated. or limited in the ordinance or in the code. The language of the section permits unjust discrimination and the evils of its abuse cannot be corrected by mandamus. Yick Wo v. Hopkins, 118 U. S. 356; People v. Noel, 187 Illinois, 587; Grundling v. Chicago, 177 U. S. 356; Dunham v. Rochester, 5 Cow. (N. Y.) 462; St. Paul v. Laidler, 2 Minnesota, 190; Richmond v. Dudley, 129 Indiana, 112; Plymouth v. Schultheis, 135 Indiana, 339, 701; State v. Dubarry, 44 La. Ann. 1117; State v. Deffer, 45 La. Ann. 658; State v. Tenant, 110 N. Car. 609. As to how such a statute should be construed the court below clearly erred in relying on Nechamous v. Warden, 144 N. Y. 539, and see Rochester v. West, 164 N. Y. 514, in which it was held that the validity of a statute is not to be determined by what has been done in a particular instance, but by what may be done under it. Mr. Theodore Connoly for defendant in error:. The Fourteenth Amendment does not take away from the State the power to pass police regulations affecting the health, safety and morals of the people. Barbier v. Connolly, 113 U. S. 27; Minneapolis &c. Ry. Co. v. Beckwith, 129 U. S. 26; Giozza v. Tiernan, 148 U. S. 657; Jones v. Brim, 165 U. S. 180. Argument for Defendant in Error. 199 U. S. The presumption which exists in favor of the constitutionality of a statute is especially strong in the case of statutes intended for the protection of the health and comfort of the community, and it will be presumed that each state legislature has most knowledge of the needs of its people. Powell v. Pennsylvania, 127 U. S. 678, 684; Atkin v. Kansas, 191 U. S. 207, 223. One of the fundamental duties of the State is to exercise the police power to protect and preserve the health of its people. Commonwealth v. Alger, 7 Cush. 53; Beer Co. v. Massachusetts, 97 U. S. 25; Hawkes v. New York, 170 U. S. 189; Jacobson v. Massachusetts, 197 U. S. 24. Health statutes which may be passed either by a state legislature or ordinances passed under legislative authority by the municipal departments of cities which regulate the conditions under which the supply of milk to the community may be had, are valid police statutes and within the power of the legislature, or of their agents, the municipal corporations acting under statutory authority. Fisher v. St. Louis, 194 U. S. 361; Johnson v. Simonton, 43 California, 242, 249; State v. Schlenker, 112 Iowa, 642; Kansas v. Cook, 38 Mo. App. 660; Sanders v. Commonwealth, 25 Ky. Law Rep. 1165; State v. Fourcade, 45 La. Ann. 717; State v. Dupaquier, 46 La. Ann. 577; State v. Stone, 46 La. Ann. 147; State v. Rogers, 95 Maine, 94; Deems v. Baltimore, 80 Maryland, 164; State v. Broadbelt, 89 Maryland, 565; Commonwealth v. Farren, 9 Allen, 489; Commonwealth v. Nichols, 10 Allen, 199; Commonwealth v. Waite, 11 Allen, 264; Commonwealth v. Evans, 132 Massachusetts, 11; Commonwealth v. Luscomb, 130 Massachusetts, 42; State v. Nelson, 66 Minnesota, 166; State v. Creamery Co., 83 Minnesota, 284; Littlefield v. State, 42 Nebraska, 223; State v. Campbell, 64 N. H. 402; Shivers v. Newton; 45 N. J. L. 469; Polinsky v. People, 73 N. Y. 65; People v. Cipperly, 37 Hun, 324; S. C. 101 N. Y. 634; People v. West, 106 N. Y. 293; People v. Kibler, 106 N. Y. 321; People v. Briggs, 114 N. Y. 56; People v. Biesecker, 169 N. Y. 53; State v. Smith, 10 R. I. 258; State v. Smyth, 14 199 U.S. Argument for Defendant in Error. R. I. 100; State v. Groves, 15 R. I. 208; Norfolk v. Flynn, 101 Virginia, 473. As to the constitutionality of the Agricultural Law, Laws, 1893, ch. 338; Laws, 1900, ch. 101, creating a standard of pure milk in that State, see People v. Bowen, 182 N. Y. 10. In an unbroken line of decisions the New York Court of Appeals has sustained the validity of the milk laws. Similar legislation regulating the sale and standard of oleomargarine has also received uniform support from the courts. Powell v. Pennsylvania, 127 U. S. 678; Plumley v. Massachusetts, 155 U. S. 461; Schollenberger v. Pennsylvania, 171 U. S. 1; Capital City Dairy Co. v. Ohio, 183 U. S. 238; In re Brosnahan, 18 Fed. Rep. 62; Armour Packing Co. v. Snyder, 84 Fed. Rep. 136; Cook v. State, 110 Alabama, 40; State v. Armour Packing Co., 100 N. W. Rep. (Iowa) 59; State v. Rogers, 95 Maine, 94; McAllister v. State, 72 Maryland, 390; Pierce v. State, 63 Maryland, 592; Fox v. State, 89 Maryland, 381; Wright v. State, 88 Maryland, 436; Commonwealth v. Huntley, 156 Massachusetts, 236; People v. Rotter, 91 N. W. Rep. (Mich.) 167; Butler 'v. Chambers, 36 Minnesota, 69; State v. Horgan, 55 Minnesota, 183; Wiedman v. State, 56 N. W. Rep. 688; State v. Addington, 77 Missouri, 110; State v. Bockstruck, 136 Missouri, 335; Beha v. State, 93 N. W. Rep. (Neb.) 155; State v. Marshall, 64 N. H. 549; State v. Collins, 45 Atl. Rep. (N. H.) 1080; State v. Ball, 70 N. H. 40; State v. Newton, 50 N. J. L. 534; People v. Arensberg, 105 N. Y. 123; Palmer v. State, 39 Ohio St. 236; State v. Ransick, 62 Ohio St. 283; Commonwealth v. Weiss, 139 Pa. St. 247; Commonwealth v. Van Dyke, 13 Pa. Sup. Ct. 484; Commonwealth v. McCann, 14 Pa. Sup. Ct. 221; Commonwealth v. Diefenbacher, 14 Pa. Sup. Ct. 264; State v. Meyer, 42 W. Va. 822. So as to statutes regulating the production and sale of lard. State v. Snow, 81 Iowa, 642; State v. Aslesen, 50 Minnesota, 5. Similar legislation affecting the production and manufacture of vinegar has also been sustained. People v. Girard, 145 N. Y. 105; People v. Niagara Fruit Co., 75 App. Div. N. Y. 11, aff'd Argument for Defendant in Error. 199 U. S. 173 N. Y. 629; People v. Heinze Co., 90 App. Div. N. Y. 408, People v. Windholz, 92 App. Div. N. Y. 569; People v. Worden Grocery Co., 118 Michigan, 604; Weller v. State, 53 Ohio St., 77. Statutes regulating the standard of baking powder were upheld in Stolz v. Thompson, 44 Minnesota, 271; State v. Sherod, 83 N. W. Rep. 417; 80 Minnesota, 446; Missouri v. Layton, 160 Missouri, 474; S. C., 187 U. S. 356. As to the adulteration of coffee see Crossman v. Lurman, 192 U. S. 189. Wherever the legislature in its wisdom, with a view to protecting the health of the people and impelled solely by this desire, has controlled the manufacture, production and supply of articles of food, the courts have been unanimous in upholding the constitutionality of these health enactments. The performance by boards of health of the duties intrusted to their care by the state legislature, although the fulfillment of these responsibilities carry with it the exercise of a reasonable discretion, is not a delegation of legislative power reposed solely in the legislature, but an exercise of administrative and ministerial functions by agents best qualified to understand the conditions of the case and to appreciate the necessities of the exercise of their power. Cases supra and Dent v. West Virginia, 129 U. S. 114; Crowley v. Christensen, 137 U. S. 91; Field v. Clark, 143 U. S. 649; In re Kollock, 165 U. S. 526; Davis v. Massachusetts, 167 U. S. 43; Wilson v. Eureka City, 173 U. S. 32; Gundling v. Chicago, 177 U. S. 183; Fisher v. St. Louis, 194 U. S. 361; In re Flaherty, 105 California, 558; Fitts v. Atlanta, 67 L. R. A. 803; Blue v. Beach, 155 Indiana, 121; Isenhour v. State, 157 Indiana, 517; Hengehold v. Covington, 57 S. W. Rep. 495; State v. Broadbelt, 89 Maryland, 565; Love v. Judge of Recorders' Court, 128 Michigan, 552; Commonwealth v. Plaisted, 148 Massachusetts, 375; Polinsky v. People, 73 N. Y. 65; State v. Briggs, 77 Pac. Rep. (Or.) 750. The classification of milk dealers is a proper one and works no discrimination. It is properly left to the judgment and discretion of the Board of Health. Cases supra and Slaughterhouse Cases, 16 Wall. 36; Missouri v. Lewis, 101 U. S. 22; Soon |