Error to the Court of Civil Appeals for the Fourth District, in an appeal from Hidalgo County.
Smith, McIlheran & Jenkins and Garland F. Smith, all of City of Weslaco, for petitioner.
Kelley, Looney, McLean & Littleton, of Edinburg, and C. E. Blodget, of Tyler, for respondents.
Mr. Justice Culver delivered the opinion of the Court.
[ 1 Tex. Sup. J. Page 63]
Respondent, Melton, seeks to have a certain ordinance of the City of Weslaco, requiring pasteurization of all milk sold and offered for sale within the City, declared unconstitutional and void. He asserts that it is in conflict with and contrary to provisions of the State Statute, Art. 165-3, and, alternatively, that the requirement of pasteurization is an unreasonable exercise of the police power by this home rule city. He also prayed for an injunction restraining the enforcement of the ordinance. Judgment in the trial court went in favor of the City declaring the ordinance valid and denying the injunction. The Court of Civil Appeals reversed and rendered on the ground that the ordinance was an unreasonable exercise of the police power. 301 S.W.2d 470.
The Court of Civil Appeals correctly assumed that the ordinance does not conflict with the statute, but erred in its holding the the passage of the ordinance did not fall within the scope of the City's police power.
Articles 165-3 was enacted for the protection of the public health and is penal in nature. It provides for certain grades and labels for milk and milk products, namely A, B, C and D, both raw and pasteurized. It authorizes the State Health Officer to define and fix specifications for these grades in accordance with the statute and in conformity with the United States Public Health Ordinance. The statute itself demonstrates the intention on the part of the Legislature to provide for and establish grades of milk and specifications therefor as well as the labeling of the same to the end that uniformity shall prevail throughout the State. That intent is also revealed by reference to the emergency clause of the Act reading: "The fact that there are no State standards for the use of milk labels indicating the safety, quality and food value of milk and milk products and the fact that such labels are being used to misrepresent these qualities to the detriment of the public health, creates an emergency * * *." Acts 1937, 45th Legislature p. 353, ch. 172. The
[ 1 Tex. Sup. J. Page 64]
statute neither gives nor withholds the right to sell milk, but only makes provision by which a purchaser may be assured of the quality of milk he buys under the designated grades and labels. It does not forbid the sale of ungraded and unlabeled milk, but it does make it unlawful and a penal offense for anyone to sell milk as a labeled or graded product or to use the grades designated in the statute until he has complied with the specifications and regulations and obtains a permit.
The statute does not require, but allows the governing body of any city to make mandatory the grading and labeling of milk and milk products that are sold or offered for sale within the city limits under the United States Standard Milk Ordinance. Section 2 of the statute provides that: "Any city adopting any specifications and regulations for any grade of milk shall be governed by the specifications and regulations promulgated by the State Health Officer, as herein authorized." We take this to mean that the City may not by ordinance vary the specifications or regulations or prescribe different standards from those established by the Act, otherwise confusion would prevail throughout the State as to quality and food value. But a reasonable construction of this quoted provision leads to the further conclusion that a City may adopt any or all of the grades of milk named in the statute, and will be governed as to those so adopted by the specifications and regulations promulgated by the State Health Officer.
The Weslaco Ordinance adopts word for word the short form of the milk ordinance requiring pasteurization as suggested and recommended by the United States Public Health Service, though there is listed at the end of the United States Public Health Ordinance a list of changes in order to accommodate those communities which still find it necessary to permit the sale of raw milk.
Certainly the state preempted the field, by the enactment of this statute, so far as the grading and labeling of milk is concerned, but we find nothing in the statute that creates a conflict with the Weslaco Ordinance in banning the sale of some grades of milk that are named in the statute. Unless this be true a city in the interest of the health of its citizens could not restrain the sale of Grade D raw milk, the lowest grade established by the statute. It ...