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Associated Dairy Products Co. v. Page

Supreme Court of Arizona

June 6, 1949

PAGE et al

Appeal from Superior Court, Cochise County; J. Mercer Johnson, Judge.

Judgment reversed with directions.

Snell, Wilmer, Walsh & Melczer, of Phoenix, for appellants.

David J. Marks, County Attorney, of Bisbee Wesley E. Polley, Chief Deputy County Attorney of Bisbee, for appellees.

Phelps, Justice. La Prade, C. J., and Udall, Stanford, and De Concini, JJ., concur.


Phelps, Justice.

Page 1042

[68 Ariz. 394] This is an appeal from a declaratory judgment of the Superior Court of Cochise County involving the validity of an ordinance enacted by the board of supervisors of said county designated as a "Public Health Service Milk Ordinance." The question presented for the determination of the court is: Did the board of supervisors have the authority under the law to enact said ordinance?

The facts in the case are that the board of supervisors enacted said ordinance on August 4, 1947, the purpose clause thereof being as follows: "An ordinance defining 'milk' and certain 'milk products', 'milk producer', 'pasteurization', etc., prohibiting the sale of adulterated and misbranded milk and milk products, requiring permits for the sale of milk and milk products, regulating the inspection of dairy farms and milk [68 Ariz. 395] plants, the examination, grading, labeling, placarding, pasteurizing, regrading, distribution, and sale of milk and milk products, providing for the publishing of milk grades, the construction of future dairies and milk plants, the enforcement of this ordinance, and the fixing of penalties."

While the ordinance is broader in scope than that indicated by the purpose clause above quoted, we feel that further details thereof are not essential to the solution of the issues involved.

The appellants are engaged in various aspects of the business of producing, purchasing, processing, selling, and distributing milk and other dairy products in Arizona. Some of the appellants reside, and are engaged in business in Cochise County and furnish the greater part of the outlet in that county for said milk and milk products produced and processed largely in Maricopa and Pinal Counties.

It is alleged in the complaint that by reason of the enactment of said ordinance, a controversy has arisen between the appellants and the board of supervisors, hereinafter called the board, and that prosecution

Page 1043

is threatened under the penal provisions of the ordinance unless appellants comply therewith. Appellants alleged that the board was without jurisdiction or authority to enact the ordinance. The board and other appellees have interposed as their answer to appellants what amounts to a general denial. In their briefs, however, they claim that the board acted entirely within its power in enacting said ordinance, and that section 17-309, A.C.A.1939, clearly delegates to said board the power to pass such ordinance. After a stipulation narrowing the issues between the parties litigant, both appellants and appellees moved for judgment on the pleadings. The court, after having taken the matter under advisement, denied appellant's motion and granted the motion of the appellees. Thereafter judgment was entered upholding the validity of said ordinance.

In considering the question of whether or not the board had the authority, under the law, to enact such an ordinance, we feel that the issue should be approached with the fundamental principle of law in mind that the constitution of Arizona, article 4, part 1, section 1 thereof, vests the legislative authority of the state in a legislature consisting of a senate and a house of representatives, reserving however, to the people the right of initiative and referendum.

The boards of supervisors of the various counties of the state have only such powers as have been expressly or by necessary implication, delegated to them by the state legislature. Hartford Accident and Indemnity Co. v. Wainscott, 41 Ariz. 439, 19 P.2d 328; Maricopa County v. Southern Pacific Co., 63 Ariz. 342, 162 P.2d 619. Implied powers do not exist independently of the grant of express powers and the only function of an implied power is to aid in carrying into effect a power expressly granted. Therefore, unless there has been [68 Ariz. 396] an express grant of power by the legislature to the board to enact the ordinance here involved, it must be held to be invalid, regardless of whether the subject of said ordinance is of local or state-wide concern.

We said in the case of Clayton v. State (on rehearing), 38 Ariz. 466, 300 P. 1010, that: "* * * Where the subject is one of local interest or concern, or where though not of local concern the charter or legislation confers on the city express power to legislate thereon, both jurisdictions may legislate on the same subject. Where, however, the subject is one of state-wide concern, and the Legislature has appropriated the field and declared the rule, its declaration is binding throughout the state." (Emphasis supplied.)

We reaffirmed this rule in the case of Keller v. State,46 Ariz. 106, 47 P.2d 442. It will be observed that these cases were discussing the legislative powers of ...

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