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Loftus v. Russell

Supreme Court of Arizona

December 5, 1949

LOFTUS
v.
RUSSELL et al

The Supreme Court, LaPrade, C. J., held that the regulation was in fact a comprehensive health law in so far as it related to the dairy industry and that there was and can be no grant of legislative power to a county board of health to enact such a law, and ordered the alternative writ of prohibition previously issued made permanent.

Mangum & Flick, of Flagstaff, Mark Wilmer, of Phoenix, for petitioner.

Neil V. Christensen, County Attorney of Coconino County, F. M. Gold, of Flagstaff, for respondents.

Stewart L. Udall, of Tucson, amicus curiae.

La Prade, Chief Justice. Udall, Stanford, Phelps, and De Concini, JJ., concurring.

OPINION

La Prade, Chief Justice.

Page 92

[69 Ariz. 247] At the instance of Lloyd Loftus, petitioner above, there was issued out of this court an alternative writ of prohibition directed to the above-named respondents, The Superior Court of Coconino County, Arizona; H. L. Russell as Judge thereof; and Neil V. Christensen, as County Attorney, commanding them to refrain from taking any further proceedings in a certain criminal case pending in said court wherein the petitioner was being proceeded against by information charging him with unlawfully distributing and causing to be distributed in Coconino County milk and milk products without first obtaining a permit so to do from the County Superintendent of Health as required by Regulation No. 4 theretofore adopted by the Coconino County Board of Health, purportedly pursuant to the provisions of Section 68-205, A.C.A.1939. When the information was filed a warrant of arrest was regularly issued and executed by the sheriff by taking petitioner into custody, after which he was admitted to bail. A motion to quash the information was filed, presented, and denied, the basis of the motion being that the court had no jurisdiction of the offense charged or of the person of the defendant.

Upon denial of this motion the court set the cause for trial, which ruling prompted petitioner to seek the alternative writ in this court. The petition alleges that the respondents assert jurisdiction in the court to continue with the prosecution, and that unless prohibited by the writ sought would proceed with the prosecution "to the great loss, detriment, and damage of petitioner," and "That the real parties in interest herein in addition to Petitioner are milk producers and distributors of Maricopa County and Pinal County, Arizona, and merchants selling milk at retail in Coconino County, Arizona outside of incorporated cities; that Petitioner respectfully alleges that additional prosecutions under said Regulation No. 4 have been instituted in Coconino County, Arizona, by Respondent Neil V. Christensen against grocers and other distributors of milk and that said Respondent [69 Ariz. 248] threatens to institute further and additional prosecutions under said Regulation."

The petition for the writ further alleges that the court was without jurisdiction in the premises in that the regulation was void and unconstitutional for the following reasons:

Page 93

"(a) That the same attempts to vary, amend, extend and alter an existing state statute legislating upon the subject matter thereof, to wit: Chapter 50, Article 9, A.C.A.1939;

"(b) For the reason that said Board of Health is without jurisdiction or authority to enact a county-wide ordinance in an attempted exercise of the police power of the State of Arizona;

"(c) That Article 2, Chapter 68, A.C.A.1939, entirely fails to confer upon said County Board of Health any authority to enact a regulation of the type and character of said Regulation No. 4;

"(d) That any delegation of authority to said County Board of Health under said Article 2, Chapter 68, asserted or claimed to exist conferring upon said County Board of Health authority to enact such a regulation would constitute an unlawful delegation of power in violation of the provisions of the Arizona State Constitution, Article 4, Section 1, thereof;

Chapter 68 of the 1939 Code, Laws 1941, Ch. 105, Sec. 68-101 et seq., 1939 Code Cum. Pocket Supp., is entitled "Public Health." Article 1 of this chapter is entitled "State Department of Health," Article 2 "Local Boards of Health." The creation, powers, and duties of county boards of health are established in the following sections:

"68-201. County boards established -- Superintendent -- Duties. -- The chairman of the board of supervisors, the county attorney and the county superintendent of public health, of each county, shall constitute the county boards of health. * * * The board of supervisors shall appoint a superintendent of public health for the county, who shall be a practicing physician within the county, who shall hold his office for two (2) years and be secretary of the board. * * *"

"68-202. Powers and duties of boards. -- County boards * * * shall have such other powers, within their respective counties, outside of the corporate limits of cities having a city board of health, subject to the supervisory control of the state board of health, as have been hereinbefore granted the state board." (Emphasis supplied.)

"68-205. Sanitary regulations -- Violations -- Penalty -- Notice. -- Each city or county board of health, within its jurisdiction, shall examine into all nuisances, sources of filth and causes of sickness and make regulations regarding the same as are necessary for the public health and safety of the inhabitants. A person violating any published order or regulation, made by a board of health, shall be guilty of a misdemeanor [69 Ariz. 249] and punished by a fine of not exceeding one hundred dollars ($ 100), or by imprisonment not exceeding thirty (30) days, or both. * * *" (Emphasis supplied.)

It will be noted that the authority conferred in this last-named section is to adopt regulations concerning nuisances, sources of filth, and causes of sickness, as are necessary for the public health and safety of the inhabitants. In addition to this specific grant of authority there is the grant by reference contained in Section 68-202, supra, conferring upon county boards of health within their respective counties, outside of the corporate limits of cities having a city board of health, the powers theretofore granted to the State Board of Health. This regulation of the County Board of Health under consideration was adopted September 28, 1946. At this date, Article 1 of Chapter 68, A.C.A.1939, relative to the State Board of Health had been repealed and a new law enacted. See ...


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