In Re Hoffman

HENSHAW, J.

Habeas corpus.

The city of Los Angeles passed an ordinance, No. 13,171 (new series), regulating the sale of milk and cream. The ordinance contained many regulatory provisions making for hygienic conditions which are not necessary here to consider, for the petitioner was charged with and convicted of a violation of a single section of the ordinance. That section is number 9 and fixes the standard of milk sold in the city. It does this in the following language :—

“Section 9. The standard of milk ... in and for the city of Los Angeles is hereby defined and prescribed as follows:

“For Milk:

“Total milk solids, .12.5 per centum by weight.

“Butter fat, 3.5 per centum by weight.

“Water, 87.5 per centum by weight.”

Against the validity of this section petitioner advances several arguments.

1. He insists that the section is void because its provisions are vague, uncertain, and contradictory. In this his argument. is that the required standard is 87.5 per centum water. 12.5 per centum milk solids, and 3.5 per centum butter fat, or a total of 103.5 per centum of ingredients, which, as is very justly argued, is a physical impossibility, since the component parts of a single article cannot constitute more than 100 per centum, else the whole would be greater than all its parts. The answer to this, however, obviously is that the ordinance means that of the 12.5 per centum milk solids, at least 3.5 per centum shall be butter fat. So read, the ordinance is not objectionable upon the ground urged.

2. Subsequent to the passage of this ordinance, the state in 1907 placed upon its statute books “An act to prohibit adulteration and deception in the sale of dairy products, defining adulteration in dairy products, and to provide for enforcing

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its provisions.” (Stats. 1907, p. 265.) This statute declared that it shall be unlawful for any person to produce, manufacture, or prepare for sale, or to sell or offer for sale, or have on hand for sale, any milk that is adulterated within the meaning of the act. As to what should constitute adulteration, the act provided (see. 2) that milk should be deemed adulterated that did not conform with the following definition and standard: “Milk is the fresh, clean, lacteal secretion obtained by the complete milking of one or more healthy cows . . . and contains not less than three per cent of milk fat, and not less than eight and five-tenths per cent of solids —not fat. . . .” The constitution (art. XI, see. 11), empowers a city to make and enforce within its limits “all such-local, police, sanitary, and other regulations as are not in conflict with general laws.” It is insisted that the state, having thus provided a standard for pure milk, the attempt of the city ordinance to vary that standard creates a conflict in the law, with the necessary result that the ordinance must fall.