(81 N. J. L. 218) (Syllabus by the Court.) POWERS-REGULATIONS-SALE OF MILK. Boards of health are empowered by the act of April 23, 1897 (P. L. p. 270) and by the Pure Food Law of 1907 (P. L. p. 485), taken 80), to prohibit the sale of milk from diseased in conjunction with the act of 1887 (P. L. p. cows. statutory power in a paraphrase of the statu- | was done, no contract could be legally made. tory language, the resolution provides for The case is within the rule of Hurley v. the issue and sale of bonds to the amount Trenton, 66 N. J. Law, 538, 49 Atl. 518; afof $50,000, the proceeds of which said bonds firmed 67 N. J. Law, 350, 51 Atl. 1109, and shall be used only for the payment of the of Niles v. Board of Education, 70 N. J. costs of work or improvements therein au- Law, 1, 56 Atl. 312. The contracts should thorized. Since the resolution itself does not therefore be set aside. The prosecutors are assume to authorize any improvement, it entitled to costs. must be that the language means only to authorize the issue of bonds and to limit the use of the proceeds to the purposes authorized by the statute. To what specific purpose within the statutory limitation, the proceeds should be devoted was left undetermined. We see no objection to this course. (Supreme Court of New Jersey. June 6, 1911.) In fact, it seems the orderly procedure, first, to secure the money and then determine on the improvement to be made, as 1. HEALTH (8 20*) - BOARDS OF HEALTH we will hereafter attempt to show. [6] The objection to the resolution of December 21, 1910, for $15,000 additional bonds to improve the public park, cannot prevail. Although it says that the proceeds are to be used and applied for the improvement of the public park, the deposition shows that there was no such intention, but that the bonds were to be used to pay for the building of a pier on the specific tract mentioned in the resolution of November 2, 1910. The prosecutors cannot be injured by a mere inadvertence of that character; nor is it by any means certain that the language of the resolution refers to a use of the proceeds of the bonds in work to be done upon the land and water embraced within the limits of the park. The proceeds are according to the resolution to be used and applied "for the improvements of the said public park." It is quite within bounds to construe this as meaning that in the judgment of the council a pier upon the McGrath tract was an improvement of the adjoining public park. We think the objections to the resolutions providing for an issue of bonds are not well taken and those resolutions are affirmed. [7] The bonds were not sold, and from the action taken at the time of the resolution of December 21st it would seem as if they might not be salable, since the lowest bidders for the work agreed with the city on that day that, in the event that the city should be unable to sell the bonds, they would take so many of them as might be necessary at par and accrued interest in lieu of cash on account of their respective bids. The second section of the statute authorizes the council to apply the proceeds of the bonds to the payment of the cost of works or improvements authorized by the act. There is no other source from which funds can be had to meet the cost. The plain intent was that before the expense was incurred the amount available to meet it should be ascertained. Until that [Ed. Note.-For other cases, see Health, Cent. Dig. § 24; Dec. Dig. § 20.*] 2. HEALTH (§ 37*)-REGULATIONS-Board of HEALTH-VIOLATION. Whether cows from which a municipality is supplied with milk are diseased is a question that may in the first instance be determined by the local board of health. [Ed. Note.-For other cases, see Health, Dec. Dig. § 37.*] 3. HEALTH ( 37*)-REGULATIONS-BOARD OF HEALTH-VIOLATION. In determining whether cows from which a municipality is supplied with milk are diseased, the method of diagnosis adopted by the local board of health should be one that is well recognized, thoroughly approved, and as reliable as any. [Ed. Note.-For other cases, see Health, Dec. Dig. § 37.*] 4. HEALTH (§ 20*)-Board of HEALTH-POWERS-REGULATIONS. A local board of health may prohibit the sale within the municipality of milk from cows that react to the "tuberculin test." [Ed. Note.-For other cases, see Health, Cent. Dig. § 24; Dec. Dig. § 20.*] 5. HEALTH (§ 20*)-BOARD OF HEALTH-REGULATIONS-REVIEW BY COURTS. The action of a local board in adopting measures for the protection of public health will not be set aside by the court if the board has isfy a reasonable man. acted reasonably upon evidence that might sat [Ed. Note.-For other cases, see Health, Cent. Dig. § 24; Dec. Dig. § 20.*] - POLICE 6. COMMERCE (§ 52*) — REGULATION [Ed. Note. For other cases, see Commerce, Cent. Dig. 88 48-53; Dec. Dig. § 52.*] Certiorari by the State, on the relation of Borden's Condensed Milk Company, against the Board of Health of the Town of Mont- | health to require the use of the tuberculin clair. Writ dismissed. test upon cows as a condition for the sale of milk in Montclair. Argued February term, 1911, before SWAYZE, BERGEN, and MINTURN, JJ. Charles D. Thompson and Gilbert Collins (R. V. Lindabury, George L. Nichols, William M. Chadbourne, and Sinclair Hamilton, on the brief), for prosecutor. Edwin B. Goodell and Edward M. Colie, for defendant. SWAYZE, J. The prosecutor seeks to set aside a portion of article 8 of the Sanitary Code of Montclair, relating to milk and its production. The portion of which he complains reads as follows: [1] The power of the board of health is to be found in the act of April 23, 1897 (P. L p. 270), section 2 of which was amended by the act of April 21, 1898 (P. L. p. 429). This legislation is more recent than the act printed in the General Statutes on page 1644, and is more specific in its terms. Section 3, par. 6, of the Pure Food Law of 1907, enacts that a food shall be deemed to be adulterated if it is the product of a diseased animal (P. L. 1907, p. 486), and the local board of health, by the original act of 1887 (P. L. pp. 80, 86), "No milk shall be sold or offered for sale is empowered to pass ordinances and make or distributed in the town of Montclair ex- rules and regulations to aid in the enforcecept from cows in good health, nor unless ment of the law as to the adulteration of all the cows from which it is obtained have kinds of food and drink. Section 8 of the within one year been examined by a vet- act of 1907 (P. L. p. 489) is obviously an aderinarian whose competency is vouched for dition to and not a substitute for the earlier by the State Veterinary Association of the legislation, and section 3, par. 6 of the same state in which the herd is located, and a act. The effect of these statutes, as far as certificate signed by such veterinarian has applicable, seems to be the same. The first been filed with the board of health, stating section of the act of 1897 authorizes a local the number of cows in each herd that are board of health to prohibit the sale of milk free from disease. This examination shall produced from diseased cows. [2] The statinclude the tuberculin test, and charts show-ute is silent as to the method by which the ing the reaction of each individual cow shall existence of disease is to be determined. be filed with this board. All cows which re- The fact, on which the right of the board to act shall be removed from the premises at act depends, is or may be a matter of opinonce if the sale of milk is to continue, and ion or inference on which experts may disno cows shall be added to a herd until cer- agree. Since no other tribunal is providtificates of satisfactory tuberculin tests of ed, the natural inference is that this quessaid cows have been filed with this board. tion should in the first instance be determined by the board, which is the body called upon to act. Valentine v. Englewood, 76 N. J. Law, 509, 71 Atl. 344, 19 L. R. A. (N. S.) 262. The board of health must necessarily decide this jurisdictional fact, and determine whether or not it has jurisdiction, just as in Grove v. Van Duyn, 44 N. J. Law, 654, 43 Am. Rep. 412, the justice of the peace was required to do. This is not denied by the prosecutor. What the prosecutor complains of is that the Sanitary Code of Montclair makes the right to sell milk depend, not upon the fact of the existence of disease in the cow, but upon the result of a specific method of diagnosis-the use of the tuberculin test. [3] It must be conceded that where, as in this case, the board of health makes the determination of the existence of disease depend upon a special method of diagnosis, that method must be, if not the most reliable, as reliable as any. The existence of disease is necessarily to some extent a matter of opinion or inference from established facts. The most skillful veterinarian may err. The most reliable symptoms may be deceptive, and absolute accuracy in diagnosis cannot be looked for. To demand it is a counsel of perfection not adapted to the exigencies of everyday life. Perfection of that degree is not attained under the diagnosis of human diseases where the physician has the advantage of a patient able to state subjec "The board of health may, from time to time, when in its opinion the public interest may require, permit, by resolution, the sale of milk that is produced under conditions other than as herein specified, provided that such milk is pasteurized by subjecting it to a temperature of 150° F. for twenty minutes, or by an equivalent process. "No cream shall be sold, exposed for sale or delivered within the town of Montclair, unless it be produced and handled in accordance with the requirements herein before set forth for the production and handling of milk." The effect of these provisions is to exclude from sale in the town of Montclair milk and cream regardless of whether in fact it is good and wholesome and regardless of the condition of the cows, if they cannot pass what is called the tuberculin test, except where the board of health by special permission allows milk to be sold after it has been pasteurized. The prosecutor is a large dealer in that town and obtains its supply from special herds of cattle in Chenango county, N. Y. It cannot induce the farmers from whom it obtains the supply for Montclair to submit their cows to this test. It is claimed that the effect of the ordinance will be to compel the prosecutor to with draw from the business of vending milk in the town. The question is whether it is a plaint. All that can be fairly required in, established that there is very little chance the determination of the fact of disease is of communication of bovine tuberculosis to that the method of diagnosis should be well human beings above the age of 16 years, but recognized, thoroughly approved, and as re- that there is very serious danger of comliable as any. [4] We find that the tubercu- munication through the medium of milk to lin test is the most reliable method of di- human beings under 16 years of age and esagnosis of tuberculosis in cattle now known; pecially to children under 5 years of age. that, while it is not perfect, the percentage It is conceded that there are such cases. of error is as small as in any method sug- The concession that bovine tuberculosis may gested; and that it is more accurate than be communicated to young children, and the method by physical examination. We that, although it appears in them in the less rest this conclusion not merely upon the tes- common forms rather than in the form of timony in the case, but upon the fact that it pulmonary tuberculosis, suffices to justify achas been approved by judicial decision in tion to guard the young against the conta Minnesota, Louisiana, Wisconsin, and Penn- gion. It is for the board of health to decide sylvania (State v. Nelson, 66 Minn. 166, 68 how many lives must be endangered, and N. W. 1066, 34 L. R. A. 318, 61 Am. St. Rep. whether the lives of a few infants or chil399; Nelson v. Minneapolis [Minn.] 127 N. dren are worth the effort and the financial W. 445, 29 L. R. A. (N. S.) 260; City of New loss. To suggest these considerations is to Orleans v. Charouleau, 121 La. 890, 46 South. answer them. If the life of one child is en911, 18 L. R. A. (N. S.) 368, 126 Am. St. dangered, extreme prudence may be proper. Rep. 332; Adams v. Milwaukee, 129 N. W. To secure protection to the young at any 518, 144 Wis. 371; Limber v. Meadville, in rate, it is necessary to adopt some method of Crawford Common Pleas, Pennsylvania), and determining whether or not milk exposed for adopted by the most recent statute in Dela- sale is contaminated with the germs of tuware, Indiana, Maryland, Michigan, Minne- berculosis. Probably the best, perhaps the sota, New Mexico, North Dakota, Oregon, only thorough, way of determining the char Pennsylvania, South Carolina, Tennessee, acter of the milk, is by a bacteriological exWashington, and Wisconsin, and for some amination of the milk itself; but this propurposes by Maine, Massachusetts, and Ver- cess is impracticable. It requires the use of mont. The "tuberculean test" referred to in high power microscopes, with which it is the act of South Dakota is probably the impossible to examine at any time more than same. A similar act was passed by our own an infinitesimal portion of the milk, and that Legislature in 1899 (P. L. p. 484). These portion may or may not be a fair sample of statutes are legislative testimony of cumula- the whole bulk, while to examine specimens tive force to the value of the tuberculin test enough to reach a fair average requires so as a diagnostic agent. We think therefore much time that a commodity as perishable that the board of health is justified in the as milk would spoil while being tested. [5] position that cattle that react to the tuber- We cannot say that, in adopting the tuberculin test are diseased. That conclusion culin test, the board of health exceeded its may occasionally be erroneous, but it is as legitimate function. That function is disnearly accurate as is possible. The statute tinct from the function of the court. The empowers the board of health to prohibit the decision of a particular question, especially sale of milk from such cattle. one of expert scientific opinion, is more prop It is objected that the ordinance goes far-erly intrusted to an administrative tribunal. ther than is necessary for the protection of the public, and hence farther than is warranted by any power that can be given by a statute that by its title relates only to health. We do not accede to this argument. To protect the public against danger from impure milk, some practicable method of ascertaining its impurity must be devised. One of the most serious dangers that may arise is the spread of an infectious or communicable disease, such as tuberculosis is declared to be by the act of 1909 (P. L. p. 421). The argument is that the danger of communication of tuberculosis by means of milk is so slight as to be negligible, and the tuberculin test is therefore unnecessary; that it is not a sufficiently accurate method of determining the quality of milk to justify condemnation on no other ground than that the cows react to the test. Scientific men who have made a study of the subject are not agreed as to the probability of the communication of tuberculosis from cattle to man by means of milk and the In the case of assessments for benefits for a municipal improvement, the court does not review the judgment of the commissioners as to the extent of the benefit if there was evidence upon which a reasonable man might have reached the same result. In considering a case on appeal from a district court or on a writ of error, we do not ourselves pass upon the question of fact involved, but we accept the finding of the lower court or jury as conclusive if there was any evidence to warrant it. The same principle applies to an administrative body like a board of health, and, if it acts reasonably upon evidence that might satisfy a reasonable man, we ought not to disturb its action, even if our minds are led to a different result. We do not say that we would have reached a different result in the present case. The evidence justifies a finding that the subjection of the cows from which a supply of milk is derived to the tuberculin test is a reasonable method of determining not only their milk may carry the germs of tuber- | The right to enact such legislation must be culosis. If the cows are diseased, the milk is by statute pronounced adulterated, and whether in fact it is wholesome or not can only be of importance in considering the constitutionality of the legislation, a topic to which we shall recur. Shivers v. Newton, 45 N. J. Law, 469. That the ordinance is not necessarily oppressive is proved by the ready compliance therewith by the other milk dealers in Montclair. We are not impressed by the suggestions that healthy cows may, and diseased cows may not, react to the tuberculin test; that many cows react that have had tuberculosis and recovered; that many that now have tuberculosis are likely to recover; and that it is possible for the producer of milk to destroy the value of the test by trick. These arguments would be of more importance if the board of health were undertaking to condemn to death all cattle that react. This they are not doing. If the cattle are likely to recover, the owner may keep them until they do, and may use their product for any proper purpose. His loss is similar in kind, although perhaps greater in degree, than the loss of milk at the time of parturition. If the cows are in fact free from tuberculosis, or have already recovered, he could no doubt make a market for his milk upon establishing those facts. Provision is made for special cases by section 7 of article 8 of the Sanitary Code. The fact that the value of the test may be destroyed by the trick of the owner of the cow only shows that the method is not perfect; few methods could be beyond the reach of possible deception. It is beside the point to suggest that, if this test were applied to human beings, 80 per cent. of mankind must be condemned as diseased. In dealing with human beings a different rule is followed from that which is applied in dealing with cattle, because men make the rule. The test might be applicable to human beings if it were proposed to use the produce of their bodies as food for others. A wet nurse might properly be subjected to a more stringent examination. [6] The most important question raised in this case, and certainly one of the most difficult, is that which relates to the validity of this legislation under the federal Constitution. We do not stop to consider whether the method adopted by the prosecutors for shipping milk from New York to New Jersey was such as to bring it within the rule of Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128, or the later rule of Austin v Tennessee, 179 U. S. 343, 21 Sup. Ct. 132, 45 L. Ed. 224. We prefer to deal with the more fundamental question. It must be conceded that the statute and the ordinance, as we construe them, deprive the prosecutor of property and may in a probable case interfere with interstate commerce, even if the present case, like Austin v. Tennessee, does not involve a shipment in original packages. rested upon the police power of the state. We need not review the numerous cases upon this subject. We content ourselves with a reference to some of the more recent cases and some more precisely in point. One of the most important is Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643, which involved the constitutionality of the compulsory vaccination act of Massachusetts. It was urged that scientific men were not agreed as to the value of vaccination as a preventative of smallpox, and that vaccination sometimes produced worse diseases than it prevented and frequently operated to the detriment of the individual. The argument was similar to that already adverted to against the tuberculin test; but the court said that the Legislature was not compelled to submit a matter involving the public health and safety to the final decision of the court or jury. "It is no part of the function of a court or jury," said Justice Harlan, "to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative department to determine in the light of all the information it had or could obtain. It could not properly abdi cate its function to guard the public health and safety. The state Legislature proceeded upon the theory which recognized vaccination as at least as effective if not the best known way in which to meet and suppress the evils of a smallpox epidemic that imperiled an entire population. Upon what sound principles as to the relations existing between the different departments of government can the court review this action of the Legislature? If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the Legislature has done comes within the rule that if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge and thereby give effect to the Constitution." "The defendant offered to prove that vaccination quite often caused serious and permanent injury to the health of the person vaccinated; that the operation occasionally resulted in death; that it was impossible to tell in any particular case what the result of vaccination would be, or whether it would injure the health or result in death; that quite often one's blood is in a certain condition of impurity when it is not prudent or safe to vaccinate him; that there is no practical test by which to determine with any degree of certainty whether one's blood is in such condition of impurity as to render vaccination necessarily unsafe or dangerous; that vaccine matter is quite often impure own judgment without the aid of a jury. But whatever the tribunal, in questions of this kind, great caution must be used in overruling the decision of the local authorities or in allowing it to be overruled." If the present ordinance is tried by the test applied to these cases, we think it must be said that the means employed by the board of health have a real substantial relation to a public object which government can accomplish, and that the ordinance is not arbitrary and unreasonable and beyond the necessities of the case. The line of cleavage between what is permissible and what is not is il v. Massachusetts and Wong Wai v. Williamson (C. C.) 103 Fed. 1. In that case the court pronounced unconstitutional a regulation of the San Francisco Board of Health providing that no Asiatic or Chinese should depart from the city without being inoculated with a cer and dangerous to be used, but whether im- [ cemetery lots of property worth $75,000, and pure or not cannot be ascertained by any the cemetery company offered to prove that known practical test; that the defendant re- its cemetery was in no way harmful, and fused to submit to vaccination for the reason that the popular belief was a superstition. that he had when a child been caused great | Mr. Justice Holmes said: "It may be, in a and extreme suffering for a long period by a matter of this kind, where the finding of fact disease produced by vaccination; and that is merely a premise to laying down a rule of he had witnessed a similar result of vaccina- | law, that this court has power to form its tion not only in the case of his son, but in the cases of others." The case that Jacobson offered to make against the propriety of vaccinating him was much stronger than the case made by the prosecutor against the use of the tuberculin test for cattle, especially in view of the fact that the health authorities in the Jacobson Case were dealing with a human life. Yet the court said that the offer of evidence "in effect invited the court and jury to go over the whole ground gone over by the Legislature when it enacted the statute in question," and that, "while this court should guard with firmness every right appertaining to life, liberty or property as se-lustrated by the difference between Jacobson cured to the individual by the supreme law of the land, it is of the last importance that it should not invade the domain of local authority except when it is plainly necessary to do so in order to enforce that law. This case has recently been cited and relied upon as authority by the Court of Errors and Ap-tain serum, used as a prophylactic. Obviously peals in an action where the board of health went further than to enact a general regulation as in the present case, and actually interfered with a man's liberty and property because in their opinion there was danger of the spread of scarlet fever. Valentine v. Englewood, 76 N. J. Law, 509, 71 Atl. 344, 19 L. R. A. (N. S.) 262. Since the decision of Jacobson v. Massachusetts, the United States Supreme Court has sustained an ordinance of San Francisco, granting a sole and exclusive right for 50 years to cremate and destroy within that city and county, house refuse, dead animals, and the like. The effect of the ordinance was to deprive scav-ed the entry into Missouri at certain seasons engers of their occupation. It was, however, of the year of any Texas, Mexican, or Indian sustained, and the court declared it to be cattle whatever. Later, when a similar queswell settled that if a regulation enacted by tion arose under the action of the authorities competent public authority avowedly for the of Texas, prohibiting the entry into the state protection of the public health has a real, of cattle, mules, or horses from Louisiana, substantial relation to that object, the courts the action of the authorities was sustained. will not strike it down upon grounds merely The court said that the validity of the action of public policy or expediency. Reduction "depends upon whether the police power of Company v. Sanitary Works, 199 U. S. 306, the state has been exerted beyond its provi26 Sup. Ct. 100, 50 L. Ed. 204. Ordinances sions, exerted to regulate interstate comof a similar character in the city of Detroit merce, exerted to exclude, without discrimwere also sustained. Gardner v. Michigan, ination, the good and the bad, the healthy 199 U. S. 325, 26 Sup. Ct. 106, 37 L. Ed. 1107. and the diseased, and to an extent beyond We have followed these cases. Atlantic City | what is necessary for any proper quarantine. v. Abbott, 73 N. J. Law, 281, 62 Atl. 999. In The words in italics express an important Laurel Hill Cemetery Company v. San Fran- qualification. The prevention of disease is cisco, 216 U. S. 358, 30 Sup. Ct. 301, 54 L. the essence of a quarantine law. Such law Ed. 515, an ordinance prohibiting burial of is directed not only to the actually diseased, the dead within the limits of a populous but to what has become exposed to disease." city, based upon a determination of the city Smith v. St. Louis & S. W. Railway, 181 U. authorities that the practice was dangerous S. 248, 21 Sup. Ct. 603, 45 L. Ed. 847. This to life and detrimental to public health, was is very near to the present case for surely it was of no importance to the health of San Francisco that one who was departing for another place should be protected against a future attack of bubonic plague. San Francisco might protect itself against the introduction of disease, but it was not for that city to undertake the protection of other municipalities. The United States Supreme Court has also had to deal with questions of a similar character affecting the quarantine of cattle, and the prosecutors rely upon Railroad Company v. Husen, 95 U. S. 465, 24 L. Ed. 527. But that case was decided upon the ground that the statute held invalid prevent |