I dissent. I think that the last clause of the ordinance in question is manifestly unreasonable and, as construed by the Appellate Division, grossly oppressive.
It is unnecessary to commend the purpose of municipal legislation designed to insure the purity of milk furnished to the community. Of course the motives which induce such enactments are commendable. But the worthiest of motives does not legalize an unreasonable ordinance.
This enactment forbids the purveyor of milk from resuming possession of the bottles in which the milk has been furnished to the customer unless such bottles have been cleaned before they are taken back. The vendor is not given a reasonable time within which to clean them; he is not given any time at all. If he has such receptacles *Page 224 in his possession which have not been washed after holding milk he is liable to fine and imprisonment no matter how short may be the duration of his possession, and although he proceeds to cleanse the bottles with the utmost celerity. He may notreceive them if they are unwashed. It seems to me too clear for argument that such an ordinance deprives the milk dealer of his property without any neglect or wrongdoing on his part. He cannot lawfully regain it unless the consumer over whom he has no legal control, has previously cleansed the receptacle in which the milk was furnished.
No doubt the ordinance could be reconstructed so as to be reasonable. This has been attempted in the prevailing opinion. It is the duty of the court, however, to pass upon the ordinance as it has been framed by those who enacted it. In my judgment we are without power, however easy it might be, to make a good ordinance instead of a bad one.
For these reasons, I vote for a reversal of the judgment.
GRAY, CHASE and HOGAN, JJ., concur with CUDDEBACK, J.; CULLEN, Ch. J., concurs in result; WILLARD BARTLETT, J., reads dissenting opinion in which MILLER, J., concurs.
Judgment affirmed.