There is no conflict between the State Agriculture and Markets Law and the local regulation of the Board of Health of the City of New York. The Agriculture and Markets Law in general terms intrusts to the Commissioner of Agriculture and Markets the power to adopt rules and regulations establishing the *Page 61 "sanitary regulations pertaining to the manufacture and distribution of frozen desserts, including the sanitary condition of buildings, grounds, and equipment where frozen desserts are manufactured" (§ 71-j). Pursuant to such authority, the Commissioner has promulgated a general regulation to the effect that without his written permission "no cellar shall be used as a frozen desserts plant" (Regulation 6). Here permission has been given by the State Commissioner. This consent merely removes the negative restriction prescribed by the State. It makes no affirmative grant to the licensee. In other words, the State laws and regulations do not say, "If you secure the permission of the Commissioner, you may manufacture frozen desserts anywhere;" but rather, "In view of the high degree of danger to the public health occasioned by the manufacture of frozen desserts, certainly you may not manufacture them in cellars without the Commissioner's approval in addition to whatever the appropriate local regulations, not to the contrary, may ordain." Neither the statute nor the regulation of the Commissioner contains any indication, express or inherent, of an intent to preclude additional regulation of conditions of manufacture by localities primarily interested therein when such additional regulations do not render impossible the enforcement of those prescribed by the State authority. Nor should such an intent be implied in a matter of so vital importance to the health of the inhabitants of a great metropolis. (See People ex rel. N.Y., N.H. H.R.R. Co. v. Willcox, 200 N.Y. 423, 434.) Consequently, the regulation of the City Board of Health prohibiting all manufacture of frozen desserts in cellars within the city should not be held inconsistent with the State law.
A complete answer to the objection of unreasonableness is the obvious fact that ice cream and frozen desserts are easily contaminable, and when contaminated, are highly deleterious to the health of the consumer. A regulation of the Board of Health in the City of New York, therefore, which prohibits the manufacture of such products below the street level in order to eliminate the general possibility *Page 62 of the danger of impurities arising from sewers or other underground channels, would seem eminently reasonable. Nor should the fact that in this particular instance unusual precautions have been taken so as to minimize danger from the anticipated sources, render the prohibition unreasonable. Since possible danger to the health of the public clearly exists, wide latitude must be accorded to local Boards of Health to counteract this danger and mere hardship in an individual case is no ground for holding invalid an appropriate enactment well within the local police power. (Bayside Fish Flour Co. v. Gentry,297 U.S. 422; Chicago, B. Q.R.R. Co. v. Nebraska, 170 U.S. 57;Powell v. Pennsylvania, 127 U.S. 678; 11 Am. Jur. 802.)
The order should be affirmed.
LEHMAN, Ch. J., LOUGHRAN, RIPPEY, SEARS and LEWIS, JJ., concur with CONWAY, J.; FINCH, J., dissents in opinion.
Orders reversed.