I am for affirmance because there was no ordinance or regulation of the board which authorized the revocation for the cause returned. Administrative policy in this case is not equivalent to an ordinance. I might stop here, but for the fact that a general discussion has been made." Bacon, Lord Yerulam, says: “For many times the things deduced to judgment may be meum and tuum when the reason and consequence thereof may trench to point of estate.” As I differ from thé opinion of my brother Gaynor in many things, and from others in this court from their conclusion, I shall give my reasons for dissent. An eminent English judge,. Parke, J., in Mirehouse v. Rennell (1 Cl. & F. 527, 546) said: “ Our common-law system consists in the applying to new combinations of circumstances those rules of law which we derive .from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; and- we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we 'think that the rules are not as convenient and" reasonable as we ourselves could have devised. It appears to me to be of great importance to keep this principle of decision steadily in view, not merely for the determination of the particular case, but for the interests of law as a science.” (Cited in Dicey, Law and Opinion in England, p. 364.)
I think that this board of health has -power to enact an ordinance, or resolution of general application, to the effect that its permit to sell milk shall be revoked by it, if the holder or his servants be convicted in the courts of selling adulterated milk, and that such ordinance need not provide that notice must be given to the holder after such conviction before such revocation can be made. I think this ordinance would not offend against Constitution or "laws; The obligation of a contract would not be impaired. Property would *870not be taken without due process of law. Unauthorized punishment would not be inflicted. Ho act. of arbitrary despotism would be done. And I shall attempt to show that this ordinance would be in a lawful exercise of the police power.
What is the purpose and the effect of such ordinance ? Milk is almost an universal food, .and for the very young the principal if not the exclusive food. It is capable of adulteration beyond the detection of the ordinary consumer. If adulterated it may not only be impaired but be positively dangerous to health and to life! The dweller in a great city cannot investigate the origin, the collection or the processes which result in the sale of his daily food to íiim as a unit of many millions. He who buys milk for daily consumption cannot seek out the herd, or view the dairy, or investigate the channels or become acquainted personally with the agents whereby the milk finally reaches his table. And, hence,' government steps in to regulate the sale of this commodity by the requirement of a standard. The law now protects the consumer by punishing the seller of bad milk. It is'decided that the regulation of such business by requirement that it must be carried on pursuant to a permit of the board of health of the city of Hew York is a lawful and reasonable exer-. cise of the police power in the protection of the public health. (People ex rel. Lieberman v. Van De Carr, 175 N. Y. 440; 199 U. S. 552.) To deny the privilege of sale to those who have shown themselves improper persons to traffic in such food is a practical method of preserving the public health. In the last analysis the life and health of the consumer are preserved rather than the livelihood of the seller. By such an ordinance an individual would be deprived of his permit to sell milk perforce of a provision (of course applicable alike to all other holders'of permits) because he is an unfit person in that lie has been convicted-of selling adulterated milk. Government is for all the people, not for an individual, so as to assure to him continuance, in a pursuit which may be dangerous and even death-dealing.
1. In Polinsky v. People (73 N. Y. 65), Andrews, J., for the court, says : “ That the Legislature in the exercise of. its constitu: tional authority may lawfully confer on boards of health the power to enact sanitary ordinances, having the force of law within the districts over which their jurisdiction extends, is not an open qnes*871tion. This power has been repeatedly recognized and affirmed (citing authorities). And ordinances designed to prevent the sale of adulterated milk are manifestly within the scope of sanitary regulations.”
2. Such power has been conferred upon this board in the Greater Hew York charter by the Legislature of this State. (People ex rel. Lieberman v. Van De Carr, 175 N. Y. 440.)
3; (a) Generally, the power to license implies the power of revocation. In Doyle v. Continental Ins. Co. (94 U. S. 535, 540) the court say : “ The corrective power to revoke or recall a permission is a necessary consequence of the main power. A mere license by a State is always revocable. Rector v. Philadelphia, 24 How. [U. S.] 300; People v. Roper, 35 N. Y. 629; People v. Commissioners, 47 N. Y. 50.* The power to revoke can only be restrained, if at all, by an explicit contract upon good consideration to that effect. Humphrey v. Pegues, 16 Wall. 244; Tomlinson v. Jessup, 15 id. 454.” There is not, to my mind, any force in the discrimination that would find such power of revocation in the State and not in a branch of the State government on which the power to issue a permit has been ■ conferred by the State. In People ex rel. Schwab v. Grant (126 N. Y. 473) the court say (p. 481) “ A power to grant a privilege to one is inconsistent with the possession on the part of another of an absolute light to exercise such privilege. The requirement that a person must "secure leave from some one to entitle him to exercise a right, carries with it by natural implication, a discretion on the part of the other to refuse to grant it, if, in his judgment, it is improper or unwise to give the required consent.” In State v. State Board of Medical Examiners (34 Minn. 387, 26 N. W. Rep. 124), the court, per Mitchell, J., say: “ It has never been held that the granting, or refusing to grant, such a license as this was the exercise of judicial power, and in fact this is hot claimed in this case; and there is no possible dis- ■ Unction in this respect between refusing to grant a license and revolting one already granted. Both acts are an exercise of the police power. The power exercised and the object of its exercise is, in each case, identical, viz., to exclude an incompetent or unworthy person from this employment. Therefore, the same body which *872. may.be vested with the power to grant, or refuse to grant, a license may also be vested with the power to revoke. ,The statutes of. all the States are full of enactments giving the power to revoke license of dealersj inn-keepers, liackinen, draymen, pawnbrokers,, .auctioneers, pilots, engineers, and the like, to the same bodies* boards or officers wlio are authorized to issue them, such as city councils, county commissioners, selectmen, boards-of health, boards of excise, etc. The constitutionality of such laws, as a valid exercise of the. police power has often been sustained, and, indeed, rarely, questioned. Cooley Const. Lim. 283 and 597 and cases cited.” (See, too, People ex rel. Van Norder v. Sewer Com., 90 App. Div. 555, 558, 559, and authorities cited.)
(5) Metropolitan Milk & Cream Co. v. City of New York (113 App. Div. 377) decides that such permits are revocable by -the department of. health, and that the department was not restricted to a criminal prosecution of a licensee selling unwholesome milk.' In that case' the city and the department answered separately. In paragraph 8 of each answer the defendant pleaded that by virtue of the. laws of the State of Hew York and the Sanitary Code of the city of Hew York the department of health of the city had authority and power to prevent the plaintiff from keeping and selling therein impure, milk, and also that after investigation it had found that the plaintiff was shipping and sending such milk to the city to be sold, whereupon the department, after notice to the plaintiff and a hearing, revoked the license of licenses, “ as it had' a right to do and ..as it was its public duty to do and not otherwise.” The following questions were certified to the Court of Appeals-: “ Is the.separate defense contained in the answer of the defendant The City of Hew York ”.(or mutatis rrmtmbdis the department of health of the city of Hew York) “ insufficient in law upon the face thereof?”' That court affirmed the order, and answered the questions certified in the, negative (186 N. Y. 533). I regard it as settled, then, by the highest court of tlfis State, that the department of health lias- the -power to revoke permits issued for the sale óf milk in that city. The principle is stated in Cooley’s Constitutional Limitations (7th ed. p. 887): “ Dealers may also-be compelled to take out a license, and the license may be refused to a person of bad reputation., or taken away from a party, detected in dishonest practices.” The liberty to *873pursue any particular vocation or calling is subject to regulation by the police power for the benefit of the public morals, welfare or health. (Dent v. West Virginia, 129 U. S. 114; Soon Hing v. Crowley, 113 id. 703; Gundling v. Chicago, 177 id. 183; Crowley v. Christensen, 137 id. 86.) In the last case cited the court say: “ The possession and enjoyment of all’ rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community.” In Dent v. West Virginia (supra) the court, per Field, J., says: “ It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex and condition. This right ' may in many respects be considered as a distinguishing feature of our republican institutions. Here all vocations are open to every one on like conditions. All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or, as it is sometimes termed, the .estate acquired in them, that is, the right to continue their prosecution, is often of great value to the possessors,, and cannot be arbitrarily taken from them, any more than their real or personal property can be thus taken. But there is no arbitrary deprivation of Such right where its exercise is not permitted because of a failure to comply with conditions imposed by the State for the protection of society.' The power of the State to. provide for the general-welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance and incapacity as well as of deception and fraud.”
4. If this board has the power of revocation for sale of had milk, it can express that power by ordinance. The permits in the Metropolitan Milk & Cream Co. Case (supra) were revoked on the ground that the plaintiff had furnished and had sold impure milk. Unless there could be revocation by the board only after actual investigation by the board itself and its determination .thereupon that the relator had twice sold impure milk, I can seenoobjection to an ordinance based upon such offending. Indeed, section 1172 of the charter (Laws of 1901, chap. 466, as amd. by Laws of 1904, chap. *874628) provides that the board may provide for the enforcement of the Sanitary Code “by such fines, penalties, forfeitures or imprisonment as may by ordinance be'prescribed.”- (See, too, the full section, also § 1169, and Polinsky v. People, supra; Metropolitan Milk & Cream Co. v. City of New York, supra; 4 Am. & Eng Ency. of Law [2d ed.], 599.) The term “ forfeiture ” may. refer to the , absolute or indefinite revocation of a license. (Words & Phrases Judicially Defined, 2897.)
5. The ordinance is based upon the ¡imposition that he who has sold impure milk is an unfit person to hold a permit to sell milk. In resting the ordinance upon a conviction for the very act which the board seeks to prevent, the -board but applies the doctrine of res judicata. For the conviction was, as between the State and the individual, an adjudication of the fact that the relator had done the thing prohibited. (Hawker v. New York, 170 U. S. 189.) The board would have a right to ordain that such convictions should be sufficient evidence of the unfitness of the relator to hold such a license. (Hawker v. New York, supra; Sprayberry v. City of Atlanta, 87 Ga. 120.) The ordinance is founded upon an adjudication that the relator had sold impure milk, as much as if the board or department had investigated the alleged offense and had found it. Surely a conviction of the offense in the criminal court may be as cogent proof that the relator had violated'the law as a determination by the board upon its own investigation. In Hawker v. New York (supra) the statute in effect made the conviction evidence of the absence of .the requisite good character. The court held that if. the State might require good character as a condition, ■“ it may rightfully determine what shall be the evidences of that character.” . It said, per Bbeweb, J.: “We do not mean to. say that it has an arbitrary power in the matter, or that it can make a conclusive test of that which has. no relation to character, but. it may take .whatever, according.to the experience of mankind, reasonably tends to prove the fact and make it a test. County Seat of Linn County, 15 Kansas, 500, 528. Whatever is ordinarily connected with bad character, or indicative of it, may- be prescribed by the Legislature as conclusive evidence thereof. It is not the province of the courts to say that other tests would be more satisfactory, or that the naming of other qualifications would be more conducive to the desired *875result. These are questions for the Legislature to determine. ‘ The nature and extent of the qualifications required must depend primarily upon the judgment of the State as to their necessity.’ Dent v. West Virginia, supra, p. 122.”
Tiie fact that there would be an ordinance, not a statute, does not affect the application of the principle. An ordinance pursuant to the authority of the Legislature has like force within the limits of its operation as a statute. (Polinsky v. People, supra ; Village of Carthage v. Frederick, 122 N. Y. 268 ; Dillon Mun. Corp. [4th ed.]. § 308 and note; Heland v. City of Lowell, 3 Allen, 407.) In Sprayberry v. City of Atlanta (supra) the court held that the common council, in its power to regulate the retail of ardent spirits, and its then discretion to issue license to retail or to withhold the same, might pass an ordinance to the effect that the mayor and common council could forfeit a license, and that a conviction of a violation of a State statute in relation to the sale of ardent spirits shall work an immediate revocation of the license.
6. Notice-is not essential. The doctrine of Stuart v. Palmer (74 N. Y. 183) does not apply. . The permit is not property in the sense that such a revocation thereof is the taking of property without due process in that there is no notice thereof. “ The popular understanding of the word license undoubtedly is, a permission to do something which without the license would not be allowed. * * * - This is also the legal meaning.” (Ccolet, J., in Youngblood v. Sexton, 32 Mich. 406, 419.) “ A license is not property. It is a mere temporary permit to do what otherwise would he illegal, issued in the exercise of the police power.” (Words & Phrases Judicially Defined,' 4137, citing Lantz v. Hightstown, 46 N. J. Law, 107; Voight v. Board of Excise, 59 id. 358.) The license or permit is not a contract. ( Commonwealth v. Kinsley, 133 Mass. 578.) In Metropolitan Board of Excise v. Barrie (34 N. Y. 657) the court, speaking of an excise license, say : “ These licenses to sell liquors are not contracts between the State and the persons licensed, giving the latter vested rights, protected on general principles and by the Constitution of the United States against subsequent legislation, nor are they property in any legal or constitutional sense. They have neither the qualities of a contract or of property, but are merely temporary permits to do what otherwise would be an offense against a general law. They form a *876portion1 of the internal police system of the State ;• are issued in the exercise of its police powers, and are- subject to the direction of the State government, which, may, modify,, revoke or continue them,, as it may deem fit.” .Neither the ordinary permit or license, nor the former excise license, is so .similar to the present liquor tax. certificates, as to make the decisions that hold that the latter are “ a species of property ” apply. The quality of property is attributed.to the liquor tax certificates perforce of provisions, .singular to the present excise law. (Matter of Lyman, 160 N. Y. 96; Niles v. Mathusa, 162 id. 546, 549; People v. Durante, 19 App. Div. 292.) The purpose of notice is to .afford a hearing, but the ordinance of revocation would be. based upon conviction in a criminal court for sales of unwholesome milk, whereat, of. course, the relator was entitled to a hearing.’ The fact of the improper sales was, therefore, adjudicated after á hearing.- . What purpose is served by a hearing before the'hoard or. department when the ordinance is based upon such adjudications,? The board- or department cannot review1 the conviction. The learned Special Term suggests that inasmuch as the Agricultural Law* made possible a-conviction although- the seller has no knowledge of the impurity of. the milk, that if-the board afforded a hearing, there might be a plea in extenuation of the conviction. But.this view is from the point' that the revocation is a punishment, whereas it is but for the protection of the public health. It is the fact of the sales of impure milk that moves- the hoard to revoke-the permit, and not whether the -sale was intentional, wanton or negligent. ■ It certainly would impair the vigor of the ordinance if the board- were to make it depend upon the question whether the scdenter of .the. seller were proved in the criminal trial, for in that event the careless or 'negligent seller would be licensed to continue in his traffic.: If a conviction per se furnished the reason for the ordinance, and the conviction could not be .disturbed by the board,, and if the- ordinance is based upon .the conviction and not upon the intent of him- who was convicted, it seems -to me that notice and a hearing before-the ordinance was invoked would be a vain thing. Suppose that notice were given; wliat could he urged by the relator *877as his legal right ? To say the least, it was entirely proper in the Metropolitan Milk & Gream Go. Oase (supra) that the licensee should receive notice and should be heard, for the department itself made the investigation and the determination that the licensee had sold impure milk. But in the . case of thé ordinance, the licensee would have been afforded a hearing oh that question in the procedure of the courts which resulted in convictions of the offense. To afford him another hearing is but to seek to review the judgment of the court. In Martin v. State (23 Neb. 371; 36 N. W. Rep. 554) the statute provided that the mayor and common council might by ordinance license, restrain, regulate- or prohibit the selling of liquor and that the licenses might be revoked upon the conviction of the licensee of a violation of the law pertaining to the sale of intoxicating liquor; and the contention was that notice- must be-given to the licensee before revocation. But the Supreme Court of "Nebraska, per Reese, C. J., after an examination "of many authorities, said: “ In this case, the statute makes no reference to the hearing of a complaint by the mayor and council, but simply provides that ‘ the license shall be revoked by the mayor and council, upon conviction of the licensee of any violation of any law, ordinance, or regulation pertaining to the sale of such liquors,’ etc. No trial or investigation could be had. The certificate of the police judge showing a conviction of plaintiff in error was before the council. They had but a- simple ministerial duty to perform, in obedience to the plain mandate of the law, and that was to revoke the license. It is stipulated that he was convicted of the offense stated in the certificate of the police judge. It is admitted that the certificate was true. That being the case, no defense could have been made, and no notice was necessary to give the council jurisdiction.” In Health Department v. Rector, etc., (145 N. Y. 40, 41), the court,-per Pbckham,. J., say: “The Legislature has power and has exercised it in countless instances to enact general laws upon the subject of the public health or safety without providing that the parties who are tó be affected by those laws shall first be heard before they shall take effect in any particular case. So far as this objection of want of notice is concerned, the case is not materially altered in principle from what it would have been if the Legislature had enacted a general law that all owners of *878tenement houses should, within a certain period named in the act, . furnish the water as directed.' Indeed, this act does contain such a provision, hut the plaintiff has not proceeded under it. If in such-Case the ' enforcement of the direct command of the Legislature were not to be preceded by any hearing on the part of any owner of a tenement house, no provision of the State or Federal Constitution would he violated. The fact that the Legislature has chosen to delegate a certain portion of its ' power to' the board of health, and to enact that the owners of certain tenement houses should be compelled to furnish this water after the board of health, had so. . directed, would .not alter the principle, nor would it be necessary to provide that the board should give notice and "afford a hearing to the owner before it made such order. I have never understood that.it was necessary that any notice should be given under such circumstances before a provision of this nature could be "Carried out.” (See, too, Chicago, etc., Railroad v. Nebraska, 170 U. S. 57, 76 ; McGehee’s Due Process of Law, 374, note.)
Moreover, if the ordinance provided that revocation would follow upon such conviction, the holder of the permit would he bound to take-notice that such was the law. (Heland v. City of Lowell, 3 Allen, 407; Dillon, supra, § 416, note; McQuillin’s Municipal Ordinances, § 22, and authorities cited; Baldwin v. Smith, 82 Ill. 162.) In the last case the court say: “ There is' no condition in the license and no reference to any ordinance of the town authorizing its revocation for cause, yet it must be held to have been granted subject to such ordinances of the town as had a legal existence at the time the same was granted, and such as were within the competency of the town authorities to enact.”
. 7. The revocation by ordinance would not be an exercise of judicial power, but would be incidental to the administrative power. (Matter of Armstrong v. Murphy, No. 2, 65 App. Div. 126 ; State ex rel. Drake v. Doyle, 40 Wis. 175 ; State v. State Board of Medical Examiners, 34 Minn. 387; State ex rel. Granville v. Gregory, 83 Mo. 123; McGehee, supra.) ■ In the case of Public Clearing House v. Coyne (194 U. S. 497) the court say (pp. 508, 509): “ That due process of. law does not necessarily require the interference of the j.udi_ cialpower is laid down hi many cases and by many eminent writers upon the subject of constitutional limitations. Murray’s Lessee v. *879Hoboken Co., 18 How. [U. S.] 272, 280; Bushnell v. Leland, 164 U. S. 684."” (And see, too, Buttfield v. Stranahan, 192 U. S. 470.)
It is true that the effect of the rule is to bar the seller from continuance in that traffic. But that is but a consequence of the working of the rule, not the object of it. The ordinance would not- be for the punishment of the seller for his past offense, but for the protection of the buyers. In Hawker v. New York (supra) the statute deprived the plaintiff of the right to practice medicine perforce of conviction of a crime, and the point was made that it was a further punishment. It was met by the court, per Brewer, J., who said : “ That the form in which this legislation is cast -suggests the idea of the imposition of an additional punishment for past offenses is not conclusive. We must look at the substance and not the form, and the statute should be regarded as though it in terms declared that one who liad violated the criminal laws of the State should be deemed of such bad character as to be unfit to prac- ' tice medicine, and that the record of a trial and conviction, should be conclusive evidence of such violation. All that is embraced in these propositions is condensed into the single clause of the statute, and it means that and nothing more; The-State is not seeking to further punish a criminal, but only to protect its citizens from physicians of bad character. The vital matter is not the conviction, but the violation of law. The former is merely the prescribed evidence of the latter.” (See, too, The Queen v. Vine, L. R. 10 Q. B. 195.) That convictions are not a full deterrent is shown in this case, inasmuch as there were four convictions at different times, extending over a period of a little over three years.
To my mind there would be nothing-sinister in this ordinance, or nothing contrary to the spirit or the letter of law. In these days of adulteration of food, when, as the poet sings,
“ Chalk and alum and plaster are sold to the poor for bread,
And the spirit of murder works in the very means of life,”
it would be a wholesome measure in furtherance of the principle of the greatest good of the greatest number.
Woodward, JV, concurred.
Order affirmed, with ten dollars costs and disbursements.'
People ex rel. Davies v. Comrs. of Taxes of N. Y., 47 N. Y. 501.— [Rep.
See Laws of 1893, chap. 338; §§ 20, 22, as amd. by Laws of 1900, chap. 101; Laws of 1904, chaps. 480, 566, and Laws of 1905, chap. 603; Id. § 87, as amd. by Laws of 1901, chap. 656.— [Rep.