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Vanderbilt Law Review

Clyde L. Ball

First Page

1061

Abstract

Police Power: Conformity of Ordinance to State Statute: The town of Fayetteville enacted an ordinance imposing higher standards than those established by state and federal laws upon producers, of milk to be sold within the city. In State ex rel. Beasley v. Mayor and Aldermen of Fayetteville' plaintiff milk producer, having complied with state and federal requirements, was denied a permit to sell inside the city and sought a writ of mandamus to require the city authorities to issue the permit. Under the holding in State ex rel. Nashville Pure Milk Co. v. Shelbyville, a municipality could not refuse to issue a permit to sell milk therein when the foreign milk producer had, according to state and local inspections at producer's home county, met the requirements of federal, state and county rules. Apparently in the Shelbyville case the standard in the city was no higher than that set by the federal and state authorities; the real question was whether the city had the right to rely on its own inspection facilities and to limit permits to those whom it could and did inspect and approve. The Fayetteville case presents a more significant issue: may a municipality, in the exercise of its delegated police power, adopt a more stringent rule than that of the delegating state? The general rule is that state regulation of milk standards does not preclude the municipality from acting in the same field, but that the city ordinance must be in conformity with the state statute. It would seem that conformity does not require identity, but rather the absence of conflict. The question was not answered finally in the Fayetteville case, because a state statute was enacted during the progress of the suit expressly authorizing municipalities to adopt more stringent regulations. Therefore, the only question finally answered is that, with state permission, a municipality may adopt more stringent regulations and higher standards than those established by state law governing the same subject.

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