North College Hill v. Woebkenberg , 59 Ohio App. 458 ( 1938 )

This is an appeal on questions of law. The appellant, the duly incorporated village of North College Hill, Hamilton county, Ohio, pursuant to Section 3673, General Code, passed an ordinance licensing peddlers, and among other things requiring a license to engage in the business of peddling and dealing in milk.

Woebkenberg, the appellee here, was arrested and prosecuted by the village authorities for a violation of this ordinance, and, upon trial, was convicted and fined. He thereupon appealed to the Court of Common Pleas, which court reversed the judgment of the mayor's court and dismissed the case, discharging Woebkenberg from custody. Woebkenberg was the agent and employee of The H. Woebkenberg Dairy Company, which company was engaged in delivering its products to regular customers in the village of North College Hill.

Section 3672, General Code, in authorizing municipalities to enact license legislation, contains the following exception:

"* * * But no municipal corporation may require of the owner of any product of his own raising, or the manufacturer of any article manufactured by him, license to vend or sell in any way, by himself or agent, any such article or product."

The question for consideration is whether the milk as prepared and sold by The H. Woebkenberg Dairy Company is an article manufactured by it, which it sells, and therefore within this exception.

The Court of Common Pleas, on appeal from the judgment of the mayor's court, found the defendant's principal was engaged in the manufacture of the article which it sold, and was, therefore, exempt under the statute from the provisions of the licensing ordinance. That is the question before this court.

It is undisputed that the dairy company, upon receipt of the raw milk which it purchases from the farmers, processes the same for preparation for sale, by pasteurization, by the removal of butter fat, by the reconditioning of it, and by remixing the separated milk with the butter fat to a certain standard requirement. The milk is then bottled in containers, required by the health department regulations, this bottling being accomplished by machinery. The dairy company also sells by-products which it manufactures, such as cottage cheese, buttermilk and pure butter fat. The dairy company has its pasteurization vats, machinery for straining the milk, machinery for bottling the milk, and machinery for cleansing the bottles. It is undisputed that this machinery is extensive and expensive in its operation. It is further undisputed that in preparing the milk for sale, it requires the operation of all these machines. This certainly comprehends more than a mere dealing in a raw product.

Milk is classified in many ways, and before going through any processing it is classified as raw milk. Its form is changed, and its properties, combinations, and qualities are changed before selling it to the public.

It would seem that these facts clearly establish that the defendant's employer is a manufacturer.

In arriving at the meaning of the word "manufacturer" as distinguished from that of "merchant" (in this case as distinguished from that of "dealer," but the same principle applies), we call attention to the case of Tax Commission v.McCullough Seed Co., 50 Ohio App. 131, 197 N.E. 621. There can be no all-inclusive definition of the word "manufacturer." It must be determined from the facts in each particular case. In theMcCullough Seed Company case the court cites Hadfield-PenfieldSteel Co. v. Sheller, 108 Ohio St. 106, 141 N.E. 89, wherein the court says in the opinion:

"Manufacture is defined by lexicographers as the production of articles for use from raw or prepared materials, by giving to these materials new forms, qualities, properties, or combinations, whether by hand labor or by machinery. Another definition is "to work up into form for use.'"

The principle announced in the McCullough Seed Company case is supported by the case of Hadfield-Penfield Steel Co. v. Sheller,supra, and is sufficient authority to hold that under the facts of this case, the employer of the appellee was engaged in the manufacture of an article within the meaning of the law.

The Court of Common Pleas was correct in so holding.

The judgment of the Court of Common Pleas of Hamilton county is therefore affirmed.

Judgment affirmed.

ROSS, P.J., and MATTHEWS, J., concur.