Petition — City of Chicago v. Dixie Dairy Co.
Supreme Court brief1976
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Supreme Court of the Ant JR., CLERK
Ocroszr TERM, 1976 7
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CITY OF CHICAGO, a municipal corporation, THE CHICAGO
BOARD OF HEALTH, DR. MURRAY A. BROWN, Commissioner
of the Chicago Board of Health, and DR. ERIC OLDBERG, MR.
SAMUEL A. GOLDSMITH, DR. THEODORE LAWLESS, MR.
WALTER MULLADY, DR. LEE STROHL, DR. MURRAY
STEPTO, MR. EDWARD P. BRABEZ, DR. MARY KELLY
MULLANE and DR. LEROY P. LEVITT, individual members
of the Chicago Board of Health,
Petitioners,
vs.
DIXIE DAIRY COMPANY, a corporation,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH OIRCUIT
WILLIAM R. QUINLAN
Corporation Counsel of the City of Chicago
611 City Hall, Chicago, Illinois 60602
Attorney for Petitioners
Midwest Law Printing Co., Chicago 60601, Financial 63988
TABLE OF CONTENTS
PAGE
OPINIONS BELOW 2
JURISDICTION a
QUESTIONS PRESENTED 3
CONSTITUTIONAL PROVISIONS, STATUTES
AND MUNICIPAL ORDINANCES INVOLVED. 4
STATEMENT OF THE CASE 7
Proceedings Below 8
Dixie’s Refusal to Submit to Chicago Inspections .. 12
Chicago Milk Control Inspections 13
The Federal Program Of Recommended Standards
For State And Local Milk Control 17
Indiana Milk Inspection 20
Side-By-Side Inspection Of Dixie’s Plant And
Farms By Indiana And Chicago Inspectors ...... 21
REASONS FOR GRANTING THE WRIT:
I
The Opinion Of The Court Of Appeals Is In
Conflict With The Ruling Of This Court In Dean
Milk Company vs. City Of Madison, Wisconsin ... 25
I
The Opinion Of The Court Of Appeals Has
Erroneously Invalidated The Chicago Milk Con-
trol Ordinance Solely On Commerce Clause
Grounds.
The Chicago Ordinance In No Way Burdens In-
terstate Commerce 30
li -
Til
The Opinion Of The Court Of Appeals Is Not
Supported By Substantial Evidence 32
IV
Without Congressional Mandate, The Opinion
Of The Court Of Appeals Makes The Voluntary
Reciprocity Program Mandatory ........................... 33
CONCLUSION ..... 35
APPENDICES:
A. Findings of Fact and Conclusions of Law of
the District Court la
B. Decree of the District Court 15a
C. Findings of Fact and Conclusions of Law Prof-
fered by Defendants — Soe
D. Opinion of the Court of Appeals for the Sev-
enth Circuit -.... ” 29a
E. Denial of Rehearing by the Court of Appeals .. 41a
F. Recall and Stay of the Mandate of the Court
of Appeals 42a
List Or Avruoriries Crrep
Cases
Brotherhood of Locomotive Firemen v. Chicago, R.I.
& P.R. Co., 393 U.S. 129 (1968) 26
California v. Thompson, 313 U.S. 109 (1941) 26
Dean Milk Company v. City of Madison, Wisconsin, 340
U.S. 349 (1951) .. 3, 10, 25, 26, 32, 34
ili
Great Atlantic and Pacific Tea Company v. Cottrell, ......
US. ......, 47 L.Ed.2d 55, 95 S. Ct. 923, 44 L.W. 4240
(decided February 25, 1976) 26, 27, 28, 33
H.P. Hood & Sons v. DuMond, 336 U.S. 525 (1949) .
26, 34
Huron Portland Cement Co. v. City of Detroit, 362 U.S.
440 (1960) 26, 34
License Cases, 5 How. 504, 12 L. Ed. 256 (1847) -........... 26
Milk Board v. Eisenberg, 306 U.S. 346 (1939) ............ 26, 34
Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) ........ 27, 29
Procter and Gamble Company v. City of Chicago, 590
F. 2d 69 (7 Cir. 1975), cert. den. 421 U.S. 978 (1976) .. 28
South Carolina Highway Department v. Barnwell
Bros., 303 U.S. 177 (1939) 26
Willson v. Black Bird Creek Marsh Co., 2 Pet. 245, 7 L.
Ed. 412 (1829) 26
Constitutional Provisions
United States Constitution, Article I, Section 8 ............
3, 4, 8, 26
‘ Statutes
28 U.S. Code $1254(1) aa te
Ill. Rev. Stat. 1975, Ch. 24, par. 11-161 .. lee
Ordinances
Municipal Code of Chicago, Chapter 154 .............. 4, 5, 6, 7,8
In THe
Hupreme Court of the Anited States
Ocroser TERM, 1976
No.
CITY OF CHICAGO, a municipal corporation, THE CHICAGO
BOARD OF HEALTH, DR. MURRAY A. BROWN, Commissioner
of the Chicago Board of Health, and DR. ERIC OLDBERG, MR.
SAMUEL A. GOLDSMITH, DR. THEODORE LAWLESS, MR.
WALTER MULLADY, DR. LEE STROHL, DR. MURRAY
STEPTO, MR. EDWARD P. BRABEZ, DR. MARY KELLY
MULLANE and DR. LEROY P. LEVITT, individual members
of the Chicago Board of Health,
Petitioners,
vs.
DIXIE DAIRY COMPANY, a corporation,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH OIRCUIT
The petitioners, Tae Crry Or Cuicaco, a municipal cor-
poration, and its Board of Health, respectfully pray that a
writ of certiorari issue to review the judgment of the United
States Court of Appeals . sr the Seventh Circuit entered in
this proceeding on August 6, 1976 (rehearing denied, Sep-
tember 2, 1976).
~~ =
OPINIONS BELOW
The opinion of the Court of Appeals, filed on August 6,
1976, is as yet unreported. It is reproduced in Appendix D
to this brief. The order of the Court of Appeals denying
rehearing, entered on September 2, 1976, is reproduced in
Appendix E.
An order of the Court of Appeals, entered on September
15, 1976, recalling the mandate and staying it until October
15, 1976, is reproduced in Appendix F.
The findings of fact and conclusions of law of the District
Court, entered on September 3, 1975, are unreported, but
are reproduced in Appendix A. Defendants’ proffered find-
ings of fact and conclusions of law are reproduced in Ap-
pendix B. The decree of the District Court, also entered on
September 3, 1976, is unreported; it is reproduced in Appen-
dix C. An order of the District Court, staying enforcement
of its decree pending final disposition of appeal, conditioned
upon petitioners’ filing a bond in the amount of $100,000,
no surety being required, which was entered on October
14, 1975, is reproduced in Appendix D. (Such bond was ap-
proved by the District Court and filed on October 31, 1975.)
JURISDICTION
The judgment of the court of appeals was entered on
August 6, 1976 (App. 29 a). On September 2, 1976, the court
of appeals entered an order denying the petition of the de-
fendants for a rehearing with suggestions for rehearing en
bane (App. 41 a).
The jurisdiction of this Court rests on 28 U.S. Code
§ 1254 (1).
_
QUESTIONS PRESENTED
-
1. Whether the Commerce Clause. of the Constitution of
the United States (Article I, Section 8) prohibits the City of
Chicago, Illinois, from conditioning the granting of a city
permit te sell grade A milk and milk products in that city
upon on-site inspections by City of Chicago inspectors, of
the processor’s plant and farm sources of supply, even
though such inspections are made outside the State of IIli-
nois.
2. Whether the opinion of the court of appeals herein is
is conflict with the ruling of this Court in Dean Milk Com-
pany v. City of Madison, Wisconsin, 340 U.S. 349 (1951).
3. Whether the fact that the City of Chicago does not
charge the inspectee for making a milk inspection, even
when made out of the State of Illinois, demonstrates that
its inspections are not a burden on interstate commerce and
constitutes an additional reason why that municipality
should be allowed to require on-site inspections by its own
inspectors even beyond the boundaries of the State of Illi-
nois.
4. Whether the Commerce Clause requires acceptance of
a voluntary reciprocity program of acceptance of milk from
out of state on the sole basis of inspection by the health
authorities of the state in which the shipper is located.
a
CONSTITUTIONAL PROVISIONS, STATUTES
AND MUNICIPAL ORDINANCES INVOLVED
CONSTITUTION OF THE UNITED STATES.
Article I, Section 8:
“The Congress shall have Power
“To regulate Commerce . . . among the several states
ILLINOIS STATUTE.
Illinois Rev. Stat. 1975, Ch. 24, par. 11-16-1:
“The corporate authorities of each municipality may
provide for and maintain a board of health, consist-
ing of more than one person, and to prescribe its pow-
ers and duties. ...”
MUNICIPAL ORDINANCE.
Municipal Code Of Chicago, Chapter 154:
154-8. Pevmit to sell. It shall be unlawful for any
person to bring into or receive into the City, for sale,
or to sell o1 offer for sale therein, or to have in storage
where mil’. or milk products are sold or served, any
milk or inilk product unless such person possesses a
permit from the board of health . . .
Such permit may be revoked by the board of health
upon violation by the permittee of any of the provi-
sions of this chapter or any of the rules and regula-
tions of the board of health, or in any emergency when,
in the judgment of the board of health, the milk or
milk product handled by the permittee has or may be-
come a public menace, or in any case in which the
permittee refuses the board of health the right of en-
walllines
trance to any dairy farm, milk plant, or vehicle, or any
other place where milk products are kept or stored,
for the purposes of inspection or the collection and
examination of samples; provided that the permittee
shall, after abiding by such revocation, upon request
have the right of a hearing before the board of health.
154-15. Classes of Milk. No milk or milk products
shall be sold in the city except Grade A pasteurized
milk or milk products and certified milk and milk prod-
ucts.
Grade A pasteurized milk and milk products shall
conform with the rules and regulations of the board of
health for Grade A pasteurized milk and milk products
154-17. Inspection of dairy farms and milk plants.
At least once during each inspection period the board
of health shall inspect all dairy farms and all milk
plants whose milk or milk products are intended for
consumption within the city. In case the board of health
discovers the violation of any item of sanitation, it
shall make a second inspection after a lapse of time
as it deems necessary for the defect to be remedied,
and the second inspection shall be used in determining
compliance with this chapter. Any violation of any
provision shall be cause for immediate revocation of
the permit.
One copy of the inspection report shall be posted by
the board of health in a conspicuous place upon an in-
side wall of one of the dairy farm or milk plant build-
ings, and said inspection report shall not be removed
by any person except the board of health. The original
copy of the inspection report shall be filed with the
records of the board of health.
154-18. Examination of samples. During each in-
spection period a number of samples of milk or milk
products from each dairy farm and each milk plant,
a
as designated by the rules and regulations of the board
of health, shall be taken on separate days and exam-
ined by the board of health. Samples of milk or milk
products from stores, cafes, soda fountains, restau-
rants, and other places where milk or milk products
are sold shall be examined as often as the board of
health may require. Bacterial plate counts shall be
made in conformity with the latest standard methods
recommended by the American Public Health Associ-
ation or any other method approved by the board of
health. Examinations may include such other chemi-
cal and physical determinations as the board of health
may deem necessary for the detection of adulteration,
these examinations to be made in accordance with the
latest standard methods of the American Public Health
Association and the Association of Official Agricultural
Chemists or other method approved by the board of
health. Bacterial plate counts, reductase test, and cool-
ing temperature results shall be given to the producer
or distributor concerned as soon as taken by the board
of health at any time prior to the final delivery of the
milk or milk products. All proprietors of stores, cafes,
restaurants, soda fountains and other similar places
shall furnish the board of health, upon its request,
with the name of the distributor from whom their milk
or milk products are obtained. Bioassays of the vitamin
D milk shall be made when required by the board of
health in a laboratory acceptable to it for such ex-
aminations. Samples of milk and milk products shall
be paid for at the market price upon request.
154-19. Products shipped from beyond limits. Milk
and milk products from points beyond the limits of
inspection may not be sold in the city unless produced
and pasteurized under provisions identical with those
of this chapter and approved by the board of health.
In order that inspections by the board of health may
be adequate, thorough, and effective, the board of
health may confine its inspections within such points
= =
and territorial limits as the board of health may, from
time to time, deem necessary to insure economic and
proper supervision, and to safeguard and promote the
public health of the city.
154-22. Penalty. Any person violating any provision
of this chapter shall be fined not less than five dollars
nor more than two hundred dollars for each offense.
Each and every day on which the violation of any of
the provisions of this chapter occurs shall constitute
a separate and distinct offense.
STATEMENT OF THE CASE
This action for declaratory judgment and injunction has
been brought against the City of Chicago and its board of
health by a milk processing company located in Gary, In-
diana. The suit attacks a long established practice of that
board of health, mandated by city ordinance, as authorized
by Illinois statute, of requiring as a condition precedent
to the granting to any milk processor of a license to sell
grade A milk and milk products in Chicago, initial and
periodic on-site inspections of the processor’s plants, milk
trucks and dairy farm sources of supply.
The text of the pertinent portions of the Chicago ordi-
nance and of the Illinois enabling statute are set forth
in the section of this brief immediately preceding this.
Chicago insists on making these on-site inspections, even
though the pasteurization plant and the dairy farms sup-
plying it are situated outside the State of Illinois and even
though they are inspected by the health authorities of the
=
state in which they are located. Section 154-17 of the Chi-
cago milk ordinance requires the inspection of all farms
whose milk or milk products are intended for consumption
in Chicago.
Chicago, however, makes all such inspections free of
charge and bears all the expense.
Proceedings Below.
This litigation is based on an amended complaint in two
counts, both of which seek a declaratory judgment and
permanent injunction. Count I alleges that the milk of the
plaintiff (hereinafter called Dixie) is produced and pro-
cessed under State of Indiana regulations equivalent to
those of the 1965 United States Public Health Service
Model Grade A Milk Ordinance. Dixie alleges that the
State of Indiana inspections guarantee that Dixie’s pro-
ducts will be maintained at a level of wholesomeness equal
or superior to Chicago standards. The amended complaint
also states that Dixie has also obtained a State of [Illinois
permit on the basis of reciprocity. Count I concludes that
inspection of Dixie’s milk plant and dairy farms in In-
diana by Chicago inspectors would be superfluous and that
to require this as a condition precedent to the granting of
a Chicago milk permit constitutes an impermissible burden
on interstate commerce, in violation of Article I, Section 8,
of the Constitution of the United States.
The allegations of Count II are substantially the same
as those of Count I, with additional averments that Chi-
cago discriminates against Dixie ia supplying its inspec-
tion requirement. Count II invokes not only the commerce
clause of the Constitution, but also due process of law and
——————-
equal protection of the laws guaranteed by the Fourteenth
Amendment.
The case was filed on December 23, 1970. From January,
1971, through March 21, 1972, extensive discovery was made
and some 12 volumes of depositions accumulated.
Dixie’s motion for summary judgment, based on the con-
tention that, as a matter of law, Chicago’s refusal to allow
Dixie’s milk to be sold in Chicago unless Dixie submitted
to inspections by Chicago inspectors constituted an un-
constitutional burden on interstate commerce, was denied
by the district court on June 21, 1972. Judge Bauer, then
a district judge, noted (R. 63):
“It appears ... that plaintiff has filed no formal ap-
plication with the city for a permit within the past
eleven years, although the dairy has corresponded with
the City regarding a permit. Plaintiff submits that it
would be futile in light of defendant’s attitudes and
responses to plaintiff’s inquiries into obtaining a per-
mit. Thus, one factual issue still to be resolved is
whether, in light of defendant’s actions in response
to plaintiff’s inquiry into the likelihood of its obtain-
ing a permit, it is reasonable for plaintiff to assume
that a formal application for a permit would be futile.”
Thereafter, on the basis of double on-site inspections of
Dixie’s facilities and dairy farm sources by City of Chicago
inspectors, made during discovery (T. 192), Chicago offered
a permit to Dixie. But Dixie rejected the offer, taking the
position that any permit granted to it on the basis of City
of Chicago inspections was unacceptable for “constitutional
reasons” (T. 273, 274).
As a result Dixie’s rejection of a Chicago permit, the
district court concluded that Count ITI of the amended com-
plaint, alleging discrimination against out-of-state milk
afew
processors and producers, in violation of due process and
equal protection of the laws, was mooted. Accordingly, the
district court struck and dismissed Count II on June 19,
1974 (R. 95). No appeal was taken by Dixie from the order
dismissing Count IT.
After the submission of briefs, the district court granted
Chicago’s motion for summary judgment as to Count I.
The district court rejected Dixie’s contention that Chicago’s
inspection requirement constituted an unconstitutional bur-
den on interstate commerce. It made this ruling in reliance
on Dean Milk Company v. City of Madison, Wisconsin, 340
U.S. 349 (1951), quoting the following statement of this
Court therein (at 354, 355):
“Tt appears that reasonable and adequate alternatives
are available. If the City of Madison prefers to rely on
its own officials for inspection of distant milk sources,
such inspection is readily open to it without hardship,
for it could charge the actual and reasonable cost of
such inspection to the importing producers and proc-
essors.”
The district court noted that Chicago refrained from exer-
cizing its right to charge for on-site inspections.
Dixie filed notice of appeal from this summary judgment
dismissing Count I, though not from the dismissal of its
Count IT.
On March 14, 1975, the court of appeals reversed the sum-
mary judgment dismissing Count I and remanded the case
for further proceedings. The order stated:
“Since significant factual circumstances are in dispute,
summary judgment was inappropriate here. Among
these factual disputes are: whether the Chicago Board
of Health by its administration of Chicago’s milk ordi-
nance has discouraged out-of-state milk producers and
- =
processors from applying for permits to sell Grade A
milk products in Chicago; whether the Chicago Board
of Health speedily and fairly inspects out-of-state
producers without charge; and whether shelf inspec-
tions of Grade A milk products would adequately pro-
tect the health of Chicago residents. Additional factu-
al details are required to be ascertained regarding the
Indiana and federal sanitation standards. Facts are
also needed as to the manner, frequency and effec-
tiveness of inspections, the number of personnel in-
volved, the products covered, and the facilities in-
spected under the Indiana, Chicago and federal! in-
spection systems.”
Upon remand the case was reassigned to Senior District
Judge Perry for trial.
On September 4, 1975 the district court entered findings
of fact and conclusions of law, adopting those submitted
by Dixie substantially in toto. A decree in favor of Dixie
was entered on the same day. These findings of court and
conclusions of law are reproduced in Appendix A at the
end of this petition. Chicago’s proffered findings of fact
and conclusions of law are reproduced in Appendix B. The
decree of the district court is reproduced in Appendix C.
Chicago’s motion for reconsideration was denied on Sep-
tember 19, 1975. At that time, however, the district court
stayed enforcement of its decree pending final disposition
of an appeal, conditioned upon Chicago’s filing a bond in
the amount of $100,000, which was done.
On August 6, 1976, the court of appeals affirmed the
decree of the district court. (See Appendix D.) Chicago’s
petition for a rehearing en bane was denied on September 2,
1976. (See Appendix E.)
—12—
Upon Chicago’s representation that it intended to file
a petition for certiorari in this court, the court of appeals
stayed its mandate until October 15, 1976. (See Appen-
dix F.)
Dixie’s Refusal to Submit to Chicago Inspections.
Respondent Dixie Dairy Company, which was founded
in 1899, operates a milk processing plant in Gary, Indiana,
where it has 225 employees and a fleet of 70 to 75 retail
or home delivery trucks and 15 wholesale trucks. It pur-
chases its milk from 204 dairy farms, of which about half
are in Indiana and half in Illinois. Dixie has annual gross
sales of about $12,000,000 (T. 261). Two-third of these
sales are in Indiana, one-third in Tllinois.
Dixie has a State of Indiana permit, based on actual
inspections by the health authorities of that state. It also
has a State of Illinois permit, issued pursuant to a reci-
procity arrangement between those two states within the
federal program of supervision of state and local milk in-
spections administered by the U.S. Public Health Service.
It does not have a City of Chicago permit and therefore
does not sell its products in Chicago.
Not since 1955 has Dixie sought a Chicago milk permit.
At that time it filled out an application for its plant, its
milk haulers and its contingent (at that time) of 365 dairy
farms. But it so happened that Chicago had recently adopt-
ed new application forms; it referred Dixie’s application
back to Dixie with the request that it use the new forms
(T. 271). No reason appears in the record why Dixie failed
to follow through. In 1969 Dixie made an inquiry about
obtaining a Chicago permit. It was informed by the city’s
wit
chief sanitary officer that the city council was considering
admitting out-of-state milk on the basis of reciprocity and
that it might be advisable to wait and see what happened.
Dixie did not pursue the inquiry further.
Dixie’s president, Eskil T. Eskilson, in testifying con-
cerning the foregoing matter, admitted that Chicago had
effered Dixie a Chicago permit on the basis of the joint
inspections for discovery ordered by Judge Bauer, but that
Dixie had rejected the permit, even though there would be
no charge by Chicago for continuing inspections (T. 273,
274). Eskilson stated that it is Dixie’s position that it
should be allowed to sell its milk in Chicago on the basis
of Indiana’s inspection.
From Eskilson’s point of view duplicate inspections are
unnecessary. He conceded that second inspections actually
cause the farmer little inconvenience. Still he argued that
second inspectors might occasion farmers to sell their milk
to competitors of Dixie, not operating in Chicago and not
subject to two inspections (T. 276-278).
George Jons, a fieldman or troubleshooter for an associa-
tion of dairy farmers and who previously had been an
employee of Dixie for 25 years, gave it as his opinion (T.
367, 368) that most dairy farmers would look for another
market rather than be subject to two inspections. But Jons
admitted he was not speaking from experience and that
he had never actually encountered a dairy farmer who had
done this.
Chicago Milk Control Inspections.
The Chicago Milk ordinance was enacted on January 4,
1935, and the Chicago Board of Health adopted rules and
regulations thereunder on January 8, 1935 (T. 309). These
—~14—
regulations, together with amendments and additional reg-
ulations, up to February 22, 1971, were admitted into evi-
dence as Plaintiff’s Exhibits 7 and 8.
The dairy inspections division of the Chicago Board of
Health has a staff of 29 inspectors, 4 supervising dairy in-
spectors, 2 assistant chiefs and one chief of dairy inspec-
tion. They are all registered sanitarians (T. 300); most of
them have been farmers and most of them have had many
years experience as inspectors (T. 303, 304). It is not antici-
pated that the licensing of the Dixie Dairy Company would
require the hiring of additional inspectors (T. 295).
Under the Chicago ordinance, all producer dairy farms
are required to be inspected prior to the issuance of a per-
mit and at least once each six months thereafter (T. 305).
Some are inspected more often. Between 10,000 and 10,500
dairy farms hold Chicago Board of Health permits. That
results in a work load of approximately 500 farms per in-
spector (T. 308), or approximately 88 farms a month,
5 or 6 farms per workday (T. 318).
Assistant Commissioner Edward F. King of the Chicago
Board of Health testified (T. 388) that the board currently
inspects 37 pasteurization plants and that approximately
half of these are located outside of Chicago. Among the
pasteurization plants that Chicago inspects are the Haw-
thorne Mellody plant at Whitewater, Wisconsin, the plant
of Galloway West (a Borden subsidiary) at Fond Du Lae,
Wisconsin, and the Dean Milk Company plant at Janes-
ville, Wisconsin.
The Chicago milk ordinance does not set any geograph-
ical limits on the city’s milk inspection (R. 313). The chief
sanitary officer of the City of Chicago, James Meany, de-
unfiline
clared that the Chicago Board of Health will go any place
to inspect milk sources and pasteurization facilities.
Meany conceded that milk control based on reciprocity
is “a possible second attentative method” of protecting the
City’s health (T. 346). He also admitted that in 1969 he had
recommended to a city council committee the adoption of
an amendment which would have empowered the board of
health to use reciprocity in some instances tm its discretion,
as a matter of administrative convenience in the event of a
shortage of personnel (T. 348-350). Some representatives
of the dairy industry had supported this proposal, and
some opposition had come from labor unions (T. 351, 352).
The suggestion was not adopted.
The position of the City’s health authorities was stated
by Assistant Commissioner King (T. 386):
“ .. [T]here are many Grade A programs in the
country and I believe, firmly believe, that the only way
a municipal jurisdiction can insure that its products are
in fact wholesome and on an assay basis is through
having a program of regular inspection survey of fa-
cilities that are responsible for the production and
pasteurization and distribution of the product.”
Meany explained that when the board receives an in-
quiry with respect to obtaining a Chicago permit, he re-
sponds immediately, inviting the inquirer to come into his
office and to bring along a blueprint or scale drawing of
his plant. This is studied by the staff to ascertain the con-
struction and various functions of the plant, floor-wall-
ceiling construction, water outlets, ice boxes, employees’
toilet and handwashing facilities, refrigeration, loading
docks and all the equipment (T. 415). The board also in-
quires into the applicant’s over-the-road hauling arrange-
ments.
—16—
After the board has completed these preparatory studies
and perhaps suggested corrections in the applicant’s facili-
ties, the pasteurization plant is then inspected “as quickly
as the plant is ready to have us make the inspections”
(T. 416). Then Chicago inspectors visit several of the ap-
plicant’s farm sources of supply. Deficiencies are pointed
out and the farms are thus prepared for the permit inspec-
tion (T. 419). Forms for applying for a permit are then
furnished to the dairy company and its supplying farms.
Next each of the farms furnishing milk to the applicant
is visited by a Chicago inspector. If the farm passes, it is
given a certificate (T. 421).
The Chicago ordinance meets the standards of and en-
compasses the model ordinance of the U.S. Publie Health
Service (T. 423). Under the ordinance, after the permit is
issued, each farm must be inspected at least once every
six months and pasteurization plants once in each three
months. Samples of the milk of a farm are, under the ordi-
nance, to be taken four times in each six months, but it is
board policy to take them every month (T. 424). Records
are kept of the bacteriological tests, butterfat, temperature,
antibiotics and inhabitors of bacterial growth in the sam-
ples. The commingled milk of groups of farms is also tested
each month (T. 425). This procedure is not required by the
ordinance, but the board considers it an effective check.
The presence of antibiotics, for example, precipitates an
immediate cut-off (T. 428, 434).
In conclusion, Meany stated it is his opinion (T. 436)
that reliance on one’s own inspectors is preferable to reli-
ance on reciprocity and that requiring inspection by Chi-
cago inspectors affords better protection to the health,
safety, and welfare of the citizens of Chicago.
=
The Federal Program Of Recommended Standards
For State And Local Milk Control.
The federal program for certification of interstate milk
shippers was explained in the testimony (T. 35-155) of
Charles D. Price, regional milk sanitation specialist for
Region 5 of the U.S. Public Health Service Food and Drug
Administration. Region 5 includes the states of Illinois,
Indiana, Minnesota, Michigan, Ohio and Wisconsin, which
produce 40 percent of the milk consumed in the United
States.
The federal program, which is built around the model
Pasteurized Milk Ordinance (PMO) (Plaintiff's Exhibits,
1-3; T. 40), formulated in 1965, is not compulsory under
federal law. It is a voluntary system that is recommended
by the USPHS. The provisions of the model PMO, accord-
ing to the testimony of Price, have been voluntarily adopted
by 40 states, 512 counties and 1,435 municipalities (T. 42).
Section 11 of the model ordinance contains provisions
for accepting milk “beyou... the limits of routine inspec-
tion” of the health authority of the receiving jurisdiction.
The USPHS takes the position that the receiving jurisdic-
tion may accept without inspection milk from shippers lo-
eated outside the receiving jurisdiction who have been
awarded a sanitation compliance rating of 90 percent by
a state milk sanitation officer who has been certified by
the USPHS (T. 49).
For example, in the case of a dairy, located in Indiana
and under inspection by the Indiana State Board of Health,
shipping into Illinois, the procedure outlined by Price (T.
53, 54) is as follows: First, the State of Illinois ascertains
that the State of Indiana and the particular dairies are par-
= =
ticipating in the cooperative program for certification of
interstate milk supplies. Then Indiana notifies the USPHS
that Indiana is supervising this particular supplier in com-
pliance with the cooperative agreement and that the plant
is in conformity. Thereupon the USPHS includes this as
a document advising al] states what the plant’s home state
rating is, without approving it. The various states can then
decide for themselves whether they are going to accept
the milk or not (T. 53, 54).
The sanitation ratings by the states of their milk plants
wh'ch are sent to the USPHS are published by that agency
quarterly. The validity of the state ratings are checked by
USPHS audit inspections, which are made every year on
a random selection basis (T. 63).
USPHS publication number 678, entitled “Methods of
Making Sanitation Ratings of Milksheds”, which was ad-
mitted into evidence (T. 55-57), sets forth the sampling
procedure to be followed in surveying dairy farms and
milk plants.
Price explained that a survey is not a regulatory inspec-
tion, but a statistical sampling of a given number of farms,
with a view to ascertaining the overall picture (T. 58). For
example, if there were between 148 and 167 farms in a
milkshed shipping to a plant, the surveying agency would
pick at least 36 farms at random out of the group and
inspect each of these 36. Each farm would have an equal
chance of being selected. Such surveys are made at least
every two years (T. 58, 59).
The survey is made by a state milk sanitation rating
officer who has been certified as competent by the USPHS
after an on-the-job examination, consisting of joint inspec-
—19—
tions by the state officer and a federal officer of 25 farms
and at least five plants.
In a survey by a federally certified state officer, each
farm in the sample is inspected. Then the sanitation rating
for the milkshed as a whole is determined in accordance
with a weighted average. Thus, a large milk farm that
hauls 10,000 Ibs. of milk will have 10 times the weight in
the rating as a producer hauling 1,000 Ibs. of milk (T. 61).
Compliance is rated according to a point system, with
100 percent constituting maximum compliance. But in these
audit inspections a “permissible tolerance” is allowed. Price
explained (T. 65) that, because the federal inspector does
not see enough farms to constitute a “true statistical sam-
pling to get the complete picture,” farms and plants can
deviate from the state report on them by a certain percent-
age and still be deemed in compliance. If a farm is within
5 points of the state rating and above 90, it is considered
in compliance. If a farm is more than 5 percentage points
below its rating by the state, the USPHS asks the state to
make a resurvey within 60 days. If the federal audit is
below 85, the USPHS immediately withdraws certification
and requests the rating state to notify all receiving states.
As for pasteurization plants, if a plant is below 90 percent,
the USPHS has the state reinspect it within 30 days. If it
is below 80 percent, the USPHS requests immediate with-
drawal by the state of the firm’s milk shipper’s certificate.
If the shipping state refuses to reinspect, the USPHS noti-
fies the receiving states. If the shipping state refuses to
permit federal audit inspections, the USPHS will delete all
shippers in that state from the next publication of accept-
able ratings.
— =
On cross-examination, Price admitted (T. 110) that the
USPHS does “not have any enforcement powers whatso-
ever.” If it comes upon a violation, all it can do is to report
it to the state having jurisdiction. He also admitted that
federal inspection is merely a sampling of a “random selec-
tion” of farms (T. 110). He also conceded (T. 111) that
determination of the rating of particular dairy farms is
based on how much weight of milk they ship into the par-
ticular pasteurization plant. In response to a question
whether a group of say, 34 farms, producing a large amount
of milk, could achieve a 90 rating and still inelude a large
number of farms with a rating below 90, Price said he had
never found a milkshed that did not have farms below 90.
He admitted (T. 111) that if the USPHS reported to a state
authority that a particular farm was in violation, the
USPHS would not know whether the state authority took
action to correct it. Price conceded (T. 112, 113) that, if
the state authority gave a farm 2 years time to correct
a serious violation, the USPHS would have no knowledge
of that, it would not affect the rating, and in the meantime,
out-of-state receivers would be receiving milk produced in
violation of the standards.
There are only three persons in the regional office of
Region 5 of the USPHS-FDA in Chicago, although it is
charged with supervising milk production in six states that
produce 40 percent of the milk consumed in the nation (T.
134).
Indiana Milk Inspection.
Exposition of the milk inspection system of the State of
Indiana was done primarily through the testimony of Don-
ald R. Kimball (T. 156-242), director of the Division of
ailities
Dairy Products of the Indiana State Board of Health in
Indianapolis.
Indiana has substantially adopted the provisions of the
1965 model ordinance. It also participates in the cooperative
federal-state program for rating interstate milk shippers.
There are 42 employees in and working out of the Indiana-
polis office. Of these 18 are sanitarians who inspect dairy
farms, 18 sanitarians who inspect dairy plants.
The normal limits of Indiana inspection include all pas-
teurization plants in Indiana (but no plants outside In-
diana), together with all farm shipping milk to those plants
(T. 189). Indiana inspectors inspect about 3000 dairy farms
in Indiana. Indiana inspectors also inspect about 125 dairy
farms in Michigan (T. 222), 350 dairy farms in Illinois (T.
293) and 40 dairy farms in Ohio. Thus, the Indiana Board
of Health inspects more than 500 dairy farms located out-
side Indiana—about one-sixth of the total number of farms
checked.
Indiana accepts milk reciprocally from pasteurization
plants in Illinois, Wisconsin, Minnesota, Iowa, Kentucky,
Ohio, Michigan, West Virginia and Pennsylvania on the
basis of inspection by the health authority of the shipping
state (T. 185, 186). Milk is shipped from Indiana to Tllinois
(outside Chicago), Towa, Kentucky, Tennessee, West Vir-
ginia, Ohio and Michigan on the basis of inspection by
Indiana only, without inspection by the receiving jurisdic-
tions (T. 188).
Side-By-Side Inspection Of Dixie’s Plant And
Farms By Indiana And Chicago Inspectors.
As a matter of discovery, the district court in October,
1972, authorized the Chicago Board of Health to send its
—22—
inspectors to inspect Dixie’s plant and dairy farms. Dixie
agreed. However, at Dixie’s request, Indiana inspectors
were permitted to accompany the Chicago inspectors (T.
192).
There were four inspectors from Chicago and three from
Indiana assigned to the project, which Kimball participated
in personally. Working side by side in teams of two and
rotating the teams, each inspector made out his own in-
spection sheet. At the end of the week, when all the farms
had been inspected, the inspectors compared results (T.
194). The reports were stapled together.
A joint inspection was made of each of the 204 dairy
farms supplying Dixie (T. 214, 215). Not all the farms were
in Indiana; about half of them were in Illinois. The area
covered extended roughly from O’Hare field south to Kan-
kakee, Illinois, then east to Rensselaer, Indiana, then north
to the Indiana-Michigan border near Michigan City, In-
diana (T. 216).
The weighted volume rating for all the farms surveyed,
as compiled by the Indiana inspectors, was 91 percent
compliance (T. 198). The rating the Chicago inspectors
gave the same farms was 88 percent compliance (T. 199).
The Indiana inspector’s rating of the Dixie plant in Gary
was 94 percent compliance (T. 199, 201). The Chicago in-
spectors rated the Dixie plant as 84 or 85 percent in com-
plianece (T. 203).
The Chicago inspectors gave demerits for wash and rinse
vats in the milkhouses if the vats were not made of stain-
less steel (T. 207). Demerits were also given by the Chicago
inspectors to farms that used pieces of plaster tubing that
could not be looked through from the outside to the inside
diameter of the tubing.
collins
More importantly, in the matter of cattle drinking cups
or submerged inlets, the Indiana inspectors were lax. Some
of the cattle drinking cups on Indiana farms supplying
Dixie were constructed so that the inlet for the water
coming into the cup was below the floor level rim of the
cup itself.
On cross-examination, Kimball was reluctantly constrain-
ed to admit that, on page 107, the model ordinance states:
“The casing of every well shall terminate above the
ground level.”
At the time the joint inspection was completed, Indiana
was very gradually phasing out its cattle drinking cups of
submerged inlet construction (T. 211). But Indiana was
not debiting these cups that were eventually to be replaced.
On the other hand, if there is one such substandard drink-
ing cup in a barn, the Chicago inspectors debit the farm
(T. 212). The federal authorities have since instructed the
Indiana Board of Health that it must start debiting these
substandard drinking cups (T. 214).
The model ordinance (T. 210-236) plainly states, under
Item 87, as to water supply for dairy cows:
“Water for milkhouse and milking operations shall be
from a supply properly located, protected, and op-
erated, and shall be easily accessible, adequate and of
a safe, sanitary quality.”
“ * . * . >
“This item is deemed satisfied when:
“ . . . . .
“There are no submerged inlets through which a safe
water supply may be contaminated.”
- =
A buried seal is a sanitary seal of the well that is ter-
minated below the ground surface (T. 233-237). It violates
the model ordinance which states (at p. 107), “The casing
of every well shall terminate above ground level.”
The items of cattle drinking cups fed by submerged in-
lets and equipped with buried seals are grave enough to
draw, on the scale of debit points of the model ordinance
(Plaintiff’s Exhibit 39), a demerit of 5 points, where 90
out of 100 possible points is passing.
—)
REASONS FOR GRANTING THE WRIT
I.
THE OPINION OF THE COURT OF APPEALS IS IN CON-
FLICT WITH THE RULING OF THIS COURT IN DEAN MILE
COMPANY vs. CITY OF MADISON, WISCONSIN.
Since 1935, the City of Chicago, by its city council has
adhered to the milk control practices which we have set
forth in unavoidable detail. It has continued to do this
in reliance upon the ruling of this Court in the well-known
ease of Dean Milk Company vy. City of Madison, Wisconsin,
340 U.S. 349 (1951), which has never been overruled by
this Court.
In Dean, it will be recalled, in striking down a city ordi-
nance making it unlawful to sell any milk as pasteurized
unless it had been processed and bottled within five miles
of the center of the city, and unless it came from a dairy
farm located within 25 miles of the same, this Court set
forth two alternative procedures a municipality may em-
ploy, either of which is constitutionally permissible.
One alternative is to follow the reciprocity provision of
the model ordinance formulated by the USPHS. The other
permissible alternative is for the City to rely on its own
inspectors, regardless of the distance from the city of
the sites inspected. In the words of this Court in Dean (340
U.S. at 354, 355):
“Tf the City of Madison prefers to rely upon its own
officials for inspection of distant milk sources, such in-
spection is readily open to it without hardship for it
could charge the actual and reasonable cost of such in-
—_%—
spection to the importing producers and processors,
G. Sprout v. South Bend, 277 U.S. 168, 169, 72 L.ed. 833,
836, 48 S. Ct. 502, 62 ALR 45 (1938), see Miller v. Wil-
liams, 12 F. Supp. 236, 242, 244 (D.C. Md. 1935).”
That determination is in accord with the long line of
authoritative precedents recognizing that, in the absence
of preempting federal legislation, the Commerce Clause of
the United States Constitution (Art. I, See. 8) does not
prohibit state or local legislation, enacted pursuant to the
police power of the state or municipality, for the evident
purpose of protecting the health, safety or welfare of the
community, even though such legislation may have some
effect on interstate commerce. Willson v. Black Bird Creek
Marsh Co., 2 Pet. 245, 7 L.Ed. 412 (1829); License Cases,
5 How. 504, 12 L. Ed. 256 (1847); South Carolina Highway
Department v. Barnwell Bros., 303 U.S. 177 (1939); Milk
Board vy. Eisenberg, 306 U.S. 346 (1939); California v.
Thompson, 313 U.S. 109 (1941); H.P. Hood & Sons v. Du
Mond, 336 U.S. 525 (1949); Huron Portland Cement Co. v.
City of Detroit, 362 U.S. 440 (1960); Brotherhood of Loco-
motive Firemen v. Chicago, RI. & P.R. Co., 393 U.S. 129
(1968).
However, the court of appeals is of the opinion that the
principle enumerated in Dean has been modified, indeed,
drastically modified by this Court’s recent opinion in Great
Atlantic and Pacific Tea Company vy. Cottrell, ...... i
47 L.Ed.2d 55, 95 S. Ct. 923, 44 L.W. 4240—decided Feb-
ruary 25, 1976). That Cottrell was considered determinative
here is clear from the court of appeals’ opinion, which plain-
ly states (App. 34a):
“Before the formulation of the balancing test in Pike
v. Bruce Church, Inc., 397 U.S. 137, 142 (1970), and the
reaffirmation of that test in Great Atlantic and Pacific
= =
Tea Co. v. Cottrell, 96 S.Ct. 923, the argument in favor
of the Chicago milk ordinance would have been more
persuasive.”
The court of appeals has found that in Cottrell the refer-
ence in Dean to the permissible alternative open to a mu-
nicipality of making its own inspections, no matter where,
is now “qualified” by the phrase “[i]Jn the absence of ad-
equate assurance that the standards of a sister state, either
as constituted or as applied, are substantially equivalent
to its own.”
Evidently the court of appeals regards possession of
a permit from the health authorities of another state, cer-
tified by a USPHS spot-check, as sufficient “assurance.”
Thus, the court of appeals’ opinion, without any mandate
from the Congress, quietly converts the voluntary reci-
procity program fostered by the USPHS into a mandatory,
obligatory arrangement, unless the municipality can prove
that it does not have adequate assurance that the standards
of the out-of-state jurisdiction are substantially equivalent
to its own.
Cottrell was not a health case. Like Pike v. Bruce Church,
Inc., it was a purely economic dispute. Although the plain-
tiff in Cottrell was seeking a permit to distribute Louisiana
milk in Mississippi, the permit was being denied, not for
considerations of health, but solely under a Mississippi reg-
ulation excluding milk from another state unless the other
state accepted Mississippi’s milk on a reciprocal basis. As
this opinion of this Court in Cottrell (47 L.Ed 2d at 63)
incisively remarked:
“Mississippi’s contention that the reciprocity clause
serves its vital interests in maintaining the State’s
health standards borders on the frivolous. The clause
—28—
clearly does not do so in the sense of furthering Mis-
sissippi’s established milk quality standards. For ac-
cording to the State’s brief, p. 9, ‘$11 covenants that
Mississippi will do the inspections, will certify them,
and will accept a standard below that applicable to
domestic producers, if the forwarding state will do the
same.’ Thus, even if Louisiana’s standards were lower
than Mississippi’s, the clause permits Louisiana milk
to be admitted to Mississippi if Louisiana enters into
a reciprocity agreement. The reciprocity clause thus
disserves, not promotes any higher Mississippi milk
quality standards.”
The coerced reciprocity, which in Cottrell Mississippi
sought to impose, was a strictly economic measure that op-
erated as an obvious barrier to the flow of interstate com-
meree It was disruptive of the national common market
created by the Commerce Clause of the Constitution and
was intended to have that effect.
The Chicago milk ordinance, on the contrary, is an enact-
ment in the proper local domain of health regulation. Some-
how or other the opinion of the court of appeals loses sight
of the fact that it is dealing with a legislative enactment,
which is, of course, presumptively valid. “Since the area
is one that is properly of local concern, the means chosen
to accomplish that end are to be deemed reasonably effee-
tive unless the party attacking the legislation demonstrates
the contrary by clear and convincing evidence.” Procter and
Gamble Company vy. City of Chicago, 590 F. 2d 69, at 76 (7
Cir. 1975), cert. den. 421 U.S. 978 (1976).
Dixie has not even attempted to prove that the means
chosen by Chicago to assure the purity of its milk are not
reasonably effective to accomplish that purpose.
=~ =
The invocation of Pike v. Bruce Church, Inc., 397 U.S.
137 (1970), by the court of appeals is also confused. This
Court explicitly stated in Pike (at 143, 146):
“We are not, then, dealing here with ‘state legisla-
tion in the field of safety, where the propriety of local
regulation has long been recognized’ or with an Act
designed to protect consumers in Arizona from con-
taminated or unfit goods. Its purpose and design are
simply to protect and enhance the reputation of grow-
ers within the State.
“ ... [Here the State’s interest is minimal at best.”
Thus, by its own terms, Pike is inapplicable to state or
local enactments in the field of safety or to legislation
designed to protect the health of consumers from contami-
nated food.
It will be recalled that Pike concerned an Arizona stat-
ute which prohibited the shipment of cantaloupes out of
Arizona unless they were packed in containers in a manner
approved by the state. The ostensible purpose of the stat-
ute was to enhance the reputation of Arizona cantaloupes.
It sought to do this by requi ing Arizona grown cantaloupes
to be packed in packing sh ds located in the state of Ari-
zona. The plaintiff’s shed was located in California, 31
miles from its Arizona sources of supply. To have built
the requisite facility in Arizona would have entailed an
expenditure by the plaintiff of $200,000 and in the mean-
time the $700,000 cantaloupe er. in Arizona would have
been lost.
Thus, in Pike there was a strong element of direct dis-
crimination against out-of-state enterprise in the guise of
promoting good will for Arizona produce. In tie case at
bar, on the other hand, the purpose of the Chicago ordi-
nance is to protect the health of that community from recog-
—30—
nized dangers of contamination by providing for a double-
check by Chicago inspectors, at Chicago’s expense, of all
the sources of al! milk offered for sale in Chicago.
The Arizona statute in Pike required cantaloupe enter-
prises to locate their packing facilities within that state,
whereas the Chicago ordinance here under scrutiny in no
way affects the location of Dixie’s plant or farm sources,
but merely requires their submission to inspection by in-
spectors under the control of Chicago. These inspections
are conducted at no cost to the inspectees, whereas in Pike
compliance would have cost the shipper almost a million
dollars.
Il.
THE OPINION OF THE COURT OF APPEALS HAS ERRO-
NEOUSLY INVALIDATED THE CHICAGO MILK CONTROL
ORDINANCE SOLELY ON COMMERCE CLAUSE GROUNDS.
THE CHICAGO ORDINANCE IN NO WAY BURDENS IN-
TERSTATE COMMERCE.
No Indiana dairy farmers testified that they could not
afford to sell to Dixie if they were to be subjected to Chi-
cago inspections in addition te Indiana inspections. There
was not even testimony based on experience, that dairy
farmers have a psychological aversion to duplicate inspec-
tions carried out a few times a year. The president of
Dixie, Eskilson, merely stated self-servingly that it was
a hardship for producers to be subjected to varying inter-
pretations of the same standards by two different au-
thorities. But Eskilson was not present during any in-
spections by Chicago inspectors of any of his suppliers
and had no direct knowledge of what occurred. Eskilson
pointed to no actual differences of interpretations of the
- =
same standards by Indiana and Chicago inspectors. In-
deed, Eskilson, in response to the following question put
to him by Dixie’s own counsel, gave the following answer:
“Q. Well, do you feel that if your procedures are
subject to a second interpretation and a second in-
specting authority, that you may lose those producers
to one of your dairy competitors?
“A. I’m not saying it would happen, but it could
happen.”
Eskilson also made the following admission in response
to the following question by the district court:
“The Court: So except for the psychological effect
of it, the real personal inconvenience of having a sec-
ond inspection, forgetting the psychological part and
forgetting the confusing part that he spoke of, it does
not cost the farmer very much time or effort, does it?”
“A. Nota great deal, sir, not a great deal.”
Such a putative burden is no burden at all. The weakness
of Eskilson’s testimony is eloquent.
The opinion of the court of appeals (App. 36 a) admits
that the burden imposed on interstate commerce by the
Chicago Milk Ordinance “might not appear excessive”,
were it not for an alleged lack of out-of-state milk proces-
sors with Chicago permits. Yet the opinion (App. 38 a) ad-
mits there is a “paucity of evidence on this subject.”
Surely, it would not have been difficult for Dixie, with
the help of the suboena power, to have proven by direct
testimony that out-of-state processors are discriminated
against, if such were a fact.
Indeed, discrimination is not even an issue in this case.
As the opinion of the Court of Appeals (App. 32 a) itself
notes, the amended complaint herein originally contained a
32
count two, which alleged discrimination against interstate
commerce. This count was stricken when Dixie, after in-
spection by Chicago inspectors pursuant to discovery in
the district court, was offered a permit which it declined.
The striking of the discrimination count was not appealed.
Therefore, discrimination is not an issue in this case, al-
though the opinion of the court of appeals seems to turn
upon it.
It is distinctly less than candid for Dixie to shed tears
over the inconvenience that Chicago inspections would be to
its Indiana dairy farmers, while the Indiana Board of
Health continues to inspect more than 500 dairy farms in
Illinois, Michigan and Ohio (R. 222-225). This total of 500
farms includes approximately half of Dixie’s 204 dairy
farms, which are located in Illinois (T. 214-216).
And we again respectfully remind the Court that Chi-
eago’s out-of-state milk inspections are made at no cost
to the inspectees, although under this Court’s opinion in
Dean, Chicago is entitled to charge its expenses to the ap-
plicant or holder of a milk permit.
That, as a result of inspections by Chicago inspectors,
some of Dixie’s dairy farm suppliers may be required to
clean up the watering troughs of their cattle does not rise
to the dignity of being an unconstitutional burden 01 inter-
state commerce.
III.
THE OPINION OF THE COURT OF APPEALS IS NOT SUP.
PORTED BY SUBSTANTIAL EVIDENCE.
Again and again the opinion of the Court of Appeals
commits the error of accepting the findings of the District
court as evidence instead of determining whether these
- =
findings are supported by substantial evidence in the ree-
ord (App. 37 a, 38 a, 39 a).
The Court of Appeals also erred in dismissing the de-
ficiencies of Indiana inspections with respect to the sources
of drinking water for dairy cattle as trivial. The evidence
clearly showed that, under the model ordinance promul-
gated by the USPHS, the item of drinking cups fed by
submerged inlets and the item of buried seals are grave
enough to draw a demerit of 5 points, where 90 out of a
possible 100 points is passing.
IV.
WITHOUT CONGRESSIONAL MANDATE, THE OPINION
OF THE COURT OF APPEALS MAKES THE VOLUNTARY
RECIPROCITY PROGRAM MANDATORY.
The opinion of the court of appeals in the case at bar
stands the ruling of this Court in Great Atlantic and Pacific
Tea Company v. Cottrell, ...... US. ....... 47 L. Ed. 2d 55
(1976), on its head. Whereas in Cottrell this Court barred
the forcing of a health jurisdiction “into even a desirable
reciprocity agreement,” the court of appeals here under-
takes to compel a health jurisdiction to enter into a reci-
procity agreement, a reciprocity agreement it does not deem
desirable, with another health jurisdiction whose enforce-
ment of standards is lax.
According to the testimony of the regional milk sanita-
tion specialist for the midwest region of the USPHS-FDA,
Charles D. Price, the model Pasteurized Milk Ordinance
(PMO), with the reciprocity provision contained in its
Section 11, is not a federal law, but merely a set of recom-
mendations of the USPHS (T. 114). Yet the opinion of the
court of appeals rules that it is an unconstitutional bur-
onli
den on interstate commerce for a municipality to require
of applicants and permittees submission to its own out-of-
state inspections, even without charge, unless it can es-
tablish that it does not have “adequate assurance that the
standards of [the] sister state, either as constituted or as
applied, are substantially equivalent to its own.”
There has been no federal legislation preempting the
field of interstate milk control to regulation by the USPHS.
In the absence of such preempting legislation by Congress,
there is no constitutional restriction on state or local
legislation enacted pursuant to the police power of the
state or municipality, requiring on-site inspection by that
jurisdiction of the sources of out-of-state milk being ship-
ped into that jurisdiction for the evident purpose of pro-
moting the health of its community. Willson v. Black Bird
Creek Marsh Co., 2 Pet. 235, 7 L. Ed. 412 (1829); Milk
Board v. Eisenberg, 306 U.S. 346 (1939); H. P. Hood &
Sons v. DuMond, 336 U.S. 525 (1949); Huron Portland
Cement Co. v. City of Detroit, 362 U.S. 440 (1960); Dean
Milk Co. v. City of Madison, Wisconsin, 340 U.S. 349 (1951).
The opinion of the court of appeals also completely over-
looks the fact that the terms of the reciprocity provi-
sion, section 11, of the model ordinance, authorize accept-
ing, on a reciprocal basis, milk produced “beyond the limits
of routine inspection” of the health authority (T. 48, 49).
Dixie is located in Gary, Indiana, about 50 miles from
downtown Chicago, not more than an hour away by the
expressway. That is about one-fourth as far away as the
milk plant in Fond du Lae, Wisconsin, that Chicago regu-
larly inspects (T. 388). Dixie’s pasteurizing plant and dairy
farms are well “within the limits of routine inspection” of
Chicago. By its own terms, the reciprocity provision is not
properly applicable here.
- =
CONCLUSION
Chicago’s decision to rely upon its own milk inspections,
conducted by personnel under its control, is a reasonable
act of legislative discretion. Direct experience is more ade-
quate than reliance upon someone else’s experience and a
third party’s spot check. Double-checking what has been
checked by someone else is more reliable, more accurate
than relying upon a check by someone else. In matters of
safety, maximum safety is a matter of right.
For the foregoing reasons, it is requested that a writ of
certiorari issue and that the judgment of the court of ap-
peals be reversed.
Respectfully submitted,
WILLIAM R. QUINLAN
Corporation Counsel of the City of Chicago
611 City Hall, Chicago, Illinois 60602
Attorney for Petitioners
DanteL Pascale
EpMuUND HATFIELD
Assistant Corporation Counsel
Of Counsel
APPENDIX
—jJa—
APPENDIX A
_———
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DIXIE DAIRY COMPANY, ~
a corporation,
Plaintiff.
- No. 70 © 3212
THE CITY OF CHICAGO, a municipal
corporation, et al.,
Defendants. 1
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This cause was tried without a jury. The Court heard
argument of counsel and now considers all of the evidence
of the parties and the argument of their respective counsel
and hereby makes and enters findings of fact and conclu-
sions of law thereon.
FINDINGS OF FACT
1. This is an action for declaratory and injunctive relief
under the provisions of 28 U.S.C. $2201, seeking to declare
unconstitutional, as a burden upon the free flow of inter-
state commerce in milk and milk products in violation of
Article I, Section 8, of the United States Constitution, the
action of defendants in refusing to grant plaintiff a permit
to sell and distribute Grade A milk and milk products in Chi-
cago unless plaintiff submits to initial and continuing in-
spections by the Chicago Board of Health.
alli
(Appendiz A)
2. Plaintiff, Dixie Dairy Company, is a dairy located
in Gary, Indiana. Dixie’s plant and producers are licensed
by the States of Indiana and Illinois pursuant to standards
and regulations promulgated by the United States Public
Health Service (U.S.P.H.S.). Dixie sells Grade A milk and
milk products in Illinois and Indiana and has been engaged
in business as a dairy since 1899. In 1974, Dixie had sales
of approximately $12 million, $8 million in Indiana and
$4 million in Illinois.
3. Defendants are the City of Chicago, the City of Chi-
cago Board of Health, which agency is charged with the
enforceinent of the ordinances of the City of Chicago re-
lating to the regulation of the production and pasteuriza-
tion of milk and milk products and with the issuance of
permits to dairies and milk product plants selling milk
within the corporate limits of the City of Chicago, and
Dr. Murray Brown, the Commissioner of the Chicago Board
of Health, and Dr. Eric Oldberg, Mr. Samuel A. Goldsmith,
Dr. Theodore Lawless, Mr. Walter Mullady, Dr. Lee Strohl,
Dr. Robert Stepto, Mr. Edward F. Brabec, Dr. Mary Kelly
Mullane and Dr. Leroy P. Levitt, individual members of
the Chicago Board of Health.
4. Beginning in the 1950’s and continuing until the com-
mencement of this litigation Dixie sought a permit from
the City of Chicago to allow it to sell its milk in the City.
Dixie last sought such a permit in 1969 when it requested
the Chicago Board of Health to allow it to sell in Chicago
based upon Indiana and U.S.P.HLS. inspection of Dixie’s
plant and producers. Chicago refused to grant a permit on
those grounds and stated that as a matter of policy the
grant of a permit to any milk processor would have to be
—3a—
(Appendix A)
conditioned upon initial and continuing inspections by the
Chicago Board of Health.
5. In 1970 Dixie filed this action seeking to declare
unconstitutional Chicago’s refusal to grant it a permit, al-
leging that inspection of Dixie’s plant and producers by
Indiana State Board of Health authorities and the U.S.P.-
H.S. was adequate to protect Chicago’s legitimate health
interests.
6. Dixie’s plant and producers were regularly inspected
by the Indiana State Board of Health. Donald Kimball,
Director of the Division of Dairy Products of the Indiana
State Board of Health, testified that his division employs
18 farm inspectors, 15 plant inspectors and 2 survey men.
All but one of the inspectors is a registered sanitarian who
achieved that designation by qualification and examination.
7. The State of Indiana has adopted the United States
Public Health Service Model Milk Code (PX 3) and pro-
cedures and regulations (PX 39, PX 40) as the basis of its
milk sanitation program (See PX 5 and PX 58, the Indiana
statute and regulations). In addition, Indiana has entered
into the federal-state cooperative program administered
by the United States Public Health Service. Pursuant to
Indiana’s milk sanitation program, all dairies desiring a
license to sell milk must submit their pasteurization plant
and each producer source shipping raw milk to the plant
to an initial compliance inspection. Both the plant and each
of the producers must meet all standards to pass the initial
inspection.
After a plant and its producers qualify for a license
they are subject to regular continuing inspections. If during
—
(Appendix A)
any phase of these inspections an imminent health hazard
is discovered, the milk is immediately removed from the
market. The federal market administrator and all plants
receiving the milk are notified by telephone of the suspen-
sion. As a matter of practice, Indiana inspects all pro-
ducers three to four times a year. At these inspections
every item on the inspection sheet is checked and violations
noted. Violations which do not rise to the level of a health
hazard are required to be corrected within a time specified
by the department. The time varies with the seriousness
of the violation. A second violation subjects a producer to
suspension of his permit.
In addition to physical inspection of the producer farm,
each day milk is picked up from the farm, a sample is taken
by the milk hauler. The PMO requires that these samples
be tested for bacteria and the like a minimum of four times
in every six-month period. The tests must be conducted
by a laboratory certified by the Indiana State Board of
Health. Dixie Dairy is one of the few dairies in Indiana
which maintains such a certified laboratory. If two of the
last four tests show violations of the standards, the pro-
ducer is served with a warning notice. Another sample is
examined within 14 days and if that also proves violative
of the standards, the producer’s permit is suspended.
The producers are subject to two further inspections.
First, every 12 to 18 months the survey section of the
Indiana Board of Health, as part of the federal-state co-
operative Interstate Milk Shippers’ Program, inspects a
random sample of producers to derive an interstate milk
shipper’s (IMS) rating. The survey officers are certified
by the U.S.P.H.S. The survey includes an inspection of all
a
(Appendix A)
Indiana inspection reports made since the last survey as
well as a review of the laboratory results on all samples.
Second, the U.S.P.H.S. makes a check or audit survey of
a randomly selected sample of producers to determine if
the Indiana survey is accurate.
Indiana pasteurization plants are inspected as a matter
of practice every week. This inspection involves a review
of every item on the inspection sheet. Violations are re-
quired to be remedied within the time specified. In ad-
dition, at least four times in every six-month period samples
of all commingled raw milk and all finished products are
taken and checked for excessive bacteria, coliform, and sim-
ilar undesirable qualities. These samples are sent directly
to the Indiana State Board of Health laboratory in In-
dianapolis where the analysis is made. If two of the last
four samples show high counts, another sample is exam-
ined within 14 days. If that proves unacceptable, the plant’s
permit is suspended. These tests demonstrate that Dixie’s
milk is extraordinarily wholesome. For example, whereas
the acceptable bacteria count per millimeter is 20,000,
Dixie’s typical counts are 100 to 500 (PX 59).
Finally, like the producers, the plants are surveyed by
the Indiana survey officers for the IMS ratings every 12
to 18 months. These survey results are audited by the
U.S.P.HLS. survey officers.
The State of Indiana also conducts several other regular
inspections. First, bulk milk haulers are inspected three
times a year. A check is made to see that they have proper
sampling equipment and that that equipment is properly
used. Pick up techniques are reviewed, and the bulk tank
——-$a——
(Appendix A)
truck is extensively examined. Second, the bulk milk tank
at each farm is regularly inspected. The Indiana law re-
quires that milk must not sit in a tank for longer than
48 hours. Third, an antibiotic test is conducted at least
eight times annually. If antibiotics are found, no more milk
may be shipped until a good sample is taken. Finally, In-
diana conducts tests for radiological samples.
8. In addition to the Indiana inspection program, Dixie
is subject to survey and ratings by the U.S.P.H.S. Mr.
Charles Price, Regional Milk Specialist for the U.S.P.H.S.
division of the Food and Drug Administration, testified
concerning the milk sanitation standards adopted by In-
diana and the nature of the federal-state cooperative milk
program. The details of that program are set out in “Pro-
cedures Governing the Cooperative State-Public Health
Service Program For Certification Of Interstate Milk Ship-
pers (1973 Revision)” (PX 40). Each state which enters
the program must first adopt the PMO as its basic milk
sanitation statute. In addition, the states must adopt the
methods of enforcement of that program set out in “Meth-
ods Of Making Sanitation Rating Of Milksheds” (1966 Edi-
tion) (PX 39). Mr. Price testified that 45 states and over
1,400 municipalities have adopted the PMO. Basically, the
program requires that, in addition to its regular inspec-
tions, at least once every two years, state survey officers
trained and certified by the U.S.P.H.S. must inspect a sam-
ple of producers and each plant to arrive at a rating which
reflects the extent to which the state is applying and en-
forcing the PMO and its attendant regulations. To assure
the accuracy of these ratings, and further to determine if
standards are maintained between surveys, the U.S.P.H.S.
— |
(Appendix A)
itself conducts an audit survey at least once during the
rating period. Only if the audit survey results are within
five points of the state survey results is the state work
accepted. If the U.S.P.H.S. surveys reveals a ten point
deviation with a score below 85, the shipper is immediately
withdrawn from the IMS rating pamphlet.
As a result of the state survey and the andit survey,
a rating is made for each milk plant shipping milk in inter-
state commerce, That rating is published quarterly in
“Sanitation Compliance And Enforcement Ratings Of In-
terstate Milk Shippers” (PX 37, A-C, PX 56). The United
States Government officially takes the position that the milk
of those plants receiving a rating of 90% or better is whole-
some and fit for humar consumption.
9. The evidence establishes that Dixie has at all times
relevant to this lawsuit received IMS ratings for its plant
and producers in excess of 90% (PX 37, A-C, PX 38, PX
56). Indeed, its latest ratings, resulting from a survey con-
ducted only four days before trial, show farm ratings of
91% and a plant rating of 96%.
10. In addition to inspection by Indiana and U.S.P.H.S.
authorities, Dixie also conducts daily inspections of its own
milk. Mr. Eskilson testified that Dixie maintains a fully
staffed and equipped laboratory certified by the Indiana
State Board of Health. Each day five basic tests are run
on Dixie’s finished products. Once a month each producer’s
raw milk is thoroughly examined. Results are reviewed by
the Indiana authorities. |
1]. In addition to reliance upon Indiana and U.S.P.H.S.
Inspection a receiving jurisdiction, such as Chicago, has
cuipen
(Appendix A)
the right to sample milk products from the delivery truck
and immediately request a re-survey should it believe that
the published survey results are inaccurate. Moreover, a
receiving jurisdiction always has the power to refuse to
accept any milk which it believes constitutes a health haz-
ard to its citizenry.
12. Dixie’s milk was and is wholesome and Chicago can
rely upon Indiana and U.S.P.H.S. inspection to fully pro-
tect Chicago’s health interests.
13. On the basis of the evidence and testimony before
the Court, the Court finds that Dixie’s milk is wholesome
and that the standards and procedures adopted and en-
forced by the Indiana State Board of Health and the
U.S.P.H.S. are sufficient to fully and adequately protect
Chicago’s health interests. The PMO standards and proce-
dures have been adopted by 45 states and 1,400 municipali-
ties, including the States of Illinois, Indiana, Wisconsin,
Michigan, Minnesota and Ohio, which produce the bulk of
the nation’s milk. Chicago introduced no evidence whatso-
ever to indicate that the Indiana and U.S.P.H.S. inspec-
tion program is in any way inadequate. Indeed, the evidence
‘establishes that the Chicago Board ef Health has adopted,
as a matter of practice, the PMO standards and has urged
the Chicago City Council to formally enact those standards
into law. Mr. King, Assistant Commissioner of Health of
the City of Chicago, testified before the Health Committee
of the Chicago City Council that adoption by the City of
Chicago of an ordinance essentially identical to the PMO
would fully protect Chicago’s health interest (PX 20). Mr.
Meany, Chief Sanitarian for the Chicago Board of Health,
testified similarly and concluded:
—
(Appendiz A)
“The proposed revision of Chapter 154, presents an
updated, modern standard which will provide a safe
high quality product, for all of the people of Chicago,
as well as permit the sale, in areas outside the state,
of milk produced or processed under supervision of
the Board of Health.”
Mr. Meany further testified that Chicago could safely rely
on a shipping state’s inspection of milk stating:
“The new section recognizes reciprocity between Chi-
cago and other states and would permit the sale and
distribution, in Chicago, of milk and milk products
produced and processed under regulations substantial-
ly equivalent to this ordinance. . . .”
The foregoing testimony was not even attempted to be
disputed and the Court finds the same to be true. The con-
clusion that Chicago’s health interests are adequately pro-
tected by Indiana and U.S.P.H.S. inspections is reinforced
by the fact that the United States Government officially
takes the position that milk of those plants receiving a
rating of 90% is wholesome and fit for human consumption.
Federal agencies rely on the IMS ratings as an acceptable
source of milk supply for interstate carriers as well as
their own use. The U.S.P.H.S. states with respect to a re-
ceiving state’s reliance upon a shipping state’s inspection
as follows (PX 39, p. 15):
“A milk sanitation compliance and enforcement rating
of 90 percent or more, determined by the methods de-
scribed, means that the pasteurized milk and milk prod-
ucts sold in a community are as safe as reasonably
strict enforcement of milk sanitation regulations will
make them. Consumers of such grade A pasteurized
—10a—
(Appendix A)
milk and milk products may, for all practical purposes,
ignore the danger from milkborne disease as much as
is possible and may therefore use such products with
confidence.”
14. Despite the fact that Chicago’s health interests are
adequately protected by Indiana and U.S.P.H.S. inspec-
tions, Chicago insists upon its right to make initial and
continuing on-site inspections of Dixie’s plant and producer
sources as a condition to granting a permit to sell Grade A
milk and milk products within the city limits.
15. Chicago’s insistence upon making duplicative inspec-
tions is unnecessary and unrelated to any legitimate health
interests.
16. The insistence by the City of Chicago upon unneces-
sary duplicative inspection may cause producers serving
Dixie to refuse to sell to Dixie. Mr. Kjos, a former Dixie
fieldman now serving Dixie farms for AMPI, testified that
in his opinion “the majority” of Dixie’s producers would
seek another market rather than submit to such duplicative
inspections. Mr. Eskilson testified that it was unreasonable
and a hardship for the producers to be subjected to vary-
ing interpretations of the same standards by two different
inspection authorities. In this connection Mr. Kimball tes-
tified that on the joint inspection of Dixie’s producers
made by the Indiana and Chicago health authorities, the
Chicago inspectors “gigged” certain producers for items
of cleanliness (e.g. short lengths of plastic hose, wash tubs,
etc.), which were without health significance.
17. The evidence established that Chicago’s insistence
upon conducting on-site inspections as a condition to the
—lla—
(Appendix A)
grant of a permit has discouraged out-of-state processors
from pursuing applications for Grade A permits. Not one
out-of-state processor holds a Chicago Board of Health per-
mit. Mr. Meany testified that while 25-40 inquiries are re-
ecived from out-of-state processors each year, when told
that the grant of a permit is conditioned upon Chicago
Board of Health initial and continuing inspections, “very
few” follow through. None have been granted such a per-
mit.
The evidence further discloses that a number of out-
of-state processors have sought a permit to sell Grade A
products in Chicago on the basis of their IMS ratings of
90 or higher, the same as Dixie. These include applications
by Kroger for its Livonia, Michigan, plant to supply ice
cream to the Kroger stores in the Chicago market (PX
54B), Sealtest for its Milwaukee, Wisconsin, plant (PX
54C), Ryan Milk Company for its Murray, Kentucky, plant
to supply half and half coffee creamers (PX 54D), Yogurt
Master for its Jacksonville, Florida, plant to supply yogurt,
sour cream and dips (PX 54E), Yami Yogurt for its Fort
Worth, Texas, plant to supply yogurt (PX 54F), Chautau-
qua Malted Milk for its Mayville, New York, plant to sup-
ply condensed skim to Borden’s Chicago plant (PX 54G).
All applicants had IMS compliance and enforcement ratings
of 90% or higher. Yogurt Master had a plant rating of
99% and a producer rating of 94%. Yammie Yogurt had
a plant rating of 95% and a producer rating of 97%. When
advised that a permit could only be issued on the basis
of Chicago inspection of producer sources and the shipper’s
plant, the inquiries terminated.
—l12a—
(Appendix A)
18. The evidence further establishes that Chicago’s re-
fusal to allow out-of-state processors permits to sell in
Chicago has resulted in threatened interruption of the flow
of milk from Chicago processors to other states. Both the
State of Indiana and the City of Milwaukee enacted laws
aimed solely at Chicago which would have prohibited Chi-
cago processors from selling in Indiana and Milwaukee
their milk until Chicago permits processors from those
localities to sell in the City. Only after protracted and ex-
pensive litigation were Chicago processors able to secure
a ruling that such laws were unconstitutional.
19. Dixie’s experience establishes that Chicago’s policy,
here under attack, results in substantial delays before the
Chicago Board of Health acts with respect to a permit ap-
plication. In 1955 Dixie completed over 400 application
forms which it submitted to the Chicago Board of Health.
After a delay of several months the forms were simply
sent back to Dixie without comment and without any fur-
ther action being taken. Similarly, in 1969 when Dixie ap-
plied for a permit on the basis of its IMS ratings, Dixie’s
representative, Mr. Anderson, was told by Mr. Meany that
it would be “futile” to apply at that time, but that Chicago
was in the process of amending its milk ordinance to per-
mit milk to come in on the basis of the shipping state’s
inspection as provided in the PMO. Similar advice was
given by Chicago Commissioner, Dr. Murray C. Brown, to
Indiana Health Commissioner Offutt in August, 1970 (PX
12, 13). The proposed amendment lias been under advise-
ment by the Health Committee of the Chicago Council since
May, 1970, although the Chicago Board of Health testified
in favor of its adoption. The Committee minutes disclose
—
(Appendiz A)
that the only opposition was that of representatives of
Locals 753 (Milk Drivers) and 754 (Inside Dairy Workers)
on the ground that adoption of the reciprocal inspection
provisions would have “harmful effects” on union em-
ployees (PX 18). Only after the filing of this action did
Chicago offer to grant Dixie a permit, and then only on
the basis of initial and continuing inspection by Chicago
inspectors.
20. The foregoing establishes that Chicago’s policy of
insisting on continuing on-site inspections of plants and
producer sources already subject to inspection by another
jurisdiction has burdened commerce in milk and milk prod-
ucts.
CONCLUSIONS OF LAW
1. he Court has jurisdiction of the subject matter and
the parties and venue is properly laid in this district.
9. The action of the Chicago Board of Health in re-
fusing to grant Dixie Dairy a permit, except upon initial
and continuing inspection by Chicago Board of Health au-
thorities, constitutes an impermissible burden on interstate
commerce in violation of Article I, Section 8, of the United
States Constitution, in that:
A. Chicago has no legitimate health interest in in-
specting Dixie’s milk since all such interests are fully
and adequately protected by Indiana and U.S.P.HLS.
inspections of that milk. Since Chicago has no legit-
imate health interest in inspecting Dixie’s milk, it there-
fore has no police power to regulate articles of com-
merce and such regulation is impermissible.
—l4a—
(Appendiz A)
B. The policy of insisting upon unnecessary dupli-
cative inspection has burdened interstate commerce in
milk and milk products in that it has, (1) kept Dixie’s
wholesome milk out of the City of Chicago, (2) denied
Dixie and other out-of-state processors the right to sell
wholesome milk and milk products in the City of Chi-
cago, and (3) threatened an interruption of the flow
of milk from the City of Chicago to adjoining states.
3. Chicago’s policy of refusing to grant Dixie a permit
except upon its own inspection is unconstitutional.
4. Plaintiff is entitled to an award of its costs of suit.
Entered:
/s/ J. Sam Perry, Judge
Dated: Sept. 3, 1975
—
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FORK THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DIXIE DAIRY COMPANY, >
a corporation,
Plaintiff,
- . No. 70 C 3212
THE CITY OF CHICAGO, a municipal
corporation, et al.,
Defendants. )
DECREE
This cause came on for trial without a jury and the
trial and final argument of counsel having been completed
the court has on this date entered findings of fact and con-
clusions of law.
Now therefore in pursuance of said findings of fact and
conclusions of law it is ORDERED, ADJUDGED and DE-
CREED that the policy the City of Chicago, [Illinois has
heretofore followed of refusing to grant the Dixie Dairy
Company, an Indiana corporation, a permit to sell milk in
the City of Chicago without inspection by the City of Chi-
cago in addition to inspection by the Indiana State Board
of Health be, and it is hereby declared to be an unlawful
burden upon interstate commerce and in violation of the
interstate commerce clause of the constitution of the United
States.
_—
(Appendiz B)
It is therefore, ORDERED, ADJUDGED and DECREED
that the City of Chicago forthwith abolish said policy and
that the City of Chicago issue plaintiff Dixie Dairy Com-
pany a permit to distribute Grade A milk and milk products
in the City of Chicago and continue such permit in full
force and effect in the same manner as it does to milk
producers whose milk it inspects so long as Dixie Dairy
Company enjoys an IMS rating of ninety percent (90%)
or better.
Enter:
/s/ J. Sam Perry, Judge
Dated: September 3, 1975
—lia—
APPENDIX C
—
(FINDINGS OF FACT AND CONCLUSIONS OF LAW
PROFFERED BY DEFENDANTS.)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DIXIE DAIRY COMPANY, >
a corporation,
Plaintiff,
- L No. 70 © 3212
THE CITY OF CHICAGO, a municipal
corporation, et al.,
Defendants. J
FINDINGS OF FACT
1. The Court has jurisdiction under 28 United States
Code, See. 2201 and Article I, Section 8, of the Constitution
of the United States (commonly known as the Commerce
Clause).
2. Plaintiff, Dixie Dairy Company is an Illinois Cor-
poration engaged in the business of purchasing, distributing
and selling, Grade A milk and milk products processed at
its plant in Gary, Indiana.
3. Dixie Dairy is the holder of an Indiana license and
an Illinois Department of Public Health Permit to distri-
bute Grade A milk and milk products within the State of
Indiana and Illinois.
4. Dixie Dairy sells and distributes Grade A milk and
milk products to communities within the State of Illinois
that borders on and are contiguous to the City of Chicago.
—18a—
(Appendix C)
5. That the 260 producers (farms) shipping milk to Dixie
Dairy in 1972, were roughly located from O’Hare Field
South to Kankakee, Illinois; East to Rensselaer, Indiana,
and North to Michigan City, Indiana, or approximately
within a sixty-five mile radius from the City of Chicago.
6. Of these approximately 50% were in Illinois and 50%
in Indiana.
7. That Dixie Dairy and its producers are subject to
routine inspection by the State of Indiana.
8. The Federal Government does not regulate the pro-
duction or distribution of Grade A milk and milk products.
9. The Federal Government through the United States
Public Health Service has promulgated a recommended
ordinance entitled Grade A Pasteurized Milk Ordinance
1965 Recommendations of the United States Public Health
Service.
10. The State of Indiana by Statute and regulation has
substantially adopted and enforces the Recommended Ordi-
nance.
11. The defendants are the City of Chicago a municipal
corporation; the City of Chicago Board of Health, which
agency is charged with the enforcement of the Ordinances
of the City of Chicago, the State Statutes and Regulations
relating to the regulation of the production and pasteuriza-
tion of milk and milk products and with the issuance of
permits to dairies, milk product plants, receiving stations
and producers (farms) distributing and selling milk with-
in the corporate limits of the City of Chicago.
—1]9a—
(Appendix C)
Dr. Murray Brown, the Commissioner of Health, Dr.
Erie Oldberg, Mr. Samuel A. Goldsmith, Mr. Walter Mul-
lady, Dr. Lee Strohl, Dr. Robert Stepto, Mr. Edward F.
Brabec, Dr. Mary Kelly Mullane and Dr. Leroy P. Levitt,
individual members of the Chicago Board of Health.
12. The State of Illinois has substantially adopted the
1965 Model Ordinance by Statute and regulation.
13. The City of Chicago regulates and inspects dairies,
milk plants, receiving stations and producers in accord-
ance with the provisions of the 1965 Model Ordinance as
adopted by Illinois State Statute and Regulation.
14. The State of Indiana by Statute and Illinois by
Regulation provide that Grade A milk and milk products
from points beyond the limits of routine inspection may
be sold and distributed in their respective states and issue
permits to do so when the milk or milk products are pro-
duced, processed and pasteurized under regulations sub-
stantially equivalent to those of the receiving state, i.e. rec-
ommended Ordinance and the shipper has been accorded
a milk sanitation compliance and enforcement rating of
90% or higher as published in the Interstate Milk Shippers
quarterly publication.
15. Indiana routinely inspects producers in Michigan,
Tilinois and Ohio.
16. Plaintiff Dixie Dairy refuses to accept under any
condition a permit to sell and distribute Grade A milk and
milk products in the City of Chicago which is conditioned
on Chicago Board of Health initial and routine inspection
of the plant and producers though there are no costs or
charges to its plant or producers.
—\—
(Appendiz C)
17. The City of Chicago refuses pursuant to its ordi-
nance and policy to grant a permit to Dixie Dairy and its
producers solely on a reciprocal basis and insists on rou-
tinely inspecting Dixie Dairies plant and producers without
charge or cost to Dixie or its producers.
18. Dixie insists that the City of Chicago grant it a
permit on a reciprocal basis because the State of Indiana
has substantially adopted and enforces the 1965 Model
Ordinance, because it is routinely inspected by Indiana
State inspectors and because it has consistently received
90% or higher sanitation compliance and enforcement
rating which is published in the Interstate Milk Shippers
Quarterly publication.
19. The sole method by which the City of Chicago can
determine if in fact Dixie Dairy and its producers are
complying with the regulation of the 1965 Model Ordinance,
and that the State of Indiana is properly enforcing the
regulations is by the rating published in the Interstate
Milk Shippers Quarterly publication.
20. The rating is a statistical sampling of a given num-
ber of producers (farms) to determine what the overall
sanitation picture of the producers is.
21. The rating is generally made every two years by a
state inspector (sanitation officer) certified by the United
States Public Health Service.
22. This certified rating officer is a state inspector and
can be involved in the routine inspections of his state agen-
cy. Though the certified rating officer cannot rate his own
routine inspections he can and does rate the routine in-
spections of other inspectors working for the same agency.
—2la—
(Appendiz C)
23. To determine the rating, for example, if a dairy
has between 148 and 167 farms shipping to it, the certified
rating officer would pick 36 farms at random and make an
inspection of each one and debit the individual farms for
violations found therein according to a point system de-
vised in Methods of Making Sanitation Ratings of Milk-
sheds 1966 Edition.
24. This is a weighted average, so that a large producer
hauling 10,000 pounds of milk will have ten times the weight
in the rating of a producer hauling 1,000 pounds of milk.
25. This procedure could grant a 90% or more quality
and enforcement rating for all producers and be based on
a relative smali number of large producers, while all the
other producers could actually be far below 90% minimum
acceptance rating.
26. Neither the certified rating officer nor the United
States Public Health Service have any enforcement power
or authority.
27. The certified rating officer even when observing
blatant and serious violations can only report those vio-
lations to the local agency and it is the local agency’s re-
sponsibility to see that it is corrected.
28. There is no follow-up by the United States Public
Health Service in regard to the violations, nor is the local
agency required to report whether it did in fact see to it
that the violation was corrected.
29. It is not uncommon to find violations of such a na-
ture as would indicate that a permit should not have been
—Ya—
(Appendix C)
issued originally but was issued because of misinterpreta-
tions.
30. It has been the practice of the Regional Office of
the United States Board of Health to waive and not debit
even serious violations contained in the 1965 Model Ordi-
nance in regard to a particular local agency without ap-
parent authority to do so and without notification to other
agencies who may be receiving or contemplating receiving
the milk and milk products from the particular agency.
31. If an audit survey by the Regional Office of the
United States Board of Health finds that the rating ob-
tained from the audit differs from that obtained by the
certified rating officer in that it is below 90% and five
points below the listed rating, they would notify the local
agency that they had 60 days to re-evaluate the milk sup-
ply and give them a valid rating. If the local agency after
60 days makes a re-evaluation and the rating is 90% or
better, this is accepted at face value, there is no new audit
made to determine if the second rating has any more
validity than the original.
32. Audits are made at a minimum of every five years.
33. Indiana inspectors and rating officers did not mark
as violations drinking cups (submerged inlets) even though
they testified these were a violation of the recommended
code because of an oral dispensation granted Indiana by
the Regional Office of the Public Health Service. They also
did not mark as violations buried Seals because of some
directive or other received from the Regional Office. Buried
Seals are a violation of the recommended code.
34. Drinking Cups and Buried Seals come under the
heading of Water Supply, and on a scale of debit points
—29e—
(Appendix C)
of 1, 2, 3, 5 and 10, in an i
, y rating, they are 5 point debi
(Methods of Making Sanitati i ilkehe pe
hiten, dee g itation Rating of Milksheds 1966
35. The City of Chicago has the economic means and
manpower to routi i 7 .
ee inely inspect Dixie Dairy and its pro-
36. ‘ Defendant has failed to prove that the City of Chi-
— : refused to grant a permit to sell and distribute
ade milk and milk products by out of state shippers
because it does not have the economic means and man-
power to initially and inely j ; :
tary y routinely inspect tlie shipper or its
37. Plaintiff's own testimony reveals that the City of
Chicago inspections and requirements are not arbitrary or
capricious.
38. There is no testimony or credible evi
Chicago Board of Health by its erro eee .
Milk Ordinance and the recommended code has pet ste
out-of-state milk producers and processors from applying
for permits to sell Grade A milk :
; and mil :
City of Chicago. k products in the
39. There is no testimon i i
y or evidence that the Chicago
wr prt of Health does not speedily and fairly inspect pn
ot-state milk producers and processors without charge.
40. The Chicago Board of Health, upon notification by
the out-of-state shipper that it and its producers are read
for the initial inspection, will immediately inspect the pr 4
ducer and its processors. -
41. The Chicago Board of Health upon request will with-
out charge send inspectors to sample some of the pro-
—24a—
(Appendix C)
provements and
ducers and advise the shipper what im
s the initial in-
corrections should be made so as to pas
spection.
42. The City of Chicago’s Ordinance and policy requir-
ing initial and routine inspections by Chicago Board of
Health inspectors as condition precedent and subsequent
to the issuance of a permit to sell Grade A milk and milk
products in the City of Chicago is a reasonable enactment
and means to protect the health and safety of its citizens.
43. The City of Chicago’s Ordinance and policy requir-
ing initial and routine inspections by Chicago Board of
Health inspectors before issuing a permit to sell Grade A
milk and milk products regulates evenhandedly to effectu-
ate a legitimate local public interest.
44. PX 3 in the Forward to the Grade A Pasteurized
Milk Ordinance 1965 Recommendations of the United States
Public Health Service, states the following:
“Despite the progress that has been made, occasional
milkborne outbreaks of illness still occur, emphasizing
the need for continued vigilance at every state of pro-
duction, processing, pasteurization, and distribution of
milk and milk products.”
45. There is no testimony or evidence that the Chicago
Board of Health inspection of Dixie Dairy or its producers
caused any disruptions in the operation of the plant or the
farms.
4G. There is no testimony or evidence that a dual in-
spection creates any disruptions in the operations of the
Dairies or farms.
to dual inspections.
48. Where the ivi
; receiving jurisdicti
Inspect the dairy and producers of pe i
CONCLUSION OF LAW
The Court has smeiaat.4?
url
parties. yremetle
The City of Chicago Board of Health i
n of the subject matter and the
gu
minimum requirements f. i milk
or milk and mi
There are no state 5 ee
of Chicago’s right to inspect plants
—26a—
(Appendix C)
Sons v. DuMond, 336
. 841 (1943); H. P. Hood & ; a
ly por ng Dean Milk Co. v. City of Madison,
U.S. 349 (1951).
sen to the contrary, a state
iota mca ttnigety suehorh conditions, a
aon Ga interstate commerce may be pagar
Milk Control Board v. Eisenberg Farm hay no oe
346 (1939); Baldwin v. G.A.F. Seelig, Inc., d
(1935). ee |
The necessity, importance and responsibility a ee
lation and inspection of milk and milk products
a
) ,
i ’s 1 i uirements for the
col Ag aaa po Te ee Grade A milk
sah aa . vdusta in the City of Chicago is a viable es
on alt rnative to the method sought to be impos ;
ae " : rather than an unreasonable restraint 0
ride of the Interstate ae a a Dean
Milk Co. v. City of Madison, 340 US. 349 ( .
i the
i i ional requirements and
ity of Chicago’s inspectiona
a ia administration thereof without Pecais
i ne have no demonstrable effect on marupersed ps ‘nr
and where no effect is found, no one — breton
ice 1 t violative o
nd the practice is no | ~
aig the Constitution. Procter and Gamble Co
City of Chicago, 509 F. 2d 69-75 (1975).
i rision
The question whether direct inspection and — ri “ss
of dairies and their producers as opposed to in
—27a—
(Appendiz C)
spection and supervision through reliance on a non-en-
forcement agency’s statistical overview better protects
health, is essentially a matter of public policy. Public pol-
icy can, under our Constitutional system, be fixed only by
the people acting through their elected representatives. It
is beyond the limited authority of the Court to review this
legislation under the Commerce Clause. Brotherhood of
Locomotive Firemen & Enginemen v. Chicago Rock Island
€ Pacific Railroad Co., 393 U.S. 129-136.
Where the burden on interstate commerce is slight, and
the area or legislation is one that is properly of local con-
cern, the means chosen to accomplish this end should be
deemed reasonably effective where the contrary has not
been demonstrated by clear and convincing proof. Procter
and Gamble Co. vy. City of Chicago, 509 F. 2d 69-76.
Courts will not look behind stated legislative purpose to
find hidden intentions or motives. Wilderness Society v.
Morton, 479 F. 2d 842 (CA D.C. 1973).
Nor can the Court use the Due Process Clause of the
Fourteenth Amendment to strike down state or local laws,
regulating business and industria] conditions because they
may be unwise, improvident, or out of harmony with a par-
ticular school of thought. Williamson v. Lee Optical Co.,
348 U.S. 483, 488 ( 1955); Olson vy. Nebraska, 313 U.S. 236
(1941); Ferguson vy. Skrupa, 372 U.S. 726 (1963); North
Dakota State Board of Pharmacy v. Snyders Drug Stores,
Inc., 414 U.S. 156 ( 1973).
Even if the test applied is a balancing of the legitimate
health interest served through evenhanded regulation by the
City of Chicago inspectional requirements as against the
—28a—
( Appendix C)
non-existent or, at most, slight effect on interstate com-
merce, the Ordinance and policy must be upheld as not
violative of the Commerce Clause of the United States Con-
stitution. Pike v. Bruce Church, Inc., 397 U.S. 137.
The City of Chicago’s Ordinance and policy refusing to
grant Dixie Dairy a permit except upon the City’s own in-
spection requirements is constitutional and not violative of
the Commerce Clause of the United States Constitution nor
the Due Process Clause of the Fourteenth Amendment.
Judgment is had for the Defendants and against the
Plaintiff.
ncicecnnniaitttt LOL
— in Gary, Indiana, an
—29a—
APPENDIX D
In the
Gnited States Court of Appeals
For the Seventh Circuit
No. 75-1932
Dru Dary Company, a
corporation,
e Plaintiff-Appellee,
Crry or Cuicaco, a ici
corporation, et al., —
Defendants-A ppellants.
Ap from the United Stat istri
or the N orthern District 1 tie
Eastern Division — No. 70 C 3019”
J. Sam Perry, Judge.
Arcuep January 19, 1976— Decivep Aveust 6, 1976
Before Swyaeart, Sprecuer and Tong, Circuit Judges.
Tong, Circuit Judge. The issue in this case
NE, rutt . ue in this i
_ a milk inspection ordinance imposes he heme ng
_— en +. interstate commerce, thereby violating th .
ree Clause, article I, section 8, of the Geastitaiion.
The District Court, after trial
ent j i
the ordinance unconstitutional. We affires ~giwen,
Plaintiff Dixie Dairy ayn | age a milk process-
ucts processed there to bu i Sunn and Tilinois
OC > ! yers in Indiana and Illinoi
e purchases its milk from 204 dairy farms, of which
about half are in Illinois and half in Indiana.
In 1955 Dixie applied for a permit to sell milk in the
City of Chicago. Forms were submitted on behalf of all
—30a—
of Dixie’s producers and milk haulers, but no action was
taken by the city. The company next inquired about the
possibility of obtaining a permit in May of 1969. A Dixie
representative was informed at that time by the city’s
chief sanitary officer that the city was in the process of
updating its milk inspection ordinance, and that it would
be “futile” to apply then.
Two years before Dixie’s inost recent inquiry, the State
of Indiana enacted the Grade “A” Pasteurized Milk Ordi-
nance (PMO) recommended by the United States Public
Health Service (USPHS). Ind. Code § 16-6-6-1, et seq.
(Burns Stat. 1973). The PMO has been voluntarily
adopted by 45 states and many counties and municipalities
in the United States. The Indiana statute embodying the
ordinance requires all vendors of milk within the state
to obtain a permit from the Indiana State Board of
Health. As a condition to obtaining and maintaining a
permit, a distributor’s processing plant, such as
Dixie’s, and all farms shipping milk to that plant
are subject to inspection at least twice a year by the
Indiana health authorities. Ind. Code §§ 16-6-6-3, -5. The
District Court found that farms are actually inspected by
the state three or four times a year, and that plants are
inspected every week. In addition, the statute requires
that each dairy farmer’s milk be laboratory tested for
bacteria a minimum of four times every six months. Ind.
Code § 16-6-6-6. Bulk milk haulers, who transport milk
from the farms to the processing plants, are also inspected
three times a year, according to the District Court.
State rating officers certified by USPHS survey and
rate milk producers and processors in every state which
has adopted the PMO pursuant to the procedures and
criteria set forth in a pamphlet entitled “Methods of
Making Sanitation Ratings of Milksheds,” USPHS Publi-
cation No. 678 (1966). Compliance with those criteria is
determined according to a point system, with any compli-
ance rating above 90 per cent being considered acceptable
for interstate transport and consumption. Dixie’s farmer
suppliers are thus subject to two further inspections, one
by USPHS-certified state rating officers, who inspect a
random sample of each processor’s farms to derive the
USPHS rating, and another by USPHS agents, who check
the results of the survey for accuracy on @ sample selec-
—3la—
tion basis. Pr i
. Processin
survey officers, whose results are aud
uced and t
equivalent to the PMO. an ,-4 =
able rating b : ,
fied by USPHS: mre milk sanitation rating officer on.
- Illinois, by
th ; 8, by regul
Grade A pecrting section 11 Ill De Ry oe adopted
ise Prodnet Rules and
egulations, to sell milk in Tlinoze, That
- oes not authori “er
ca 0
cage, which, under the authority of Il Bev: Sau, 3h Ott
has not ad 5), maintains its own milk re, aa oe 38
has not adopted the PMO." Since 1934 the Chicsge and
ance has required that all milk werden ooo uk
permit from the k vendors
-17, -22. Because no effective provision ~~ Be for eee
upon inspections b
state processor seeki ea
die Se ee, eas held unconstiaonal a Me
of Indiana, No. IP 10-C-610 (SD. wt H Br ot a
been enacted by the Chun, however, that while the PMO
have been adopted City Council, PMO inspection has not
. by the pf standards
SSpodacts angi Code provid Chicago Board of Health.
city Points P sg os ts. Milk and milk ucts
“Ja wed pastect,ngpection may mot be sold in
those of this and under provisions identical wit
that inspections by the roar er eret the board of health. a
such ‘points and teeareict health may confine its as enue
vision, and to Necessary to insure economic ghey; from
nya my d and promote the public health of the city”
are considered by Chicago er, that Dixie and all cf me” ”
‘ion.” The Board of 'ca8®, authorities to be within the “limits”
only to has interpreted section 154-19 as appiping
—32a—
required by the ordinance to submit itself and its dairy
farmer suppliers to duplicative inspections by Chicago
inspectors.
The record is silent on the question of whether Tlinois
processors who wish to sell milk both im
elsewhere in I snois are, with their suppliers, subjected to
duplicative inspections. At oral argument the question
was disputed by assertions outside the record, W ch we
must of course disregard. It would seem incongruous
and unlikely that [Illinois which, by adopting section 11
of the PMO, accepts inspections made by other —,
‘t has entrusted the health of Chicago’s 3.4 million people.’
We shall, however, treat this point as unresolved by
the record.
Dixie brought this suit in 1970, alleging in count 1 of
its amended complaint that the city’s refusal to issue &
interstate commerce, since the cit refused not only to
issue the permit but also to take the prerequisite step of
inspecting Dixie’s facilities. The city moved for summary
producers. As a result of this offer, the District
granted the city’s motion as to count 2 in June 974.
Dixie, adhering to its view that duplicative i i
spections were unnecessary, rejected the offer and appeal-
ed the count 1 ruling. This court reversed in an un
—33a—
lished order and sent th
for resolution
of disputed
On remand, the factual issues.*
relevant to this :
of abo action Dixi
Dixie's milk fe whole. Pg mm
upon Indiana and "USPHS and that
C "s h
officials had acknow! rests.
co
ontended otherwise. Th as much, and the city had not
ussed in
Sesllentine te en teow
duplicative inspection requirement of the ordinance te
ermit, and this aoe a
p city’s. ——— commerce.*
neni Board of Health ince =
ons was
cfinther” the" Chicage Boag this court found to be
and processors from sppiok —~ ae rane woos,
-state
e cas
e back to the District Court
Distri
ct Court found that at all times
—34a—
suppliers are also subjected to duplicative inspections as
a result of the ordinance. We therefore assume the ordi-
nance to be nondiscriminatory and must decide only
whether “[t]his is one of those cases—few in number—
where local safety measures that are nondiscriminatory
place an unconstitutional burden on interstate commerce.’
Bibb v. Navajo Freight Lines, Inc., 359 US. 520, 529
(1959).
Before the formulation of the balancing test in Pike
v. Bruce Church, Inc., 397 U.S. 137, 142 (1970), and the
reaffirmation of that test in Great Atlantic and Pacif
Tea Co. v. Cottrell, 96 S.Ct. 923 (1976), the argument in
favor of the constitutionality of the Chicago milk ordi-
nance would have been more persuasive. The ordinance
does not purport to discruninate against interstate com-
merce. Cf. South Carola Highway Department v. Barn-
well Bros., Inc., 303 US. 177, 189 (1938). The policy
decision and legislative judgment underlying a state regu-
lation designed to protect the public’s health or safety
are not subject to review by @ federal court. Brotherhood
of Locomotive Firemen é Enginemen v. Chicago, RI. &
P. R. Co., 393 U.S. 129, 186, 138-139 (1968). The burden
the ordinance lays on commerce is “incidental,” see ¢.9.,
Milk Control Board v. Eisenberg Farm Products, 306
U.S. 346, 352 (1939), and not “direct,” Shafer v. Farmers
Grain Co., 268 U.S. 189, 199 (1925). The ordinance 18
not inconsistent with regulations of other states im &
field in which uniformity is important to the national 1n-
terest in unimpeded commerce. See Huron Portland
Cement Co. v. Detroit, 362 U.S. 440, 444, 448 (1960) ;
Southern Pacific Co. v. Arizona, 395 U.S. 761, 770, 781-
782 (1945). The added expense to interstate businesses
of complying with the regulation would not justify a court
in striking it down. See Brotherhood of Locomotive Ftre-
men & Enginemen v. Chicago, RI. & P. R. Co., supra,
293 U.S. at 139-140; Bibb v. Navajo Freight Lines, Inc.,
supra, 359 U.S. at 529.
In Pike v. Bruce Church, Inc., however, Justice Stewart,
writing for a unanimous Court, stated the standard which
is to control cases such as the one before us:
“Although the criteria for determining the validity
of state statutes affecting interstate commerce have
=
been variously 5s
tat
can be phrased as fol
evenhanded!
interest, and
only incidental, it will be
ows: Where the statut
imposed on such upheld unless the }
relation to the putative ire (entity excessive in
an the extent of
That ,
Bar ram from Pike was
uoted .
A lento on & unanimous Court by the ict Brennan,
Pacific T
at 928. Justi ea Co. v. Cott
with the siete introduced the’
Neither Pike nor
; Cott
~ be field, but from their resta
law emerges a balanc;
aeons with, is at |} —~ 4...
Pproaches taken in Brotherhood
must
the oot ana apply the rule as
purported to chan
evenhanded, t.e.,
. it appears tl]
even when the ‘ars that the
- & a or sa ta regulati in th
opinion cites the H -ny" ~ o fing the test, the P ike
or dinance to :
resognd in Bike tween halt se, 8, dnonton
eco j > an . .
austen come to lie _. the impestanas Me —
: e : ;
planes interest when balanc ope Weight to be given
erce. See 397 U.S against the burden on
that we are to a S. at 142, 143-146
pply the Pi ; Our concelusi
& health measure R lavelved, beens test even Sse 9
Siving appropriate addi-
» the general rule that emer
to effectuate a legit e regulates
its effects on intetatete local public
that will be
tement and ois the law
east a considerab! which, if not incon-
—%a—
tional weight to the fact that the ulation is health-
related, is consistent with Procter & Gamble Co. v. City
of Chicago, 509 F.2d 69 (7th Cir. 1975), in which we
applied that test while recognizing the need to reconcile
it with the Brotherhood case. Thus, while we are not to
make legislative judgments concerning the need for, or
efficacy of, a health regulation we may nevertheless con-
is excessive in
sider whether the burden on commerce 1
relation to the benefits flowing from the regulation, and
whether the health interest could be protected as well
by alternative means that would burden commerce less.
One more paragraph about the governing precedents is
necessary. In Dean Milk Co. v. City of Madison, 340 US.
349, 354-355 (1951), and ~ + in Cottrell the Supreme
Court said that an acceptable alternative means of pro-
tecting the state’s public-health interest was to make its
own inspection of milk sources outside the state.* In Cot-
trell, however, the reference to this alternative is qualified.
Mississippi could make its own inspection, said the Court,
“fijn the absence of adequate assurance that the standards
of a sister State, either as constituted or as applies are
4 S.Ct. at
substantially equivalent to its own... .-
930. Unless this qualification was surplusage, it means at
least that if such assurance of substantial equivalence is
present, the alternative of making its own inspection may
not be available to the state authority. Whether it is
available, we believe, depends on the results of applying
the Pike balancing test, which Cottrell indorses.
IL.
spections to W
dairy-farmer suppliers are subjecte
not appear to be excessive were it not for the evidence
and findings showing t
live inspection requireme
arguable exceptions,’ no ou
® The Dean Milk opinion said the city could for these inspec-
in Cottrell. 96 S.Ct. at . As noted above,
—37a—
cago Board :
flees, of Health milk permits. The court found as
“Not one out-of-sta:
of Tens State processor holds a Chi
Oni permit. Mr. eany [Chief Blanitewe7 be the
Vhicago Board of :
inquiries are KP from stited that while 25-40
have nN granted such a permit.” through. None
The court
also found that a number of other out-of-state
out incurring the burd to secure > ae
Vhen it en of du licati ° permits with-
n it became clear that o Vv - cll yo —
ons
court said: » these applicants gave up. The
by Kroger for its Lj
. Livoni Mi .
ice cream to the Kro 8, Michigan, plant t
ger sto : : oO supply
(PX 54B), Sealtest for its. Milvenkee © market
lant (PX 54C), R i
yan Mil i
ke nt ack, plan Pe supply fF ompany for its Murray,
id plant’ Pe a aster for its Jacksonville, F]
(PX 548), Years y yogurt, sour cream and ~
iA. al ogurt for its Fort Worth T om
are PP oeurt (PX 54F), Chautauqua Malted
condensed skim to Bo , i y
= tant of tee had IMS co ae° me ox ot).
ings 0 or high
— ugher. Yogurt M
y ng of 99% and a producer sian an vr |
and a producer
Permit could only
terminated.”
— —y Bn for the failur
ann ll stain permits has been
requirement of the Chicago
—38a—
, d the
: was entitled to draw, an
istrict Court en otwithstand-
ference te hg aw Ben would have - yo Nn ‘° Dixie’s
ine the pansily of direct err that manv of Dixie’s
por. ev that he was ts for their
Sy fame sur on Speco Ter
4 bmit to duplica thers who
milk rather than su ning the many 0
; reer dence concer cent that in
pte aes = ag did not pursue een Be when
—= instances their interest appeers im cuirement." Any
some ins informed of the inspection to would have
evidence concerning view ald a * have been
evi ee tion wo ~~ from
taken the feared ac testimony in the record trom
There 1s no is on this su
speculative. T ‘dence as there is ad
and such evidene can reasonably be m
any pene satisfactory.” Be Raber acer economic
tor ‘d, however, that, in view of = ection woul
effect which failure to pass an isp
0
i hi per-
Out-of-state eg ety nae, on h the Chi 0
ir m —_
mits, and ther otriet Court's finding that the reas
market.
recent years and it
th plication process, but it does not relate to
a *
Pm only to Dixie.
- i of ami
of applicants, licants were ee ee P ), and
minated Systron, ine, (PX SAC), West Side Dalry, O07 Tog — e
Yogurt (PX S4f).) io Meany the | *PP discussing
dence is a, lets department for the purposes ss
mee tions. making
Board of Health , on
12 The District Court's finding oo ving Dixie to refuse to oes
pan inspection “may cause the of two
ixie” sap ”" who had wor
| ny president and a “field man w
‘ that state of
was in of mind, offered only 1° Prod. 803(3). No
to his state rule. Fed.
~~ — not excluded by the ny
—39a—
this is the duplicative inspection requirement imposed
by the Chicago ordinance is not clearly erroneous.
IT.
Having considered the nature and extent of the bur-
den on comme
ree, we turn to the factor to be balanced
against that bu
en, viz., the putative local benefits to
be derived from the ordinance Pike, supra, 397 U.S. at
142) and to the related
uestion of whether the Indiana
standards are substantially equivalent to Chicago’s (Cot-
trell, supra, 96 S.Ct. at 930).
The District Court made detailed findings concerning
the efficacy of the Indiana inspection program and thie
OSPHS inspection and rating program:
“12. Dixie’s milk was and is wholesome and
Chicago can rely upon Indiana and U.S.P.ILS. in-
spection to fully protect Chicago’s health intcrests.
“13. On the basis of the evidence and testimony
before the Court, the Court finds that Dixie’s milk
is wholesome und that the standards and procedures
adopted and enforced by the Indiana State Board of
Health and the U.S.P.HS. are sufficient to fully
and adequately protect Chicago’s health interests.
. + « Chicago introduced no evidence whatsoever to
indicate that the Indiana and U.S.P.H.S. inspection
program is in any way inadequate, Indeed, the evi-
dence establishes that the Chicago Board of Health
has adopted, as a matter of ractice, the PMO stan-
dards and has urged the C icago City Council to
formally enact those standard
s into law.”
The court also noted and cr
sible city health officials before a conunittee of the Ci
Council to the effect that
regulations wo otect Chicago’s health interest.
The city has not disclaimed or disputed that testimony
in the District Court or here that
are not substantially equivalent to
—40a—
i inspections
the Chicago standards” or that the Indiana inspec
are not adequate.”
i i tensibly
‘hus, although the challenged — 4 . om
designed to protect the public ag Fee dg
and it is uncontroverted, that in fac oe a.
no appreciable effect in eng fg Fm
mtblic health goal of the ordinance ae peas © -
a fiction. Even giving Brother A. /
aa favorable to the city, it does not — —.
my leglaletive judgment which is wg y Fe —~
=r ee
Jottrell, “the
a ha eS aaa in relation to the Bane a
local benefits,” Pike, node gh = a = ——
igi the concede oe
ee te the standards of a oo ag I -
substantially equivalent .. .” to cago’'s,
S.Ct. at 930.
AFFIRMED.
A true Copy:
Teste:
**
eeeeeereree
eeeeeeeeeeee
PUTT TET Cee eee
eeeeee
eee eee terse
t of
k of the United States Court
“ae for the Seventh Circuit
’ the in-
of s producer
spectors found fault with producers’ use of clear plas toa storage tank
milking equipm storage
T the tubing had-become clouded. The Indiana
—4la—
APPENDIX E
—
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
September ee 19 76
Before
LUTHER M. SWYGERT, Circuit Judge
ROBERT A. SPRECHER, Circuit Judge
PEE
PHILIP W. TONE, Circuit Judge
OIXIZE DAIRY COMPANY,
@ corporation, )
Plaintiff-Appellee, Appeal from the United
States District Court
for the Northern District
No, 75-1932 va } Of Illinois, Eastern
Division
CITY or CHICAGO,
@ municipal
corporation, et al
ee
Defendants-Appellants °
No. 70 C 3212
) J. Sam Perry, Judge.
It rs that the tition for a reheari in the
above-entitied cause be, end’ the enIED
Fame is hereby, DENIED.
—42a—
APPENDIX F
—_——_—
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
September 15 49 76.
Before
Hon. PHILIP W. TONE, Circuit Judge
Hon.
Hon.
DIXIE DAIRY COMPANY, a corporation,
Plaintiff-Appellee,
Appeal from the United
States District Court
= for the Northern District
No. 75-1932 vs. + of Illinois, Eastern Divsn.
CITY OF CHICAGO, a municipal
corporation, et al., (70 C 3212)
Defendants-Appellants. 4
This matter comes before the court on the “MOTION”
and affidavit of counsel for the defendant-appellant,
filed herein on September 13, 1976, requesting the stay
or recall of this Court's mandate. In fact, the mandate
of this Court was issued on September 10, 1976. On
Sepeepes 14, 1976 counsel for the plaintiff-appellee
filed herein its “RESPONSE TO MOTION FOR RECALL OF
MANDATE." Upon consideration of the foregoing, this
Court being fully advised in the premises,
IT IS ORDERED that the previously issued mandate
of this Court be, and the same is hereby, RECALLED and
STAYED for a period of thirty (30) days from the date
of this order pursuant to Rule 41(b) of the Federal Rules
of Appellate Procedure.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.