# Petition — City of Chicago v. Dixie Dairy Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0762%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 1001 ## Text 0 SESBSEEEBfkS' “< Ci ilih [ Bupreme Court. U.& ED In Tue ) OCT 15 76 Supreme Court of the Ant JR., CLERK Ocroszr TERM, 1976 7 "26-5400 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0762%3A1. Public record. Not legal advice.