Transcript of Record — Dyer v. City Council of Beloit

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1947

No. 275

LAWRENCE DYER, APPELLANT,

vs.

CITY COUNCIL OF THE CITY OF BELOIT, ROCK

COUNTY, WISCONSIN, ET AL.

APPEAL FROM THE SUPREME COURT OF THE STATE OF WISCONSIN

INDEX

Original Print

Record from Circuit Court of Rock County, Wisconsin... . 1 1

Petition for writ of mandamus......... et 1 1

Return of defendants.............. Weieasanares a 3

Decision and order denying writ ........... ae 7 4

i ee i eka wok ee seis ue axe nse wba ss ll 7

Stipulation of testimony and exhibit in lieu of bill of

EE cnvencehynetetvadess end teleees es 12 8

Testimony of Lawrence Dyer. . Paes 13 9

Stanley J. Goldschmidt - 14 10

Defendant’s Exhibit No. 1—Milk ordinance of

EE fre uoh oc aueswaeadese s¢ 17 13

Proceedings in Supreme Court of Wisconsin .......... 30 23

a ae (omitted in printing). . 30

Notice of appeal from Cireuit Court.................... 31 24

Bond on appeal. . es ( omitted in er: 32

Minute entry of argument ‘and submission... 34 25

ENE Se» ae ae Hos EY a 35 25

i. ones Set Noeperlededuseiethanen: 37 26

i nc csd vakueeswes vivaweseses ; 44 30

Assignments of error and prayer for reversal... . 47 32

EEE I OED OPES ge 50 33

Bond on appeal ........... .... (omitted in printing) 55

Citation and service........... .. (omitted in printing) 57

Praecipe for transeript of record....................... 81 34

Clerk’s certificate............... (omitted in printing). . 84

Statement of points to be relied upon and designation of

parts of record to be printed ........................ 85 35

Order noting probable jurisdiction...................... 88 36

Jupp & Derwerazr (Ino.), Printers, WasHineTon, D. C., Ocr. 28, 1947.

—3054

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[fol. 1] [File endorsement omitted]

IN CIRCUIT COURT OF ROCK COUNTY

Strate or Wisconsin

Lawrence Dyer, Petitioner,

vs.

Crry Councit or THE Crry or Beort, Rock County, Wiscon-

sin; A. D. Telfer, as City Manager of the City of Beloit,

Rock County, Wisconsin; R. H. Calland, as City Clerk of

the City of Beloit, Rock County, Wisconsin; and Stanley

J. Goldschmidt, City Sanitarian of the City of Beloit, Rock

County, Wisconsin, Defendants

Petition ror Writ oF Manpamus—Filed September 25,

1946

To: Cireuit Court for Rock County:

The petition of Lawrence Dyer respectfully alleges and

shows to the court:

1. That at all times herein mentioned petitioner was and

now is engaged in the business of selling milk and milk

products ;

2. That at all times herein mentioned the defendant A.

D. Telfer was City Manager of the City of Beloit, Rock

County, Wisconsin, and is now said City Manager; that at

all times herein mentioned R. H. Calland was and now is

City Clerk of said city; and that at all times herein men-

tioned, as petitioner is informed and believes, the defendant

Stanley J. Goldschmidt was and now is City Sanitarian of

said city;

3. That heretofore petitioner, pursuant to the ordinances

of the City of Beloit, Rock County, Wisconsin, made applica-

tion to the defendant City Clerk of said city for a license as

a milk dealer and/or distributor in the City of Beloit, Rock

County, Wisconsin;

4. That said application for license by said petitioner

was signed by petiticner and contained all the required

information to be contained in said application, and was

presented to said City Clerk for presentation to the afore-

1—275

said City Council of the City of Beloit, and was accompanied

by a.tender of the license fee required for said license ;

[fol.2] 5. That said application for license, as petitioner

is informed and believes, was presented by the aforesaid

defendant City Clerk to the City Council of the City of

Beloit, Rock County, Wisconsin on August 29, 1946; and

that at a meeting of said City Council on said date said City

Council rejected said application and refused to issue the

aforesaid requested license ;

That, as petitioner is informed and believes, said applica-

tion was rejected and said license refused because of a pro-

vision, and only because of said provision in the aforesaid

ordinances of the City of Beloit, to-wit:

‘*(X) General Provisions:

**(2) No pasteurized milk shall be sold in the City

of Beloit which shall not have been pasteurized in ap-

proved plants within six miles from the intersection

of State Street and E. Grand Ave. in the City of Beloit.’’

6. Petitioner further alleges that he has complied with all

of the provisions of the said Beloit Milk Ordinance other

than the provision above set forth, and that he is willing to

comply and stands ready to comply with all of the provi-

sions of said milk ordinance except the provision above

set forth;

7. That said defendants above named unreasonably and

arbitrarily rejected petitioner’s application for a license as

aforesaid and unreasonably and arbitrarily refused to grant

and issue a license as milk dealer and/or distributor to

your petitioner;

8. Petitioner further alleges that he has and now does

comply with all the requirements of said ordinance above

referred to except the provision above quoted, and us to

that, petitioner states that the same is unconstitutional,

and that the refusal of said defendants to recommend, grant

and issue a milk dealer’s license to your petitioner deprives

petitioner of his property and a right to make a livelihood

without due process of law and is an illegal interference

with interstate commerce.

[fol. 3] Wherefore, petitioner prays that peremptory man-

damus be issued out of the court commanding the said A. D.

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3

Telfer, as City Manager of the City of Beloit, Rock County,

Wisconsin; R. H. Calland, as Clerk of the City of Beloit,

Rock County, Wisconsin, Stanley J. Goldschmidt as City

Sanitarian of the City of Beloit, Rock County, Wisconsin,

and the City Council of the City of Beloit, Rock County,

Wisconsin, to issue a license to your petitioner as milk

dealer and/or distributor, and for such other judgment or

order as may be proper. |

McGowan, Geffs, Geffs & Block, Attorneys for Peti-

tioner, Lawrence Dyer.

Duly sworn to by Lawrence Dyer. Jurat omitted in

printing.

[fol.4] [File endorsement omitted]

In Crrcurr Court or Rock County

[Title omitted]

Rerurn or Derenpants—Filed September 25, 1946

We, A. D. Telfer, R. H. Calland and Stanley J. Gold-

schmidt, as City Manager, City Clerk and City Sanitarian,

respectively, of the City of Beloit, Rock County, Wisconsin,

do hereby make return to the alternative writ of mandamus,

hereto annexed, and for cause why we have not and cannot

lawfully do the things therein commanded, respectfully

represent and show to the Court:

That the petitioner, Lawrence Dyer, applied for a li-

cense to sell milk within the City of Beloit, Rock County,

Wisconsin, although admitting that he expected to obtain

the milk to be sold in said city from the pasteurization

plant of the Dean Milk Company at Chemung, Illinois, a

village which is a distance of thirty to thirty-five miles

from the City of Beloit; that these defendants rejected the

[fol. 5] application of the petitioner for such license because

of a clause in a city ordinance of Beloit which provides that

no pasteurized milk shall be sold in the City of Beloit which

shall not have been pasteurized in approved plants within

six miles from the intersection of State Street and East

Grand Avenue in said city; that, in the judgment of these

defendants, such provision represents a valid exercise of

the regulatory authority of the City of Beloit;

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These defendants further allege that the issuance of

peremptory writ of mandamus, compelling the City of Beloit

to issue a license to the petitioner to sell milk in said city,

would, under all the circumstances, be inequitable and con-

trary to the public interests; that the city ordinance of

Beloit provides no- only for the inspection by city employees

of pasteurization plants, but also for the inspection of dairy

farms serviceing such plants; that the City of Beloit

employs too full-time inspectors for the purpose of making

sanitary inspections not only of dairy plants and dairy

farms, but also of other business places, such as taverns,

restaurants, grocery stores, meat markets, confectionery

stores and soda fountain places; that in the event a license

were to be granted to the petitioner, it would be necessary

for the City of Beloit to employ a third inspector merely

for the purpose of performing the additional work inci-

dental to the issuance of a license to the petitioner; that

the supply of milk now delivered to Beloit Dairy plants

far exceeds the local demand, and that a great part

of the milk produced in the rural are- immediately sur-

{fol.6] rounding Beloit is shipped from Beloit to other

places for consumption.

All of which is respectfully submitted.

A. D. Telfer, R. H. Calland, Stanley J. Goldschmidt.

jDuly sworn to by A. D. Telfer, et al. Jurat omitted in

printing.

[fol. 7] [File endorsement omitted ]

In Circuit Court or Rock County

[Title omitted]

Decision aNnpD Orper Denyinc Writ—Filed December 9

1946

This action arises out of the refusal of the Common

Council of the City of Beloit to grant a license to the Peti-

tioner to sell and distribute pasteurized milk within the

City of Beloit.

The milk which the Petitioner prop-sed to sell and deliver

in the City of Beloit, would be pasteurized at the Dean

Milk Company plant located at Chemung, Illinois, son-

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twenty-five to thirty-five miles distant from said City of

Beloit.

Section 8.09 X (2) of the General Ordinances of the

City of Beloit, provides that:

‘“*No pasteurized milk shall be sold in the City of

Beloit which shall not have been pasteurized in ap-

proved plants within six miles from the intersection of

State Street and E. Grand Avenue, in the City of

Beloit.”’

The Petitioner’s application for a license was filed on

August 29, 1946, and was rejected at a regular Council

meeting held on August 30, 1946, for the reason that the

[fol. 8] pasteurization plant of the Dean Milk Company was

located more than six miles from the intersection of the

two above named streets in the City of Beloit, and that

proper inspection would require unreasonable additional

expense to the city of Beloit.

The Petitioner brings this mandamus proceeding to com-

pel the issuance of the license, claiming that the City of

Beloit unreasonably and arbitrarily refused to grant the

license, and that such refusal deprives him of his property

rights and of constitutional rights without due process of

law, and is an illegal interference with interstate commerce.

No objection is raised by the City as to the Grade or

quality of the milk sought to be sold, and it is conceded

that the petitioner has complied with all of the terms of

the Beloit Ordinance, except in the one respect, that the

pasteurization plant of the Dean Milk Company is located

at Chemung, Illinois, a distance of more than six miles

from the City of Beloit; i. e., a distance of between twenty-

five and thirty-five miles from the point indicated by the

Beloit City Ordinance.

A stipulation of facts was entered into between Council

respectively, and some testimony taken upon the hearing.

The only issue involved is as to whether or not the six mile

provision of the Beloit Ordinance constitutes an unreason-

able interference with the rights of the petitioner.

It is well recognized throughtout this country, and some

other countries, that milk is a valuable and universal food

product; that it is peculiarily liable and subject to con-

tamination and adulteration; that the business of producing

(fol. 9] and distributing milk is one which, when improperly

6

conducted or carelessly handled, may seriously. affect the

public health; that in the interest of public health and

safety the regulation of the production and. distribution of

milk is within the police power of the sovereignty; and

that strict regulatory provisions may be enacted and en-

forced to guarantee to the consumer that protection which

the sovereignty owes to him.

It is now a universal requir-ment and practice that milk

shall be inspected as its source of supply, in order to deter-

mine, not only its proper grade, but whether the conditions

surrounding its production are sufficiently sanitary, ete.

Qualified inspectors are therefore appointed or hired by

municipalities to make periodical inspections.

The petitioner herein has made no offer to assume or

repay the additional expense necessary to have such ad-

ditional inspections made. The cases cited by petitioner’s

counsel, where ordinances similar to the Beloit Ordinance

have been held invalid, are cases where milk concerned was

produced in a territory where inspections were already be-

ing made by regular inspectors of the particular municipal-

ity involved, and would incur no particular additional

expense to the City.

Zoning ordinances are valid if reasonable and not in-

tended as a trade barrier. They must also be reasonable

[fol. 10] and not arbitrary, capricious or discriminating. I

am aware that the mere fact that a City already has a

sufficient number of milk dealers, or has an adequate supply

of milk, would present no valid reason for the refusal of a

license to sell milk in the City, as that would then be an

unfair and illegal interference with property and constitu-

tional rights.

I Am Therefore of the Opinion, that under all the cireum-

stances appearing in this proceeding, the Or-inance here

involved was not intended as a trade barrier, and is not

unreasonable, arbitrary or capricious, and is therefore con-

stitutional and valid.

The petition for a per-mptory writ requiring the City of

Beloit to Issue a license to the petitioner is therefore or-

dered denied.

Dated December 7, 1946.

By the Court.

Jesse Earle, Circuit Judge.

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{fol.11! [File endorsement omitted]

In OCrecuitr Courr or Rock County

Lawrence Dyer, Petitioner,

vs.

City Counciw or THe City or Bexorr, Rock County, Wis-

consin; A. D. Telfer, as City Manager of the City of

Beloit, Rock County, Wisconsin; R. H. Calland, as City

Clerk of the City of Beloit, Rock County, Wisconsin; and

Stanley J. Goldschmidt, City Sanitarian of the City of

Beloit, Rock County, Wisconsin, Defendants

Jupement—Filed December 20, 1946

This action having come on for trial upon the petition

of the relator herein and the return of the defendants,

and having been tried by the Court, and the Court having

determined, as a conclusion of law, that the relator is not

entitled to a peremptory writ of mandamus, as prayed in

the petition ;

Now, Therefore, on motion of C. L. Haugan and Arnold,

Caskey & Robson, attorneys for the defendants,

It Is Ordered and Adjudged that the request of the rela-

tor for the issuance of a peremptory writ be denied, and

that his petition be dismissed, and that the defendants do

recover of the said relator the sum of One Hundred Six

and 90/100 Dollars ($106.90) as their costs and disburse-

ments in this action, as taxed.

Dated December 20th, 1946.

By the Court:

Jesse Earle, Judge.

g

{fol.12] [File endorsement omitted]

In Crrcurr Court or Rock County

[Title omitted]

Streco.tation or Testimony anp Exaveit in Liev or Bru

oy Excertions—Filed in Suprerze Court, July 25, 1947

It Is Hereby Stipulated, in open court, by Lawrence Dyer,

Petitioner, by McGowan and Geffs his attorneys, and the

defendants by C. L. Haugan, City Attorney for the City

of Beloit and Earl J. Caskey, their attorneys; that on the

29th day of August, 1946, the petitioner, Lawrence Dyer,

made written application to the City of Beloit for a license

to distribute the milk of the Dean Milk Company in the

City of Beloit, and that in so doing he has complied with

all of the terms of the City Ordinance in Beloit, except

in the one respect, that that past-urization plant of the Dean

Milk Company is located at Chemung, Illinois, a distance

of more than six miles from the corner of East Grand

Avenue and State Street in the City of Beloit; that the pas-

tu-rization plant of the Dean Milk Company, from which the

Petitioner will receive his milk for distribution in Beloit

is between teenty-five and thirty miles from the point in-

dicated by the ordinance in the City of Beloit.

It Is Also Stipulated, that in accordance with the terms

of the City Ordinance, the petitioner has filed with the

City Clerk a list of the farmers who bring their milk to

the Chemung dairy of the Dean Milk Company, and that the

number of farms sc named amounts to one hundred ninety-

seven; that such farms are located in the Counties of Me-

Henry, Boone, and Winnebago in the State of Illinois, and

Walworth County in the State of Wisconsin.

{fol. 13] It Is Further Stipulated, that on the 30th day of

August, 1946, the City Council of Beloit rejected the ap-

plication of the petitioner for such milk license upon the

ground that the past-urization plant of the Dean Milk Com-

pany was located more than six miles from the intersection

»f the two above named streets in the City of Beloit.

It Is Further Stipulated, that it is the intention of the

petitioner, in the event a license is granted to him, to ob-

tain milk pasteurized at the factory of the Dean Milk Com-

pany at Chemung, Illinois and to truck such milk to the

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City of Beloit for sale in the City of Beloit for at retail

stores.

Dated this 26th day of September, 1946.

Lawrence Dyer called as witness:

Examination.

By Mr. Block:

My name is Lawrence Dyer; I am the petitioner; and

applicant for milk distributor’s license from the City of

Beloit, Wisconsin; application made some time in August;

I intend to distribute milk to retail merchants in the City

of Beloit, and they in turn will sell it to consumers. This

milk is pasteurized at Chemung, Illinois. The milk is

obtained from farmers and brought to the Dean plant at

Chemung, Illinois, where it is cooled, pasteurized and bot-

tled in paper cartons of 1 quart each. These cartons are

placed in cases holding 20 quarts, which I place in my truck

and carry to retail merchants. This milk is Grade A milk

and its composition qualifies as to the sanitary conditions

and quality required for the Beloit City Ordinance.

Cross-examination.

By Mr. Caskey:

I intend to deliver milk to the City of Beloit every day

except Sunday. The milk that I intend to deliver is re-

ceived at the plant the same day it is delivered and would

be delivered normally within two hours after being pas-

teurized.

{fol.14] Redirect examination.

By Mr. Block:

The milk is cooled io Thirty-four degrees when it comes

from the pasteurizer and placed in paper cartons. My

truck is insulated and in warm weather I use ice. When the

milk arrives at Beloit, its temperature would not be more

than Forty-two Degrees Fahrenheit. I had occasion to

check the bacteria count on this milk with the bacteria

count of milk sold in Beloit, and in every instance it was

10

lower ‘than other milk pasteurized and sold in Beloit. This

milk is sold in the City of Chicago and suburbs. Each farm

which supplies milk to the Dean plant is inspected every

week and sometimes twice a week by the Chicago Board of

Health. The Dean Milk Company also has its own in-

spectors who inspect the source of the milk at the farms. The

City of Chicago and its suburbs operate under what is

known as the Model Milk Ordinance formulated by the

Public Health Service of the United States. The City of

Chicago operates under what is known as the Mayor Kelly

Milk Ordinance, which is as stringent as the Model Milk

Ordinance formulated by the Public Health Service of the

United States.

Sraniey J. Gotpscumipr called as witness on behalf of

defendants, testified :

Examined.

By Mr. Caskey:

My name is Stanley J. Goldschmidt and I am City Sani-

tarian of the City of Beloit, Wisconsin, and I have had that

position for thirteen months. Before being employed by

the City of Beloit, I did similar work for Rock County for

about four years. My duties to the City of Beloit are in

charge of the whole sanitary program under the Health

Department of the City of Beloit. This entails, with the

aid of one inspector, inspection of all public eating places,

which include approximately 38 restaurants, 16 sode moun-

tains, about 18 light lunch establishments, approximately

20 confectionery stores, 81 combination groceries and mar-

kets, 8 bakeries, 53 taverns and clubs; by clubs I mean

those having a liquor license which is similar to a tavern

although being semi-private. I also inspect dairies, eight

dairies and about 165 firms that sell milk to these dairies.

[fol. 15] I also supervise collection of garbage which details

employment of approximately 10 men and the operation

of three or four trucks and the collection of cans from ap-

proximately 8,500 to 8,700 households, about half of these

having more than one can of garbage.

‘‘The Court: Are these inspections made within six miles

of the City of Beloit?

“A, Yes.’’

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ll

I also supervise inspection of those who handle food,

and we have approximately 1500 people engaged in the

handling of food in the above mentioned establishments, and

we require that these people submit to physical examination

once a year or oftener if necessary as deemed by the health

officer, and along with this program it is my duty to check

these 1500 people to find out if any new employees are

coming into these establishments and to do field work for

the clinics which are held for the examination of these

people.

L also handle any complaints that come in the office regard-

ing sanitary conditions. These complaints are received

daily sometimes as high as ten a day. I also through our

department take care of quarantine and contagious dis-

eases. This is necessary because we have a part time health

officer. I have one man, Harold Taylor, that helps me.

The work keeps both of us busy all the time and it is neces-

sary for me to be in the office part of the time to handle

the correspondence. It would not be possible for Mr.

Taylor and myself to inspect a considerable number of

new dairies unless we had another inspector added to

our department. We inspect all dairies which now bring

milk to Beloit. Some dairies haul Grade B milk and some

grade A. On the grade A I find we have between 106 to 111

farms. Yesterday we dropped three from the A side and -

placed them on the B side. Grade A farms are inspected

periodically. These inspections entail sediment tests, blue

tests, sometimes tests to laboratory for blue plate count.

On the B side there is approximately 319 farms. These

farms are not inspected by our department due to the fact

that grade B milk is used in manufactured products, and

that inspection is taken care of by the State Department

of Agriculture. Whenever we need extra farms for milk on

{fol. 16] the A side we pick out a B farm and if the bac-

teria examination shows it is good we make a trip to the

farm and with some small amount of changes we are able to

put it on the A side. We give what assistance we can

to the State Department of Agriculture in the inspection

of the B farms.

We make no inspections of the B farms unless it is be-

ing transferred to the A side. Grade A milk is delivered

for sale in Beloit and Grade B is manufactured into mixes

and not delivered for sale in Beloit. There is more milk

coming into Beloit every day than what local people use.

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There is more grade B milk delivered than there is grade

A milk. The distance traveled inspecting Grade A farms

is a radius of 5 to 6 miles from Beloit. All the pasteuriza-

tion plants delivering milk within Beloit are located within

6 miles from the corner of State and Grant Avenue. If

this license was granted, it would be necessary for the

City of Beloit to hire another inspector.

Cross-examination.

By Mr. Block:

We inspect grade A farms about twice a year. These

farms are within a radius of six miles from Beloit. There

are 8 pasteurization plants within the six mile limit and

there are no pasteurization plants outside of this six mile

limit, that sell milk to Beloit.

My opposition to granting a license to Mr. Dyer was

based upon the proposition that the pasteurization plant

where he received his milk was located more than six miles

from State and Grand Avenue, City of Beloit.

I do not feel that my department can take on any more

inspections for producers or plants without the addition of

an extra man.

_ *Q. Let’s put it this way. Assuming that another pas-

teurization plant located itself within the six mile zone,

and they obtained their milk from we will say 150 additional

{fol. 17] producers that are not selling milk to Beloit now,

in your opinion would you have to then employ an additional

inspector because of the amount of work you now have?

‘*A. You sir, that would be my opinion that we would

have to if there was that many farms, 150 farms, additional

farms.

**Q. Regardless of location, whether within the zone or

outside ofe zone?

‘*A. That is right.’’

There is no objection to the quality or sanitary condi-

tion of the milk that Mr. Dyer intends to deliver to the

City of Beloit that I know of, and we have on one or two

occasions delivered it to the State Laboratory of Hygiene.

I would say that it was about the average of the milk sold

in Beloit. It would not be any worse or any better.

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Redirect examination.

By Mr. Caskey:

An additional inspector would cost the City of Beloit

about $200.00 a month plus traveling expenses. It would

be hard to say whether his work would be devoted to in-

specting additional farms without first laying out a pro-

gram.

City Ordinances of the City of Beloit marked Defendant’s

Exhibit 1 received in evidence.

Derenpant’s Exuisit 1, seine THe MiLK ORDINANCE OF THE

Crry or Bevorr

Section 8.09: Licensing and Enforcement:

(1) It shall be unlawful for any person, firm, associa-

tion or corporation to sell or distribute milk, cream, skim

milk or buttermilk in the limits of the city of Beloit unless

such person, firm, association or corporation shall possess

a license or permit therefor granted by the City of Beloit.

{fol. 18]. No license fee shall be required, however, of any

person selling milk or milk products to any dairy. If such

person, firm, association or corporation shall deliver such

milk or milk products from house to house he shall be

required to have a license, the fee for which license shall be

$10.00 per year. If such person, firm, association or cor-

poration shall — such milk or milk products from any

store, hotel or eating place, a permit shall be required

the fee for which shall be $1.00 a year.

(2) An application for such license or permit shall state

the name and address of the persons having control of all

cows or herds producing the products to be sold or dis-

tributed, and the address of the premises where all such cows

or herds are kept.

(3) The license shall be obtained from the City Clerk.

This license shall be valid from July 1st to June 30th in-

clusive of the year issued, and i}ase licensed in the interim

shall pay the full fee for the remainder of the year in

which they are licensed. The Health Officer shall have

charge of the enforcement of this act.

14

(4) The sale or distribution of milk, cream, skimmed

milk, buttermilk and milk products within the city, except

in conformity with the following requir-ments, is hereby

prohibited.

(5) After the issuance and delivery of the license, any

change of location of the place of business made by the

licensee shall render his license invalid, unless the Health

Officer in writing grants continuance of said license.

(6) No such license shall be issued for more than one

year and no license shall be valid after the last day of

June next following the date of issuance thereof.

(7) The City Clerk shall furnish two metal tags not less

than 4x8 inches in size to each licensee delivering milk in

wagons, motor cars, or other vehicles who procures a milk

license and shall have paid the City Clerk the proper fee.

The tags shall have marked upon them the words ‘‘ Milk,

Beloit, 19—, No. —,’’ being the year during which the license

expires and the serial number of the same, which license

plate shall at all times be conspicuously displayed on both

[fol. 19] sides of such vehicle and all such plates shall be

removed immediately upon the expiration or revocation of

the license under which they were granted. In the event

a license place is lost, an additional fee of fifty cents (50¢)

per pair will be charged. Each vehicle shall carry two such

license plates. The charge for such plates shall be $1.00

per set of two after the set delivered in addition to the

first one.

(A) Milk: (1) Milk is hereby defined to be the fresh,

glean, lacteal secretion obtained by the complete milking

of one or more healthy cows, properly fed and kept, ex-

cluding that obtained within fifteen days before and five

days after calving or as much longer as may be necessary

to render the milk practically colostrum free, which con-

tains not less than 842% of solids not fat, and not less than

3% of milk fat. It shall be free from dirt, filth, foreign

substance, added water, adulterants and preservatives or

added dried or condensed milk products. Whole milk sold

or distributed for direct human consumption shall be

classified as ‘‘raw milk’’ or ‘‘pasteurized’’ milk, except as

herein specified under the term ‘‘special grades.’’

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15

Pasteurized Milk

(C) Pasteurized Milk: (1) Pasteurized milk is milk the

average bacterial plate count of which does not exceed

30,000 per c.c. or the average reduction time is not less than

6 hours.

(2) Pasteurized milk is milk the average bacterial plate

count of which does not exceed 200,000 per c.c. or the aver-

age reduction time of which does not exceed 6 hours at any

time before pasteurization, which has been pasteurized and

cooled in a milk plant conforming with all the following

items of sanitation and the average plate count of which at

no time after pasteurization and until delivery exceeds

30,000 per c.c.

(3) The terms ‘‘pasteurization,’’ or ‘‘pasteurized,’’ and

similar terms shall be taken to refer to the process of heat-

{fol. 20] ing every particle of milk and milk products to at

least 143 degrees F. and holding at such temperature for

at least 30 minutes or to at least 160 degrees F. and holding

at such temperature for at least 15 seconds, in equipment

approved by the Health Officer and properly operated ; pro-

vided, that nothing contained in this definition shall be con-

strued as disbarring any other process which has been

demonstrated to be equally efficient and is approved by the

State Department of Agriculture.

(4) The floors of all rooms in which milk is handled shall

be constructed of concrete or other equally impervious and

easily cleaned material and shall be smooth, properly

drained and provided with trapped drains and kept clean.

(5) The walls and ceilings of rooms in which milk is

handled or stored shall be frequently painted with a light

colored paint or finished in a manner approved by the Health

Officer and kept clean.

(6) All openings into the outer air shall be effectively

screened and all means necessary for the elimination of flies

shall be used.

(7) All rooms shall be well lighted and ventilated.

(8) The various milk plant operations shall be so lo-

cated and conducted as to preveat any contamination to

the milk or to the sterilized equipment. There shall be

separate rooms for (a) the pasteurizing, cooling, and bottling

16

operations; (b) the container washing and _ sterilizing

operation. Cans of raw milk shall not be unloaded di-

rectly into the pasteurizing room. Pasteurized milk shall

not be permitted to come into contact with equipment with

which unpasteurized milk has been in contact subsequent

to disinfection. Rooms in which milk or cream or sterilized

utensils or containers are handled or stored shall not open

directly into and stable or living quarters.

(9) Every milk plant shall be provided with toilet facili-

ties conforming with the ordinances of the city of Beloit.

There shall be at least one room or vestibule not used

for milk purposes between the toilet room and any room

in which milk or milk products are handled or stored. The

[fol. 21] doors of all toilet rooms shall be self-closing. Toilet

rooms shall be kept in a clean condition, in good repair and

well ventilated. In case privies or earth closets are per-

mitted and used they shall be separate from the building and

shall be of a sanitary type constructed and operated in con-

formity with the ordinances of the city of Beloit.

(10) The water supply shall be easily accessible, adequate

and of a safe, sanitary quality.

(11) Washing facilities shall be provided including hot,

running water, soap and sanitary towels or a type approved

by the Health Officer. The use of the common towel is

prohibited.

(12) All piping used to conduct milk or milk products

shall be sanitary milk piping of a type which can be easily

cleaned with a brush. Pasteurized milk and milk products

shall be conducted from one piece of equipment to another

only through sanitary piping.

(13) All equipment with which milk comes in contact

shall be constructed in such a manner as to be easily cleaned.

(14) All wastes shall be disposed of in conformity with

the requirements of the Health Officer.

(15) All multi-use milk containers and milk apparatus

shall be thoroughly cleaned after each usage and sterilized

in a manner approved by the Health Officer immediately

after usage.

ELEED THROUGH ~— POOR COPY

17

(16) After sterilization all bottles, cans and other con-

tainers shall be stored in such manner as to be protected

from contamination.

(17) Between sterilization and usage and during usage,

containers and equipment shall be handled or operated in

such manner as to permit contamination of the milk.

(18) The time and temperature record charts shall be

dated and preserved for a period of one year for the in-

formation of the Health Officer.

(19) All milk not pasteurized within two hours after it is

received at the plant shall be immediately cooled to a tem-

[fol. 22] perature of 50 degrees F. or less and maintained

thereat until pasteurized, and all pasteurized milk shall be

immediately cooled to a temperature of 50 degrees F. or

less and maintained thereat until delivery.

_» (20) Overflow milk shall not be sold for human consump-

tion.

(21) Milk to be consumed in the form of whole milk shall

be delivered to the final customer within thirty-six hours

of the time of pasteurization. Milk shall not be repas-

teurized.

(22) All persons coming in contact with the milk or milk

products containers or equipment, shall wear clean outer

garments and shall keep their hands clean at all times while

thus engaged.

(23) Every person connected with the pasteurizing plant

whose work brings him or her in contact with production,

handling, storage or distribution of milk or milk products

shall have within twelve months passed a medical examina-

tion satisfactory to the Health Officer.

(24) Notice shall be sent to the Health Officer immedi-

ately by a proprietor or manager of a pasteurizing plant

of any case of sickness occurring among the personnel or

families of personnel working in the plant.

(25) Milk brought to the pasteurizing plant must be

delivered promptly or it must be cooled to less than 60 de-

grees F. within two hours of the time of milking. It shall

come from dairies or dairy farms conforming to the items

of sanitation specified herein.

18

(D) Cream: Cream is that portion of the milk, rich in

milk fat, which rises to the surface of the milk standing,

or is separated from it by centrifugal force, is fresh and

clean, and which contains not less than 18% of milk fat.

Cream sold in the city of Beloit shall be known as raw

cream or pasteurized cream in addition to such names as

indicate its various standards.

(E) Raw Cream: Raw Cream is cream produced under

the same requirements as raw milk, the average bacterial

plate count of which shall not exceed 100,000 count c.c.

at the time of delivery to the consumer.

{fol. 23] (IF) Pasteurized Cream: Pasteurized cream is

cream the average bacterial count of which does not ex-

ceed 400,000 per ¢.c. before pasteurization and does not

exceed 60,000 per c.c. after pasteurization and until delivery

to the consumer. It shali come from farms meeting the re-

quirements for pasteurized milk and it shall be pasteurized

at plants conforming to the requirements of this ordinanee.

(G) Buttermilk and Skimmed Milk: (1) Skimmed milk is

milk from which substantially all the milk fat has been

removed,

(2) Buttermilk is the product which remains when milk

fat is removed from milk or cream, sweet or sour, in the

process of churning and contains not less than 842% of

solids.

(3) Buttermilk (natural or cultured) and skimmed milk

sold or distributed in Beloit for individual and family con-

sumption shall be produced from milk conforming with the

requirements for raw milk, if made from raw milk, or pas-

teurized milk, if pasteurized. Buttermilk and skimmed

milk shall be sold or distributed only in clean and sanitary

containers,

(H) Milk Products: Milk products shall be taken to mean

any product made from milk or cream. Milk products shall

be produced and kept in a clean and sanitary manner. Milk,

cream, buttermilk, or skimmed milk entering into the com-

position of soft drinks or other unheated mixtures, sold or

distributed or offered for sale in Beloit shall conform to the

requirements for raw or pasteurized milk, cream, butter-

milk or skimmed milk intended for individual or family

consumption.

BLEED THROUGH ~ POOR COPY

19

(1) Bulk Milk: Bulk milk, bulk cream, bulk buttermilk

and bulk skimmed milk, of a quality permitted by the State

Department of Agriculture, properly cooled, may be sold or

distributed in properly sterilized containers for cooking

and manufacturing purposes, but not for drinking pur-

poses,

(J) Goat Milk: Goat milk is the lacteal secretion, free

from col-strum, obtained by the complete milking of healthy

[fol. 24] goats, and shall comply with all the requirements

of this section. The word ‘‘cows’’ shall be interpreted to

include goats.

(K) Other Requirements: (1) Stores, restaurants and

all other eating places receiving milk, cream, buttermilk,

skimmed milk, milk products for resale and distribution

shall keep such products properly cooled or iced and in a

sanitary manner, until such time as they are sold or dis-

tributed, and such products shall only be sold or distributed

while in a clean and fresh condition. Milk and cream to be

sold in original containers only.

(2) No milk producer or distributor shall transfer milk

or milk products from one container to another upon the

street or in any vehicle or store, in any place except a

bottling or milk room permitted by the Health Officer.

(3) No milk distributor or producer shall purchase or

obtain milk, cream, skimmed milk or buttermilk from any

person, firm, or corporation whose name and address is not

furnished by the Health Officer, prior to the time of ob-

taining such milk or cream. Consent must be obtained from

the Health Officer before such milk, cream, buttermilk or

skimmed milk is obtained.

(4) All vehicles in the City of Beloit used in the delivery

of milk shall be so constructed as to protect the milk from

the sun and from contamination.

(L) Milk Producer: A milk producer is any person who

owns or controls one or more cows a part of or all the milk

products from which is sold and delivered to another per-

son.

(M) Milk Distributor: A milk distributor is any person

who has in his possession, offers for sale, sells or delivers

to another any milk or milk products for consumption to

the final consumer.

20

(N) Dairy or Dairy Farm: A dairy or dairy farm is any

place or premises where one or more cows are kept, a

part or all of the milk or milk products from which is sold

and delivered to any person other than the immediate

family.

[fol. 25] (O) Milk Plant: A milk plant is any place or

premises, or establishment where milk or milk products are

processed, stored, bottled, pasteurized, or prepared for sale

or distribution.

(P) Health Officer: The term ‘‘ Health Officer’’ shall mean

the health authority of the city of Beloit or his authorized

representative.

(Q) Disinfectant: A disinfectant shall be taken to mean

any germicidal substance approved by the Health Officer.

(R) Person: Wherever the word ‘‘ person’’ has been used

in the Section, it shall be deemed to include any person, per-

sons, firm, association, company, or corporation.

(S) Sell, Offer or Deliver for Sale or Exchange: For the

purposes of this Chapter the words ‘‘sell, offer, deliver for

sale or exchange’’ or their equivalents, shall include the

serving of milk or its fluid derivatives for compensation at

all places where meals or lunches are served. All milk

served for beverage purposes in restaurants etc. shall be

served only in the original bottles; provided these require-

ments shall not apply to milk used in mixed beverages.

(T) Bottling and Capping: All raw and pasteurized milk

as defined in this section sold to stores, restaurants and

other eating places and delivered to the family trade shall

be bottled and capped, using standard milk bottles or single

service containers. The bottles shall be cleaned and ef-

ficiently sterilized prior to filling and the filling shall be

accomplished with clean and sanitary apparatus in such

manner as to prevent any part of the person or clothing

from coming in contact. Capping shall be done by mechani-

eal cappers or machinery kept in clean and sanitary con-

dition. Caps shall be purchased in sanitary tubes and stored

and handled in such a way as not to contaminate the milk

orcream. Single service containers shall be purchased and

stored only in sanitary cartons and shall be kept clean in a

dry place and shall be filled and handled in such a manner

as to permit of no contamination. The sterilization of

ELEED THROUGH — POOR COPY

21

bottles and filling and capping shall be performed within the

(fol. 26] pasteurization plant or in the milk house where raw

milk is prepared except that by consent of the Health Officer,

storing and capping of bottles may be performed in a milk

house, or room situated elsewhere and fulfilling all the

conditions required of the milk house described under the

caption, raw milk. Where such consent is given, the milk

and cream shall be transported in covered containers, un-

exposed to the sun, and shall be cooled in conformance with

this ordinance.

(U) Labeling: All bottles, cans, packages and other con-

tainers inclosing milk or cream, buttermilk, or skimmed

milk shall be permanently labeled and marked with the name

of the contents, the word ‘‘Pasteurized”’ if the contents

have been pasteurized and the word ‘‘Raw”’ if the contents

are raw, and the name of the producer or distributor. The

label or marks shall be letters of a size and kind approved

by the Health Officer and shall contain no marks or words

not approved by the Health Officer.

(V) Bacterial Count and Other Tests: (1) as used

herein, the term ‘‘average bacterial plate count’’ shall mean

_the logarithmic average, and the ‘faverage reduction time’’

shall mean the arithmetic average, of the respective results

of such tests on the last four consecutive samples, taken by

the milk inspector at such time and place as he sees fit. Ail

stores, cafes, ‘restaurants, sode fountains and milk vendors

shall furnish the milk inspector with such samples upon

his request, and he shall make payment if demanded.

(2) Bacterial counts and reduction tests shall be made

according to the latest standard methods recommended by

the American Public Health Association. Other chemical

and physical tests for the determination of adulteration

shall be made according to the latest standard methods of

the American Public Health Association and the Associa-

tion of Official Agricultural Chemists.

(W) Special Grades: (1) Certified milk is milk which

conforms with the current requirements of the American

Association of Medical Milk Commissions,

[fol.27] (2) Raw milk as defined in this ordinance is es-

sentially Wisconsin Grade A Raw Milk.

Under the supervision and consent of the Wisconsin De-

partment of Agriculture, raw milk with such modifications

22

in production as that Department desire- may be termed and

labeled Wisconsin Grade A Raw Milk.

(3) Pasteurized milk may, with the consent of the Wis-

consin Department of Agriculture, and under regulations

specified by them, be termed and labeled Wisconsin Grade

A Pasteurized Milk.

(X) General Provisions: (1) No milk or cream shall be

sold, distributed, offered for sale or delivered within the

city of Beloit which is not either Beloit Grade ‘‘A’’ raw

milk, pasteurized milk, or special grades.

(2) No pasteurized milk shall be sold in the city of

Beloit which shall not have been pasteurized in approved

plants within six miles from the iatersection of State street

and E. Grand Ave., in the City of Beloit.

(3) Milk to be consumed in the form of whole milk shall

be delivered to the final consumer within 48 hours of the

time of pasteurization.

(4) Milk sold or kept for sale or use within the City of

Beloit shall not contain more foreign matter than shall leave

a perceptible amount of sediment or stain other than that of

natural butter fat when a pint sample thereof is filtered

through a pledget of cotton one inch in diameter. Such

milk shall be entirely free from disease-producing bacteria

and likewise free from blood or pus or things dangerous or

detrimental to health.

(5) No person shall within the city of Beloit produce,

sell, offer or expose for saie or have in possession with

intent to sell any milk er milk product which is adulterated

or misbranded.

(6) The Health Officer or any officially appointed repre-

sentative he may so designate shall inspect periodically or

at such time as convenient or which expediency may re-

quire, every dairy farm producing milk and cream for

consumption within the city of Beloit and all milk plants

whose milk and cream are intended for consumption within

the city of Beloit.

[fols. 28-29] (7) Samples of milk and cream from dairies,

milk depots, stores, cafes, soda-fountains, restaurants and

other places where milk products are sold shall be tested

as often as the Health Officer may require. Bacteria counts

ELEED THROUGH — POOR COPY

23

and other tests shall be made in conformity with the stand-

ard methods recommended by the American Public Health

Association and the Association of Official Agricultural

Chemists. Tests may include such other chemical and

physical determinations as the Health Officer may deem

necessary for making maeterial counts and the detection

of adulteration. Notices of bacterial counts shall be given

te the producer or distributor concerned as soon as made.

Samples may be taken by the Health Officer at any time

prior to the final delivery to consumer of any milk or milk

products. All dairies, milk plants, milk depots, stores,

cafes, restaurants, soda-fountains and other places which

shall sell or offer for sale milk or milk products in the city

of Beloit shall furnish the Health Officer, upon his request,

the names and address of source from which their milk sup-

ply is obtained.

(8) The delivery of milk and cream to and the collection

of milk containers from quarantined residences, or where

the Health Officer directs, shall be subject to special require-

ments.

(Y) Revocation of License: A license may be suspended

or revoked by the Health Officer upon the violation of the

holder thereof of any of the terms of this section, or, when

in the judgment of the Health Officer, the milk supply in

question has become a public health menace, and provided

the holder of such license shall have the right of appeal

to the City Council.

(Z) Penalty: Any person who shall violate any pro-

vision of this section may be subject to a fine of not more

than One Hundred Dollars or by a jail sentence not to ex-

ceed 60 days.

{fol. 30] Caption omitted.

24

{fol.31] Is Cmcurr Court or Rock County

[Title omitted]

Notice or Appgan to Supreme Covrt—Filed January 18,

1947

Please Take Notice that Lawrence Dyer hereby appeals

to the Supreme Court of the State of Wisconsin from the

Judgment of the Circuit Court for Rock County, Wisconsin,

dated December 20, 1946, which dismissed his petition and

rendered costs against him in the amount of One Hundred

Six and 90/100 Dollars ($106.90) and from the whole of

said Judgment.

Dated December 31, 1946.

McGowan, Geffs, Geffs & Block, Attorneys for Peti-

tioner, Lawrence Dyer.

To C. L. Haugan and Arnold, Caskey and Robson, At-

torneys for the Defendant; Katherine Garman, Clerk of

Cireuit Court, Janesville, Wisconsin.

[File endorsement omitted. ]

{fol. 32] Bend on appeal for $250.00 approved and filed

Jan. 18, 1947, omitted in printing.

[fol. 33] [Endorsed:] Due service of within Notice of

Appeal and appeal bond admitted this 4th day of January,

A. D., 1946. C. L. Haugan, Arnold, Caskey & Robson, At-

torneys for Defendants. Original. Due service admitted

this Jan. 7, 1947. Katherine Carman, Clerk Circuit Court,

Rock Co., Wis.

[File endorsement omitted. ]

[fol. 34] In Supreme Court or Wisconsin

[Title omitted]

Minute Entry—May 13, 1947

And now at this day came the parties herein, by their

attorneys, and this cause having been argued by Eli Block,

Esq., and George S. Geffs, Esq., for the said appellant, and

submitted on brief for the said respondents, and the court

not being now sufficiently advised of and concerning its

decision herein, took time to consider of its opinion.

[fols. 35-36] In Supreme Court or Wisconsin

Rock Circuit Court—Opinion by Justice Barlow.

Lawrence Dyer, Appellant,

vs.

Crry Counci. or THE Crry or Betorr, Rock Country, Wiscon-

sin, A. D. Telfer, as City Manager of the City of Beloit,

Rock County, Wisconsin, R. H. Calland, as City Clerk of

the City of Beloit, Rock County, Wisconsin, and Stanley J.

Goldschmidt, City Sanitarian of the City of Beloit, Rock

County, Wisconsin, Respondents.

J upamMent—June 10, 1947

This cause came on to be heard on appeal from the judg-

ment of the Cireuit Court of Rock County and was argued

by counsel. On consideration whereof, it is now here or-

dered and adjudged by this Court, that the judgment of

the Circuit Court of Rock County, in this cause, be, and the

same is hereby, affirmed with costs against the said appellant

taxed at the sum of Forty-nine Dollars and Ninety Cents

($49.90).

26

[fol. 37] In Supreme Court or WISCONSIN

[File endorsement omitted]

Lawrence Dyer, Appellant,

v.

Crry Counci. or tHe City or Be ort, et aL., Respondents.

Appeal from a Judgment of the Cireuit Court for Rock

County. Jesse Earle, Circuit Judge. Affirmed

September 11, 1946, Lawrence Dyer, petitioner and appel-

lant, filed a petition praying for a writ of mandamus direct-

ing the city council of the city of Beloit, Rock county, Wis-

consin, A. D. Telfer, city manager of the city of Beloit,

R. H. Calland, city clerk of the city of Beloit, and Stanley J.

Goldschmidt, city sanitarian of the city of Beloit, defend-

ants and respondents, to issue to him a license as a milk

distributor in the city of Beloit. Case was tried to the court,

and judgment entered December 20, 1946, dismissing the

petition. Petitioner appeals. The facts will be set forth in

the opinion. ,

Optnion—Filed June 10, 1947

[fol. 38] Bartow, J. The city of Beloit passed an ordi-

nance under its police power regulating the sale and distri-

bution of whole milk for direct human consumption, and

the question presented involves the constitutionality of this

ordinance. The only provision attacked is sec. 8.09(X) (2)

of the general ordinance, which provides :

‘No pasteurized milk shall be sold in the city of

Beloit which shall not have been pasteurized in ap-

proved plants within six miles from the intersection

of State Street and E. Grand Ave. in the city of

Beloit.’’

It is claimed this is a trade barrier, violates the right of

contract guaranteed under the Fourteenth Amendment of

the constitution of the United States, and is in conflict with

the interstate commerce clause of the United States consti-

tution, sec. 8 Art. I.

The material facts, part of which were stipulated, are

that Lawrence Dyer, appellant, applied for a license to dis-

tribute milk in the city of Beloit under the ordinance, set-

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27

ting forth in his application for a license that he was going

to obtain his milk from a pasteurizing plant of the Dean

Milk Company located in Chemung, Illinois, a distance of

between twenty-five and thirty miles from the point indi-

cated by the ordinance of the city of Beloit, and truck the

same to the city of Beloit. As required by the ordinance he

filed with the city clerk a list of farmers who furnished milk

to the Dean Milk Company plant, the total number of farms

being one hundred and ninety-seven. These farms are lo-

cated in four counties, three of which are in the state of

Tilinois and one in the state of Wisconsin. The application

was denied under the ordinance. The state line between

[fol. 39] Wiseonsin and Illinois is the south city limits of

the city of Beloit.

That cities have a right to pass a milk ordinance for the

welfare and health of their citizens is not disputed, and milk

ordinances are general in the state of Wisconsin and else-

where in the nation. Such an ordinance must be reason-

able and not arbitrary, must not go beyond the reasonable

demands of the occasion, and must tend to accomplish the

purpose of its adoption. Courts will not interfere with the

exercise of police power by a municipal corporation in the

absence of a clear abuse of discretion and unless it is mani-

festly unreasonable and oppressive, for it is not within the

province of the courts, except in clear cases, to interfere

with the exercise of this power reposed by law in municipal

corporations. 11 Am. Jur. p. 1092, sec. 307. Municipal

corporations are prima facie the sole judges respecting the

necessity and reasonableness of ordinances under their

police power, and every intendment is to be made in favor

of the lawfulness and reasonableness of such ordinance.

The city is presumed to have full knowledge of local condi-

tions, and its adoption of an ordinance in the light of this

knowledge creates a prima facie presumption that it is rea-

sonable. 3 McQuillin, Mun. Corp. (2d ed.) p. 110, see. 951.

The reasonableness of an ordinance depends upon the pur-

pose sought to be accomplished and the effect upon all who

must comply with it.

The city of Beloit is in the center of an area producing

great quantities of milk, containing a large number of pas-

teurization plants, condenseries and creameries. The area

described in the ordinance includes pasteurization plants

[fol. 40] both in Wisconsin and in Illinois. Over four hun-

dred farms are included in the area and slightly over one

28

hundred farms produce sufficient milk to supply the demand

of the city of Beloit. Thus three-fourths of the milk pro-

duced in the area is not required to supply the city of Beloit

and is shipped elsewhere for such purposes as it may prop-

erly be used. The supply of milk in the area is ample for a

large number of additional milk plants of any type that may

desire to engage in the business. The ordinance clearly wi's

not passed for the purpose of limiting the business to the

plants then in operation. Milk is usually delivered to nearby

plants as a matter of economy and convenience, which an-

swers the contention that the location of the farms pro-

ducing the milk is not limited by the ordinance but. the

location of the pasteurization plat is. The ordinance in

question not only provides for the inspection of the pasteur-

ization plants, but requires the inspection of the farms pro-

ducing the milk.

It is claimed by appellant, and admitted by the city sani-

tarian from a few examinations made by him, that the milk

produced by the Dean Milk Company complied with the

sediment tests, blue tests, other tests and content require-

ments of the ordinance of the city of Beloit. This could

well be true of milk purchased from a pasteurization plant

a much greater distance from the city of Beloit. Conven-

ience, efficiency, and cost of inspection enter into a determi-

nation of the question of the reasonableness of an ordinance.

It is said in State ex rel Larson v. City of Minneapolis

(1933), 190 Minn. 138, 251 N. W. 121, with reference to the

constitutionality of a milk ordinance, quoting with approval

[fol. 41] from the trial court:

**. .. It is obvious that adequate inspection is a

reasonable precaution. It is obvious that consideration

of convenience, efficiency and cost of inspection are

proper to be taken into account in determining the

question of reasonableness. It is also obvious that

there is somewhere a limit of distance beyond which

inspection by the city’s agents would be too inconven-

ient, too costly, and too likely to be ineffective to be

practicable. It seems to me there can be no doubt of

the right of the city council to fix a reasonable limit

beyond which it will not provide for inspection, and

beyond which, for that reason, pasteurization plants

will not be licensed. .. .’’

The city of Beloit has two employees in this department,

the city sanitarian and an assistant, and proof was offered

ELEED THROUGH ~ POOR COPY

29

that to assume the inspection of the additional plant and

farms it would require the employment of another employee

at a cost of $2,400 per year, and if other likewise distant

plants were included it would cost much more. Convenience

and efficiency are self-evident.

It cannot be said that the city, in adopting the section in

dispute, arbitrarily acted on the question of convenience,

efficiency, and cost of inspection, unless we adopt the rule

in the case of Meridian v. Sippy, 54 Cal. App. (2d) 214, 128

Pac. (2d) 884, where the court said that milk production is

a legitimate business and so long as persons engaged in the

business put out a clean, pure and wholesome product it

should be permitted to flow freely on the markets, unbur-

dened by duplication of inspection and prohibitive trade

barriers, which rule we do not adopt.

Counsel for appellant relies on State ex rel Larson v. City

of Minneapolis, supra, and La Franchi v. City of Santa

Rosa, 8 Cal. (2d) 331, 65 Pac. (2d) 1301. In each instance

the city passed an ordinance restricting the sale of milk in

their respective cities to that pasteurized in plants located

within the city limits of the particular city. No considera-

[fol. 42] tion was given to the area necessary to furnish the

milk, and the plants near the cities in question were arbi-

trarily prohibited from selling milk in the city. No inspec-

tion of the farms producing the milk was provided for in the

ordinances, making the facts entirely different from those

under consideration. Every ordinance must stand or fall

upon its own merits. It is either reasonable or arbitrary

in accordance with the facts and purposes it is intended to

serve, if within the police powers of the municipality adopt-

ing it. The area necessary to be included in the ordinance

could well depend upon the population to be served, the

amount of milk produced, and the location of the pasteuriza-

tion plants with reference to the population to be served.

A reasonable exercise of police power is not a trade barrier,

and contract rights guaranteed under the Fourteenth

Amendment of the federal constitution do not have a su-

perior right to the right of a municipality to reasonably

protect the health of its citizens.

This ordinance does not violate the interstate commerce

clause of the United States constitution. Milk may be fur-

nished from farms and pasteurization plants in the state of

Tilinois as well as in the state of Wisconsin, and in fact milk

is so furnished. The production and delivery of milk are

essentially local problems with which congress has not

30

sought 'to deal, leaving the city of Beloit free to act in the

exercise of its police powers. State v. Chicago, Milwaukee

é St. Paul R. Co. (1908), 136 Wis. 407, 117 N. W. 686, 19

L.R.A. (N. 8.) 326; Wadhams Oil Co v. Tracy (1909), 141

Wis. 150, 123 N. W. 785.

It is argued that sees. 97.31 — 97.37, Stats. prohibit the

sale of milk from unhealthy cows, insanitary barns and

[fol. 43] utensils, and the sale of insanitary and adulterated

milk, and authorize the state department of agriculture to

inspect the premises, plants and facilities of transportation

and fix the requirements of pasteurization. The depart-

ment of agriculture assumes responsibility for milk comply-

ing with the statutes used in manufacturing, this being

known to the public as ‘‘Grade B milk,’’ but it leaves to the

municipalities the regulation of milk furnished for direct

human consumption, known to the public generally as

‘Grade A milk,’’ except as the department of agriculture

assists the municipalities and cooperates with them in re-

quiring dealers to sell clean, wholesome milk produced under

sanitary conditions that comply with the state law and local

ordinances that may be lawfully passed. This cannot be

said to burden interstate commerce in any way.

It is considered that the ordinance is a reasonable exer-

cise of the police power of the city of Belcit.

By the Court.—Judgment affirmed.

[fol. 44] [File endorsement omitted]

In Supreme Court or Wisconsin

[Title omitted]

Petition ror APPEAL FROM THE SuprREME CouRT oF THE

Strate or Wisconsin To THE Supreme Court oF THE

Unirep Srates—Filed July 17, 1947

To Honorable Marvin B. Rosenberry, Chief Justice of the

Supreme Court of the State of Wisconsin:

Lawrence Dyer, your petitioner, respectfully shows:

1. Petitioner is the appellant in the above entitled cause.

2. The above named appellant filed a petition for man-

damus in the Circuit Court of Rock County, of the State of

Wisconsin on the 11th day of September, 1946 to compel

the City of Beloit, Wisconsin, to issue to him a milk dis-

BLEED THROUGH ~— POOR COPY

31

tributor’s license, and judgment was entered therein in

favor of the appellees.

3. An appeal from said judgment to the Supreme Court

of the State of Wisconsin was affirmed by said Supreme

Court on the 10th day of June, 1947, and said judgment has

become and is a final judgment.

4. In said cause there is drawn in question the validity

of a city ordinance of the City of Beloit, Rock County,

Wisconsin, on the ground of its being repugnant to the

Constitution of the United States, and the decision is in

favor of its validity; that said ordinance provides:

[fols. 45-46] ‘‘No pasteurized milk shall be sold in the

City of Beloit, which shall not have been pasteurized in

approved plants within 6 miles from the intersection of

State Street and East Grand Avenue in the City of

Beloit’’ ;

that it is in violation of Section 8 of Article One of the

United States Constitution which provides that the Con-

gress shall have power to regulate commerce with foreign

nations and among the several states, and with the Indian

tribes; and said ordinance is in violation of the First Sec-

tion of the Fourteenth Amendment of the Constitution of

the United States in that it denies this petitioner of his

property without due process of law and denies to this

petitioner the equal protection of the laws.

Wherefore, Petitioner prays for the allowance of an

appeal from said Supreme Court of the State of Wisconsin

to the Supreme Court of the United States, in order that

the decision of the Supreme Court of the Staie of Wiscon-

sin may be examined and’ reversed, and also prays that a

transeript of the record, proceedings and papers in this

case, duly authenticated by the clerk of the Supreme Court

of the State of Wisconsin may be sent to the Supreme

Court of the United States as provided by law.

The errors upon which your petitioner claims to be

entitled to an appeal are those above indicated and more

fully set out in the assignment of errors filed herewith.

Dated : July 14th, 1947.

Claude D. Stout, Milton, Wisconsin, Attorney for

petitioner and Proposed Appellant.

George S. Geffs, Eli Block and Jacob Geffs of McGowan,

Geffs, Geffs & Block, Janesville, Wisconsin, of Counsel.

32

(fol. 47] [File endorsement omitted]

In Supreme Court or tae Unirep States

[Title omitted]

AssiGNMENT OF Errors—Filed July 17, 1947

The said Lawrence Dyer assigns the following errors in

the record and proceedings in the said case:

1. The Supreme Court of the State of Wisconsin erred

in holding and deciding that Sec. 8.09 (X) (2) of the Beloit

City Ordinance which reads:

‘‘No pasteurized milk shall be sold in the City of

Beloit which shall not have been pasteurized in ap-

proved plants within six miles from the intersection of

State Street and East Grand Avenue in the City of

Beloit.’’,

did not deprive appellant of his property rights without

due process of law, did not deprive appellant of his right

of contract, and did not deny to appellant the equal protec-

tion of the laws within, the meaning of section 1 of article

XIV of the Amendments to the Constitution of the United

States.

2. The Supreme Court of the State of Wisconsin erred in

holding and deciding that said city ordinance as applied to

appellant did not violate section 8, article I of the Censti-

tution of the United States, being what is commonly called

the Interstate Commerce clause of the United States Con-

stitution,

Prayer ror Reversal

For which errors said Lawrence Dyer, appellant herein,

prays that the said decision and judgment of the Supreme

[fols. 48-49] Court of the State of Wisconsin, dated June 9,

1947, be reversed and that a judgment be rendered in favor

of said appellant herein, and for costs.

Dated at Janesville, Wisconsin, this 14th day of July,

1947.

Claude D. Stout, Attorney for Appellant, Milton,

Wisconsin.

George S. Geffs, Jacob Geffs and Eli Block, of McGowan,

Geffs, Geffs & Block, Janesville, Wisconsin, of Counsel.

ELEED THROUGH — POOR COPY

[fol. 50] In Supreme Court or Wisconsin

[Title omitted]

Orver ALLowina AppgaL To Supreme Court or Unirep

States—Filed July 30, 1947

The petition of Lawrence Dyer for an appeal in the

above cause to the Supreme Court of the United States

from the Supreme Court of the State of Wisconsin and

assignment of errors while therewith and the record of

said cause having been considered, it is

Ordered that an appeal be and is allowed to the Supreme

Court of the United States from the Supreme Court of the

State of Wisconsin, as prayed in said petition, and that the

clerk of the Supreme Court of the State of Wisconsin shall

prepare and certify a transcript of the record and pro-

ceedings in the above cause and transmit the same to the

Supreme Court of the United States within 40 days from

the date hereof.

It is further ordered that said petitioner shall give good

and sufficient security in the sum of $250.00, that said

appellant shall prosecute said appeal to effect, and if said

appellant fails to make his plea good he shall answer all

damages and costs.

The said appellant now presenting a bond in the sum of

$250.00 with Standard Accident Insurance Company of

Michigan and authorized to do business in Wisconsin as

surety.

It is ordered that the same be and is hereby approved.

The appeal shall operate as a supersede-s.

Chester A. Fowler, Acting Chief Justice of the Su-

preme Court of Wisconsin. (Seal)

Dated: July 30, 1947.

[fols. 51-54] [File endorsement omitted. ]

[fols. 55-56] Bond on appeal for $250.00, filed July 17,

1947, omitted in printing.

34

[fols. 57-80] Citation in usual form showing service on

E. J. Caskey, et al., filed July 17, 1947, omitted in printing.

————

[File endorsement omitted. ]

{fol. 81] Iw» Supreme Court or tue Unirep Srates

[Title omitted]

Pragzcipe ror Recorp—Filed July 25, 1947

To the Clerk of the Supreme Court of Wisconsin:

Please prepare a transeript of the record in the above

entitled cause in the matter of appeal therein to the Supreme

Court of the United States and include in said transcript

the following:

. Petition for mandamus

Appellees answer

Decision and order denying writ of mandamus

Judgment of Circuit Court denying petition

Notice of appeal to Supreme Court

. Appeal bond

. The attached notice of testimony and Beloit City

Ordinance i in lieu of bill of exceptions

8. Appeal to the Supreme Court, Appeal bond, argument

before Supreme Court, and opinion of Supreme Court

9, Judgment of the Supreme Court of Wisconsin

10. Petition for appeal to Supreme Court of the United

States

11. Assignment of Errors

12. Order Allowing Appeal

13. Notice of Service on Appellees

14. Appeal Bond on Appeal to the Supreme Court of the

United States

15. Citation of Appeal

[fols. 82-83] 16. Statement as to Jurisdiction

17. Praecipe

Claude D. Stout, Milton, Wisconsin, Attorney for

Appellant ; George 8S. Geffs, Jacob Geffs, Eli Block

of McGowan, Geffs, Geffs & Block, Janesville, Wis-

consin, of Counsel.

Dated: 18th day of July, 1947.

INASP we

ELEED THROUGH — POOR COPY

Service of the foregoing praecipe for transcript of record

and the receipt of a copy thereof are hereby acknowledged,

this the 31st day of July, 1947. And it is hereby agreed

that the matter set forth in said praecipe shall constitute

the entire transcript of the record in this appeal; and that

the stipulation of testimony and Exhibit may be substituted

for the Bill of Exceptions.

C. L. Haugan, Earl J. Caskey, of the firm of Arnold,

Caskey and Robson, all of Beloit, Wisconsin, Attor-

neys for Appellees.

[fol. 84] Clerk’s Certificate to foregoing transcript omitted

in printing.

[fol. 85] In Supreme Court or tne Untrep Srares

[Title omitted]

Statement or Ports to Be Reisen Uron anv Desionarion

or Recorpv—Filed September 2, 1947

Comes now Appellant, Lawrence Dyer, plaintiff above

named, and states that his appeal is from the whole of the

final judgment given, made and entered in the above en-

titled cause on the Tenth (10th) day of June, 1947, and

that said appellant will rely on his appeal herein on the

following points:

I

That the Supreme Court of the State of Wisconsin erred

in finding that the Ordinance of the City of Beloit, Rock

County, Wisconsin, which reads,

‘*No pasteurized milk shall be sold in the City of

Beloit which shall not have been pasteurized in ap-

proved plants within six miles from the intersection

of State Street and E. Grand Ave. in the City of

Beloit.’’

is not a trade barrier and does not violate the right of con-

tract guaranteed under the Fourteenth (14th) Amendment

of the Constitution of the United States.

II

That the said Supreme Court of the State of Wisconsin

[fols. 86-87] erred in finding that the Ordinance of the City

36

of Beloit, Rock County, Wisconsin, is not in conflict with

Section 8, Art. I of the Constitution of the United States,

generally known as the Inter-State Commerce Clause of

the Constitution.

Iil

That the Supreme Court of the State of Wisconsin erred

in finding that the Ordinance of the City of Beloit, Rock

County, Wisconsin, above quoted, is a reasonable exercise

of the Police Power of the City of Beloit, Rock County,

Wisconsin.

Appellant states that the whole of the record, as filed, is

necessary for the consideration of the case.

Claude D. Stout, Milton, Wisconsin; George S. Geffs,

Jacob Geffs, Eli Block, of Counsel, Janesville, Wis-

consin.

Due Service and receipt of a copy of the within statement

of points admitted this the 30th day of August, 1947.

J. Arthur Moran, Delavan, Wisconsin, Attorney for

Appellees; Earl J. Caskey, of the firm of Arnold,

Caskey & Robson, Beloit, Wisconsin, of Counsel.

[fol. 88] | Supreme Court or toe Unirep States

Orver Notine Propasie Jurispicrion—October 13, 1947

The statement of jurisdiction in this case having been

submitted and considered by the Court, probable jurisdic-

tion is noted.

Endorsed on Cover: Enter Claude D. Stout. File No. 52,-

505, Wisconsin, Supreme Court, Term No. 275. Lawrence

Dyer, Appellant, vs. City Council of the City of Beloit,

Rock County, Wisconsin, et al. Filed August 18, 1947.

Term No. 275 O.T. 1947.