# Transcript of Record — Dyer v. City Council of Beloit

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Transcript of Record
- **Published:** January 1, 1948
- **Citation:** 333 U.S. 825

## Text

_—

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;

2—275

rr _

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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wa

{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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r

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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ee

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.

3—275

12

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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13
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.

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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-

BLEED THROUGH — POOR COPY

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0252%3A01. Public record. Not legal advice.