Petition for Writ of Certiorari — Dairy Products Co. v. Sleeth

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MAY 1

PETITION FOR WRIT OF CERTIORARI Tp THE oe

UNITED STATES COURT OF APP ROLD B. WILEY. C

FOR THE FOURTH CIRCUIT & - :

In The

SUPREME COURT of the UNITED STATES

OCTOBER TERM 1956

No. 91 6

DAIRY PRODUCTS COMPANY OF UNIONTOWN,

Petitioner,

vs.

CLARK J. SLEETH, HEALTH OFFICER OF

MONONGALIA COUNTY, WEST VIRGINIA,

Respondent.

GLENN HUNTER

12 Titus Building

Morgantown, West Vigrinia

CuHartes McCamic

National Bank of W. Va. Bldg.

Wheeling, West Virginia

Attorneys for Petitioner

The Press of Lawyers Printing Co., Inc., Richmond 7, Ve.

INDEX

Page

OPINIONS BELOW

pS sh Oy yt

QUESTIONS PRESENTED ; 3

CONSTITUTIONAL PROVISIONS, STATUTES,

RULES, ORDINANCES AND REGULATIONS

INVOLVED

LEN ¢ SERRE eee San Cane? 7

REASONS FOR GRANTING THE WRIT 18

CONCLUSION . en LOA, Mel : Pee

APPENDIX I, Opinion of the Court of Appeals 29

APPENDIX II, Judgment of the Court of Appeals 37

APPENDIX III, Constitutional Provisions, Rules,

Statutes and Regulations bsaatensnit ceo: ee

Citations

Cases:

Baldwin v. Seelig, Inc., (1935) 294 U.S. 511 24, 25

Cleo Syrup Corp. v. Coca Cola Co., etal 139 Fed.

eee rea oe

Cummings v. Merchants National Bank of Toledo, 101

U. S. 903 Ses cetraes 23

Dean Milk Co. v. Madison, (1951) 3 340 U. S. 349 22, 24,25

——

Page

Graver Tank & Mfg. Co. v. Linde Air Products Co..

(1950) 339 U. S. 605 26

H. P. Hood & Sons, Inc. v. Dumond, atid 336 U. S.

525 | 25

Minor v. City of Keokuk, (1950) 92 Fed. Sup. 833 23

Nee v. Linwood Securities Co., (1949) 174 Fed. 2d

434 26

Reagan v. Farmers Loan & Trust Co., 154 U. 5. 362 23

U. S. v. Yellow Cab Co., (1949) 338 U. S. 338 25

Constitutional Provisions, Statutes and Regulations:

Act No. 210, Commonwealth of Pennsylvania 6, 16

City of Pittsburgh Health Department Regulations

6, 16, 17

Constitution of the United States, Art. 1, Sec. 8,

C1.3 Commerce 6

Federal Rule 52(a) Findings by the Court 6

Milk Ordinance and Code, USPHS 1953 _ 6, 9, 15, 19, 24

Pennsylvania Advisory Health Board Regulations 6, 15, 18

Title 28, U.S.C. 1254(1) Jurisdiction 3, 6

West Virginia Code, Chap. 16, Art. 7, Sec. 5 6, 15

West Virginia Milk Regulations--1944 4, 6, 9, 15, 18, 22

In The

SUPREME COURT of the UNITED STATES

OCTOBER TERM 1956

JAIRY PRODUCTS COMPANY OF UNIONTOWN,

Petitioner,

vs.

CLARK J. SLEETH, HEALTH OFFICER OF

MONONGALIA COUNTY, WEST VIRGINIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

‘0 the Honorable The Chief Justice of the United States

and the Associate Justices of the Supreme Court of the

United States:

Petitioner prays that a writ of certiorari issue to review

1¢ judgment of the United States Court of Appeals for the

ourth Circuit, entered in the above case on December 27,

a>

[2]

1955, reversing the judgment of the District Court of the

United States for tue Northern District of West Virginia,

entered on January 3, 1955.

OPINIONS BELOW

The opinions of the District Court for the Northern

District of West Virginia and of the Court of Appeals for

the Fourth Circuit have not been reported. The opinion of

the District Court, dated December 13, 1954, appears in

Appendix K, page 109, Court of Appeals. The opinion of

the Court of Appeals, dated December 27, 1955, is appended

hereto as Appendix I, page 29.

JURISDICTION

The judgment of the District Court was made and en-

tered on January 3, 1955, and appears in Appendix L, page

125, Court of Appeals.

Upon motion of the defendant for rehearing, an order

was made by the District Court on January 5, 1955 sus-

pending the judgment of the court pending rehearing on

the motion. Rehearing was had on April 18, 1955, on which

date the court overruled the defendant's motion, reinstated

the court’s judgment of January 3, 1955, and directed de-

fendant within ten days from the entry of the order to issue

a permit to plaintiff to sell milk and milk products in

Monongalia County, West Virginia. Motion by defendant

for rehearing appears in Appendix M, page 128, Court of

Appeals. The order of April 18, 1955, appears in Appendix

P, page 263, Court of Appeals.

Upon appeal by defendant the Court of Appeals reversed,

December 27, 1955. Petitioner then filed a petition for a re-

[3]

hearing in the Court of Appeals on January 25, 1956.

Order staying the mandate pending action of the court

was entered on January 30, 1956; and by an order on

February 7, 1956, the court denied rehearing asked for and

directed that mandate issue after the expiration of five

days. Copy of the judgment is appended hereto as Appendix

IL.

The District Court had jurisdiction,

(1) On the ground of diverse citizenship;

(2) A federal question, involved the right of the plain-

tiff to engage in interstate commerce under the federal con-

stitution.

The jurisdiction of this court is invoked under Title 28

U.S.C. 1254(1).

QUESTIONS PRESENTED

The petitioner has a milk processing plant in Uniontown,

Fayette County, Pennsylvania. It purchases its raw milk

from some two hundred fifty to three hundred dairy farms

located in Fayette, Somerset and Washington Counties,

Pennsylvania, and Garrett County, Maryland. Having a

surplus of pasteurized milk to market, it made application

to Roger A. Kennedy, then Health Officer of Monongalia

County, West Virginia, for a permit to sell pasteurized

milk im said county. The permit was refused. Petitioner

then brought suit in the United States District Court for

the Northern District of West Virginia, asking the aid of

the court in getting a permit.

The State of West Virginia had adopted the Milk Ordi-

[4]

nance and Code recommended by the United States Public

Health Service. The Commonwealth of Pennsylvania has

not adopted this code, but has its own basic law and milk

regulations promulgated by its Advisory Health Board per-

taining to the production, processing and sale of milk. Un-

der Pennsylvania procedure dairy farms are inspected by

licensed dairy farm inspectors, qualified to do this work

under the law and regulations of the commonwealth. These

inspectors are paid by industry—in this instance, Dairy

Products Company of Uniontown.

Section 11 of the West Virginia Milk Regulations pro-

vides that milk from beyond the limits of routine inspection

by the State of West Virginia may not be sold in the state

unless produced or pasteurized under provisions equivalent

to the requirements of the regulations, provided that the

health officer shall satisfy himself that the health officer

having jurisdiction over the producing and processing is

properly enforcing such regulations.

The Health Officer of Monongaiia County took the posi-

tion that Pennsylvania regulations and procedures were

not equivalent to those of West Virginia, and refused to

recognize the system of dairy farm inspection followed by

Pennsylvania and the City of Pittsburgh, which has been

treated as the enforcing agency in this case, for the reason

that Dairy Products Company sells milk in Pittsburgh, and

has 2 permit to do so from both Pennsylvania and Pitts-

burgh.

The effect of the position taken by the Health Officer of

Monongalia County is to exclude absolutely the milk of

Dairy Products Company from the State of West Virginia,

unless and until such time as the Commonwealth of Penn-

[5]

sylvania shall change its system of dairy farm inspection,

making it identical to the method followed by the Health

Officer of Monongalia County in the inspection of dairy

farms in said county.

The District Court held that Pennsylvania and Pitts-

burgh regulations and procedures were equivalent to those

of West Virginia, and that Dairy Products Company was

entitled to a permit to sell milk in Monongalia County. This

finding was based on testimony taken before the court.

Upon appeal to the United States Court of Appeals, Fourth

Circuit, by defendant, the Court of Appeals reversed, thus

sustaining the position of the Health Officer of Monongalia

County.

There is no question here of the quality of the milk of

Dairy Products Company. The defendant Kennedy testi-

fied it was of good quality. App. I, p. 80, Court of Appeals.

Therefore, the principal question presented is, whether

the Health Officer of Monongalia County, by refusing a

permit to Dairy Products Company, may exclude its milk,

which is admittedly of good quality, absolutely from West

Virginia, and thereby deprive it of its right to engage in

interstate commerce under the federal constitution. The

District Court said that he could not. The Court of Appeals

reversed.

A subsidiary question is, whether the Court of Appeals

should not have adhered to the findings of fact of the Dis-

trict Court. It disregarded the District Court’s findings

without holding them clearly wrong.

[6]

CONSTITUTIONAL PROVISIONS, STATUTES, RULES,

ORDINANCES AND REGULATIONS INVOLVED

(1) Constitution of the United States, Article I, Sec-

tion 8, Clause 3, Commerce.

(2) Title 28 U.S.C. 1254(1), Jurisdiction.

(3) Federal Rule 52(a), Finding of Facts.

(4) Code of West Virginia, Chapter 16, Article 7, Sec-

tion 5.

(5) The pertinent portions of West Virginia Milk Regu-

lations of January 3, 1944, adopted under above code pro-

visions, and revision thereof of September 16, 1954.

(6) An act of the General Assembly of the Common-

wealth of Pennsylvania designated as No. 210, To Safe-

guard Human Health and Life, etc., approved by the Gov-

ernor July 2, 1935, and the Advisory Health Board regula-

tions pertaining to milk and milk products adopted April 2,

1940.

(7) Regulations adopted by City of Pittsburgh Health

Department under Ordinance No. 500. App. O, pp. 188,

189, 190, 191, Court of Appeals.

(8) Pertinent parts of Milk Ordinance and Code recom-

mended by United States Public Health Service, 1953

Edition.

The above are appended hereto as Appendix IIT, pp. 39-72.

[7]

STATEMENT

Original complaint filed September 12, 1951, Dairy

Products Company of Uniontown vs. Roger A. Kennedy,

Health Officer of Monongalia County, West Virginia. De-

fendant answered and moved to dismiss; motion overruled

March 26, 1952 by Judge Wilson Warlick, judge by desig-

nation. Case set for hearing September 30, 1952 before

Judge Robert N. Wilkin, judge by designation. By agree-

ment of the parties and by order of the court, Darold W.

Taylor of the United States Public Health Service was

designated to make an inspection of the dairy farms tribu-

tary to the processing and receiving plants of the plaintiff,

as may be required under West Virginia Milk Regulations

adopted January 3, 1944, as a prerequisite for permit to

plaintiff by defendant to sell milk in Monongalia County.

Taylor made the inspection and filed his report in the Clerk’s

office January, 1953, to which report plaintiff filed objec-

tions.

At a further hearing held before Judge Wilkin November

6, 1953, upon motion, leave was granted to plaintiff to file

an amended complaint, and order entered. It was stipulated

and agreed by counsel for said parties, and so ordered by

the court, that plaintiff would submit to defendant a new

application for permit to se!l milk in Monongalia County,

and upon the filing thereof Darold W. Taylor would again

make an inspection of the dairy farms tributary to plain-

tiff’s pasteurization and receiving plants, and laboratory

facilities and procedures, and such other inspection as may

be required by West Virginia Milk Regulations adopted

January 3, 1944, or which may be in effect at the time of

said inspection, as a prerequisite to the issuance to plain-

tiff by defendant of a permit to sell milk in Monongalia

[8]

County, and that thereupon defendant would rule upon said

application, and specify in detail in writing the reasons for

his refusal to grant a permit, if refused.

The order also provided that if trial is necessary, the evi-

dence will be restricted to issues raised by the amendments

to complaint and the report of the inspector as to conditions

subsequent to the present date (November 6, 1953). App.

B, p. 11, Court of Appeals.

Amended, as well as original, complaint showed jurisdic-

tion on grounds of diverse citizenship and right of plaintiff

under federal constitution to engage in interstate commerce.

Amended complaint appears as Appendix C, p. 13 et seq.,

Court of Appeals.

Plaintiff is a corporation under the laws of Pennsylvania,

with its principal place of business in Uniontown, Fayette

County, Pennsylvania. Defendant is Health Officer of

Monongalia County, West Virginia, with his place of busi-

ness and residence in the City of Morgantown, Monongalia

County, West Virginia. He is a county, not a state officer.

Amended complaint alleges that refusal of defendant to

grant a permit to plaintiff to sell milk in Monongalia County

is a denial of its right to engage in interstate commerce, and

causes a loss to plaintiff of many thousands of dollars per

vear, exceeding three thousand dollars; that the first report

of Darold W. Taylor in January, 1953, was not based upon

any adverse findings in the quality of the milk of plaintiff,

but upon his inability to find documentary evidence sup-

porting certain requirements; that said evidence is now

available: that defendant made or caused arrests of plain-

tiff’s employees engaged in carrying on a lawfui business,

> ol CARL Set “Sei i eR

[9]

and threatened to continue to do so; that a permit was

denied plaintiff to protect local milk processors and dealers

in Monongalia County from competition, and for the pur-

pose of giving them a monopoly of the milk business in said

county; that there is produced within the State of West

Virginia only sixty percent of its requirements in milk and

milk products; that all the milk processed and distributed

by plaintiff in the States of Pennsylvania and Maryland is

produced, handled, pasteurized and inspected under and

pursuant to the law of Pennsylvania relating to such mat-

ters, and designated an Act To Safeguard Human Health

and Life By Providing for the Issuance of Permits to and

Regulation of Persons and Entities Selling Milk and Milk

Products, Conferring Powers and Imposing Duties Upon

the Secretary of Health, The Advisory Health Board, and

Otherwise Providing for the Administration of the Act and

Imposing Penalties; that the methods of processing, han-

dling and distributing said milk go beyond the requirements

of the law and regulations of Pennsylvania, and are equiva-

lent to the requirements of West Virginia Regulations, in

conformity with Section 11 thereof, as well as with the

Model Milk Ordinance and Code recommended by United

States Public Health Service, to which West Virginia

Regulations conform almost word for word. The prayer of

the complaint is for the aid of the court in procuring the

permit requisite to carrying on its business in said county.

App. C, pp. 14, 18, 25, 26, 27, 28 and 29, Court of Appeals.

Defendant’s answer to amended complaint appears as

Appendix D, p. 32, Court of Appeals. Defendant states:

“That the milk proposed to be marketed by the plain-

tiff is not produced or pasteurized under provisions

equivalent to the requirements of the West Virginia

[10]

Regulations, and will not be so produced and pas-

teurized in the future unless the Pennsylvania milk

regulations are changed to conform to the provisions

of West Virginia regulations in the following re-

spects” ... (p. 33)

Defendant then names eight points. But it has developed

in the hearing that the first part of point number one, re-

lating to inspection of dairy farms is the crux of the prob-

lem. We quote:

“Inspection of dairy farms and milk plants shall be

made by the health officer (a public official rather than

an approved inspector employed by the applicant).”

(p. 33)

Under Pennsylvania and Pittsburgh practice dairy farms

are inspected by approved, qualified inspectors, licensed

under laws of Pennsylvania, but who are paid by industry.

App. J, p. 89, Court of Appeals. Processing plants are in-

spected only by employees of Health Department of Pitts-

burgh, the enforcing agency in this case, and samples of

pasteurized milk are picked up by official agents of the de-

partment. Samples of raw milk from dairy farms are picked

up by technicians of commercial laboratory in Pittsburgh,

or personnel of Dairy Products Company of Uniontown.

App. J, p. 92, Court of Appeals.

Darold W. Taylor made his second inspection in accord-

ance with the order of the court, and filed a report May

11, 1954. Appendix F, p. 41, et seq., Court of Appeals. It

covers thirty-seven producing dairy farms selected at ran-

dom from the Dairy Products Company’s total producer

[11]

farms. It gives a United States Public Health Service rat-

ing of raw milk sold to plants of 90.82 percent, and pasteur-

ization plant and receiving station, 92.55 percent. Taylor

chose the City of Pittsburgh Health Department as the

enforcing agency, since it has supervision of Dairy Prod-

ucts Company’s processing plant and receiving station, and

the producer dairy farms tributary thereto, by reason of

the fact that Dairy Products Company sells milk in the

City of Pittsburgh, and has a permit from its health de-

partment to do so. Under item one, status of enforcement,

he reported that,

“After a review of records in Pittsburgh, Pennsyl-

vania, and as a result of field work on the farms and in

processing plant, it is felt that interpretations are

being made substantially in conformity with the Public

Health Service Milk Ordinance and Code.” (p. 44)

In closing, he stated:

“It is evident from the records available, and the in-

terest shown on the part of the Pittsburgh City Health

Department officials, that a satisfactory control pro-

gram is being set up there. The system and approach

to be used by Pittsburgh in carrying out adequate en-

forcement should satisfy the above requirements ade-

quately.” (p. 47)

The survey was made in accordance with sanitary standards

required under West Virginia Milk Regulations adopted

January 3, 1944. (p. 41)

Defendant rejected the new application by letter, on the

stated ground that the supervision of the City of Pittsburgh

[12]

Health Department is not compulsory, therefore not in ac-

cordance with the most important view of the West Vir-

ginia requirements. Appendix G, p. 51, Court of Appeals.

_In defendant’s deposition he testified that his basis of

refusal was that, “The enforcement methods which could

be applied to the Dairy Products Company were not in ac-

cordance with those required by West Virginia Milk Regu-

lations.” Appendix I, p. 60, Court of Appeals; that he was

satisfied with all points of criticism in Mr. Taylor’s second

report excepting number two, having to do with enforce-

ment. Appendix I, p. 75, Court of Appeals. In other words,

as found by the District Court, defendant’s objections to

the second Taylor report had all been eliminated except for

the fact that under Pennsylvania and Pittsburgh regula-

tions and practice, inspection of producer dairy farms, and

the collection (and testing) of samples (of raw miik) were

entrusted to inspectors in the employ of milk producers, Ap-

pendix K, p. 116, Court of Appeals; that the quality of the

milk of Dairy Products Company was good was admitted

by defendant,

“Well, I would like to be quite clear that I have no

question about the quality of the milk from the Dairy

Products.”

Question by counsel: “It is good quality ?”’

Answer: “Good quality.” Appendix 1, p. 80, Court

of Appeals.

The case next came on for hearing before Judge Wilkis

on September 23, 1954. On that date it was submitted on

the pleadings, stipulations, deposition of Roger A. Kennedy,

then Health Officer of Monongalia County, and the testi-

[13]

mony of Albert H. Brunwasser, Chief of the Milk and

Food Division of the City of Pittsburgh Health Depart-

ment taken before the trial judge September 23, 1954, and

briefs.

The court gave its written opinion December 13, 1954, in

which it stated:

“All objections in the second Taylor report had been

eliminated except number two. Kennedy was satisfied

that the Pittsburgh regulations and enforcement meth-

ods generally were up to the standard of the United

States Public Health Service and the West Virginia

regulations except for the fact that under Pennsyl-

vania and Pittsburgh regulations inspections of pro-

ducer farms and the collection and testing’ of samples

were entrusted to inspectors in the employ of milk

producers.” Appendix K, p. 116, Court of Appeals.

The District Court on January 3, 1955 overruled defend-

ant’s motion to dismiss the amended complaint, and entered

judgment on the merits for plaintiff, prefaced by the fol-

lowing statement :

“Considered in the light of the aims and basis of

West Virginia regulations, this court is constrained to

find the enforcement regulations and methods of the

Pittsburgh Health Department are equivalent to the

regulations and methods of West Virginia, and further

finds that the refusal of the Health Officer of Monon-

' The use of the words “and testing” here by the District Court is erroneous.

Samples of raw milk are taken to Pittsburgh for analysis. Appendix J, p.

92, Court of Appeals.

[14]

galia County, West Virginia, to grant a permit to the

plaintiff is an unwarranted obstruction to interstate

commerce in milk and milk products, and is a violation

of the plaintiff's constitutional rights.” Appendix K,

p. 122, Court of Appeals.

The court ordered that the defendant, Clark J. Sleeth,

successor of Kennedy, within five days from the entry of

the order of record issue a permit to the plaintiff, Dairy

Products Company of Uniontown, to sell its milk and milk

products in Monongalia County. Appendix L, p. 125, Court

of Appeals.

Motion by defendant for reconsideration was filed Jan-

uary 5, 1955. An order was entered on January 11, 1955

suspending the judgment of the court pending a rehearing.

Rehearing was held on April 18, 1955, at Wheeling, West

Virginia. At this hearing Albert H. Brunwasser, Chief of

the Milk and Food Division of City of Pittsburgh Health

Department testified in the presence of the court, and pro-

duced the official records of inspection of dairy farms tribu-

tary to processing plant of plaintiff, which defendant had

stated in his motion were not available at the offices of City

of Pittsburgh Health Department. From the records so

submitted and testimony of the witness, it appeared that

fifty-two of said dairy farms, out of a variable number of

two hundred fifty to three hundred, had been inspected by

employees of City of Pittsburgh Health Department, as

shown by reports of November 4, 1953 and February, 1954,

Appendix O, p. 201, Court of Appeals. Witness also testi-

fied that he had additional reports that covered the period

of June 1, 1953, not included in the total of fifty-two re-

ports, Appendix O, p. 209, Court of Appeals; that the re-

[15]

mainder of the producer dairy farms tributary to plaintiff’s

processing plant were inspected by dairy farm inspectors

who had béen qualified under the laws of Pennsylvania, and

by training and practical experience in the field, and who

were licensed by the state to do the work of inspection, and

who were employees of and paid by industry, in this in-

stance, Dairy Products Company, Appendix J, p. 89, Court

of Appeals; that the City of Pittsburgh Milk Control Di-

vision checks and evaluates the dairy farm sanitation re-

ports submitted by the milk industry under the supervision

of the City of Pittsburgh, Appendix O, p. 235, Court of

Appeals; that out of a possible two hundred fifty dairy

farms he had official inspections of fifty-two farms, as

shown by reports submitted over a period of thirteen

months from November, 1953 to December, 1954, Appen-

dix O, p. 238, Court of Appeals; that he would be able to

give a percentage rating on all of the producer farms that

are selling raw milk to Dairy Products Company, such as

given by USPHS inspection, within a period of at least five

days to the Health Officer of Monongalia County, Appendix

O, p. 244, Court of Appeals.

At the conclusion of the hearing on the motion for recon-

sideration, the court entered an order overruling defend-

ant’s motion and setting aside the order of the court entered

on January 11, 1955 suspending the operation of the court’s

judgment of January 3, 1955, and directing defendant,

within ten days from the entry of the order, to issue a per-

mit to plaintiff to sell its milk and milk products in Monon-

galia County. Appendix P, p. 263, Court of Appeals.

West Virginia Milk Regulations, adopted January 3,

1944, in accordance with Chapter 16, Article 7. Section 5

of Code of West Virginia, are almost identical with the

[16]

Milk Ordinance and Code recommended by the United

States Public Health Service, 1939, and the revised edition

of 1953. The revised edition of West Virginia regulations

of September 16, 1954 follows very closely the earlier

edition.

Pennsylvania has not adopted the Milk Ordinance and

Code recommended by the United States Public Health

Service. The production, processing and sale of milk prod-

ucts is regulated under an Act of the General Assembly

designated No. 210, and by Advisory Health Board regula-

tions pertaining to milk and milk products, adopted April

24, 1940, both of which appear in Appendix III herewith.

The City of Pittsburgh, under authority of general legisla-

tion, is permitted to adopt more stringent requirements re-

lating to milk and milk products than provided for in Act

No. 210, and has, through its general health ordinances,

granted to the health officer the authority to promulgate

regulations, known as No. 500, under which the City of

Pittsburgh Health Department operates under more strin-

gent regulations than the basic legislation. Appendix J, p.

94, Court of Appeals.

Under Pennsylvania procedure the City of Pittsburgh

Health Department requires that bacteriological analyses

be submitted through an approved laboratory semi-monthly

of the milk from dairy farms. In addition, milk companies

under permit by the City of Pittsburgh are required to sub-

mit finished products to City of Pittsburgh Milk Laboratory

for analyses; and in addition, City of Pittsburgh Health

Department collects official samples by its own staff. Ap-

pendix J. pp. 88, 89, Court of Appeals.

On appeal by defendant, the Court of Appeals reversed.

[17]

The reasons assigned for the reversal appear on page seven

of the opinion, Appendix II herewith. The Court of Appeals

placed much emphasis upon the discretionary rights of the

Health Officer of Monongalia County to grant or refuse a

permit to plaintiff. It gave but cursory consideration to the

right of plaintiff under the federal constitution to engage in

interstate commerce.

The Court of Appeals disregarded the findings of fact

by the District Court, and then stated that the evidence

showed that only ten per cent of the Pennsylvania dairy

farms and plants were inspected four times each year in-

stead of all the farms and plants every six months, when in

fact the testimony of witness Brunwasser shows that dur-

ing the period September, 1953 to June, 1954 official em-

ployees of his department had inspected approximately

sixty dairy farms out of a variable number of two hundred

fifty to three hundred, which is considerably more than ten

per cent. Appendix J, p. 88, Court of Appeals. Inspection of

the remainder of the farms was required each six months

period, or twice a year, by licensed, approved dairy farm

inspectors. The reports of both official and licensed dairy

farm inspectors are filed in the office of the City of Pitts-

burgh Milk Control Division, where they are checked and

evaluated. Appendix J, pp. 89, 91, Court of Appeals.

The Court of Appeals then determined that it was well

wi 1 the discretion of the Health Officer of Monongalia

County to determine whether or not the Pittsburgh regula-

tions were equivalent to those of West Virginia, and to

decide whether the permit should be issued or refused.

Since the claim of defendant in his answer is that the

milk of plaintiff would never be produced or pasteurized

[18]

under regulations equivalent to the requirements of the

West Virginia regulations unless the Pennsylvania regula-

tions are changed to conform to the provisions of the West

Virginia regulations, it becomes apparent that Pennsylvania

and Pittsburgh regulations must be identical to those of

West Virginia, although Section 11 of the West Virginia

Milk Regulations says equivalent, and the revised regula-

tions, substantially equivalent.

It is therefore apparent that the Court of Appeals, in ad-

dition to disregarding the fact finding of the District Court,

has incorrectly evaluated the evidence, and has misconceived

the law applicable thereto.

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals should be reviewed

for the following reasons:

1. It erroneously interprets the West Virginia Milk

Regulations adopted January 3, 1944, as amended Septem-

ber 16, 1954, especially Section 11, Milk and Milk Products

From Points Beyond the Limits of Routine Inspection.

The decision, as we interpret it, is that milk from points

beyond routine inspection may not be sold in West Virginia

unless produced under provisions identical to West Vir-

ginia regulations. That is also the method of enforcement

of the Health Officer of Monongalia County. In his answer

to the amended complaint he says that the milk of plain-

tiff is not produced under provisions equivalent to the

requirements of West Virginia regulations, and will not

be so produced in the future unless Pennsylvania regula-

tions are changed to conform to provisions of West Vir-

[19]

ginia regulations, so that inspection of dairy farms shall

be made by the health officer, a public official, rather than

an approved inspector employed by industry. Appendix D,

p. 33, Court of Appeals. But Section 11 of smeex@mended

regulations says, not “identical”, but “substantially equiva-

lent”.

The West Virginia Milk Regulations are patterned after

and are practically identical to the Milk Ordinance and

Code recommended by the United Public Health Service

of 1939. The 1953 edition of the Milk Ordinance and Code

contains some revisions, especially of Section 11. This re-

vised section appears in Appendix III to this petition. West

Virginia Regulations are statewide in application, but are

enforced on a county-unit basis by a county officer. The

revised regulations of September 16, 1954, Section 15,

provide for enforcement in accordance with the interpre-

tations in Milk Ordinance and Code, 1953 Recommenda-

tions of the Public Health Service.

The Health Officer of Monongalia County, who is a

county, not a state, officer, finds it practicable to have in-

spection of dairy farms under his supervision in Monon-

galia County made by employees of his department. some-

times referred to as “official agents”. He has under his

jurisdiction seventy-five farms and two processing plants:

one inspector does the work. He tries to project this method

of dairy farm inspection across the state line into Pennsyl-

vania. The enforcing agency in Pennsylvania, City of Pitts-

burgh Health Department in this case, has under its juris-

diction and supervision thirty-six processing plants and ten

thousand dairy farms, Pennsylvania has adopted a dif-

ferent method of dairy farm inspection under its basic law

and regulations. Dairy farms are inspected in part by em-

[ 20 }

ployees, or official agents, of the enforcing agency, in this

case City of Pittsburgh Health Department, and in part

by dairy farm inspectors, qualified and licensed by Pennsyl-

vania, formerly through its Department of Health, but now

its Department of Agriculture, who are employees of in-

dustry, in this instance Dairy Products Company. These

inspectors are required to answer written examination, sub-

jective in nature, and are taken into the field and required

to perform in accordance with the requirements of the basic

law and regulations; their work is evaluated by the enforc-

ing agency. Appendix J, pp. 91, 98, Court of Appeals.

The City of Pittsburgh Health Department operates un-

der the basic law of the state, and Ordinance No. 500

adopted by the City of Pittsburgh, giving the health de-

partment authority to adopt regulations for the production

and sale of milk. Regulations have been adopted in pur-

suance thereof which are more stringent than the basic

legislation of Pennsylvania. The health department operates

under these regulations. They meet the minimum require-

ments of the Milk Ordinance and Code USPHS, and in

some instances are more stringent. Appendix J, p. 94, and

Appendix O, pp. 186 to 192, Court of Appeals.

Darold W. Taylor, in his second survey, Appendix F, p.

44, Court of Appeals, “Status of Enforcement”, states that,

“After a review of records in Pittsburgh, Pennsyl-

vania, and as a result of field work on farms and in

processing plants, it is felt that the interpretations are

being made substantially in conformance with the

Public Health Service Milk Ordinance and Code.”

Mr. Taylor is Senior Sanitarian, USPHS Region Ill,

[21]

Washington, D.C. The District Court after hearing all of

the evidence, found that the enforcement regulations em-

ployed by the City of Pittsburgh Health Department are

equivalent to the regulations and methods of West Virginia.

The Health Officer of Monongalia County would not

accept the method of dairy farm inspection adopted by

Pennsylvania and City of Pittsburgh Health Department.

He required that such inspection be identical to that used

by him in Monongalia County. The Court of Appeals has

adopted his view. It follows that petitioner can never

qualify for a permit to sell milk in Monongalia County until

Pennsylvania has changed its law, regulations and practice

to conform to that followed in Monongalia County. There-

fore, the petitioner, having no control over Pennsylvania

laws, regulations and practices, may be permanently de-

prived of its right to engage in interstate commerce under

the federal constitution, though its product is considered by

the defendant to be of good quality.

City of Pittsburgh Health Department was treated as

the enforcing agency by Darold W. Taylor in his survey,

because Dairy Products Company has a permit to sell milk

in Pittsburgh, and sells large quantities there. Its regula-

tions and procedures are more stringent and its laboratory

facilities more adequate than those of Pennsylvania.

The problems of dairy farm inspection as between Mo-

nongalia County and Pennsylvania and the City of Pitts-

burgh are not comparable because of the great difference in

the number of units under the respective authorities.

Viewed from a state-wide standpoint, the problem in Penn-

sylvania is greatly magnified, and the financial burden

greatly increased.

| 22 ]

There is no inhibition in West Virginia Milk Regulations

against inspection of dairy farms by qualified and licensed

inspectors who are paid by industry. The West Virginia

method of inspection has been adopted by the Health Officer

outside of the regulations. Whatever he may do in apply-

ing his interpretation to dairy farm inspection in West

Virginia, we question his right to apply it to Pennsylvania

producers in a way to exclude absolutely their product from

interstate commerce. That would be the kind of discrimina-

tion the court said could not be done in Dean vs. Madison,

340 U. S. 349.

It is alleged in the complaint that it is the purpose of the

Health Officer of Monongalia County so to enforce the

milk regulations as to exclude Pennsylvania dairy products

from Monongalia County to protect local milk producers

and processors from competition. However, this question

was not gone into by the trial court because of the procedure

followed there to work out a solution of the problem

through inspection by a representative of USPHS and

avoid extensive taking of testimony.

We refer to the following parts of West Virginia Milk

Regulations, 1944, having bearing on the questions raised

herein:

Section 1, Sub-section R—Health Officer.

Section 3—Permits.

Section 5—Inspection of Dairy Farms and Milk

Plants.

Section 6—The Examination of Milk and Milk Prod-

ucts.

[23]

Section 11—Milk and Milk Products from Points Be-

yond the Limits of Routine Inspection.

Section 15—Enforcement Interpretation.

Pertinent parts of West Virginia Milk Regulations of Jan-

uary 3, 1944, with reference to certain amendments of

September 16, 1954, appear in Appendix III herewith.

No question of the constitutionality of the West Vir-

ginia Milk Regulations is raised in this case; rather the

issue is whether the Health Officer of Monongalia County

is not enforcing the regulations in an illegal and unconstitu-

tional manner. In the case of Minor v. The City of Keokuk,

92 Fed. Sup. 833, the court stated that it could not give ap-

proval to the exercise of police power which would operate

absolutely to exclude milk distributors’ products from inter-

state commerce. In the case of Reagan v. Farmers Loan and

Trust Company, 154 U. S. 362, the court said,

“A valid law may be wrongly administered by offi-

cers of a city, and so as to make such administration an

illegal burden or exaction upon the individual.”

In Cummings vs. Merchants National Bank of Toledo, 101

U. S. 903, it is stated that the doings of the parties acting

under a statute “may be unlawful, while the statute is valid”.

There is no question of the quality of the milk produced

and offered for sale by Dairy Products Company. The

former Health Officer, Roger A. Kennedy, testified that

the milk of Dairy Products Company was of good quality.

Appendix I, p. 80, Court of Appeals.

a

[ 24]

This court, in the case of Dean Milk Company vs. Madi-

son, Supra, pointed the way to a solution of the problem of

inspecting milk supplies in an area remote from the place

of consumption:

“The receiving city may determine the extent of

enforcement of sanitary standards in the exporting

area by verifying the accuracy of safety ratings of

specific plants or of the milk shed in the distant juris-

diction through the United States Public Health Sery-

ice, which routinely and on request spot-checks the

local ratings.”

That was done in this case. The court further said in that

case:

“To permit Madison to adopt a regulation not essen-

tial for the protection of local health interests and

placing a discriminatory burden on interstate com-

merce would invite a multiplication of preferential

trade areas destructive of the very purpose of the Com-

merce Clause. Under the circumstances here presented,

the regulation must yield to the principle that ‘one

state in its dealings with another may not place itself

in a position of economic isolation’.” Baldwin v. G.A.F.

Seclig, Inc., supra, 294 U.S. at page 527, 55 S. Ct. at

page 502.

Section 11 of the Milk Ordinance and Code, USPHS

1953, offers other solutions of the problem. This section

appears in Appendix III herewith. Under this revised sec-

tion it is recommended that the health officer approve with-

out inspection, subject to laboratory tests upon arrival,

[25]

milk products from any area or shipper not under his

routine inspection (1) when they are produced and proc-

essed under regulations substantially equivalent to those of

this ordinance, (2) when they are under routine official

supervision, (3) when they have been awarded by the milk

sanitation authority of the state of origin a rating equal to

that of the local supply, or if lower than local supply, equal

to ninety per cent or more. The rating given by Darold W.

Taylor in his second report is more than ninety per cent.

2. The decision in this case should be reviewed because

it is in conflict with the principles laid down by this court

in Dean Milk Company v. City of Madison (1951), 340

U.S. 349; Baldwin v. Seelig, Inc., (1935), 294 U.S. 511:

H. P. Hood and Sons, Inc. v. Dumond, etc., ( 1949) 336

U.S. 525.

3. The Court of Appeals appears to have disregarded the

findings of fact by the District Court, which, unless clearly

wrong, and the court did not so find, is contrary to Rule

52(a). Appendix III herewith.

In U. S. v. Yellow Cab Co., (1949) 338 U. S. 338, the

court held that,

“While, of course, it would be our duty to correct

clear error found in findings of fact, the government

has failed to establish any greater grievance here than

it might have in any case where the evidence would

support a conclusion either way, but where the trial

court has decided it to weigh more heavily for the de-

fendant, such choice between two permissible views of

the weight of evidence is not clearly erroneous.”

wy a

[ 26 ]

In Graver Tank & Mfg. Co., v. Linde Air Products Co.,

(1950), 339 U. S. 605, this court held that,

“A finding of equivalence is determination of fact.

Proof can be made in any form through testimony of

experts or others versed in the technology . . . Like any

other issue of fact, final determination requires a bal-

ancing of credibility, persuasiveness and weight of

evidence. It is to be decided by the trial court, and the

court’s decision under general principle of appellate

review should not be disturbed unless clearly erro-

9”

neous. ...

In this case the District Court found that the enforce-

ment regulations and methods of the Pittsburgh Health

Department were equivalent to regulations and methods

of West Virginia. This under the above case would be a

finding of fact on that question. Appendix K, p. 122, Court

of Appeals. This was based on undisputed evidence and the

report of Darold W. Taylor The defendant offered no

evidence, except on his motion for reconsideration. The

evidence presented there availed nothing as against official

records produced by plaintiff.

On this question we cite these additional cases:

Cleo Syrup Corp., v. Coca Cola Co., (1943) 139 Fed.

2d, 416.

Nee v. Linwood Securities Co., (1949) 174 Fed. 2d,

434.

The questions presented by this case are of great and

recurring significance, touching as they do the right of

[27]

plaintiff to engage in interstate commerce under the federal

constitution. From the great number of cases we have

found on this subject, many of them relate to the dairy

business and traffic in milk from one state to another. Such

traffic is advantageous to producer and consumer. Some

areas have an excess in production of milk beyond local

needs, anc others a deficit. In this case, West Virginia has

a deficit. We recognize the right of the receiving community

to protect its citizens by reasonable laws and regulations to

insure that the imported milk is of good quality, clean and

wholesome. We observe, however, that many municipal

and state regulations go far afield from that aim, both in

form and method of enforcement, actuated, no doubt, by

local interests and prejudices. The fundamental principle

of freedom of commerce between states, protected by the

federal constitution, which has contributed so much to the

growth and strength of our country, should not be lost

sight of or ignored.

CONCLUSION

For the reasons set forth above, it is respectfully sub-

mitted that this petition for a writ of certiorari should be

granted.

GLENN HUNTER

CuHarLes McCamic

Attorneys for Petitioner

(Na ey ROO = 7

POR PN RS AE IRL FC

errr re

Says

APPENDIX I

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 7039.

Clark K. Sleeth, as Health Officer of Monongalia County,

West Virginia,

Appellant,

versus

Dairy Products Company of Uniontown,

Appellee.

APPEAL FROM THE UNITED States District Court FoR

THE NorTHERN Districz 2-7 ¥ + VIRGINIA,

AT WHEELIN %.

(Argued November 15, 1955. Decided December 27, 1955.)

_ Before Parker, Chief Judge, Soper, Circuit Judge, and R.

Dorsey Watkins, District Judge. ;

or —

[ 30 }

George R. Farmer (Cletus B. Hanley, Assistant Attorney

General of West Virginia, and Albert M. Morgan, Prose-

cuting Attorney, Monongalia County, West Virginia, on

brief) for Appellant, and Glenn Hunter (Charles Mc-

Camic on brief) for Appellee.

Soper, Circuit Judge:

This suit was brought in the District Court by Dairy

Products Company of Uniontown, a Pennsylvania corpora-

tion, against Roger A. Kennedy, Health Officer of Monon-

galia County, West Virginia,* to secure a judgment com-

manding the Health Officer to approve an application of the

company for a permit to distribute milk in the county and

forthwith to issue the permit. There was also a prayer for

an injunction to restrain the Health Officer from prosecut-

ing the company, criminally or otherwise, for selling milk

in the county without a permit and from arresting its agents

because of any such sale; but the suit was not pressed on the

latter ground. Jurisdiction is based on the ground that the

action was of a civil nature between citizens of different

states wherein the controversy exceeds the sum of $3,000,

and the purpose of the suit is to restrain the defendants

from interfering with the company in carrying on its law-

ful business in Monongalia County in the course of inter-

state commerce.

The principal question at issue is whether the Dairy

Products Company had conformed to milk regulations is-

* Clark K. Sleeth, having succeeded to the office before the conclusion of

the case, was substituted as party defendant

iad

|

[ 31]

sued by the Public Health Council of the State of West

Virginia on January 5, 1944, under the power conferred by

Ch. 16, Art. 7, §5 of the Code of West Virginia. It was

alleged in the complaint that the Dairy Products Company

had complied with the laws and regulations of the State

of Pennsylvania regarding the distribution of milk and also

with the milk regulations of the City of Pittsburgh which

are more stringent than those of the State, and that these

laws and regulations were equivalent to the regulations of

the State of West Virginia; and that the Company had

applied to the Health Officer of Monongalia County for a

permit to sell milk in the county, but that he had arbitrarily

and unreasonably refused to issue it. The suit was defended

on the ground that the Pennsylvania and Pittsburgh regu-

lations were not equivalent to the regulations of West Vir-

ginia and therefore the Dairy Products Company was not

entitled to the permit. The District Judge found that there

was equivalency and therefore held that the refusal of the

Health Officer of the county to grant a permit to the

county was an unwarranted obstruction to interstate com-

merce in milk and milk products, and violated the plain-

tiff’s constitutional rights.

The validity of Ch. 16, Art. 7, §5 of the West Virginia

Code, which directs the Public Health Council to adopt reg-

ulations to provide clean and safe milk and milk products

to be enforced by local health authorities throughout the

state, is not questioned. Nor is the valiai: ©* the regula-

tions themselves challenged. In Dean Milk Co. v. Atadison,

340 U.S. 349, the Supreme Court of the United States ree-

ognized the appropriateness of the local regulation of the

sale of milk as within the powers of the states, even though

interstate commerce may be affected, in the absence of fed-

err Semen

| 32 |

eral legislation ; and in State v. Bunner, 126 W. Va. 280, the

Supreme Court of West Virginia held that the West Vir-

ginia statute did not involve an unconstitutional delegation

of legislative authority and that the regulation forbidding

the sale of milk without a permit from the county Health

Officer was valid, although no statute expressly authorized

the Counsel to make the permit a prerequisite of sale. The

court also held that the regulation providing that only per-

sons complying with the regulations should be entitled to a

permit did not confer on the Health Officer arbitrary power

or discretion to grant or refuse a permit; and the court

added that if it should be that any regulation was unreason-

able or invalid, the applicant should not be required to com-

ply therewith; but the method of procedure in such case

was to apply to a proper court to compel the issuance of the

permit, rather than to operate in defiance of the regulations.

The regulations issued under the authority of the statute

are sweeping in scope and elaborate in detail. Amongst

other things, it is provided in §5 that at least once during

each grading period, in no case to exceed six months, the

Health Officer shall inspect all dairy farms and all milk

plants whose milk or milk products are intended for con-

sumption within the State of West Virginia. Section 6 pro-

vides for the taking and examination by the Health Officer

of at least four samples of the product from each dairy farm

and milk plant during each grading period. Section 7 pro-

vides for the announcement every six months by the Health

Officer of the grades of milk and milk products to be de-

livered by producers and distributors; and the standards

for the grading of the milk, the conditions under which it is

produced and handled, and the pasteurization of the prod-

uct are meticulously prescribed, Section 11 of the regu-

a

t

lations with which we are particularly concerned, provides

milk and milk products from points beyond the limits of

routine inspection of the state may not be sold therein, un-

less produced and pasteurized under provisions equivalent

to the requirements of the West Virginia regulations, pro-

vided that the Health Officer shall satisfy himself that the

Health Officer having jurisdiction over the production and

processing is properly enforcing such provisions. Penalties

are provided by §16 for violations of the regulations,

[ 33 ]

It is manifest that the duty imposed upon the county

Health Officer of West Virginia by the statutory regula-

tions involves the construction and application thereof, and

the exercise of judgment and discretion in their enforce-

ment. His duties are not so plainly marked as to amount to

a positive command, and hence the well established rule

applies that the courts will not issue a mandamus or other

order to control the action of an executive or administrative

officer in the discharge of statutory duties involving the ex-

ercise of judgment or discretion, unless the attempted per-

formance of the duty amounts to an abuse of discretion.

Mandamus will lie where there is a clear legal right to

the performance of a particular act or duty at the hands

of the respondent, and such act or duty is of a ministerial

nature’ rather than one involving the exercise of discre-

tion.’ It will lie to compel officers with discretionary duties

-—

1 Kendall vy. United States ex rel Stokes, 12 Pet. 522.

2 Decatur vy. Paulding, 14 Pet. 497, 516; Keim v. United States, 177 U. §S.

29), 292; State ¥. Pocahontas C. ounty Court, 92 W. Va. 222: Swearingen v.

Bond, 96 W. Va. 193: Peoples ex rel Sheppard v. Illinois State Board of

Dental Examiners, 110 1. 180.

Pe RE oe

SR BOP ERT ND

PT ET Ne

[ 34]

to take action,’ but it will not interfere with the exercise of

their discretion unless their action is illegal,* or is an arbi-

trary or capricious abuse of such discretion.’ This remedy

is available only when all administrative remedies have

been, exhausted,’ and when there is no other available

7

remedy.

The evidence in this case in our opinion does not disclose

such an abuse of discretion as to warrant the int-rvention

of the court. The proceedings in the District Court ex-

tended over a considerable period of time, during which

careful investigations were made in order to ascertain

whether the company’s milk complied with the West Virginia

requirements. The West Virginia regulations conform with

the model milk ordinance and code recommended by the

United States Public Health Service; and so the parties to

the case agreed to designate Darold W. Taylor of the

United States Public Health Service to inspect the farms

supplying milk to the company and to examine its receiving

and pasteurization plants and laboratory facilities and pro-

cedures, and to report his findings to the court to be re-

ceived in evidence for all proper purposes. This inspection

was made and the report was filed in January, 1953. When

the case came to trial on November 6 of that year and the

Taylor report was submitted, it was found that the West

-_—_——-

3 Edgerton v. Kingsland, D. C. 168 F.2d 121; Paramount Pictures v. Rodney,

3 Cir., 1%6 F.2d 111.

+ Proctor & Gamble Co. v. Coe, D.C., % F.2d S18; State ex rel Kelly ¥.

City of Grafton, 87 W. Va. 191.

5 Rates & Guild Co. ¥. Frayne, V4 US. 106, 108-9; State v. Clendenin, 2

W. Va. 618; Illinois State Board of Dental Examiners v. People ex 1d

Cooper, 123 IM. 227.

6 (,oldsmith y. United States Board of Tax Appeals, 270 U.S. 117, 123.

7 Marbury v. Madison, 1 Cr. 137, 109

2s

[ 35 ]

Virginia requirements had not been met. Thereupon the

plaintiff was permitted to file an amended complaint and

Mr. Taylor was designated to make another inspection. His

second report was filed May 11, 1954 but the permit was

again withheld because the Health Officer of the county

was still of the opinion that the enforcement methods of

the State of Pennsylvania and of the Pittsburgh Health

Department were not equivalent to those of the State of

West Virginia.

The case came to hearing under these circumstances. It

was shown that some of the objections previously urged

by the Health Officer had been met, but that in certain re-

spects the Pittsburgh regulations were not as strictly en-

forced as those of the State of West Virginia. Two circum-

stances only need to be referred to in this connection. Sec-

tion 5 of the regulations, as we have seen, requires that the

West Virginia Health Officer shall inspect all dairy farms

and all milk plants whose products are intended for con-

sumption within the state at least once during each six

months. It will be perceived that this requirement involves

an inspection of all of the farms and plants and that the in-

spection be made by the Health Officer of the state. These

two requirements were not met by the Pennsylvania or

Pittsburgh methods of enforcement. The evidence showed

that only about 10% of the Pennsylvania farms and plants

were inspected four times each year instead of all of the

farms and plants every six months, and also that the in-

spection was made by employees of the producer or shipper

of milk who were authorized to make the inspection by the

state officials but were on the payroll of the employer or

shipper. It is clear that both of these circumstances relate

to important features of the inspection of the product and

the enforcement of the regulations, and that it was well