Appendix — Dairy Products Co. v. Sleeth

Supreme Court brief1956

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Text

[ 36 ]

within the discretion of the Health Officer of the county tc

consider these matters in determining whether or not the

Pittsburgh regulations were equivalent to those of West

Virginia, and in deciding whether the permit should be

issued or refused. In our opinion the refusal of the Health

Officer to issue the permit under those circumstances did

not involve an abuse of discretion.

Having reached this conclusion we need not piss upon

the additional contention of the appellant that the District

Court was wholly without jurisdiction to grant the relief

prayed in his case. The argument is based upon the long

established tenet that a mandamus proceeding is not in-

cluded within the description of suits of a civil nature at

common law of which the federal courts were given juris-

diction by the original Judiciary Act and are now described

as civil actions in 28 U.S.C. §§ 1331, 1332, and hence a

mandamus may not issue in a federal District Court unless

it be necessary for the exercise of its independently con-

ferred jurisdiction.*

Whether it may be said that the rule prohibiting the issu-

ance of mandamus by a federal District Court does not

apply, when the jurisdiction of the court is based on diverse

citizenship and the issuance of such an order becomes neces-

sary to give effect to the judgment of the court based upon

the law of the state, is a question of academic interest only,

* The origin and basis of the rule was described by Judge John C. Rose,

a former member of this court, in his work on Federal Jurisdiction and

Procedure, 4 Ed. §192, in these words:

“There was doubtless a practical reason of public policy for reaching that

conclusion—a reason which probably explains why the courts have always

adhered to the determination they first reached and why Congress has never

authorized the federal courts, except in some specially enumerated cases, to

entertain petitions for mandamus otherwise than in aid of their other

jurisdiction.

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for we are satisfied that the power should not be exercised

in this case even if it be possessed. Nor have we any reason

to decide whether the remedy by injunction would be avail-

able under different circumstances,

The judgment of the District Court will therefore be

Reversed.

“Under our dual system of government, there are many opportunities for

collision between state and federal authorities. It is not to the public interest

that private litigants should be in a position to force them, If a citizen of

one state conceived that he had the right to the exercise of some purely

ministerial function by a public official of another, he might go into the federal

courts and apply for a writ of mandamus to compel that state official to do

his duty. In the long run it is probably better that he be forced to seek relief

of this kind from a state tribunal. Duubtless state prejudice or partiality

sometimes stands in the way of his getting what he should have. If it does,

it is a lesser evil than to arouse the antagonisms always so easily stirred

up when a federal court undertakes to order a state officer to do something.”

APPENDIX II

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 7039.

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

West Virginia,

Appellant,

VS.

Dairy Products Company of Uniontown,

Appellee.

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[ 38]

APPEAL FROM THE UNiTED STATES District COURT FOR

THE NoRTHERN District oF WEST VIRGINIA,

AT WHEELING.

This Court having at its November Term, 1955, rendered

its decision reversing the judgment of the said District

Court appealed from in this cause, and the appellee having

on January 25, 1956, filed a petition for a rehearing of the

said cause, and the same having been carefully considered.

It is now here ordered by this Court that the rehearing

asked for, be, and the same is hereby, denied. Let mandate

issue after the expiration of five days.

JOHN J. PARKER

Chief Judge, Fourth Circuit.

MORRIS A. SOPER

United States Circuit Judge.

R. DORSEY WATKINS

United States District Judge.

FILED

FEB. 7, 1956

R. M. F. Williams, Jr.

Clerk

[ 39]

APPENDIX III

CONSTITUTIONAL PROVISIONS, RULES,

STATUTES ORDINANCES AND REGULATIONS

INVOLVED

CONSTITUTION OF THE UNITED STATES

Art. 1, Sec. 8, Clause 3—Commerce.

TITLE 28 U.S.C.—Jurisdiction

1254.—Cases in the courts of appeals may be reviewed

by the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of

any party to any civil or criminal case, before or after rendi-

tion of judgment or decree;

ee Mie ar See

FEDERAL RULE 52(a).—Findings of the Court.

... Findings of fact shall not be set aside unless clearly

erroneous, and due regard shall be given to the opportunity

oi the trial court to judge of the credibility of the wit-

nesses...

WEST VIRGINIA CODE

Chap. 16, Art. 7, Sec. 5, p. 691.

Regulations by Public Health Council as to Milp and

Milk Products—The public health council? shall adopt

_—_—__

The state board of health has succeeded to the rights, powers and duties

lorinerly imposed upon and exercised Ly the public heaith council.

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regulations to provide clean and safe milk and fresh milk

products, and, when promulgated, these regulations shall

be the minimum requirements to be enforced by local health

authorities throughout the State. A copy of such regulations

shall be furnished the commissioner of agriculture for his

guidance in performing any duties with relation to milk

and milk products imposed on him by law.

Pertinent Parts of West Virginia Milk Regulations.

adopted January 3, 1944, in accordance with Chapter 16,

Article 7, Section 5, of the Code of West Virginia.

SECTION 3.—Permits.—It shall be unlawful for any

person to bring into or receive into the State of West Vir-

ginia, or its police jurisdiction, for sale, or to sell, or offer

for sale therein, or to have in storage where milk or milk

products are sold or served, any milk or milk product defined

in this regulation, who does not possess a permit from the

health officer.

Upon written application the health officer shall issue a

permit to any person who complies with the requirements

of this regulation.

Such a permit may be suspended by the health officer, or

revoked after an opportunity for a hearing by the health

officer, upon the violation by the holder of any of the terms

of this regulation.

Upon written application the health officer shall reinstate

or issue a new permit to any person whose permit has been

suspended or revoked and has complied with all the require-

ments of this regulation.

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141]

SECTION 5.—Inspection of dairy farms and milk plants

for the purpose of grading or regrading.—At least once

during each grading period the health officer shall inspect

all dairy farms and all milk plants whose milk or milk prod-

ucts are intended for consumption within the State of West

Virginia, or its police jurisdiction. In case the health officer

discovers the violation of any item of sanitation, he shall

make a second inspection after a lapse of such time as he

deems necessary for the defect to be remedied, but not be-

fore the lapse of 3 days; and the second inspection shall be

used in determining the grade of milk and/or milk products.

Any violation of the same item of this regulation on two

consecutive inspections shall call for immediate degrading.

One copy of the inspection report shall be posted by the

health officer in a conspicuous place upon an inside wall of

one of the dairy farm or milk plant buildings, and said in-

spection report shall not be defaced or removed by any per-

son except the health officer. Another copy of the inspec-

tion report shall be filed with the records of the health de-

partment.

SECTION 6.—The examination of milk and milk prod-

ucts.—During each grading period at least four samples of

milk and cream from each dairy farm and each milk plant

shall be taken on separate days and examined by the health

officer. . . . Bacterial plate counts and direct microscopic

counts shall be made in conformity with the latest standard

methods recommended by the American Public Health As-

sociation. Examinations may include such other chemical

and physical determinations as the health officer may deem

necessary for the detection of adulteration, these examina-

tions to be made in accordance with the latest standard

methods of the American Public Health Association and the

SPEER TE PET hy

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PPR SPE ORES

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Association of Official Agricultural Chemists. Samples may

be taken by the health officer at any time prior to the final

delivery of the milk or milk products. . . .

Whenever the average bacterial count, the average reduc-

tion time, or the average cooling temperature falls beyond

the limit for the grade then held, the health officer shall

send written notice thereof to the person concerned. and

shall take one additional sample, but not before the lapse of

3 days, for determining a new average in accordance with

section 1(S). Violation of the grade requirement by the

new average or by any subsequent average during the re-

mainder of the current grading period shall call for im-

mediate degrading or suspension of the permit. unless the

last individual result is within the grade limit.

SECTION 11.—Milk and milk products from points

beyond the limits of routine inspection—Milk and milk

products from points beyond the limits of routine inspec-

tion of the State of West Virginia may not be sold in the

State of West Virginia or its police jurisdiction, unless

produced and/or pasteurized under provisions’ equivalent

to the requirements of this regulation; provided that the

health officer shall satisfy himself that the health officer

having jurisdiction over the production and processing 1s

properly enforcing such provisions.

West Virginia Milk Regulations were amended September 16, 1954; as

amended

*which are substantially equivalent to the requirements of this regulation, ané

which are enforced with equal effectiveness. as determined by a milk-sanitation

rating: Provided, That the health officer may satisiy himself that conditions

shown by the milk sanitation survey continually remain substantially the same.

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No. 210

AN ACT

SECTION 15.—Enforcement inter pretation.~—This or-

dinance shall be enforced by the health officer in accordance

with the interpretations thereof contained in the 1939 edi-

tion of the United States Public Health Service Milk Code.

To safeguard human health and life by providing for the is-

suance of permits to, and regulation of persons and enti-

ties selling milk and milk products: conferring powers,

and imposing duties on the Secretary of Health, the Ad-

visory Health Board; and otherwise providing for the

7 Section 1. Be it enacted, &c., That for the

purpose and within the meaning of this act.

the following definitions shall --btain:

: - .- - .-

; “Milk” means milk, skimmed milk. cream,

soar milk, sour cream, buttermilk, and 2!

other fluid derivatives of millz, except cor

P densed milk and evaporated milk for man:1-

tacturing purposes.

Pr & B& Se

Recommendations of the Public Health Service.

yee

*This regulation shall be enforced by the hea!th officer in accordance

the interpretations thereof contained in Milk Ordinance and Code—-1952

administration of the act: and imposing penalties.

Regulating

entities

and persons

selling milk

and milk

products.

Definitions.

’

RNR EQ EE IRIE PR, FRR peiinaie “ener

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“Milk products” means ice cream, ice cream mix, custard

ice cream, french ice cream, frozen custard, and other

similar frozen products, and all dairy products used in the

manufacture thereof.

“Certified Milk” means the product of dairy farms oper-

ated in accordance with the “Methods and Standards for

the Production and Distribution of ‘Certified Milk,’ last

adopted by the American Association of Medical Milk Com-

missions Incorporated,” and the production and handling

of which shall be certified to by a commission instituted in

compliance therewith.

“Secretary” means the Secretary of Health of this Com-

monwealth, or his authorized representative.

“Person” includes singular and plural, masculine and

feminine, and any individual, firm, copartnership, institu-

tion, association, or corporation thereof.

“To Sell” “for sale” or “sold” and similar terms means

the selling, exchanging, delivering, or having in possession,

care, control, or custody with intent to sell, exchange, or

deliver, or to offer or to expose for sale.

“Dairy farm” is a place or premise where one or more

cows are kept, and a part or all the milk from which is sold

or delivered to any person.

“Milk plant” is any place or premise or establishment

where milk is collected, separated, processed, stored, bottled,

pasteurized, or prepared in any manner for sale as milk or

milk products.

“Approved inspector” is one, who has proven to the satis-

[ 45 ]

faction of the secretary, to be a person of good character,

trained by school and experience to carry on dairy farm and

milk plant inspection in a capable and efficient manner, and

has received a certificate of approval from the secretary.

Applications for certificates of approval for approved in-

spectors shall be made on forms which may be secured from

the Secretary of Health, and shall be accompanied by a fee

of ten ($10) dollars. Certificates of approval shall expire

on December thirty-first of each year. Applications for re-

newal shall be made on forms satisfactory to the Secretary

of Health, and shall be accompanied by a registration fee of

three ($3) dollars, and shall be returned to the Secretary of

Health not later than December fifteenth of each year. Cer-

tificates of approval shall not constitute an approved inspec-

tor an official employe, agent or authorized representative of

the Department of Health, nor shall he represent himself so

to be.

Certificates of approval may be refused, suspended or

revoked for cause, upon such notice and subject to such con-

ditions, as the secretary shall deem necessary.

“Municipality” includes any city, borough,

town, or township in this Commonwealth.

Permit.

Section 2. Except as hereinafter provided,

no person shall sell milk or milk products

within this Commonwealth without first having obtained a

permit from the “secretary,” nor otherwise than in accord-

ance with the requirements of this act. Each person desir-

ing a permit to sell milk or milk products shall annually

make an application therefor on a form to be secured from

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the “secretary.” Such application shall set

forth—

Contents

of the — (a) The name and address of the appli-

application. cant

(b) The designations of the milk or milk

products to be offered for sale.

which the applicant desires to sell milk or milk products.

(d) An accurate record of each milk plant owned or

operated by the applicant for a permit.

(e) Such other information as may be required by the

“secretary.”

Permits shall be issued only to persons, whose entire milk

supply, the farms, where it is produced and the milk plants

in which the milk or milk products is handled, have been

approved by the secretary, and in any case in which, in his

discretion, he shall deem such action necessary for approval,

inspected by the secretary. Every permit shall expire an-

nually.

This section shall not apply to a person selling or deliver-

ing milk directly from a dairy farm to a milk plant.

Unless the “secretary” shall require a permit, this section

shall not apply to a person selling milk or milk products

from a store, when such milk or milk products are pur-

chased from a person already in lawful possession of a per-

mit to sell milk or milk products.

| 47]

This section shall not apply to hotels, restaurants, soda

fountains, boarding houses, or other places where milk or

milk products is served, when such milk or milk products is

to be consumed on the premises thereof, and is purchased

from one already in lawful possession of a permit to sell

milk or milk products.

The “secretary” may, in his discretion, exempt a person

selling milk from not more than one cow from such require-

ments of this act, as he may deem in each instance to be un-

necessary for the protection of the public health.

Section 3. Permits may be refused, suspended or revoked

by the “secretary” if, in his judgment, the requirements of

this act, and the rules and regulations made in conformity

herewith are not complied with by the person making an ap-

plication for a permit, or to whom a permit has already been

issued.

Before refusal to grant a permit or before a permit is

suspended or revoked, the secretary shall afford the appli-

cant or holder of the permit an opportunity to be heard, and

shall give at least five (5) days written notice of the hearing

to the applicant or the holder of the permit, by registered

letter sent to the address given in the application, Any per-

son aggrieved by a decision of the secretary, either refusing

to re-issue a permit or revoking a permit heretofore issued,

may file, within five (5) days thereafter in the court of

common pleas of Dauphin County, a bill in equity against

the secretary as defendant, alleging therein, in brief detail,

the action and decision complained of, and praying for re-

lief, and jurisdiction is hereby conferred upon said court for

hearing and disposing of such cases.

[ 48 J

Section 4. When an application for renewal of a permit

has been regularly made and no notification of a hearing as

above described has been sent the applicant by the secretary,

the permit of the preceding year shall continue in full force

until renewed or revoked in accordance with section 2 and

section 3.

Section 5. The secretary may constitute as his agent, for

the purpose of issuing permits for the sale of milk or milk

products, a department of health, board of health, or health

officer of any municipality, and shall accept permits issued

by municipalities, under the terms of municipal ordinances

equally as stringent as the requirements of this act and en-

forced by such municipalities, as the only permit required

for the sale of milk or milk products in such municipalities.

Section 6. Every person, having made an application for

a permit to sell milk or milk products or holding a permit

for the sale of milk or milk products, shall, at any time,

allow the “secretary” to inspect the herds, stables, and dairy

farms from which milk is obtained, handled, or prepared

for sale, to inspect the milk plants, pasteurizing, bottling,

and handling of milk or milk products, examine books and

papers wherein a record is kept of the name and address oi

each person from whom “milk” or “milk products” is pur-

chased, the amount of “milk” or “milk products” purchased,

and the date on which the “milk” or “milk products” was

purchased, in any manner whatsoever, and to take such

samples of milk or milk products, as may be deemed neces-

sary. upon payment therefor at the usual market price when

payment is demanded, The “secretary” shall have the power

to subpoena, for the purpose of any hearing, all books and

records of any permit holder or of any other corporation or

person in any case in which records in its or his possession,

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[ 49 |

or over which it or he has control, is reasonably necessary

to the proper conduct of the affairs of the secretary under

this act.

Non-compliance with the provisions of this section by a

permit holder is hereby specifically declared to be a violation

of this act and subject to the penal provisions hereof, and

shall be sufficient grounds for the revocation of the permit

of such permit holder.

Section 7. No person shall sell milk that does not bear

prominently the designation “Certified Milk” or “Raw

Milk” or “Milk for Pasteurization” or “Pasteurized Milk.”

Other designations may be used with the designation of

“Raw Milk” or “Pasteurized Milk,” provided the definition

of such designation is filed with and approved by the “secre-

tary.”

No person shall sell milk products that do not bear promi-

nently the name and address or code number of the proc-

essor or maunfacturer, the kind of milk products offered

for sale, and the name and location of the milk plant in

which the milk products are processed or manufactured.

Section 8. “Raw Milk” shall be produced and handled

in the following manner :

(a) “Raw Milk” shall be milk from a cow or cows, deter-

mined by physical examination and tuberculin tests con-

ducted in accordance with the rules. regulations, and prac-

tices of the State Department of Agriculture pertaining to

the individual accredited herd plan or the modified ac-

credited area plan, to be free from communicable disease.

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[50]

(b) The cows shall be fed, watered, housed, and cared

for in such a manner that the milk will be clean and free

from disease-producing organisms.

manner. The milk shall be promptly cooled. The milk con-

tainers, utensils, and equipment shall be of such material

and so constructed that they may be readily cleaned. The

milk and the cleansed containers, utensils, and equipment

shall be protected from flies.

(d) A milk house or milk rooms which are properly con-

structed, lighted, ventilated, drained, and kept clean shall be

provided and used exclusively for the handling of “Certified

Milk” or “Raw Milk.” An adequate supply of steam or hot

water shall be provided and used for cleansing milk con-

tainers and dairy utensils.

(e) Every applicant for or holder of a permit to sell raw

milk, desiring to purchase milk for resale as raw milk, shall

receive permission from the “secretary” before accepting

milk from any source other than that given in the applica-

tion for a permit. All sources of raw milk shall be inspected

and approved by the “secretary.”

Section 9. Every applicant for or holder of a permit to sell

pasteurized milk or milk for pasteurization or milk products

shall keep an accurate record of the names and addresses of

the owners or operators of all dairy farms from which milk

is received. This record shall be kept on file in the milk plant

where the milk is received, and shall be available at all times

for the inspection of the secretary.

An accurate report of a sanitary inspection on all dairy

farms from which milk is received and of the milk as de-

_—

—

livered to the milk plant shall be kept on file in the milk

plant. The sanitary inspection shall be made semi-annually

by an approved inspector at the expense of the applicant for

or holder of a permit. Such payment shall be made only by

the applicant for or holder of the permit for the plant to

which the milk from the farm which is inspected is or is to

be delivered. Such inspections may be made by the secretary.

Within thirty days after demand by the secretary, addi-

tional inspections shall be made of any or all farms, and re-

ports thereon filed in the milk plant. Inspection reports shall

be made upon forms satisfactory to the secretary.

No applicant for or holder of a permit to sell pasteurized

milk or milk for pasteurization or milk products shall re-

ceive milk from a dairy farm until the report of the sanitary

inspection made by an approved inspector shall have been

placed on file in the milk plant where the milk is received

for the inspection and approval of the secretary, nor shall

he receive milk or milk products from any milk plant owned

or operated by another person who is not in lawful posses-

sion of a permit.

No milk or milk products shall be received in any milk

plant for any purpose, unless such milk or milk products

shall have been produced on dairy farms, or acquired from

milk plants approved by the secretary, or unless permission

for the receipt of such milk or milk products shall be ob-

tained from the secretary.

Only milk or milk products may be prepared or processed

ina milk plant.

Section 10. “Milk for Pasteurization” shall be milk pro-

duced and handled in the following manner:

[52]

(a) “Milk for Pasteurization” shall be milk from a cow

or cows, determined by physical examination and tuberculin

tests conducted in accordance with the rules, regulations

and practices of the State Department of Agriculture, per-

taining to the individual accredited herd plan or the modified

accredited area plan, to be free from communicable disease.

(b) The cows shall be fed, watered, housed, and cared

for in such manner that the milk will be clean.

manner. The milk shall be promptly cooled. The milk con-

tainers, utensils and equipment shall be of such material

and so constructed that they may be readily cleansed.

(d) A milk house or milk rooms properly constructed,

lighted, ventilated, drained, and clean shall be provided on

the dairy farm producing milk for sale as “Milk for Pas-

teurization,” and shall be used exclusively for the handling

of such milk.

Section 11. Milk containers in which “Milk for Pas-

teurization” is received in milk plants from dairy farms

shall be thoroughly cleansed and dried before returning to

the dairy farm.

(a) Milk plants in which “Milk for Pasteurization” is

received from dairy farms shall be pr erly constructed,

lighted, ventilated, drained, and clean

(b) The milk plants in which “Milk for Pasteurization”

is received shall not be constructed nor altered until the

plans and specifications thereof have received the approval

of the “secretary.” Equipment before being installed shall

likewise be approved by the secretary.

[ 53]

“Milk for Pasteurization.”

Section 12. “Pasteurized Milk” shall be milk produced

and handled in the following manner:

(a) “Pasteurized Milk” is milk heated to such a tem-

perature and for such a length of time that all harmful

organisms are destroyed.

(b) “Milk for Pasteurization” shall be used in the prep-

aration of ““Pasteurized Milk.”

The holder of a permit to sell “Pasteurized Milk” may

purchase ‘Milk for Pasteurization” from a person in law-

ful possession of a permit to sell “Pasteurized Milk.”

plants in which milk is pasteurized shall be thoroughly

cleansed and dried before returning to a dairy farm or a

milk plant.

(d) Apparatus for the pasteurization of milk shall be

equipped with an accurate indicating thermometer and a

recording thermometer of a type approved by the secretary.

A true record of pasteurization as given by the recording

thermometer shall be on file at the place where the milk is

pasteurized.

(e) Milk to be sold as “Raw Milk” may be received,

cooled, and bottled in a building where milk is pasteurized,

providing all milk received in the building where milk is

pasteurized meets the requirements for “Raw Milk” as set

forth in this act.

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[ 54]

(f) The rooms of buildings, in which milk is exposed

during and after pasteurization, shall be properly lighted,

ventilated, drained, and clean, and shall be used for no other

purpose than to provide a place for cleansed milk containers

and utensils, and for the handling of milk during and after

pasteurization.

(g) Milk during and after pasteurization, and cleansed

milk containers, utensils, and equipment shall be protected

from flies.

(h) Pasteurizing plants shall be provided with and use

an adequate supply of steam or hot water for cleansing milk

containers, utensils, and equipment.

(i) Equipment with which milk comes in contact shall

be constructed in such manner as to be easily cleansed. De-

mountable apparatus, with which milk comes in contact. shall

be taken apart and cleansed each day such apparatus is in

use. Surfaces with which milk comes in contact shall be of

smooth non-corrosive material and free from open seams.

(j) “Pasteurized Milk” shall be placed in the final con-

tainer in the milk plant where the milk is pasteurized im-

mediately after pasteurization.

(k) The milk plants in which milk is received or pas-

teurized shall not be constructed nor altered until the plans

and specifications thereof have received the approval of the

“secretary.” Equipment before being installed shall likewise

be approved by the secretary.

Section 13. Adequate facilities shall be provided and used

for furnishing clean containers, free from injurious of-

ganisms, in which to sell “Raw Milk” or “Pasteurized Milk”

[55]

or “Milk for Pasteurization” or “Milk Products.” Bottles

or containers, whether of glass or other material, shall be

filled and closed without any part of the hand coming in

contact with the inner surface of the bottles or containers,

or in contact with bottle caps. Caps shall be obtained in sani-

tary containers and kept therein until used.

Section 14. Milk plants, in which milk or milk products

is hand!ed, received, bottled, or pasteurized, shall be pro-

vided with sanitary, adequate and conveniently located toilet

facilities.

Section 15. The water supply used in milk plants shall be

sufficiently abundant for all purposes, easy of access, and

free from contamination.

Section 16. The Secretary of Health shall have the power

to make requirements concerning the number and character

of bacteria in milk and milk products after hearing.

Bacteriological analysis of milk and milk products shall

be made under the supervision of a laboratory, the equip-

ment and director of which have been approved by the Sec-

retary of Health. The bacteriological analysis of milk and

milk products shall be in accordance with Standard Methods

of Milk Analysis of the American Public Health Associa-

tion and the Association of Official Agricultural Chemists

last adopted, unless special permission is given by the secre-

tary for a modification of the above standard methods.

Section 17. “Milk products” shall be prepared from milk

produced and handled in the following manner:

(a) “Milk for Pasteurization” shall be used in the prep-

aration of “milk products.”

[ 56]

(b) The “Milk for Pasteurization” used in the prepara-

tion of “milk products” shall be pasteurized or otherwise

treated as indicated by the “secretary” before or during the

preparation of “milk products.”

is received in milk plants for the preparation of “milk prod-

ucts” shall be thoroughly cleansed and dried before return-

ing to a dairy farm or a milk plant.

(d) The rooms of buildings in which “milk products” are

exposed during and after preparation shall be properly

lighted, ventilated, drained, and clean, and shall be used for

no other purpose than to provide a place for cleansed con-

tainers and utensils and for the handling of “milk products.”

(e) “Milk products” during and after preparation, and

cleansed containers, utensils, and equipment shall be pro-

tected from flies.

(f) Milk plants in which “milk products” are prepared

shall be provided with an adequate supply of steam or hot

water for cleansing containers, utensils, and equipment.

(g) Equipment with which “milk products” come in con-

tact shall be constructed in such a manner as to be easily

cleansed. Demountable apparatus with which “milk prod-

ucts” come in contact shall be taken apart and cleansed each

day such apparatus is in use. Surfaces with which “milk

products” come in contact shall be of smooth non-corrosive

material and free from open seams.

(h) The milk plants in which “milk products” are pre-

pared shall not be constructed nor altered until the plans

and specifications thereof have received the approval of the

[57]

“secretary.” Equipment before being installed shall likewise

be approved by the secretary.

Section 18. The provisions of this act, and the regulations

made thereunder, shall not be taken nor deemed to repeal

existing municipal ordinances, nor to prevent municipalities

from enacting and enforcing new ordinances for the further

protection of the public health: Provided, That this act shall

be considered as establishing uniform requirements and

regulations, and that nothing herein contained shall be

deemed to prevent municipalities from ordaining and en-

forcing such additional requirements in excess of the re-

quirements and regulations hereunder, as may be deemed

necessary, from time to time for the preservation of public

health, and to require applications from, and to issue per-

mits to, such persons as may be defined by local ordinances.

Section 19. The advisory health board of the State De-

partment of Health is hereby authorized to adopt and pro-

mulgate rules and regulations for the proper enforcement

of this act.

Section 20. Any person violating any provisions of this

act or rules and regulations pertaining thereto shall, upon

conviction thereof, before any magistrate, alderman. or

justice of the peace in the county where the offense shall

have been committed, be subject to a fine of not less than

ten dollars ($10) and not more than fifty dollars ($50) for

each offense, to be collected by summary conviction as like

fines are now collected by law, or in case of nonpayment of

the fine to undergo imprisonment in the county jail for a

period not exceeding thirty days: Provided, That any per-

son convicted more than twice of violating the same pro-

visions of this act or rules and regulations pertaining there-

[ 58 ]

to shall be subject to a fine of not less than fifty dollars

($50) nor more than two hundred and fifty dollars ( $250),

or in case of nonpayment of the fine to undergo imprison-

ment in the county jail for a period not less than thirty days

nor more than six months.

Prosecutions for violations of any of the provisions of

this act and the regulations thereto shall be brought by the

Secretary of Health or his agent or by any health officer of

any municipality in this Commonwealth.

All fines collected under this act shall be paid to the secre-

tary and by him into the State Treasury, through the De-

partment of Revenue.

Section 21. Whenever, in the opinion of the secretary, a

given supply of milk or milk products is considered unsafe

or a menace to public health, the secretary may seize, con-

demn, denature, or destroy such milk or milk products with-

out compensation to the owner or own *rs thereof.

The general sanitary conditions of any place, wherein

milk or milk products are produced, stored, prepared, or

handled and its immediate surroundings, shall be such as

to insure a safe and clean supply of milk or milk products.

The secretary shall have the right to exclude from sale

any part of a mill: supply which may be considered unsafe.

or milk or milk products which is produced on dairy farms

or handled in milk plants which fail to meet the require-

ments of this act.

A satisfactory flush closet or sanitary privy shall be pro-

vided at all dairy farms where milk is produced or handled.

[59]

Section 22. The Attorney General may, at the instance of

the Secretary, in the name of the Commonwealth institute

proceedings in equity in the court of common pleas of

Dauphin County for the purpose of enjoining any person

from offering milk or milk products for sale without a

permit as provided in this act, and for such purpose juris-

diction is hereby conferred upon said court. In such case

the Attorney General shall not be required to give bond.

Section 23. Constitutional Construction.—It is hereby

declared to be the legislative intent that if this act cannot

take effect in its entirety because of the decision of any court

holding unconstitutional any part thereof, the remaining

provisions of the act shall be given full force and effect as

completely as if the part held unconstitutional had not been

included herein.

Section 24. The act of May second, one thousand nine

hundred and twenty-nine (Pamphlet Laws, one thousand

two hundred twenty-nine), entitled “An act to safeguard

human health and life by providing for the licensing and

regulation of persons and entities dealing in milk for hu-

man consumption; conferring powers and imposing duties

on the Secretary of Health, and the Advisory Health Board,

and otherwise providing for the administration of the act:

and imposing penalties,” as amended by the acts, approved

the eighteenth day of May, one thousand nine hundred and

thirty-three (Pamphlet Laws, eight hundred four). the

twenty-second day of May, one thousand nine hundred and

thirty-three (Pamphlet Laws, cight hundred thirty-two),

and the seventeenth day of January, one thousand nine

hundred and thirty-four (Pamphlet Laws, two hundred

thirty-one—one thousand nine hundred thirty-three—one

thousand nine hundred thirty-four), are hereby repealed.

[ 60}

All other acts or parts of acts inconsistent herewith are

hereby repealed.

Section 25. The permits heretofore granted by the Secre-

tary of Health under the terms of the act of one thousand

nine hundred twenty-nine (Pamphlet Laws, one thousand

two hundred twenty-nine), and the amendments thereto,

shall remain in full force and effect as permits under this

act until such time as they, respectively, by their terms ex-

pire, or until the secretary shall revoke or suspend the same

in accordance with his powers hereunder.

When

effective. Section 26. This act shall become effective

immediately upon approval by the Governor.

Approvep—The 2d day of July, A. D. 1935.

GEORGE H. EARLE

The foregoing is a true and correct copy of Act of the

General Assembly No. 210.

[ Signed |

Secretary of the Commonwealth

THE ADVISORY HEALTH BOARD OF THE PENN-

SYLVANIA DEPARTMENT OF HEALTH AT A

MEETING HELD IN THE CITY OF HARRISBURG,

OFFICE OF THE SECRETARY OF HEALTH,

APRIL 24, 1940, ADOPTED THE FOLLOWING

RULES AND REGULATIONS FOR THE ENFORCE-

MENT OF ACT 210, APPROVED JULY 2, 1935. a

5x9, AN ACT “TO SAFEGUARD HUMAN HEALTH

AND LIFE BY PROVIDING FOR THE ISSUANCE

[ 61 }

OF PERMITS TO, AND REGULATION OF PER-

SONS AND ENTITIES SELLING MILK AND MILK

PRODUCTS; ENFORCING POWERS, AND IM-

POSING DUTIES ON THE SECRETARY OF

HEALTH, THE ADVISORY HEALTH BOARD:

AND OTHERWISE PROVIDING FOR THE AD-

MINISTRATION OF THE ACT; AND IMPOSING

PENALTIES.”

I. PERMITS. Section 2—The permit year shall begin

September Ist and end August 31st the following year.

I]. DESIGNATIONS. Section 7—The term “Promi-

nently”” means most important in appearance and conspicu-

ous iN position.

In addition to the designation “Certified Milk,” “Raw Milk,”

“Milk for Pasteurization,” or “Pasteurized Milk,” there

shall appear on the milk container sufficient name and ad-

dress to identify the person to whom the permit has been

issued for the sale of the milk.

The term “Other Designations” shall include such designa-

tions as “A,” “Homogenized,” or “Vitamin D.”

Designations including the day of the week or the day of

the month shall, when used with the designation “Raw

Milk,” mean the day produced and, when used with the

designation “Pasteurized Milk,” mean the day pasteurized.

Trade marks that do not interfere with or detract from the

designation of the milk or milk products may be used.

lil. RAW MILK. Section 8, Paragraphs (b), (c) and

(dj—

~» [62]

1. The water supply, if from a spring or well, shall be

protected from all surface and underground contamination.

The well shall be protected with a cover of concrete or

equally impervious material.

2. Toilets shall not be located so as to endanger the

water supply. Privies shall have fly tight vaults. Pxcreta

shall be removed before it reaches the ground level. Cess-

pools and septic tanks shall not overflow to the surface of

the ground.

3. It is recommended that flanks, udders and tails of

the cows be clipped at the time of stabling in the fall to make

it easier to keep the cows clean.

4. Sufficient light shall be provided so that the neces-

sary work can be carried on in the stable during daylight.

Two square feet of unobstructed light for each animal or

stanchion in the stable is considered satisfactory.

5. Sufficient ventilation shall be provided for the

health of the animals and to eliminate odors in the stable.

ive hundred cubic fect of air space per cow is considered

satisfactory.

6. Stable floors, drops, and feeding alleys shall be

constructed of concrete or equally satisfactory material and

kept in good repair. The walk back of the cows, excluding

the gutter. shall be at least three feet in width.

7. Manure shall be removed from the stable daily and

disposed of so that the milking animals do not have access to

same.

8 Stable walls shall be reasonably smooth. The ceil-

Mss”

[ 63 ]

ing shall be tight to prevent dust from sifting through.

Walls and ceilings should be whitewashed annually or

painted biennially.

9. Barn yard shall be properly graded and drained

in order to eliminate the accumulation of water. Waste

from pig pens, barns, and milk houses should not drain into

the yard.

10. Hogs, pigeons, poultry, and other objectionable

animals shall be excluded from the cow stable.

11. Milk utensils and containers used in the produc-

tion of milk shall be constructed of non-corrodible, smooth

metal, free of open seanis, rust, rough solder, or wooden

handles. Seamless or electrically welded utensils and con-

tainers are recommended. Cans shall be returned to the

farm in a clean and dry condition. Single-service straining

material shall be used.

12. Utensils, containers, and equipment, after being

washed and sterilized, shall be stored in the milk room or

other protected room. Suitable metal racks, at least ten

inches above the floor, shall be provided for the storage of

utensils.

i3. Milking machines shall be constructed in such a

manner that they can be readily taken apart for cleansing,

and after cleansing and sterilizing they shall be stored in

such a manner as to prevent contamination,

14. Wet hand milking is prohibited as it is considered

a dangerous and insanitary practice.

15. A strip cup shall be used in order to determine any

—~?

| 64 ]

abnormalities in the milk. The milk in the strip cup shall

not be sold. Abnormal milk shall not be sold.

16. Every precaution shall be taken to protect the milk

from flies in the cow stable, as flies are recognized as a

carrier of disease.

17. Milk stools shall be constructed so that they can

stand on the floor without falling over; if of woo‘en con-

struction, they should be painted. Milk stools shall be clean

and stored in a clean place.

18. Proper milk cooling equipment shall be provided.

19. Milk shall be cooled except when milk is delivered

to the consumer in his own container in the milk house.

20. A one-room milk house or a single milk room shall

be sufficient if the milk is sold to the consumer in containers

brought to the dairy farm by the consumer; otherwise a

milk house containing two or more rooms shall be provided.

(a) Sufficient light shall be provided in the milk

house to carry on the necessary operations.

(b) Ventilation shall be provided to eliminate

odors in the milk house. It is recommended that cross-

ventilation be provided by windows located as close to

the ceiling as possible, and constructed so that the top

sash is movable and a flat screen may be placed on the

outside.

(d) The milk house shall be lined and ceiled in-

side and of smooth finish.

[ 65 ]

(e) It is recommended that the inside of the milk

house be painted with a light-colored paint, preferably

of gloss variety.

(f) The floor of the milk house shall be of con-

crete or equally impervious material and shall be con-

structed in such a manner that it will drain properly.

Water from the floor shall not drain into the cooling

tank. In future construction, impervious material shall

be used to a height of at least ten inches above the floor.

(g) The milk house shall not open directly into a

stable nor a room used for domestic purposes, nor shall

it be located in the barn yard.

(h) The milk house shall be used only for the

handling of milk and milk utensils and should be lo-

cated as conveniently to the stable as possible, giving

consideration to objectionable features such as hog

pens, toilets, etc. It shall be large enough to allow suffi-

cient unobstructed working space.

(1) When the milk house is located at a distance

from the milking stable, and is not used regularly for

straining milk, a suitable straining room shall be pro-

vided at a more convenient location. The straining

room shall conform to the same specifications as the

milk house with the exception of the cooling vat.

21. “Raw Milk” shall be delivered to the consumer

only in containers that have been filled in miik house or milk

room.

22. A mechanical means of filling and capping bottles

shall be used.

[ 66 J

23. The usually accepted practices regarding sanita-

tion shall be considered in scoring methods.

IV. MILK FOR PASTEURIZATION. Section 10,

paragraph (b), (¢) and (dj—

1. The water supply, if from a spring or well, shall be

protected from all surface and underground c mtamination.

The well shall be protected with a cover of coucrete or

equally impervious material.

2. Toilets shall not be located so as to endanger the

water supply. Privies shall have fly-tight vaults. Excreta

shall be removed before it reaches the ground level. Cess-

pools or septic tanks shall not overflow to the surface of the

ground.

3. It is recommended that flanks, udders and tails of

cows be clipped at the time of stabling in the fall to make it

casier to keep the cows clean.

4. Sufficient light shall be provided so that the neces-

sary work can be carried on in the stable during daylight.

Two square feet of unobstructed light for each animal or

stanchion in the stable is considered satisfactory.

5. Sufficient ventilation shall be provided for the

health of the animals and to eliminate odors in the stable.

Five hundred cubic feet of air space per cow is considered

satisfactory.

6. Stable floors, drops, and feeding alleys shall be

constructed of concrete or equally satisfactory «material.

and kept in good repair. The walk back of the cows, exclud-

[ 67 ]

ing the gutter, shall be at least three feet in width.

7. Manure shall be removed from the stable daily and

disposed of so that the milking animals do not have access

to same.

8. Stable walls shall be reasonably smooth. Ceiling

shall be tight to prevent dust from sifting through. Walls

and ceilings should be whitewashed annually or painted bi-

ennially.

9. Barn yard shall be properly graded and drained in

order to eliminate the accumulation of water. Waste from

the pig pens, barns, and milk houses should not drain into

the yard.

10. Hogs, pigeons, poultry, and other objectionable

animals shall be excluded from the cow stable.

11. Milk utensils and containers, used in the produc-

tion of milk, shall be constructed of non-corrodible. smooth

metal, free of open seams, rust, rough solder, or wooden

handles. Seamless or electrically welded utensils and con-

tainers are recommended. Cans shall be returned to the

farm in a clean and dry condition. Single-service straining

material shall be used.

12. Utensils and containers after being washed shall

be stored inverted on a metal rack in the milk house. The

metal rack shall be at least ten inches from the fluor in order

to prevent splashing into the utensils when washing the

floor.

13. Milking machines shall be constructed in such a

manner that they can be readily taken apart for cleansing

[ 68 ]

and after cleansing, they shall be stored in such a manner

as to prevent contamination.

14. Wet hand milking is prohibited, as it is considered

a dangerous and insanitary practice.

15. A strip cup shall be used in order to determine any

abnormalities in the milk. The milk in the strip cup shall

not be sold. Abnormal milk shall not be sold.

16. Every precaution shall be taken to protect the

milk from flies in the cow stable, as flies are recognized as

a carrier of disease.

17. Milk stools shall be constructed so that they can

stand on the floor without falling over; if of wooden con-

struction, they should be painted. Milk stools shall be clean

and stored in a clean place.

18. Cooling tanks shall be constructed of cement or

equally impervious material, and shall be deep enough for

the water to reach the neck of the can so that no milk is

above the surface of the water. An insulated tank with an

insulated cover is recommended. A drain should be provided

in the tank for proper cleansing.

19. The water in the tank shall be changed frequently

to keep it clean.

20. The milk shall be cooled promptly to 60 degrees

Fahrenheit, and maintained at that temperature until de-

livered to the milk plant. In case milk is not cooled, it should

be delivered to the milk plant within two hours from tie

time of milking.

21. (a) Sufficient light shall be provided in the milk

[ 69]

house to carry on the necessary operations.

(b) Ventilation shall be provided to eliminate

odors in the milk house. It is recommended that cross-

ventilation be provided by windows located as close to

the ceiling as possible, and constructed so that the top

sash is movable and a flat screen may be placed on the

outside.

(d) The milk house shall be lined and ceiled in-

side and of smooth finish.

(e) It is recommended that the inside of the milk

house be painted with a light-colored paint, preferably

of gloss variety.

(f) The floor of the milk house shall be of con-

crete or equally impervious material and shall be con-

structed in such a manner that it will drain properly.

Water from the floor shall not drain into the cooling

tank. In future construction, impervious material shall

be used to a height of at least ten inches above the

floor.

(g) The milk house shall not open directly into

a stable nor a room used for domestic purposes, nor

shall it be located in the barn yard.

(h) The milk house shall be used only for the

handling of milk and milk utensils and should be lo-

cated as conveniently to the stable as possible, giving

consideration to objectionable features such as hog

pens, toilets, etc. It shall be large enough to allow suffi-

cient unobstructed working space.

(1) When the milk house is located at a distance

[70 |

from the milking stable, and is not used regularly for

straining milk, a suitable straining room shall be pro-

vided at a more convenient location. The straining

room shall conform to the same specifications as the

milk house with the exception of the cooling vat.

22. The usually accepted practices regarding sanita-

tion shall be considered in scoring methods.

\V. PASTEURIZED MILK. Section 12, paragraph (a)

—"Pasteurized Milk” shall be milk which has been subjected

to a temperature of not less than 143 degrees Fahrenheit

for a period of not less than 30 minutes, or subjected to a

temperature of not less than 160 degrees Fahrenheit for a

period of not less than fifteen seconds, or milk which has

been treated by a process which has been approved by the

Advisory Health Board and for the use of which a written

permit has been issued by the Secretary.

VI. CLEANSING CONTAINERS, UTENSILS AND

EQUIPMENT. Section 8, paragraph ( d); Section 12, para-

graph (h); Section 13, and Section 17, paragraph (f).—

The cleansing of containers, utensils and equipment shall

include the use of steam or the use of water at a tempera-

ture of not less than 180 degrees Fahrenheit, or water at a

temperature of not less than 165 degrees Fahrenheit for 2

period of not less than three minutes.

‘The Secretary may require the use of an accurate imdicat-

ing thermometer and a recording thermometer of a type

approved by the Secretary on apparatus used for the cicans-

ing of containers, utensils and equipment for the purpose

of obtaining an accurate record of the time and temperatute

used in cleansing containers, utensils, and equipment.

As. N= wa wih ww

—

[71]

THE ADVISORY HEALTH BOARD OF THE PENN-

SYLVANIA DEPARTMENT OF HEALTH AT A

MEETING HELD IN THE CITY OF HARRISBURG.

OFFICE OF THE SECRETARY OF HEALTH. ON

NOVEMBER 27, 1945, ADOPTED THE FOLLOW-

ING RULES AND REGULATIONS AMENDING

SECTION I OF THE REGULATION ADOPTED

APRIL 24, 1940, AS AUTHORIZED UNDER ARTI-

CLE XXI OF THE ADMINISTRATIVE CODE. COM-

MONWEALTH OF PENNSYLVANIA, ACT OF

APRIL 9, 1929, P. L. 177, AS AMENDED.

Section 1—Milk to be sold as “Raw Milk” shall be milk

prepared in accordance with the general requirements of

Section 8 of Act 210, approved July 2, 1935, and Advisory

Health Board Rules and Regulations made in accordance

with the Act. In addition to the requirements of Act 210 and

Advisory Health Board Rules and Regulations made in

conformity therewith, “Raw Milk” shall be milk from a cow

or cows determined to be free from Bang’s Disease ( Bovine

Brucellosis ) in accordance with the result of tests conducted

in accordance with the rules, regulations, and practices of

the State Department of Agriculture pertaining to the In-

dividual Accredited Herd Plan.

Section 2—Applications shall be required and permits

issued for the sale of goat’s milk in accordance with Act

210, approved July 2, 1935, and Advisory Health Board

Rules and Regulations made in accordance therewith, giv-

ing due consideration to the difference in the size of the cow

and the goat.

[72]

RULES AND REGULATIONS OF THE DEPART-

MENT OF HEALTH, OF THE COMMONWEALTH

OF PENNSYLVANIA, ADOPTED AUGUST 24, 1949,

BY THE ADVISORY HEALTH BOARD FOR THE

PROTECTION OF THE LIVES AND HEALTH OF

THE PEOPLE OF THE COMMONWEALTH BY

SPECIFYING THE MANNER OF CAPPING MILK

BOTTLES OR CONTAINERS:

On and after September 1, 1950, all Milk sold within this

Commonwealth in glass Milk containers must be capped as

follows:

“The cap or cover shall cover the pouring lip to, at

least. its largest diameter.”

Paper containers shall provide the same protection for

the pouring lip.

MILK ORDINANCE AND CODE

1953 Recommendations

of The Public Health Service

Section 11 (p. 143): Milk and Milk Products From

Points Beyond the Limits of Routine Inspection.

Milk and milk products from points beyond the limits

of routine inspection of the municipality of

may not be sold in the municipality of oO

its police jurisdiction, unless produced and/or pasteurize¢

[73]

under provisions which are substantially equivalent to tne

requirements of this ordinance, and which are enforced with

equal effectiveness, as determined by a milk-sanitation rat-

ing.

Provisions for Inspection—This section is intended to

permit the health officer to bar milk and milk products

shipped in from beyond the normal milkshed, unless he can

assure himself that they meet the provisions of the Ordi-

nance. Under no conditions should the health officer av-

thorize the receipt of such shipments when arrangements

cannot be made for supervision, unless an emergency exists,

in which case permission should be given for its receipt,

provided it is labeled “ungraded milk” when distributed.

Approval of Supplies—Subject to laboratory tests upon

arrival, the health officer should approve, without his in-

spection, supplies of milk or milk products from any area

or shipper not under his routine inspection (1) when they

are produced and processed under regulations substantially

equivalent to those of this Ordinance, (2) when they are

under routine official supervision, and (3) when they have

been awarded, by the milk-sanitation authority of the State

of origin, a milk-sanitation rating equal to that of the locat

supply or, if lower than that of the local supply, equal to 90

percent or more, on the basis of the Public Health Service

rating method. Lists of interstate milk shippers and their

ratings, as reported by the State health authorities and spot-

checked by the Public Health Service. are issued periodically

by the Public Health Service for the information of receiv-

ing communities. These lists may be obtained either from

the State health authority or from the Public Health Sery-

ice,

ee ae

[74]

Section 7, Item Ir, (p. 52): Cows-Health.

All milk for pasteurization shall be from herds which

are located in a modified accredited® tuberculosis-free area,

as determined by the Bureau of Animal Industry, United

States Department of Agriculture, and which have been

tested for tuberculosis not more than six years prior to the

adoption of this ordinance and at least every six years after

such test: ...

5 Darold W. Taylor’s second report (App. F, p. 45, Court of Appeals):

“The areas surveyed are in a modified accredited area, therefore, would meet

the requirements of the Public Health Service Code.”

Wiha f

No. 916 | HAROLD 2. WLLEY, €

Oe es. ee - oo.

_—

IN THE

Supreme Court of the United States

OCTOBER TERM 1956

DAIRY PRODUCTS COMPANY

OF UNIONTOWN,

Petitioner,

VS.

CLARK J. SLEETH, HEALTH OFFICER OF

MONONGALIA COUNTY, WEST VIRGINIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CircuIT CouRT OF APPEALS

FOR THE FOURTH CIRCUIT.

BRIEF FOR RESPONDENT IN OPPOSITION

JOHN G. Fox,

Attorney General,

State of West Virginia,

Charleston, West Virginia.

ALBERT M. MorGAN,

Prosecuting Attorney,

Monongalia County,

Morgantown, West Virginia.

GEORGE R. FARMER,

Morgantown, West Virginia,

Counsel for Respondent.

<>’

V” | [ wile

Page

QUESTIONS PRESENTED 2

STATEMENT 3

REASONS FOR REFUSING THE WRIT 5

I. A State May Regulate the Sale of Milk Within

Il.

Il,

its Borders Even Though Interstate Com-

merce Is Affected

A Court Should not Arbitrarily Upset the

Judgment of Expert Witnesses .

A Court by Mandamus Cannot Control the

Judgment or Discretion of a Public Official

The Respondent Checked the Pennsylvania

Sanitary Standards Through the United

States Public Health Service

The Supreme Court of the United States Will

Not Grant a Writ of Certiorari Merely to

Review the Evidence or Inferences Drawn

From It

CONCLUSION

CITATIONS

Cases:

Page

Baldwin vs. Seelig, 294 U.S. 511, 79 L. Ed. 1032

Dean Vs. Madison, 340 U.S. 349, 95 L. Ed. 329

Ex Rel. Giard vs. Helvering, 301 U. S. 540, 81

L. Ed. 1272

Ex Rel. Hall vs. Payne, 254 U.S. 343, 65 L. Ed.

295

General Talking Pictures Corp. vs. Western Elec-

tric Co., 304 U.S. 175, 82 L. Ed. 1273

Hood vs. DuMond, 236 U.S. 525, 93 L. Ed. 865

Keim vs. United States, 177 U. S. 290, 44 L. Ed.

774

Mintz vs. Baldwin, 289 U.S. 346, 77 L. Ed. 1245

Milk Control Board vs. Eisenberg, etc., 306 U. S.

346, 83 L. Ed. 752

National Labor Relations Board vs. Waterman

S.S. Corp., 309 U.S. 206, 84 L. Ed. 704

Price vs. Illinois, 238 U.S. 446, 59 L. Ed. 1400

Reid vs. Colovado, 187 U.S. 137, 47 L. Ed. 108

Savage Vs. Jones, 225 U.S. 501, 56 L. Ed. 1182

United States vs. Black, 128 U. S. 52, 32 L. Ed.

354

United States vs. Johnston, 268 U. S. 220, 69 L.

Ed. 925

U.S. PHS Recommended Ordinance and Interpre-

tations, 1953 Revision of Public Health Bul-

letin No. 220, 1939

Wilbur vs. U.S. Ex Rel. Kadrie, 281 U.S. 206, 74

L. Ed. 809

IN THE

Supreme Court of the United States

OCTOBER TERM 1956

No. 916

DAIRY PRODUCTS COMPANY

OF UNIONTOWN,

Petitioner,

VS.

CLARK J. SLEETH, HEALTH OFFICER OF

MONONGALIA COUNTY, WEST VIRGINIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE FOURTH CIRCUIT.

BRIEF FOR RESPONDENT IN OPPOSITION

To the Honorable the Chief Justice of the United States

and the Associate Justices of the Supreme Court

of the United States:

Respondent opposes the granting of the petition for

certiorari to review the judgment of the Circuit Court

of Appeals for the Fourth Circuit entered in the above

case on December 27, 1955.

QUESTIONS PRESENTED BY THE DECISION OF THE

LOWER COURTS.

Respondent disagrees with the statement of the

Questions Presented as set out in Petitioner’s Petition

and asserts the following:

The constitutionality of the West Virginia Law and

Regulations (Petitioner’s Appendix III, pages 39—43)

is not raised by pleadings and was conceded in both

lower courts (Petitioner’s Appendix I, page 31) and

by the Petition of Petitioner, page 23.

Petitioner’s milk is produced and pasteurized under

Pennsylvania and City of Pittsburgh Regulations

which recognize and permit inspections and laboratory

tests to be made by Petitioner’s own employees while

the West Virginia law requires the same inspections

to be made by a public official—the health officer. ( Pe-

tition, page 4 and Appendix III, pages 41-42).

West Virginia law and Regulations promulgated

thereunder require the Respondent to refuse a permit

for sale of milk and milk products produced outside the

limits of routine inspection by state officials unless

produced and or pasteu rized under provisions equiva-

lent to West Virginia Regulations and then only after

the health officer shall have satisfied himself that the

health officer having jurisdiction over the production

and processing is properly enforcing such provisions

(Petitioner’s Appendix III, page 42).

The duty imposed by law upon the Respondent in-

volves the construction and application thereof and the

exercise of judgment and discretion in the enforcement

of the law.

Thus the sole question for determination on this

Petition is whether the Respondent has arbitrarily

exercised that judgment and abused that discretion.

This is the issue determined by the Court of Ap-

peals and the District Court. (Petitioner’s Appendix

I, pages 34—36; Appendix K—Record—Court of Ap-

peals, page 122).

RESPONDENT'S STATEMENT OF THE CASE.

In generai the Petitioner’s statement of the case is

correct. However, some omissions material to con-

sideration of the questions raised are now noted.

For many years prior to 1951 Petitioner held a per-

mit to sell milk in the cities of Uniontown and Pitts-

burgh, Pennsylvania, and as early as 1947 and again

in 1950 it had applied for a similar permit to sell milk

in Monongalia County, West Virginia, but these appli-

cations were refused after inspections made by the

predecessor’s of Respondent. (Appendix C—Record—

Court of Appeals, pages 17—21).

At no time prior to April, 1954, did the farms and

plants from which Petitioner’s milk was produced

and in which it was stored and pasteurized, achieve a

rating of as much as 90°; as determined by inspec-

tions made by officials of the Health Department of

West Virginia and the United States Public Health

Service, and the Enforcement of Sanitary Standards

by Pennsylvania, Uniontown, Pittsburgh and Peti-

tioner’s employed inspectors and officials has never

been of such character as to meet the requirements of

the United States Public Health Recommended Milk

Code which is identical with West Virginia Regula-

tions (See Record—Appendix A and Appendix F).

Concerning the Enforcement Agency (City of Pitts-

burgh) the United States Public Health Service In-

spector in his report of April 12—14, 1954, (Record

—Appendix F, pages 44—47) said that there was no

documentary evidence to indicate that dairies and

plants had been inspected once each six months; or

that disinfection temperatures and chlorine strengths

were checked; or that pasteurization plant equipment

was tested at required intervals; that Petitioner’s lab-

oratory did not meet required standards; that farm

producer samples of milk are not collected by the Pitts-

burgh Health Department; that records are not being

fully kept on all phases of the milk program; that be-

cause of changes then being made in the status of the

milk sanitation program it was not practical to tabu-

late a numerical rating on Enforcement Methods and

that it was probable such rating could be made in six

months.

Upon rehearing in the District Court Mr. H. D.

Martin, Sanitarian, Monongalia County, Health De-

partment of West Virginia, and George R. Farmer,

one of Counsel, in this case testified fully in support of

the facts set out in the affidavit filed as the basis for

rehearing and their testimony is uncontradicted that

the condition of the records in the Pittsburgh Health

Department more than seven months following the last

Taylor report, had not been improved and were in a

chaotic condition. (Record—Appendices N—O, pages

131—138).

While it is alleged in the complaint that the Regu-

lations and Standards of the City of Pittsburgh and the

State of Pennsylvania are equivalent to and more

stringent than those of West Virginia and this same

fact is asserted in the testimony, the Pittsburgh Regu-

lations were never introduced into evidence. The basic

law of Pennsylvania (Sec. 18—Petitioner’s Appendix

III page 57) specifically provides that municipalities

may ordain and enforce additional requirements in

excess of those having state wide application. Any

municipality in Pennsylvania may adopt the United

States, Public Health Service Recommended Ordinance

and thus fully conform to West Virginia requirements.

No state action is necessary.

REASONS FOR REFUSING THE WRIT.

1, The question presented by the decisions of the

lower courts and the decisions themselves do not fall

within any of the categories set out in Rule 19, Part V

of the Rules of this Court. Congress has not enacted

any federal laws or regulations pertaining to the sale

of milk and the decisions of this Court recognize that

local regulations are applicable even though inter-

State commerce may be affected.

Dean vs. Madison, 340 U. S. 349, 95 L. Ed.

329.

Milk Control] Board vs. Eisenburg etc., 306

U. S. 346, 83 L. Ed. 752.

Baldwin vs. Seelig, 294 U. S. 511, 79 L. Ed.

1032.

— DuMond, 336 U.S. 525, 93 L. Ed.

The Congress of the United States has since 1895

from time to time enacted local regulatory laws for sale

of fluid milk in the District of Columbia which provide

for inspection of farms and plants by the Health Officer

of the District as a prerequisite to maintenance of a

license to sell milk in the District, even though the

milk originates in the states, and further provides

that no officer or employee of the Health Department

of the District shall in his private capacity serve

for fee or reward any person licensed to maintain a

dairy farm or dairy in the District or to bring milk

into the District.

1940 Code of District of Columbia, Sections

33—301—321 and especially 33—320 and

33—321.

The West Virginia Milk Regulations are identical

with the Model Milk Ordinance Recommended by the

United States Public Health Service and which provides

standards recognized as appropriate in the interest of

public safety, health and welfare by this Court in Dean

vs. Madison.

This Court has often upheld the right of states to

regulate, in the interest of the safety, health and well

being of its citizens, the importation into the state of

livestock, food stuffs, ete. as exemplified by the fol-

lowing:

Certificate of freedom from Bangs disease of herd

from which imported cattle are derived, to be executed

by chief livestock sanitary official of state of origin.

Mintz vs. Baldwin, 289 U. S. 346, 77 L. Ed.

1245.

Requirement for State Inspection of livestock from

other states as required by state statute not met by

inspection by federal inspector enforcing federal law.

a Colorado, 187 U. S. 137, 47 L. Ed.

State law requiring labelling of animal foodstuffs

as to content and providing for inspection by state in-

spectors upheld even though standards provided may

require foodstuff to conform to exact standards of the

State of Indiana.

Sava - vs. Jones, 225 U. S. 501, 56 L. Ed.

1182.

The state has power to protect the health of its people

and to impose reasonable vestrictions having reason-

able relation to that end. The nature and extent of

restrictions of this character are matters for the legis-

lative judgment in defining the policy of the state and

the safeguards required.

Price vs. Illinois, 238 U. S. 446, 59 L. Ed.

1400.

2. The Health Officer in considering whether the

Pennsylvania Statute and Regulations are equivalent

to those of West Virginia followed to the very letter

the United States Public Health Service Recommended

Ordinance and Interpretations (1953 Revision of Pub-

lie Health Bulletin No. 220, 1939) as set out on pages

44 and 43 respectively,

“Industry Inspections—Where the Ordinance,

as adopted locally, contains the proviso of foot-

note 21, the health officer may accept results of

periodic industry inspection of producer dairies

provided such inspection is a supplement to, and

not a substitute for, official inspection.” (Italics

Ours)

Footnote 21 referred to reads:

“Where the State Law permits the following pro-

viso may be inserted; “Provided, the health of-

ficer may accept, as a supplement to official in-

spection, the results of periodic inspections by

industry, of producer dairies which he checks

periodically and finds satisfactory.”

On page 43 (Ibid) in commenting on the first sen-

tence of Section 5 of the Ordinance which reads,

“Prior to the issuance of a permit and at least

once every six months thereafter, the health

officer shall inspect all dairy farms and all milk

plants ...”

the comment and interpretation is,

“The first sentence of this section should not

be taken to imply that one inspection every six

months is a desirable frequency. It should be

regarded, instead, as the legal minimum.”

These interpretations and instructions are conclu-

sive that the very spirit and purpose of the Regulation

is to safeguard the public health through public officials

who actually perform all duties required and not to

entrust enforcement to the permit holder, subject only

to noncompulsory and inadequate official “checking.”

On page VI Preface to the foregoing Bulletin is the

following statement:

“As of September 1, 1952, the Milk Ordinance

recommended by the Public Health Service had

been adopted by 1,542 municipalities and 397

counties. In addition it serves as the basis for

state law or regulations of 34 States and 2 Ter-

ritories. It is in effect State-wide in all of these

States and both Territories. It is used also, as

« the standard for milk served on interstate car-

riers, and has been incorporated into Federal

Specifications.”

If Courts substitute their judgment for that of

trained scientists and administrators upon questions

which those scientists and administrators have spent

their lives in mastering, and then go further and hold

that because the expert has reached a different conclu-

sion that he is arbitrary and has deprived a disgruntled

nonconforming litigant of his constitutional rights, the

wheels of progress will grind to an abrupt stop. The

lower Court did just that in this case.

3. A court cannot by mandamus act directly upon

the officer and guide and control his judgment or dis-

cretion in the matters committed to his care in the

ordinary disharge of his official duties—such action

would be productive of nothing but mischief.

Keim vs. United States, 117 U. S. 290, 44 L.

Ed. 774.

Where the duty of an executive or administrative

officer is not so plainly prescribed as to be free from

doubt and equivalent to a positive command, but de-

pends upon statutes, the construction or application

of which is not free from doubt, it is regarded as in-

volving the character of judgment or discretion which

cannot be controlled by mandamus.

Wilbur vs. U.S. Ex Rel. Kadrie, 281 U. S. 206,

74 L. Ed. 809.

Ex Rel. Giard, etc. vs. Helvering, 301 U. S.

540, 81 L. Ed. 1272.

U. S. vs. Black, 128 U. S, 52, 32 L. Ed. 354.

Ex Rel. Hall vs. Payne, 254 U. S. 343, 65

L. Ed. 295.

In the present case the statute and Regulations under

which the Respondent acted and with whose provisions

he is charged with enforcement do amount to a positive

command. But the command is that the Respondent

shall not permit sale of milk “from points beyond the

limits of the State of West Virginia .. . unless pro-

duced and or pasteurized under provisions equivalent

to the requirements of this Regulation; provided that

the health officer shall satisfy himself that the officer

having jurisdiction over the production and processing

is properly enforcing such provisions.” The lower

Court substituted its own judgment upon the mixed

questions of law and fact which had been determined

by the the Respondent in the course of his official duties,

for that of the health officer. The Circuit Court re-

versed on this ground.

4. The Respondent followed eactly the “reasonable

and adequate alternative” suggested in Dean vs. Madi-

son (supra) in that he determined the extent of en-

forcement of sanitary standards in the exporting area

by verifying the accuracy of safety ratings given the

Petitioner by the Pennsylvania ( Uniontown and Pitts-

burgh) authorities, through an authorized Senior

Scientist of the United States Public Health Service

who upon two inspections rendered an adverse report.

5. The Supreme Court of the United States will

not grant a writ of certiorari merely to review the evi-

dence or inferences drawn from it.

General Talking Pictures Corporation Vs.

Western Electric Co., 304 U.S. 175, 82 L.

Ed. 1273.

National Labor Relations Board vs. Water-

man S. 8. Corp., 309 U. S. 206, 84 L. Ed.

704.

United States vs. Johnston, 268 U. S. 220, 69

L. Ed. 925.

Since the validity of the statute and Regulations

under which Respondent acted are not questioned, the

sole question for consideration is, “Did Respondent act

arbitrarily in reaching his decision that the Pennsyl-

vania Regulations and the enforcement procedures to

implement them are not the equivalent of West Vir-

ginia Regulations?” A determination of this question

involves consideration of all the evidence in the case.

CONCLUSION.

For the foregoing reasons, it is respectfully sub-

mitted that the writ should be denied.