1. An ordinance of a Wisconsin municipality forbids the sale of
milk in the city as pasteurized unless it has been pasteurized and
bottled at an approved pasteurization plant within five miles of
the center of the city. Appellant, an Illinois corporation engaged
in gathering and distributing milk from farms in Illinois and
Wisconsin, was denied a license to sell its products within the
city solely because its pasteurization plants were more than five
miles away.
Held: The ordinance unjustifiably discriminates against
interstate commerce, in violation of the Commerce Clause of the
Federal Constitution. Pp.
340 U. S.
350-357.
(a) Even in the exercise of its unquestioned power to protect
the health and safety of its people, a municipality may not erect
an economic barrier protecting a major local industry against
competition from without the state if reasonable nondiscriminatory
alternatives, adequate to conserve legitimate local interests, are
available. P.
340 U. S.
354.
(b) In view of the reasonable and adequate alternatives which
are available for the protection of the health and safety of the
people of the municipality, the discrimination against interstate
commerce inherent in the ordinance violates the Commerce Clause.
Pp.
340 U. S.
354-356.
2. A second provision of the ordinance in question forbids the
sale of milk, or the importation, receipt or storage of milk for
sale, within the city except from a source of supply possessing a
permit issued after inspection by city officials, and expressly
relieves the city officials from any duty to inspect farms located
beyond twenty-five miles from the city. Appellant's attack on the
constitutional validity of this provision was dismissed by the
state court for want of a justiciable controversy.
Held: as to the issue thus presented, the cause is
remanded for further proceedings not inconsistent with the
principles announced in the opinion of this Court. Pp.
340 U. S.
350-351,
340 U. S.
356-357.
257 Wis. 308, 43 N.W.2d 480, reversed.
An ordinance of a Wisconsin municipality regulating the sale of
milk was sustained by the State Supreme Court
Page 340 U. S. 350
over appellant's objections to its validity under the Federal
Constitution. 257 Wis. 308, 43 N.W.2d 480. On appeal to this Court,
reversed and remanded, p.
340 U. S.
357.
MR. JUSTICE CLARK delivered the opinion of the Court.
This appeal challenges the constitutional validity of two
sections of an ordinance of the City of Madison, Wisconsin,
regulating the sale of milk and milk products within the
municipality's jurisdiction. One section in issue makes it unlawful
to sell any milk as pasteurized unless it has been processed and
bottled at an approved pasteurization plant within a radius of five
miles from the central square of Madison. [
Footnote 1] Another section, which prohibits the sale
of milk, or the importation, receipt or storage of milk for sale,
in Madison unless from a source of supply possessing a permit
issued after inspection by Madison officials is attacked insofar as
it expressly relieves municipal authorities from any duty to
inspect farms
Page 340 U. S. 351
located beyond twenty-five miles from the center of the city.
[
Footnote 2]
Appellant is an Illinois corporation engaged in distributing
milk and milk products in Illinois and Wisconsin. It contended
below, as it does here, that both the five-mile limit on
pasteurization plants and the twenty-five-mile limit on sources of
milk violate the Commerce Clause and the Fourteenth Amendment to
the Federal Constitution. The Supreme Court of Wisconsin upheld the
five-mile limit on pasteurization. [
Footnote 3] As to the twenty-five-mile limitation the
court ordered the complaint dismissed for want of a justiciable
controversy. 257 Wis. 308, 43 N.W.2d 480 (1950). This appeal,
contesting both rulings, invokes the jurisdiction of this Court
under 28 U.S.C. § 1257(2).
The City of Madison is the county seat of Dane County. Within
the county are some 5,600 dairy farms, with total
Page 340 U. S. 352
raw milk production in excess of 600,000,000 pounds annually and
more than ten times the requirements of Madison. Aside from the
milk supplied to Madison, fluid milk produced in the county moves
in large quantities to Chicago and more distant consuming areas,
and the remainder is used in making cheese, butter, and other
products. At the time of trial, the Madison milkshed was not of
"Grade A" quality by the standards recommended by the United States
Public Health Service, and no milk labeled "Grade A" was
distributed in Madison.
The area defined by the ordinance with respect to milk sources
encompasses practically all of Dane County, and includes some 500
farms which supply milk for Madison. Within the five-mile area for
pasteurization are plants of five processors, only three of which
are engaged in the general wholesale and retail trade in Madison.
Inspection of these farms and plants is scheduled once every thirty
days, and is performed by two municipal inspectors, one of whom is
full-time. The courts below found that the ordinance in question
promotes convenient, economical, and efficient plant
inspection.
Appellant purchases and gathers milk from approximately 950
farms in northern Illinois and southern Wisconsin, none being
within twenty-five miles of Madison. Its pasteurization plants are
located at Chemung and Huntley, Illinois, about 65 and 85 miles,
respectively, from Madison. Appellant was denied a license to sell
its products within Madison solely because its pasteurization
plants were more than five miles away.
It is conceded that the milk which appellant seeks to sell in
Madison is supplied from farms and processed in plants licensed and
inspected by public health authorities of Chicago, and is labeled
"Grade A" under the Chicago ordinance, which adopts the rating
standards recommended by the United States Public Health
Service.
Page 340 U. S. 353
Both the Chicago and Madison ordinances, though not the sections
of the latter here in issue, are largely patterned after the Model
Milk Ordinance of the Public Health Service. However, Madison
contends, and we assume, that, in some particulars, its ordinance
is more rigorous than that of Chicago.
Upon these facts, we find it necessary to determine only the
issue raised under the Commerce Clause, for we agree with appellant
that the ordinance imposes an undue burden on interstate
commerce.
This is not an instance in which an enactment falls because of
federal legislation which, as a proper exercise of paramount
national power over commerce, excludes measures which might
otherwise be within the police power of the states.
See Currin
v. Wallace, 306 U. S. 1,
306 U. S. 12-13
(1939). There is no pertinent national regulation by the Congress,
and statutes enacted for the District of Columbia indicate that
Congress has recognized the appropriateness of local regulation of
the sale of fluid milk. D.C.Code, 1940, §§ 33-301
et seq.
It is not contended, however, that Congress has authorized the
regulation before us.
Nor can there be objection to the avowed purpose of this
enactment. We assume that difficulties in sanitary regulation of
milk and milk products originating in remote areas may present a
situation in which,
"upon a consideration of all the relevant facts and
circumstances, it appears that the matter is one which may
appropriately be regulated in the interest of the safety, health
and wellbeing of local communities. . . ."
Parker v. Brown, 317 U. S. 341,
317 U. S.
362-363 (1943);
see H. P. Hood & Sons v. Du
Mond, 336 U. S. 525,
336 U. S.
531-532. We also assume that, since Congress has not
spoken to the contrary, the subject matter of the ordinance lies
within the sphere of state regulation, even though interstate
commerce
Page 340 U. S. 354
may be affected.
Milk Control Board v. Eisenberg Farm
Products, 306 U. S. 346
(1939);
see Baldwin v. G.A.F. Seelig, Inc., 294 U.
S. 511,
294 U. S. 524
(1935).
But this regulation, like the provision invalidated in
Baldwin v. G.A.F. Seelig, Inc., supra, in practical effect
excludes from distribution in Madison wholesome milk produced and
pasteurized in Illinois. "The importer . . . may keep his milk or
drink it, but sell it he may not."
Id. 294 U.S. at
294 U. S. 521.
In thus erecting an economic barrier protecting a major local
industry against competition from without the State, Madison
plainly discriminates against interstate commerce. [
Footnote 4] This it cannot do, even in the
exercise of its unquestioned power to protect the health and safety
of its people, if reasonable nondiscriminatory alternatives,
adequate to conserve legitimate local interests, are available.
Cf. Baldwin v. G.A.F. Seelig, Inc., supra, at
294 U. S. 524;
Minnesota v. Barber, 136 U. S. 313,
136 U. S. 328
(1890). A different view, that the ordinance is valid simply
because it professes to be a health measure, would mean that the
Commerce Clause of itself imposes no limitations on state action
other than those laid down by the Due Process Clause, save for the
rare instance where a state artlessly discloses an avowed purpose
to discriminate against interstate goods.
Cf. H. P. Hood &
Sons v. Du Mond, supra. Our issue, then, is whether the
discrimination inherent in the Madison ordinance can be justified
in view of the character of the local interests and the available
methods of protecting them.
Cf. Union Brokerage Co. v.
Jensen, 322 U. S. 202,
322 U. S. 211
(1944).
It appears that reasonable and adequate alternatives are
available. If the City of Madison prefers to rely upon its own
officials for inspection of distant milk
Page 340 U. S. 355
sources, such inspection is readily open to it without hardship,
for it could charge the actual and reasonable cost of such
inspection to the importing producers and processors.
Cf.
Sprout v. City of South Bend, 277 U.
S. 163,
277 U. S. 169
(1928);
see Miller v. Williams, 12 F. Supp.
236, 242, 244 (1935). Moreover, appellee Health Commissioner of
Madison testified that, as proponent of the local milk ordinance he
had submitted the provisions here in controversy and an alternative
proposal based on § 11 of the Model Milk Ordinance recommended by
the United States Public Health Service. The model provision
imposes no geographical limitation on location of milk sources and
processing plants, but excludes from the municipality milk not
produced and pasteurized conformably to standards as high as those
enforced by the receiving city. [
Footnote 5] In implementing such an ordinance, the
importing city obtains milk ratings based on uniform standards and
established by health authorities in the jurisdiction where
production and processing occur. The receiving city may
Page 340 U. S. 356
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 milkshed in the distant jurisdiction
through the United States Public Health Service, which routinely
and on request spot checks the local ratings. The Commissioner
testified that Madison consumers "would be safeguarded adequately"
under either proposal, and that he had expressed no preference. The
milk sanitarian of the Wisconsin State Board of Health testified
that the State Health Department recommends the adoption of a
provision based on the Model Ordinance. Both officials agreed that
a local health officer would be justified in relying upon the
evaluation by the Public Health Service of enforcement conditions
in remote producing areas.
To permit Madison to adopt a regulation not essential for the
protection of local health interests and placing a discriminatory
burden on interstate commerce would invite a multiplication of
preferential trade areas destructive of the very purpose of the
Commerce 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. Seelig, Inc.,
supra, at
294 U. S.
527.
For these reasons, we conclude that the judgment below
sustaining the five-mile provision as to pasteurization must be
reversed.
The Supreme Court of Wisconsin thought it unnecessary to pass
upon the validity of the twenty-five-mile limitation, apparently in
part for the reason that this issue was made academic by its
decision upholding the five-mile section. In view of our conclusion
as to the latter provision, a determination of appellant's
contention as to the other section is now necessary. As to this
Page 340 U. S. 357
issue, therefore, we vacate the judgment below and remand for
further proceedings not inconsistent with the principles announced
in this opinion.
It is so ordered.
[
Footnote 1]
General Ordinances of the City of Madison, 1949, § 7.21 provides
as follows:
"It shall be unlawful for any person, association or corporation
to sell, offer for sale or have in his or its possession with
intent to sell or deliver in the City of Madison, any milk, cream
or milk products as pasteurized unless the same shall have been
pasteurized and bottled in the manner herein provided within a
radius of five miles from the central portion of the City of
Madison otherwise known as the Capitol Square at a plant housing
the machinery, equipment and facilities, all of which shall have
been approved by the Department of Public Health."
[
Footnote 2]
Id., § 7.11, provides in pertinent part as follows:
"It shall be unlawful for any person to bring into or receive
into the City of Madison, Wisconsin, 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 as defined in this ordinance from a source not
possessing a permit from the Health Commissioner of the City of
Madison, Wisconsin."
"Only a person who complies with the requirements of this
ordinance shall be entitled to receive and retain such a
permit."
"On the filing of an application for a permit with the Health
Commissioner, he shall cause the source of supply named therein to
be inspected, and shall cause all other necessary inspections and
investigations to be made. The Department of Public Health shall
not be obligated to inspect and issue permits to farms located
beyond twenty-five (25) miles from the central portion of the City
of Madison otherwise known as the Capitol Square. . . ."
[
Footnote 3]
In upholding § 7.21,
note 1
supra, the court relied upon the principles announced by
it in
Dyer v. City Council of Beloit, 250 Wis. 613, 27
N.W.2d 733 (1947),
judgment vacated, 333 U.S. 825
(1948).
[
Footnote 4]
It is immaterial that Wisconsin milk from outside the Madison
area is subjected to the same proscription as that moving in
interstate commerce.
Cf. Brimmer v. Rebman, 138 U. S.
78,
138 U. S. 82-83
(1891).
[
Footnote 5]
Section 11 of the United States Public Health Service Milk
Ordinance, as recommended in 1939, provides:
"Milk and milk products from points beyond the limits of routine
inspection of the city of ______ may not be sold in the city of
______, or its police jurisdiction, unless produced and/or
pasteurized under provisions equivalent to the requirements of this
ordinance; provided that the health officer shall satisfy himself
that the health officer having jurisdiction over the production and
processing is properly enforcing such provisions."
The following comment on this section is contained in the Public
Health Service Milk Code:
"It is suggested that the health officer approve milk or milk
products from distant points without his inspection if they are
produced and processed under regulations equivalent to those of
this ordinance, and if the milk or milk products have been awarded
by the State control agency a rating of 90 percent or more on the
basis of the Public Health Service rating method."
Federal Security Agency, Public Health Bulletin No. 220 (1939),
145.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE
MINTON concur, dissenting.
Today's holding invalidates § 7.21 of the Madison, Wisconsin,
ordinance on the following reasoning: (1) the section excludes
wholesome milk coming from Illinois; (2) this imposes a
discriminatory burden on interstate commerce; (3) such a burden
cannot be imposed where, as here, there are reasonable,
nondiscriminatory and adequate alternatives available. I disagree
with the Court's premises, reasoning, and judgment.
(1) This ordinance does not exclude wholesome milk coming from
Illinois or anywhere else. It does require that all milk sold in
Madison must be pasteurized within five miles of the center of the
city. But there was no finding in the state courts, nor evidence to
justify a finding there or here, that appellant, Dean Milk Company,
is unable to have its milk pasteurized within the defined
geographical area. As a practical matter, so far as the record
shows, Dean can easily comply with the ordinance whenever it wants
to. Therefore, Dean's personal preference to pasteurize in
Illinois, not the ordinance, keeps Dean's milk out of Madison.
(2) Characterization of § 7.21 as a "discriminatory burden" on
interstate commerce is merely a statement of the Court's result,
which I think incorrect. The section does prohibit the sale of milk
in Madison by interstate and intrastate producers who prefer to
pasteurize over five miles distant from the city. But both state
courts below found that § 7.21 represents a good faith attempt to
safeguard public health by making adequate sanitation
Page 340 U. S. 358
inspection possible. While we are not bound by these findings, I
do not understand the Court to overturn them. Therefore, the fact
that § 7.21, like all health regulations, imposes some burden on
trade does not mean that it "discriminates" against interstate
commerce.
(3) This health regulation should not be invalidated merely
because the Court believes that alternative milk inspection methods
might insure the cleanliness and healthfulness of Dean's Illinois
milk. I find it difficult to explain why the Court uses the
"reasonable alternative" concept to protect trade when, today, it
refuses to apply the same principle to protect freedom of speech.
Feiner v. New York, 340 U. S. 315.
For, while the "reasonable alternative" concept has been invoked to
protect First Amendment rights,
e.g., Schneider v. State,
308 U. S. 147,
308 U. S. 162,
it has not heretofore been considered an appropriate weapon for
striking down local health laws. Since the days of Chief Justice
Marshall, federal courts have left states and municipalities free
to pass
bona fide health regulations subject only "to the
paramount authority of Congress if it decides to assume control. .
. ."
The Minnesota Rate Cases, 230 U.
S. 352,
230 U. S. 406;
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 203-204;
Mintz v. Baldwin, 289 U. S. 346,
289 U. S.
349-350,
and see Baldwin v. G.A.F. Seelig,
294 U. S. 511,
294 U. S. 524.
This established judicial policy of refusing to invalidate genuine
local health laws under the Commerce Clause has been approvingly
noted even in our recent opinions measuring state regulation by
stringent standards.
See, e.g., H. P. Hood v. Du Mond,
336 U. S. 525,
336 U. S.
531-532. No case is cited, and I have found none, in
which a
bona fide health law was struck down on the ground
that some other method of safeguarding health would be as good as,
or better than, the one the Court was called on to review. In my
view, to use this ground now elevates the right to traffic in
commerce for profit above
Page 340 U. S. 359
the power of the people to guard the purity of their daily diet
of milk.
If, however, the principle announced today is to be followed,
the Court should not strike down local health regulations unless
satisfied beyond a reasonable doubt that the substitutes it
proposes would not lower health standards. I do not think that the
Court can so satisfy itself on the basis of its judicial knowledge.
And the evidence in the record leads me to the conclusion that the
substitute health measures suggested by the Court do not insure
milk as safe as the Madison ordinance requires.
One of the Court's proposals is that Madison require milk
processors to pay reasonable inspection fees at the milk supply
"sources." Experience shows, however, that the fee method gives
rise to prolonged litigation over the calculation and collection of
the charges.
E.g., Sprout v. City of South Bend,
277 U. S. 163;
Capitol Greyhound Lines v. Brice, 339 U.
S. 542. To throw local milk regulation into such a
quagmire of uncertainty jeopardizes the admirable milk inspection
systems in force in many municipalities. Moreover, nothing in the
record before us indicates that the fee system might not be as
costly to Dean as having its milk pasteurized in Madison. Surely
the Court is not resolving this question by drawing on its
"judicial knowledge" to supply information as to comparative costs,
convenience, or effectiveness.
The Court's second proposal is that Madison adopt § 11 of the
"Model Milk Ordinance." The state courts made no findings as to the
relative merits of this inspection ordinance and the one chosen by
Madison. The evidence indicates to me that enforcement of the
Madison law would assure a more healthful quality of milk than that
which is entitled to use the label of "Grade A" under the Model
Ordinance. Indeed, the United States Board of Public Health, which
drafted the Model Ordinance, suggests
Page 340 U. S. 360
that the provisions are "minimum" standards only. The Model
Ordinance does not provide for continuous investigation of all
pasteurization plants, as does § 7.21 of the Madison ordinance.
Under § 11, moreover, Madison would be required to depend on the
Chicago inspection system, since Dean's plants, and the farms
supplying them with raw milk, are located in the Chicago milkshed.
But there is direct and positive evidence in the record that milk
produced under Chicago standards did not meet the Madison
requirements.
Furthermore, the Model Ordinance would force the Madison health
authorities to rely on "spot checks" by the United States Public
Health Service to determine whether Chicago enforced its milk
regulations. The evidence shows that these "spot checks" are based
on random inspection of farms and pasteurization plants: the United
States Public Health Service rates the ten thousand or more dairy
farms in the Chicago milkshed by a sampling of no more than two
hundred farms. The same sampling technique is employed to inspect
pasteurization plants. There was evidence that neither the farms
supplying Dean with milk nor Dean's pasteurization plants were
necessarily inspected in the last "spot check" of the Chicago
milkshed made two years before the present case was tried.
From what this record shows, and from what it fails to show, I
do not think that either of the alternatives suggested by the Court
would assure the people of Madison as pure a supply of milk as they
receive under their own ordinance. On this record, I would uphold
the Madison law. At the very least, however, I would not invalidate
it without giving the parties a chance to present evidence and get
findings on the ultimate issues the Court thinks crucial -- namely,
the relative merits of the Madison ordinance and the alternatives
suggested by the Court today.