John Quincy Adams v. City of Milwaukee
| Decision Date | 12 May 1913 |
| Docket Number | No. 247,247 |
| Citation | 228 U.S. 572,33 S.Ct. 610,57 L.Ed. 971 |
| Parties | JOHN QUINCY ADAMS, Plff. in Err., v. CITY OF MILWAUKEE and Gerhard A. Bading |
| Court | U.S. Supreme Court |
plaintiff in error.
[Argument of Counsel from pages 573-576 intentionally omitted] Messrs. Daniel W. Hoan and John J. Cook for defendants in error.
Error to review a judgment of the supreme court of Wisconsin sustaining the validity of an ordinance of the common council of the city of Milwaukee, regulating the sale of milk.1
1 No person shall bring into the city of Milwaukee for sale, either by wagon, cart, train, or any other kind of vehicle, or keep, have, or offer for sale or sell in said city, any milk or cream drawn from cows outside of said city, contained in cans, bottles, or packages, unless such cans, bottles, or other packages containing such milk or cream for sale, shall be marked with a legible stamp, tag, or impression, bearing the name of the owner of such cows from which such milk was drawn, giving his place of business, including the name of city, street, and number, or other proper address, and unless the owner or owners of such cows shall, within one year from the passage of this ordinance, file in the office of commissioner of health, a certificate of a duly licensed veterinary surgeon, or of any other person given authority by the State Live Stock Sanitary Board to make tuberculin tests, stating that such cows have been tested with tuberculin and found free from tuberculosis or other contagious diseases. Such certificate shall give a number which has been permanently attached to each cow, and a description sufficiently accurate for identification, stating the date and place of such examination, and such certificate shall be good for one year from date of its issuance. Such certificate, however, must be renewed annually and filed in the office of the commissioner of health, and each such certificate shall show in each case that the animals from which such milk was drawn are free from tuberculosis or other contagious diseases. All milk and cream from sick and diseased cows, or cows fed on refuse or slops from distilleries, or vinegar factories, unless such refuse or slops be mixed with other dry sanitary grain or food to a consistency of a thick mush, or other than good wholesome food, or milk that is dangerous, or that may affect or be detrimental to life or health, or that has been adulterated, or is below the standard fixed by § 17 of this chapter, or which does not conform to all other provisions of this chapter, shall, upon discovery thereof, be confiscated, forfeited, and immediately destroyed by or under the direction of the commissioner of health, becteriologist, on officer detailed, who shall, if done in good faith, be held harmless in damage therefor, in any suit or demand made.
The ordinance provides that no milk drawn from cows outside of the city shall be brought into the city, contained in cans, bottles, or packages, unless they be marked with a legible stamp, tag, or impression bearing the name and address of the owner of the cows, and unless such owner shall, within one year from the passage of the ordinance, file in the office of the commissioner of health a certificate of a duly licensed veterinary surgeon or other person given authority by the State Live Stock Sanitary Board to make tuberculin tests, stating that such cows have been found free from tuberculosis or other contagious diseases. The certificate is required to give a number which has been permanently attached to each cow and a description sufficient for identification. The certificate must be renewed annually, and must show that the cows are free from tuberculosis or other contagious diseases.
A short time before the ordinance was to go into effect this suit was brought against the city and Dr. Bading, its health commissioner, to restrain the enforcement of the ordinance. After a hearing, judgment was entered, dismissing the complaint, and the judgment was affirmed by the supreme court of the state.
The plaintiff (we shall so call him) alleged that he brought the suit for himself and all other producers of and dealers in pure, wholesome milk, as it involved a question of common interest to many persons. He alleged also the following: He is a farmer, living about 17 miles from Milwaukee, and maintains a large dairy herd of cattle, and is enjoying a profitable dairy business, shipping milk into Milwaukee to certain retail milk dealers in the city. His herd is healthy, so far as he is able to know or judge. He keeps his stables wholesome and clean, and if his cows become sick or affected in any way with any infectious or contagious disease, so far as he is able to learn or discover by giving careful attention to his herd in its feeding and care, he removes such animals immediately. So far as he is able to discover, his herd is absolutely free from disease, and the milk he offers for sale in Milwaukee, or will offer for sale, is and will be, so far as he is able to discover, absolutely pure and wholesome; and all that proves to be impure and unwholesome upon being tested in the usual and customary manner will be withdrawn from sale.
Bading, as commissioner of health of the city of Milwaukee, threatens, on and after April 1, 1909, to execute the ordinance, and confiscate, forfeit, and destroy all milk shipped by plaintiff and other producers to be sold in Milwaukee contrary to the requirements of the ordinance, unless restrained; and if he does so irreparable injury will be caused plaintiff and such other producers, and make their business of maintaining a dairy absolutely unprofitable as well as impracticable.
The tuberculin test required by the ordinance is, as plaintiff is informed and believes, wholly unreliable, untrustworthy, and entirely worthless so far as being a guide or protection to the public as to whether or not the cows tested by it are free from the germs of tuberculosis or any other infectious disease.
The milk threatened to be confiscated, shipped to Milwaukee for sale by plaintiff and other producers, when pure and wholesome is not dangerous to public health because, perchance, the owners of the cows producing the milk have not had the cows tested, or have failed to secure the certificate of a veterinary surgeon or other person, as required by the ordinance.
It is alleged that the Constitution of the state and the 14th Amendment of the Constitution of the United States are violated.
A motion to dismiss is made on the ground that the questions in this case, under the decisions of this court, are so far foreclosed as to make their discussion unnecessary. The motion is overruled.
The particular contention of plaintiff is that the ordinance violates the 14th Amendment to the Constitution of the United States because it discriminates between milk drawn from cows outside of Milwaukee and milk drawn from cows within the city. Therefore the charge is that the ordinance does not affect all persons alike. If we regard the territorial distinction merely, that is, milk from cows outside and milk from cows within the city, there is certainly no discrimination. All producers outside of the city are treated alike. Plaintiff identifies himself in interest with all of them and sues for all of them. He therefore seeks grounds of comparison other than the locality of the dairies, and urges that the discrimination exists in the difference between the tests to which cows kept outside of the city are subject and the test to which cows within the city are subject.
To sustain his contention plaintiff in error cites an ordinance of the city which provides that no cows or cattle shall be kept in the city without permit from the commissioner of health, except at places provided or established for purposes of slaughtering, and that the stables and places where such animals may be shall be kept at all times in a cleanly and wholesome condition and properly...
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