Miller v. Williams

• Citation: 12 F. Supp. 236
• Decision Date: 07 October 1935
• Docket Number: No. 2393.,2393.
• Parties: MILLER v. WILLIAMS.
• Court: U.S. District Court — District of Maryland

12 F. Supp. 236

MILLER v. WILLIAMS.

No. 2393.

District Court, D. Maryland.

October 7, 1935.

J. Purdon Wright and Samuel Carliner, both of Baltimore, Md., for plaintiff.

Paul F. Due, Asst. City Sol., of Baltimore, Md., for defendant.

CHESNUT, District Judge.

This case involves the validity of a regulation of the Health Commissioner of Baltimore City which, in effect, prohibits the sale or use of cream for the manufacture of ice cream in Baltimore City when the cream is produced from dairies situated outside of a zone which is limited by a distance of fifty miles from Baltimore City, except in a so-called "emergency," that is, when there is a shortage in quantity of the supply of local cream as compared with the consumptive demand therefor. The regulation approved May 28, 1931, and still effective, is No. 71 and reads as follows:

"Emergency Shipments. Emergency Permits. Dairy plants which lie outside of the regular Baltimore inspection area (as defined in Paragraph No. 2) and which comply with the Regulations of the Baltimore City Health Department concerning the Control of Milk and Milk Products handled in Dairy Plants, and with such additional rules or regulations as may hereafter be prescribed or established by the Commissioner of Health, may be granted Emergency Dairy Plant Permits. Such permitees may ship to Baltimore only when there is insufficient cream or milk products available within the before mentioned inspection area which has been produced and handled in compliance with all regulations and under the immediate inspection supervision of the Baltimore City Health Department."

Paragraph No. 2 above parenthetically referred to reads as follows:

"Dairy Farm Permits and Dairy Plant Permits to ship milk and milk products to this city will be issued only for those farms and plants that are located within the inspection area of Baltimore and at a distance not greater than 50 miles from this city."

In sections 72 and 73 the provision is made that application for emergency dairy plant permits must be accompanied by a fee of $10; and the Commissioner of Health or his representative shall inspect the conditions in handling and controlling the sanitary production and if found approvable the permit will be issued provided, however, that the traveling expenses and subsistence of the inspectors shall be paid by the applicant; such inspections to be made at intervals at least three times annually. Section 74 provides that the Commissioner of Health may refuse to inspect for emergency permits when in his judgment the plant is too remote or practically inaccessible from Baltimore or where such circumstances of production or handling exist as to probably preclude compliance with regulations of the Health Department by the applicant, or where the Department has not sufficient personnel to maintain an effective sanitary control, or for any other similar reason not expressly defined. Section 77 provides that emergency permitees shall operate and maintain their plants in compliance with the regulations of the Health Department; and all milk shall be from cattle which have been regularly tuberculin tested at least once a year or are officially accredited and regarded as tuberculin tested. Section 79 requires the dairy plant to maintain dairy farm inspection and laboratory control of type approved by the Baltimore Health Department and keep the records thereof on file for inspection. Section 81 provides that emergency cream products may be shipped only in sealed cars containing no other product and must be consigned only to local plants which are licensed to receive emergency milk products and may not be consigned to more than one receiver in Baltimore. And there are other detailed provisions for the inspection, operation and shipment of such milk or cream, including pasteurization. Persons in Baltimore City engaged in handling such emergency cream by the sale thereof or the use for manufacture into ice cream or other products must also obtain appropriate permits therefor and become subject to the regulations.

The plaintiff's bill alleges that he is a citizen of Pennsylvania with principal place of business in Philadelphia and with a branch office in Baltimore, and has been engaged for some years in the shipment in interstate commerce of dairy products, including cream, from Philadelphia and western points to various places in Maryland, including Baltimore, and also to Washington and points in Virginia; he holds a permit for handling emergency cream in Baltimore, and he has for some years past been shipping into Baltimore cream from the dairy plants of the Hershey Creamery Company of Chambersburg, Pennsylvania, and the Galloway-West Company of Fond du Lac, Wisconsin, and the Dry Milk Company of Columbus, Wisconsin, to all of which companies emergency permits have been issued by the Commissioner of Health of Baltimore City, after inspection by the Department, the expenses of which have been paid, and the cream on arrival in Baltimore has been from time to time sampled and inspected without any condemnations or rejections for a period of ten years. The testimony in general establishes these facts except as to the plaintiff's local license, to be hereafter mentioned. It is further alleged, and the proof shows, that on or about September 6, 1935, the Baltimore City Health Commissioner notified the plaintiff and one of its principal customers that they would no longer be permitted to sell or use cream (for ice cream) produced outside of the 50 mile area except in cases where there is local shortage of cream. Foreign cream for use in other manufactured foods, such as candy, or for resale outside of Baltimore, is not supervised by the Health Commissioner.

The plaintiff submits the contention that this action of the Baltimore City Health Commissioner and the regulation on which it is based, constitute an unreasonable and invalid interference with the plaintiff's business and an unconstitutional interference with freedom of interstate commerce. An injunction is asked against the enforcement of the regulation.

The substance of the defendant's answer justifies his action and maintains the validity of the regulation. Reference is made to the ordinance of Baltimore City, Art. 16, §§ 52 to 81 (which it is admitted was duly passed under the police power granted by the Legislature to Baltimore City, and has been sustained by the Maryland Court of Appeals, Creaghan v. Baltimore, 132 Md. 442, 104 A. 180), regulating the sale and distribution and use of milk and cream in Baltimore City (Baltimore City Code, 1927). Section 52 provides that persons dealing in milk and cream in Baltimore City must obtain permits from the Health Commissioner. Section 55 provides:

"The Commissioner of Health shall have power to adopt such regulations as he may deem proper and necessary to insure all milk and cream intended for consumption in Baltimore City being produced, transported, stored, kept, distributed, retailed and delivered under conditions rendering them suitable for consumption as human food; and to compel perfect hygienic and sanitary conditions of all cow stables, creameries and dairies from which milk and cream so intended for consumption in Baltimore City are produced; such regulations not to be inconsistent with existing laws or ordinances, and copies of the same to be printed and kept for free distribution to the public; and said Commissioner of Health shall have power to prohibit the sale within the corporate limits of Baltimore City of Milk or cream produced, transported, stored, kept, distributed, retailed or delivered contrary to such regulations, whether said milk or cream be produced within or outside the corporate limits of the City of Baltimore; and to the end that said regulations may be enforced in the case of milk or cream produced outside the corporate limits of the City of Baltimore, but intended for consumption therein, said Commissioner of Health may require such of the city milk inspectors as he may designate for the purpose to make inspection at such intervals and times as he may deem expedient of all dairy farms, stables and other places outside the City of Baltimore from which milk or cream are shipped for consumption in Baltimore City."

It will be noted that the provision with regard to the 50 mile area is a regulation made by the Health Commissioner under the assumed authority of the Ordinance. It is not contained in the Ordinance itself and is, of course, not a statute of the State of Maryland, and counsel agree that no Maryland statute affects the case. The reason for the adoption of this regulation is interestingly told in the testimony of Dr. Huntington Williams, the Health Commissioner, of Baltimore City. So far as is known, no other city or district in the United States has a similar regulation affecting its milk and cream supply. In this respect the regulation is said, from the scientific and sanitary aspect, to be a very distinct advance in milk and cream sanitation over the systems prevailing in other places. The proximate cause of the regulation is traced to the early advanced development of Public Hygiene by Dr. William H. Welch, who recently died after a most illustrious career as an eminent pathologist and expert in public hygiene. Largely due to his instruction and influence Baltimore City early gave very careful attention to the regulation of its milk supply. From time to time the ordinances and regulations of the Health Department have been changed and modified in order to insure as nearly as possible ideal sanitation with respect to milk and cream. The basic reason for the regulation as explained by Dr. Williams and his assistant, Mr. Lescure, is that it is not practicable or reasonably possible to effectively inspect and supervise the dairy production of milk at a greater distance than 50 miles from Baltimore; because production of an ideal milk supply is dependent very largely upon the...