MTW, inc. v. City of Milwaukee

• Decision Date: 08 June 1971
• Docket Number: No. 71-C-56.,71-C-56.
• Citation: 327 F. Supp. 990
• Parties: MTW, INC., a Corporation, Plaintiff, v. The CITY OF MILWAUKEE, a municipal corporation, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

327 F. Supp. 990

MTW, INC., a Corporation, Plaintiff, v. The CITY OF MILWAUKEE, a municipal corporation, Defendant.

No. 71-C-56.

United States District Court, E. D. Wisconsin.

June 8, 1971.

Ted E. Wedemeyer, Jr., Milwaukee, Wis., for plaintiff.

John J. Fleming, City Atty., by Charles R. Theis, Asst. City Atty., Milwaukee, Wis., for defendant.

DECISION and ORDER

MYRON L. GORDON, District Judge.

The complaint in this action seeks to have certain portions of an ordinance of the city of Milwaukee declared unconstitutional. Injunctive relief is also sought. This decision concerns the plaintiff's request for a temporary restraining order.

The jurisdiction of the court is purportedly invoked under 28 U.S.C. § 1331, which gives this court jurisdiction as to matters arising "under the Constitution, laws, or treaties of the United States." The ordinance in question, at least upon its face, relates to licensing the sale of milk or milk products in the city of Milwaukee. The plaintiff urges that the legislative background of the ordinance demonstrates that it was designed to "retaliate" against certain out of state distributors; in spite of this claim, there exists a doubt in my mind as to the presence of a federal question.

The ordinance in question provides, in part, that it is unlawful

"* * * to bring into, send into, or receive into the City of Milwaukee, 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 products defined in this chapter, unless the commissioner of health has issued a license authorizing said persons to do so."

This language is quite different in scope and content from that before the court in Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032 (1935), where the New York enactment attempted to regulate the price to be paid for milk in Vermont. Said the court, at p. 527, 55 S.Ct. at p. 502:

"* * * What is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation. Formulas and catchwords are subordinate to this overmastering requirement. Neither the power to tax nor the police power may be used by the state of destination with the aim and effect of establishing an economic barrier against competition with the products of another state or the labor of its residents. Restrictions so contrived are an unreasonable clog upon the mobility of commerce. They set up what is equivalent to a rampart of customs duties designed to neutralize advantages belonging to the place of origin. They are thus hostile in conception as well as burdensome in result."

I am not persuaded that the ordinance in question "establishes an economic barrier" against the plaintiff's products.

The ordinance involved in Dean Milk Co. v. City of Madison et al., 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329 (1951), was also patently discriminatory. At p. 354, 71 S.Ct. at pp. 297-298, the Supreme Court commented:

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 page 521, 55 S.Ct. at page 500. In thus erecting an economic barrier protecting a major local industry against competition from without the State, Madison plainly discriminates against interstate commerce. 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, 294 U.S. at page 524, 55 S. Ct. at page 500; Minnesota v. Barber, 136 U.S. 313, 328, 10 S.Ct. 862, 866, 34 L.Ed. 455 (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. 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865. 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, 211 64 S.Ct. 967, 973, 88 L.Ed. 1227 (1944).

In the same case, the Supreme Court also noted that a city may impose reasonable inspection provisions, saying, at p. 355, 71 S.Ct. at p. 298:

"* * * 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. 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."

A very recent ruling of the United States Supreme Court suggests that the ostensible "purpose" behind legislation is not automatically a...