Dean Milk Company v. City of Madison, Wisconsin/Dissent Black
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 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. People of State of New York, 340 U.S. 315, 71 S.Ct. 303. For while the 'reasonable alternative' concept has been invoked to protect First Amendment rights, e.g., Schneider v. State of New Jersey, 308 U.S. 147, 162, 60 S.Ct. 146, 151, 84 L.Ed. 155, 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 (Simpson v. Shepard), 230 U.S. 352, 406, 33 S.Ct. 729, 743, 57 L.Ed. 1511; Gibbons v. Ogden, 9 Wheat. 1, 203, 204, 6 L.Ed. 23; Mintz v. Baldwin, 289 U.S. 346, 349-350, 53 S.Ct. 611, 613, 77 L.Ed. 1245; and see Baldwin v. G.A.F. Seelig, 294 U.S. 511, 524, 55 S.Ct. 497, 500. 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, 531-532, 69 S.Ct. 657, 661, 93 L.Ed. 364. 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 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, 48 S.Ct. 502, 72 L.Ed. 833; Capitol Greyhound Lines v. Brice, 339 U.S. 542, 70 S.Ct. 806. 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 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. 

Notes