Natural Milk Producers Ass'n v. City & County of San Francisco

THE COURT. The above entitled cause was heard and determined by a decision of this court on April 2, 1942 (Natural Milk etc. Assn. v. City etc. of San Francisco, 20 Cal.2d 101 [124 P.2d 25]), in which decision the judgment of the trial court was affirmed. Thereafter plaintiffs appealed to the Supreme Court of the United States. That court made the following order: “In this case appellants contend that the San Francisco Milk Ordinance violates the Fourteenth Amendment because it requires non-pasteurized raw milk sold in San Francisco to be certified by, and to conform to standards prescribed by, the Milk Commission of the San Francisco Medical Society, instead of by a public board or officer, while at the same time prohibiting the sale of all other non-pasteurized milk, including ‘guaranteed raw milk’ which appellants allege is the same as certified raw milk. Subsequent to the trial of the case, the Milk Commission of the San Francisco Medical Society determined that non-pasteurized milk could not be certified by it as free from harmful bacteria, and promulgated an order accordingly, effective January 15, 1939. This fact, which apparently was not called to the "attention of the Supreme Court of California, renders moot the federal questions raised by appellants, since all milk sold in San Francisco, not certified by the Milk Commission of the Medical Society, is required by the ordinance to be pasteurized, and since appellants do not by this suit challenge the validity under the Fourteenth Amendment of the pasteurization requirement. In order that the state court may make proper disposition of the case in the light o"f the fact that the federal questions cannot be decided here, we vacate the judgment, without costs to either party in this Court, and remand the cause to the Supreme Court of California for such further proceedings as it may deem appropriate.’’

The instant action is one by plaintiffs seeking to have enjoined the enforcement of an ordinance of the city and county of San Francisco on various constitutional grounds. As evident from the foregoing order of the Supreme Court of the United States the issue of whether or not the ordinance was discriminatory because it permitted the sale of certified milk, a raw milk, was considered moot because since the trial of the action the Milk Commission of the San Francisco Medical Society adopted a resolution requiring certified milk to be pasteurized, and further, that no claim was made by plain[124]tiffs in the Supreme Court of the United States that a law requiring all milk to be pasteurized is unconstitutional.