Opinion
Docket No. S.F. 16105.
April 13, 1944.
On hearing after remand from the Supreme Court of the United States, prior opinion ( 20 Cal.2d 101, 124 P.2d 25) approved and adopted.
Philip S. Ehrlich, Albert A. Axelrod and Julien R. Bauer for Appellants.
John J. O'Toole, City Attorney, and Henry Heidelberg, Deputy City Attorney, for Respondents.
Sullivan, Roche Johnson, Eustace Cullinan, Jr., Bartley C. Crum, Chauncey Tramutolo and Pillsbury, Madison Sutro, as Amici Curiae on behalf of Respondents.
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 of 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 plaintiffs in the Supreme Court of the United States that a law requiring all milk to be pasteurized is unconstitutional.
Plaintiffs again advance substantially the same arguments as heretofore made before this court. We adhere to the views expressed in our former opinion and adopt them now as the decision of this court.
Plaintiffs do not desire to sell certified milk in San Francisco. They assert that they should be entitled to sell raw milk. The fact that the Milk Commission made its pasteurization requirement for certified milk does not alter the result. Whether or not it had the authority under the ordinance to require pasteurization of certified milk (the ordinance appears to indicate that certified milk may be raw milk) need not be decided inasmuch as plaintiffs are not interested in selling certified milk, raw or pasteurized. The trial court denied the injunction and as we adhere to our former decision there is no ground for reversing the judgment of the trial court.
For the foregoing reasons we hereby adopt our former opinion and affirm the judgment of the trial court.
Schauer, J., did not participate.
I was not in agreement with the conclusions stated by my associates in the opinion upon which the former decision was based ( 20 Cal.2d 101 [ 124 P.2d 25]) and do not join in the present determination of the case.