Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DIXIE DAIRY COMPANY v. CITY OF CHICAGO

March 15, 1973

DIXIE DAIRY COMPANY, A CORPORATION, PLAINTIFF,
v.
CITY OF CHICAGO, A MUNICIPAL CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes on the defendants' motion for summary judgment.

This is an action for declaratory judgment and injunctive relief based on the alleged unconstitutionality of a City of Chicago ordinance and the actions of the Chicago Board of Health pursuant to that ordinance. Damages, resulting from loss of revenue and profits, are alleged to substantially exceed $10,000 exclusive of interest and costs.

The plaintiff is the Dixie Dairy Company ("Dixie"), an Illinois corporation engaged in the business of purchasing, distributing and selling Grade A milk and milk products processed at its plant in Gary, Indiana. Dixie is the holder of an Illinois Department of Public Health Permit which authorizes it to distribute Grade A milk and milk products within the state. The defendants are the City of Chicago, the City of Chicago's Board of Health ("Board of Health"), Dr. Murray Brown (the Commissioner of the Board of Health) and the individual members of the Board of Health.

The plaintiff in its amended complaint alleges the following facts: All of plaintiff's fluid milk and milk products have been and are produced, pasteurized and processed under regulations, standards and sanitation requirements provided by the 1965 United States Public Health Service Model Grade A Ordinance and amendment thereto. These provisions have been substantially adopted by statute in the State of Indiana and by regulation in Illinois. Indiana, by statute, and Illinois by regulation provide that Grade A milk and milk products having their source from points beyond the limits of routine inspection may be sold in their respective states when two conditions are satisfied. First, the milk and milk products must be produced and pasteurized under regulations substantially equivalent to those of the receiving state and, second, the shipping processor must have been awarded an acceptable (90% or higher) milk sanitation compliance and enforcement rating made by a state milk sanitation rating officer certified by the United States Public Health Service.*fn1

Pursuant to the foregoing regulatory scheme plaintiff applied for and received a permit from the Illinois Department of Public Health for sale and distribution of its Grade A Fluid Milk and milk products within the boundaries of Illinois. Plaintiff's processing plant and most of its milk producers are located at points beyond the limits of routine inspection by the State of Illinois. Thus plaintiff alleges that the Illinois permit was issued on the following basis (1) that plaintiff's milk and milk products were produced and pasteurized under regulations which were and are substantially equivalent to the regulations of the State of Illinois, and (2) that plaintiff has been awarded a 90% or higher milk sanitation compliance and enforcement rating by a State of Indiana milk sanitation rating officer certified by the United States Health Service.

Under the Illinois State permit, plaintiff, during the past several years, has sold annually approximately $3,000,000 worth of Grade A Fluid Milk and milk products to food stores and other customers within the State of Illinois. However, plaintiff has not been allowed to sell any of its milk products within the City of Chicago.

The City of Chicago Grade A Milk Ordinance (Municipal Code of Chicago, Chapter 154, "Milk and Milk Products") provides in relevant part:

  154-8. Permit To Sell. It shall be unlawful for any
  person to bring into or receive into the city, for
  sale, or to sell or to offer for sale therein . . .
  any milk or milk product unless such person possess a
  permit from the board of health. . . .
  154-19. Products Shipped From Beyond Limits. Milk
  and milk products from points beyond the limits of
  inspection of the city may not be sold in the city
  unless produced and pasteurized under provisions
  identical with those of this chapter and approved by
  the board of health. In order that inspections by the
  board of health may be adequate, thorough, and
  effective, the board of health may confine its
  inspections within such points and territorial limits
  as the board of health may, from time to time, deem
  necessary to insure economic and proper supervision,
  and to safeguard and promote the public health of the
  city.
  154-22. Penalty. Any person violating any provision
  of this chapter shall be fined not less than five
  dollars nor more than two hundred dollars for each
  offense. Each and every day on which the violation of
  any of the provisions of this chapter occurs shall
  constitute a separate and distinct offense.*fn2

The plaintiff alleges that the Chicago Board of Health has interpreted Chapter 154-19 (products shipped from beyond limits of inspection of the city) as applying only in emergency situations (e.g. flood, blizzard or strike). Consequently there is no provision in the existing Chicago milk ordinance for issuance of a permit to an out-of-state processor on the basis of the shipping state's inspection as is provided by Indiana and Illinois in their respective statutes and regulations. Further, as a matter of practice, the Chicago Board of Health refuses to issue a permit on the basis of the shipping state's inspection notwithstanding the fact that the shipping state's sanitary standards and enforcement procedure are allegedly equal to or more rigid than Chicago's. The Chicago Board of Health insists on conducting its own inspection and regulation of the out-of-state processor's sources and processing plant as a mandatory condition to the grant of a permit even though such processor's sources and processing plant are located beyond the city's jurisdictional limits of inspection. The City of Chicago will not grant a permit on the basis of inspection of the finished product within the geographic limits of its inspection authority provided in Chapter 24, § 7-4-1 of the Illinois Revised Statutes.

The plaintiff contends that because of the unconstitutional ordinance and the municipal actions it cannot sell its Grade A milk and milk products within the City of Chicago without submitting to unauthorized, extraterritorial and usurpatory inspection and regulation by the Chicago Board of Health and that any attempt to sell its products without a permit would subject such products to seizure and confiscation.

The plaintiff in its two count complaint claims that the aforementioned actions by the City of Chicago and its Board of Health are unconstitutional. In Count I of the complaint, the plaintiff, Dixie Dairy, alleges that the action of the defendants in failing to issue a permit to out-of-state processors, including plaintiff, except on the basis of defendants' own unauthorized inspection and regulation constitutes and imposes an unreasonable and discriminatory burden on the free flow of interstate commerce in the sale and distribution of fluid milk and milk products. Plaintiff further alleges that defendants' failure to (1) provide either inspection facilities in the City of Chicago or within one-half mile from the city where plaintiff can qualify for a permit, or (2) provide for the issuance ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.