171 Wis. 514 | Wis. | 1920
Lead Opinion
The ordinance in question, as declared in its title, pertains to “The pasteurization of milk,” and adds to the Milwaukee Code of Ordinances of 1914 six new sections. Sec. 787.5 provides:
“All milk hereafter sold in the city of Milwaukee, except certified milk and inspected milk, shall be pasteurized by either the holding or the flash system.”
This section requires That an automatic heat-recording device, approved by the health officer, must be used to record
“All milk pasteurized ... by the holding system shall be heated to a temperature of not less than one hundred forty-five degrees Fahrenheit and shall be continuously held at that temperature for thirty minutes and shall then be promptly and quickly cooled to a temperature not exceeding fifty degrees Fahrenheit.”
The milk subject to the flash system shall'be likewise treated except that it shall be heated to 165 degrees and held there for one and one-half minutes and then cooled as above prescribed. Sec. 787.8 provides that milk so pasteurized “shall not be reheated or repasteurized for the purpose of sale as food for human beings.” Other sections define certified and inspected milk and prescribe penalties for the violation of any provision of the ordinance.
The motion to dissolve the temporary injunction'challenges the sufficiency of the complaint. Harley v. Lindemann, 129 Wis. 514, 109 N. W. 570. The injunctional order procured from the court commissioner was dissolved by the circuit court upon the ground that the city ordinance providing for the pasteurization of milk is a valid regulation and hence the complaint states no cause of action. The plaintiffs claim that this ruling is erroneous upon the grounds that the prescribed pasteurization does not promote the public health, because the milk subjected to it is deteriorated as a food product, that it does not destroy pathogenic bacteria in the milk, that it in no way tends to make or preserve the milk as a more healthful article of food, and that the milk subjected to this process of pasteurization is not as wholesome, healthful, and as good an article of food as milk in the natural state drawn from cows. The questions raised by these contentions involve the inquiry of scientific facts concerning the pasteurization of milk. The importance of securing a supply of pure and wholesome milk for human consumption is universally acknowledged.
Public health demands that milk and all milk products should be pure and wholesome. It is also common knowledge that milk containing deleterious organisms is an unsuitable article of food. Milk is known to be a product easily infected with germ life and to require special attention and treatment in its production and distribution for corisumption as an article of food. Scientific knowledge concerning these facts and the best method of pasteurizing milk for human use in course of production and distribution as a pure and wholesome food is so generally understood and known that courts take judicial notice of these facts. It is a generally accepted fact that when milk is heated to a temperature of 145 degrees Fahrenheit and sustained at that point for thirty minutes, the disease-causing germs are destroyed. Such pasteurization may be performed at the home or at the distributing stations. Under these circumstances and conditions of the milk business it was proper for the common council of the city of Milzvaukee to determine in its legislative function what means and methods were best adapted to accomplish the object of supplying the people of the city of Milwaukee with wholesome milk. The objection to the method adopted by the common council for the pasteurization of the city’s milk supply cannot avail in this case for holding the ordinance invalid, because that subj ect is one within the legislative power of the common council under the powers conferred by the city charter. The system of pasteurization provided for in the ordinance is one in common use and hence is not subject to the objection that it is an untried and unpracticed scheme as alleged by the complainants. The provisions for supplying certified and inspected milk require of dealers what is appropriate to furnish a wholesome and pure product in the conduct of the milk trade. In the light of these known facts and practices regarding the pasteurization treatment of milk to destroy
It is considered that the ordinance is a proper regulation of the milk supply of the city and that it is an appropriate and valid regulation for the protection of the people’s health.
By the Court. — The order appealed from is affirmed.
Dissenting Opinion
(dissenting): The majority opinion holds as a matter of law that pasteurization of milk is a provision that may lawfully be required within a proper exercise of the legislative discretion vested in the ‘common council. I think, however, that such was not the only question involved under the allegations of the complaint, and that a person so challenging such an ordinance should have an opportunity to do so upon due hearing and with the opportunity to offer testimony from those who have acquired expert knowledge in such particular field of scientific knowledge.
