Rehearing Denied Feb. 1, 1943. See 318 U.S. 798 , 63 S.Ct. 528, 87 L.Ed. --.
Mr. Philip S. Ehrlich, of San Francisco, Cal., for appellants.
Messrs. Henry Heidelberg, of San Francisco, Cal., and Herbert Levy, of Baltimore, Md., for appellees.
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 [317 U.S. 423, 424] 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. State of Florida v. Knott, 308 U.S. 507 , 60 S.Ct. 72; State of Washington ex rel. Columbia Broadcasting Co. v. Superior Court, 310 U.S. 613 , 60 S.Ct. 1085; State of Missouri ex rel. Wabash Ry. Co. v. Public Serv. Comm., 273 U.S. 126 , 47 S.Ct. 311.
Judgment vacated and cause remanded.