NATURAL MILK PRODUCERS ASS OF CALIFORNIA ET AL v. CITY AND COUNTY OF SAN FRANCISCO ET AL (1941)

The plaintiffs sought a decree enjoining the defendants from executing subdivisions 1, 2, 3, 4, 7, and 12, of section 3 of ordinance No. 17,052 of the city and county of San Francisco which is known as the Milk Ordinance. The trial court refused to grant the decree, made findings in favor of the defendants, and from the judgment entered thereon the plaintiffs have appealed.

The plaintiffs contend that a party injured by a void ordinance may attack it to enjoin its enforcement. They cite and rely on Abbey Land, etc., Co. v. San Mateo, 167 Cal. 434, 139 P. 1068, 52 L.R.A.,N.S., 408, Ann.Cas.1915C, 804; Greenfield v. Board of City Plan. Com'rs, 6 Cal.App.2d 515, 45 P.2d 219; Wallace v. Currin, 4 Cir., 95 F.2d 856; Jellen v. O'Brien, 89 Cal.App. 505, 264 P. 1115. The defendants concede the rule but claim the authorities are not applicable to the facts in the instant case. The defendants point out that each of the cited cases dealt with the rights of an established business. Continuing the defendants quote from the findings showing that the plaintiff Natural Milk Producers Association of California is not now and never was engaged in the production and distribution of milk; that the plaintiff C. B. Clowes is engaged in the production and distribution of milk in San Joaquin county but not in the city and county of San Francisco; and that many months before the action was tried the plaintiff Krobitzsch had sold out his dairy interests and was not engaged in the production or distribution of milk in San Francisco. Under these facts the defendants contend that the plaintiffs had not suffered and would not suffer any irreparable injury and that the decree denying them an injunction was altogether proper. Golden Gate S. T., Inc. v. San Francisco, 21 Cal.App.2d 582, 69 P.2d 899; Willis v. Lauridson, 161 Cal. 106, 118 P. 530.

The rule just stated is controverted by the plaintiff Krobitzsch. He calls attention to the fact that he was engaged in the milk business in San Francisco when the ordinance was enacted and claims therefore that he is entitled to maintain this action. We think not. The most that can be said in his behalf is that from the date when he sold all of his dairy interests the case as to him presented merely a moot question. California Prune & A. G. Ass'n v. Orchard Co., 195 Cal. 264, 232 P. 463.

Closely allied to the proposition last stated the defendants also quote from the findings to the effect that the plaintiffs had a plain, speedy and adequate remedy at law and therefore were not entitled to ask for a decree in equity. Continuing they quote from the findings to the effect that no one of the plaintiffs prior to the commencement of this action applied for a permit under the ordinance. If that application had been made and refused the applicant had a remedy by applying for a writ of mandamus. In that proceeding the validity of the ordinance could have been inquired into and all of the rights of the applicant protected and enforced. Lang's Creamery v. City of Niagara Falls, 251 N.Y. 343, 167 N.E. 464; Mutual Elec. Light Co. v. Ashworth, 118 Cal. 1, 50 P. 10; South Pasadena v. Pasadena Land, etc., Co., 152 Cal. 579, 93 P. 490. Those authorities are directly in point and support the contention of the defendants. However the plaintiffs cite and rely on Mayor, etc., of Baltimore v. Baltimore County Water & E. Co., 95 Md. 232, 52 A. 670; Davies v. City of Seattle, 67 Wash. 532, 121 P. 987; and Naderhoff v. Prudential Mut. L. Ins. Ass'n, 26 Cal.App.2d 73, 78 P.2d 753. An examination of those authorities discloses that no one of them states any rule at variance with what we have just said. The Naderhoff case holds that whenever a party under his pleading is entitled to certain relief the courts will not deny him any relief because he has asked for the wrong relief; but, on the other hand, that said party will be granted such relief as, under his pleadings, he is entitled to. However, in the instant case under the pleadings it may not be said that any one of the plaintiffs has asked for a permit, that the permit has been denied, and that a writ should issue commanding the issuance to said party of a permit. Code Civ.Proc. § 1085.

The plaintiffs quote passages from the ordinance which prohibit the sale to consumers of non–pasteurized guaranteed raw milk and grade A raw milk and contend they conflict with provisions of a general law and therefore such passages contained in the ordinance are void. § 11, Art. XI, State Const.; Mann v. Scott, 180 Cal. 550, 182 P. 281; Ex parte Daniels, 183 Cal. 636, 192 P. 442, 21 A.L.R. 1172. If there is a conflict the contention is sound. But a careful reading of the ordinance does not disclose any conflict. True the passages contained in the ordinance, which prescribe pasteurization, place additional limitations on sales, but such additional limitations do not create a conflict and they are not inhibited. In re Hoffman, 155 Cal. 114, 117, 118, 99 P. 517, 132 Am.St.Rep. 75.

The point last discussed is based specifically on the provisions of the Agricultural Code. It assumes the Agricultural Code was first adopted and thereafter ordinance No. 17,052 was adopted. But that is not the fact. The ordinance was adopted and took effect May 1, 1933. At that time it was not in conflict with any provisions contained in the Agricultural Code which was later adopted and took effect August 21, 1933, St.1933, p. 60––about three months later. True it is that the Agricultural Code codified certain statutes. Stats.1927, p. 1944, and others. But it also made certain amendments. Excepting the Agricultural Code, the plaintiffs do not specify any statute with which they claim the ordinance was in conflict. If there was no conflict when the ordinance was enacted it was valid. If later general statutes were enacted which raised a conflict the ordinance which was valid when enacted remained valid. But the conflicting provisions of the ordinance would be superseded by the general law. In re Berry, 147 Cal. 523, 525, 82 P. 44, 109 Am.St.Rep. 160. Subdivision 1, section 3 of the ordinance in effect required that guaranteed milk, grade A milk, and grade B milk be pasteurized before sale in San Francisco for human consumption. We have examined the general statutes and we do not find a single provision stating in effect any of those grades need not be pasteurized before being sold in San Francisco.

The plaintiffs contend that the ordinance grants special privileges and immunities to certain vendors which are denied to others and that such grants are void. § 21, art. I, State Const., and 14th Amend. U.S.Const. They also claim the ordinance contains invalid provisions delegating legislative powers. We find no merit in either contention. In subdivision 1 of section 3, it is provided: “* * * (a) certified milk, (b) guaranteed pasteurized milk, (c) grade A pasteurized milk and (d) grade B pasteurized milk, and no other milk, shall be sold, offered or exposed for sale, exchanged or delivered for human consumption within the City and County of San Francisco. * * *” Subdivision 2 provides: “Certified milk: Certified milk is market milk which conforms to the rules, regulations, methods and standards for the production and distribution of certified milk adopted by the American Association of Medical Milk Commissions and must bear the certification of the milk commission of the San Francisco County Medical Society. * * *” The plaintiffs argue that under the latter provision the American Association of Medical Milk Commissions is delegated the power to set the qualifications of certified milk. That said association had established or caused to be established a high grade of milk under the trade name and brand of certified milk is an admitted fact. The record is wholly silent as to the quality of that grade as compared to the other grades above mentioned. Assuming that the American Association of Medical Milk Commissions may from time to time change its rules and regulations and that certified milk will be greatly depressed in quality, the plaintiffs are not purchasers and they may not complain. A. F. Estabrook Co. v. Industrial Acc. Comm., 177 Cal. 767, 177 P. 848. The ordinance adopts certified milk as a high standard. Whether that high standard was created by a public body or a private body is immaterial. Ex parte Gerino, 143 Cal. 412, 77 P. 166, 66 L.R.A. 249. However the plaintiffs contend the American Association may so amend its rules and regulations as to impose additional burdens on vendors of certified milk. That argument leads nowhere. In the Gerino case it might have been argued with equal force that the medical colleges, used as the standard, might cause their curriculums to be changed. Finally, solely for the purposes of this decision, we will assume the insertion in subdivision 2 of section 3 of the words “rules, regulations,” rendered said section invalid as a delegation of legislative powers. Those words however may be stricken out without in any manner affecting the rest of the ordinance. It was drawn with that rule definitely in mind. Section 23 is a very full, broad and complete saving clause and expressly covers the subject. Under such circumstances it is the settled law of this state that the objectionable words will be ignored and the rest of the legislative enactment will be given full force and effect. Bacon Service Corporation v. Huss, 199 Cal. 21, 248 P. 235. It follows that the contention made by these plaintiffs has no merit.

The plaintiffs further contend that certified milk is raw milk and the ordinance does not require that it be pasteurized; however it does require that all other grades of raw milk must be pasteurized. They then assert that the ordinance creates two classes between which there is no “natural, constitutional or intrinsic distinction”. That assertion begs the question. The ordinance is presumed to be valid. Jardine v. City of Pasadena, 199 Cal. 64, 248 P. 225, 48 A.L.R. 509. On him, who would question its validity, rests the burden. San Diego Water Co. v. San Diego, 118 Cal. 556, 50 P. 633, 38 L.R.A. 460, 62 Am.St.Rep. 261. The record contains nothing which would warrant this court in holding that, as defined in said ordinance, certified milk is not as wholesome or more wholesome than any of the other grades of milk after they have been pasteurized. That being so no reason appears why certified milk should be pasteurized, no objection appears why the other grades of milk specified in the ordinance should not be pasteurized, and a valid distinction exists between certified milk (not pasteurized) and other grades required to be pasteurized.

As there is nothing in the ordinance that would have prevented any one of the plaintiffs from applying for a permit to sell any one of the grades of milk mentioned in subdivision 1 of section 3, it is patent they may not assert that any special privilege has been granted to others which has been denied to them.

It was also the theory of the plaintiffs that Ordinance No. 17,052 was unreasonable and therefore void. To present that point they alleged directly the fact. The trial court found the allegation was not true. The plaintiffs also alleged many probative facts showing or tending to show that the ordinance was unreasonable. The trial court made findings against the plaintiffs on those allegations also. It did not err. The allegations presented an issue of fact. The burden rested on the plaintiffs. In re Berry, 147 Cal. 523, 82 P. 44, 109 Am.St.Rep. 160. The most the plaintiffs may claim is that there was a possible conflict in the evidence. But that conflict was addressed to the trial court and its findings may not be disturbed by this court.

The judgment appealed from is affirmed.

STURTEVANT, Justice.

We concur: NOURSE, P. J.; SPENCE, J.