Appeal, No. 48, March T., 1953, from judgment of Court of Common Pleas of Cambria County, June T., 1950, No. 355, in case of Otto Milk Company v. Walter E. Rose, Mayor of City of Johnstown, et al. Judgment reversed.
Frank P. Barnhart and William S. Livengood, Jr., with them Livengood & Nissley, for appellant.
Morton Meyers, Special Counsel, with him Elvin Teitelbaum, City Solicitor, and Yost & Meyers, for appellees.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
This is an action of mandamus to compel the City of Johnstown by its officers and agents to issue to plaintiff, Otto Milk Company, a permit to sell milk within the city. The case was tried by agreement before the court without a jury as a result of which the court below entered judgment for defendants. From that judgment plaintiff appeals.
Plaintiff's complaint averred that it is a Pennsylvania corporation with its principal place of business in Pittsburgh, that it is engaged in the sale and distribution of milk wholesale in paper containers, that it is duly licensed by the Pennsylvania Milk Control Commission and the Federal Department of Agriculture, that it has passed all inspection tests as to sanitation in its plants and sources of supply by the Commonwealth of Pennsylvania, the Federal Government, the City of Pittsburgh, and various third class cities and boroughs in southwestern Pennsylvania, and that all these cities and boroughs have granted it the permits it applied for.
On September 1, 1949, it made application for a permit to sell pasteurized milk in the City of Johnstown
pursuant to an ordinance of that city which provided that in the case of the sale of milk delivered raw to the consumer a permit should not issue until after an examination of the sanitary condition not only of the place where the milk was to be sold and handled but also of the dairy farm where it was produced, whereas, in the case of milk delivered pasteurized to the consumer, an examination was required of the sanitary condition only of the place where the milk was to be sold, received or handled after delivery from the dairy farm. Notwithstanding repeated requests for action the city delayed issuing a permit, and, on April 4, 1950, it enacted an ordinance, to become effective April 14, 1950, which provided that a permit should not issue, even in the case of milk delivered pasteurized, until an examination had been made of the dairy farm where the milk was produced, of the receiving station or plant where it was received, of the plant where it was pasteurized and bottled, and of every place where it was handled. Meanwhile, on April 12, 1950, plaintiff had begun the present action in mandamus to compel the issuance of a permit.
The City of Johnstown defended on the ground that plaintiff obtains its milk from nearly 800 farms in southwestern Pennsylvania and Ohio, some of them as far distant from Johnstown as 200 miles; that it would be administratively impossible or impractical for the city's health officer or milk inspector to examine all such farms and to examine the receiving stations and the plants where the milk was pasteurized; that the cost of such inspection would be a burden on the taxpayers, probably requiring the ...