The San Francisco call., 1908-05-29
DECISION BLOW TO
PURE MILK FIGHT
Appellate Court Invalidates Or
dinance Under Which Dairy
men Were Prosecuted

Efforts of the California club, the
city board of health and physicians to
bring the purity of the milk sold in
San Francisco to a standard higher
than it is at present will be dealt a
severe blow by a decision rendered
yesterday by the appellate court
which practically invalidates many of
the recent convictions of men charged
with selling impure milk.
The decision OF the court declares
Illegal the city ordinance under which
a great number of these convictions
were obtained, because it is held that
it seriously conflicts with state law
of later date which fixes a less exact
ing standard of excellence for the
millSmen. According to the state law,
milk containing 3 per cent of butter
fat and 9.25 per cent of solids is con-
sidered pure. Under the ordinance, 3.4
per cent of fat and IL per cent of sol
ids have been required. The justices
declare in their decision that it is a
point of law often established that
state statutes take precedence over
city or county ordinances that conflict
and make them legally void.
This ruling was brought about by
petition for a writ of habeas corpus
on the part of l.. Desanta, proprietor
of milk ranch in South San Fran
cisco, one of the milkmen prosecuted
for selling milk that fell below the re-
quirements of the city ordinance. De-
santa, when he was found guilty by
Police Judge Shortal a month ago and
fined $100, applied to Judge Cook of
the superior court for a writ of habeas
corpus through his attorneys, J. c.
Sims, j. A. Spinetti and Roland Becsey.
When Judge Cook held that there was
no conflict in the laws in question, De-
santa appealed to the appellate court,
the justices granting him his writ and
reversing the lower court
LIMITS FUTURE PROSECUTION
The Importance of the decision lies
in the effect it will have in limiting
future prosecutions of milkmen who
have complied with the provisions of
the state law, and will tend to prohibit
the city from passing strict sanitary
ordinances in future. If the decision
is accepted without protest, it means
that hereafter any milk containing as
high as per cent of butter fat and
9.2o per cent of solids will have to be
considered legally pure. The milkmen
declare this standard is even higher
than that required in many eastern
communities
This, however, is denied by Attorney
Louis Ferrari, who has been acting as
special prosecutor in more than lou
cases against milkmen where conv1c-
tions have been obtained.
The decision will have no effect
whatsoever in our efforts to secure
pure milk" said Ferrari. Il will
Immediately ask the supreme court to
review the decision of the appellate
court and am confident it will be re-
versed. If it is sustained, however. 1t
will mean that the city will be power
less to enforce many sanitary ordi-
nances which we had contemplated, and
that it will not be possible to secure
protection for certified milk, which we
had hoped for This certified milk is
milk that must pass a high standard
of purity before receiving certificate
of its excellence and purity. However.
we have been anxious for a ruling on
the status of the laws before asking
for the additional ordinances.
MAY ADULTERATE MILK
The decision means also that milk
men Will be able in many cases to adul-
terate their milk 10 per cent, still
keeping within the necessary per
cent of fats, and they cannot be pun
ished. However, in many of the cases
where we secured convictions the
prosecutions Were conducted under the
state law"
ne court O6ClSlOn, WHICH was
handed down by Justice Cooper, con-
Cured in by Justices Hall and Kerri-
gan, points out that the two laws con-
hict not only in defining the quality of
purity required in the milk, but also
in the punishments provided, making it
possible for a man to be punished by
the city for doing what he would have
perfect right to do under the state
law
nance in this case" the decision reads
in part, and the general law, we are
forced to conclude that the ordinance
is in conflict with such law
we conclude that the ordinance in
the respects involved is void, and the
prisoner must be discharged, and it is
so ordered"
The more than 100 milkmen who
We're convicted and fined, however, are
not entitled, under the decision, to
seek legal redress.