State v. Interstate Blood Bank, Inc.

• Decision Date: 31 October 1974
• Docket Number: Nos. S,s. S
• Citation: 222 N.W.2d 912,65 Wis.2d 482
• Parties: STATE of Wisconsin, Appellant, v. INTERSTATE BLOOD BANK, INC., of Wisconsin, Respondent. tate 100, 102.
• Court: Wisconsin Supreme Court

Page 912

222 N.W.2d 912

65 Wis.2d 482

STATE of Wisconsin, Appellant, v. INTERSTATE BLOOD BANK, INC., of Wisconsin, Respondent.

Nos. State 100, 102.

Supreme Court of Wisconsin.

Oct. 31, 1974.

Syllabus by the Court

The defendant, Interstate Blood Bank, Inc., of Wisconsin, was convicted of three counts of unlawfully operating a blood bank for commercial profit, contrary to sec. 146.31(1), Stats. ¹ by the Misdemeanor Branch of the Milwaukee county court following a jury trial.

The trial court found the statute to be constitutional and denied the several motions of the defendant to dismiss because of insufficient evidence. Judgment was entered on the verdict, and a fine of $100 was imposed for each of the three convictions.

The defendant appealed to the circuit court which found there was sufficient evidence to sustain the conviction. However, the circuit court determined the statute to be unconstitutional as contrary to the commerce clause, Art. I, sec. 8 ² and the supremacy clause, Art. VI ³ of the United States Constitution. The circuit court entered an order dismissing the charges and the state has taken this appeal.

Defendant is a Wisconsin corporation organized for profit. During the time set forth in the complaint, it procured blood from paid donors at two locations in Milwaukee and shipped the blood, after testing, mixing with anti-coagulant and cooling, to its sister corporation, Interstate Blood Bank, Inc., of Chicago, and then to points throughout the north central states. Defendant is permitted to operate under a federal license issued to Interstate Blood Bank, Inc., of Chicago, which, like defendant, is a subsidiary of a parent corporation headquartered in Memphis, Tennessee. At the time sec. 146.31, Stats., was enacted, defendant's operation was the only center operated for commercial profit in the state.

The testimony adduced at the trial indicated that there are two possible health dangers associated with the collection and transfusion of human blood, especially blood obtained from paid donors: (1) Danger to the donor from too frequent donations, particularly if the donor suffers from temporary or chronic anemia or from heart disease; and (2) danger to the recipient from post transfusion hepatitis, syphilis and malaria. Of the dangers to the recipient, post transfusional hepatitis constitutes the greatest threat because there is no known practical test for discovering the virus in the blood except the Australian antigen test which is felt to be only from 12 to 25 percent effective. Further, the disease is fatal in 12 to 20 percent of the cases. The evidence also established that defendant, like all other blood banks organized for commercial profit, paid their donors a fee for their blood.

Further facts will appear in the opinion.

Robert W. Warren, Atty. Gen., Thomas J. Balistreri, Asst. Atty. Gen., Madison, for appellant.

Perina & Hoyt, Madison, for respondent.

CONNOR T. HANSEN, Justice.

The defendant contends there is insufficient evidence to support the conviction. The test on appeal of the sufficiency of the evidence to sustain a conviction was recently stated in Willis v. State ⁴ as follows:

'. . . The test on appeal of the sufficiency of the evidence to convict is whether the 'evidence adduced, entitled to belief, and rationally considered by a jury was sufficient to prove the defendant's guilt beyond a reasonable doubt.' The test is 'not whether this court is convinced of the defendant's guilt but whether the jury acting reasonably could be so convinced.' Stating the rule conversely for the sake of clarity, the evidence "when considered most favorably to the state and the conviction must be so insufficient in probative value and force that it can be said as a matter of law that no trier of the facts acting reasonably could be convinced to that degree of certitude which the law defines as 'beyond a reasonable doubt."' . . .'

The evidentiary issue presented was whether the defendant was, a 'blood bank' within the meaning of the statute. The designation 'blood bank' is not defined in sec. 146.31(1), Stats., or elsewhere in the statutes.

The following two definitions of blood bank were submitted to the jury in the instructions of the trial court. The American Association of Blood Banks (hereinafter AABB), of which the defendant is a member, defines a blood bank as an organization which performs four of the following functions: (1) Bleeding of donors, (2) donor recruiting, (3) blood processing, (4) blood storage, (5) cross-matching, (6) infusion of blood, and (7) preparation of blood components. Webster's Seventh New Collegiate Dictionary defines a blood bank as 'a place for storage of or an institution storing blood or plasma; also: blood so stored.'

Under the AABB definition, as applicable to this case, the jury was required to find the defendant performed the following four functions: (1) Donor recruiting, (2) donor bleeding, (3) blood processing, and (4) blood storage. ⁵ The defendant stipulated to the fact they bled donors and the evidence that the defendant recruited donors was undisputed. Thus the remaining questions were whether the defendant processed and stored blood. Also, under the dictionary definitions of 'blood bank' it was necessary to show that the defendant stored blood.

The evidence was undisputed that the defendant collected blood from donors throughout the day, placed it in a refrigerator for cooling, and at the end of the day shipped it to Chicago. The applicable federal regulations call this activity 'temporary storage.' While various experts disagreed as to whether this activity constituted storage, the question was ultimately one of fact for the jury to decide.

It is further undisputed that the defendant performed the following operations Drew a blood sample from the donor's finger; tested it for RH factor, blood type and hemoglobin level; and ran a michrohemocrit test. On the drawing of the blood it was placed in a plastic bag and mixed with an anticoagulant, then refrigerated and ultimately sent to Chicago. The jury, as the trier of fact, could find that these activities constituted processing.

The question before the jury was whether the defendant operated a blood bank, not whether it met the test established by either the dictionary or AABB definitions. However, based upon either of these definitions, as guidelines, we are of the opinion that there was sufficient evidence to sustain the jury verdict.

Since we determine there was sufficient evidence to sustain the verdict, we consider the constitutional issues raised.

The defendant carries a heavy burden if he is to prevail in his attack upon the constitutionality of sec. 146.31(1), Stats. Unconstitutionality of the act must be demonstrated beyond a reasonable doubt. Every presumption must be indulged to sustain the law if at all possible, and, wherever doubt exists as to a legislative enactment's constitutionality, it must be resolved in favor of constitutionality. ⁶ As stated in State ex rel. Carnation M.P. Co. v. Emery (1922), 178 Wis. 147, 160, 189 N.W. 564, 569:

'If there is any reasonable basis upon which the legislation may constitutionally rest, the court must assume that the Legislature had such fact in mind and passed the act pursuant thereto. The court cannot try the Legislature and reverse its decision as to the facts. All facts necessary to sustain the act must be taken as conclusively found by the Legislature, if any such facts may be reasonably conceived in the mind of the court . . .'

Also, in State ex rel. Carnation M.P. Co. v. Emery, supra, p. 152, 189 N.W. p. 567, this court quoted approvingly from Cooley, Const. Lim. (7th ed.), p. 236, as follows:

". . . The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the law-making power. . . ."

Therefore, in order for this court to strike down an act of the legislature, it is necessary to find that it offends specific provisions of the State or United States Constitutions which have limited and circumscribed legislative action.

The defendant attacks the constitutionality of the statute on several grounds. It claims the statute is vague; that it is overbroad; that it violates the defendant's rights of due process and equal protection as an invalid exercise of the state police power; that it is contrary to the commerce clause of Art. I, sec. 8 of the United States Constitution; and that it is contrary to the supremacy clause of Art. VI of the United States Constitution.

In the event we conclude the statute is unconstitutional for any reason, the case is resolved, and it is not necessary to consider other issues raised. State ex rel. Bldg. Owners v. Adamany (1974), 64 Wis.2d 280, 286, 219 N.W.2d 274.

For the purpose of this opinion, it can be assumed that the enactment of sec. 146.31(1), Stats., is a valid exercise of the state's police power as it relates to the due process and equal protection rights of the defendant.

This court has held that the constitutional guarantees of individual privileges and the restraints placed upon the legislature by the due process and equal protection clauses are of the same effect in both constitutions. Chicago & N.W. Ry. v. La Follette, supra, 43 Wis.2d p. 643, 169 N.W.2d 441.

The police power of the state is the inherent power of government to promote the general welfare. Nebbia v. New York (1934), 291 U.S. 502, 524, 525, 54 S.Ct. 505, 78 L.Ed. 940; Chicago & N.W. Ry. v. La Follette, supra, 43 Wis.2d p. 644, 169 N.W.2d 441. It covers all matters having a reasonable relation to the protection of the public health, safety or welfare. McLean v. Arkansas (1909), 211 U.S. 539, 29 S.Ct. 206, 53 L.Ed. 315; State ex rel. Carnation M.P. Co. v. Emery, supra, 178 Wis. p. 153, 189 N.W. 564.

However, even though an otherwise valid enactment pursuant to the state's police...