Carolene Products Co. v. Evaporated Milk Ass'n, 6283.

• Decision Date: 07 January 1938
• Docket Number: No. 6283.,6283.
• Parties: CAROLENE PRODUCTS CO. v. EVAPORATED MILK ASS'N et al.
• Court: U.S. Court of Appeals — Seventh Circuit

93 F.2d 202 (1937)

CAROLENE PRODUCTS CO. v. EVAPORATED MILK ASS'N et al.

No. 6283.

Circuit Court of Appeals, Seventh Circuit.

December 2, 1937.

Rehearing Denied January 7, 1938.

George N. Murdock, of Chicago, Ill., for appellant.

Sidley, McPherson, Austin & Burgess, of Chicago, Ill. (George O. Tiffany, Donald F. McPherson, and Howard Neitzert, all of Chicago, Ill., of counsel), for appellees.

Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.

LINDLEY, District Judge.

Plaintiff appeals from a decree dismissing its bill of complaint, in which it sought a writ of injunction against defendants, restraining them from conspiring to defeat the interstate trade and commerce of plaintiff, in violation of the Sherman Anti-Trust Act, 15 U.S.C.A. § 1 et seq.

Plaintiff is engaged in the manufacture and shipment in interstate commerce of filled milk, that is, skimmed milk with which has been mixed coconut oil, the mixture then being evaporated. The court found and the plaintiff admits that its interstate commerce in this article is in direct violation of the United States Filled Milk Act, 21 U.S.C.A. 61 to 63 inclusive. In view of this admission, it is apparent that the appeal must fail if the act is constitutional, for it is well established that equity will not aid one who comes into court as a law violator; that it is not within the legitimate province of a court of equity to grant relief to an admitted wrongdoer. Creath v. Sims, 5 How., 46 U.S. 192, 12 L.Ed. 111; American Banana Company v. United Fruit Co., 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826, 16 Ann.Cas. 1047; Beck v. Flournoy Live-Stock & Real-Estate Co., 8 Cir., 65 F. 30; Modern Horse Shoe Club v. Stewart, 242 Mo. 421, 146 S.W. 1157. Consequently the essential question presented is the constitutionality of the act.

Section 2 of the act, passed in 1923, 21 U.S.C.A. § 62, contains this language: "It is declared that filled milk, as herein defined, is an adulterated article of food, injurious to the public health, and its sale constitutes a fraud upon the public. It shall be unlawful for any person to manufacture within any Territory or possession, or within the District of Columbia, or to ship or deliver for shipment in interstate or foreign commerce, any filled milk." After declaring that the term "person" shall include a corporation, the law further, section 1 of the act, 21 U.S.C.A. § 61, provides that "the term `filled milk' means any milk, cream, or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried, or desiccated, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, so that the resulting product is in imitation or semblance of milk, cream or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried, or desiccated."

Plaintiff contends that, inasmuch as its product is a wholesome food, the law is unconstitutional, and such was the ruling of Judge FitzHenry and Judge Adair in the District Court upon indictments in that court, the reasoning being that Congress is without constitutional power to prohibit interstate commerce of an article containing no deleterious substances. The Supreme Court of Illinois, in People v. Carolene Products Co., 345 Ill. 166, 177 N.E. 698, held a state law aimed at commerce in such articles unconstitutional. Various courts have disagreed in their interpretation of similar laws, some of them holding such laws constitutional¹ and others holding them void.²

The scope of the constitutional authority of Congress over interstate commerce is defined in McDermott v. Wisconsin, 228 U.S. 115, 33 S.Ct. 431, 433, 57 L.Ed. 754, 47 L.R.A., N.S., 984, Ann.Cas. 1915A, 39, as follows: "Congress has the right not only to pass laws which shall regulate legitimate commerce among the states and with foreign nations, but has full power to keep the channels of such commerce free from the transportation of illicit or harmful articles, to make such as are injurious to the public health outlaws of such commerce, and to bar them from the facilities and privileges thereof." While the police power is ordinarily said to be reserved by the states, it is obvious that it extends fully likewise to the federal government in so far as that government acts within its constitutional jurisdiction and that, more specifically, the exercise of police power is within the authority of Congress in the protection of interstate commerce. Thus in Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281, 284, 57 L.Ed. 523, 43 L.R.A., N.S., 906, Ann.Cas. 1913E, 905, the court observed that the power of Congress over transportation among the several states is complete in itself; that that body may adopt any means convenient to its exercise; and that "the means may have the quality of police regulations." See, also, Clark Distilling Co. v. Western Maryland Railway Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326, L.R.A.1917B, 1218, Ann.Cas.1917B, 845; Lottery Case, 188 U.S. 321, 23 S. Ct. 321, 47 L.Ed. 492; Seven Cases v. United States, 239 U.S. 510, 36 S.Ct. 190, 60 L.Ed. 411, L.R.A.1916D, 164, and Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A.1917F, 502, Ann.Cas.1917B, 1168. As Mr. Chief Justice Taft said in Brooks v. United States, 267 U.S. 432, 45 S.Ct. 345, 346, 69 L.Ed. 699, 37 A.L.R. 1407: "Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other states from the state of origin. In doing this it is merely exercising the police power, for the benefit of the public, within the field of interstate commerce." The police power referred to "extends to all the great public needs. * * * It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare." Noble State Bank v. Haskell, 219 U.S. 104, 31 S.Ct. 186, 55 L.Ed. 112, 32 L.R.A., N.S., 1062, Ann.Cas. 1912A, 487. Its "dimensions are identical with the dimensions of the government's duty to protect and promote the public welfare. The measure of police power must square with the measure of public necessity." It is beyond question, therefore, that the enactment of the law was within the power of Congress unless it is unreasonable and arbitrary.

We may not inquire into the motives of Congress, Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194 or, in the absence of doubt as to its reasonableness, the wisdom of legislation or the necessity for the exercise of legislative power, the existence of which is beyond doubt, Lottery Case, supra. Thus, in Price v. Illinois, 238 U.S. 446, 35 S.Ct. 892, 59 L.Ed. 1400, the court held that the contention of the plaintiff in error that the law was arbitrary and unreasonable, and therefore void, can be sustained only if it appears that by a consensus of opinion the article is unquestionably harmless with respect to its contemplated uses, that is, that it is necessary to classify it indubitably as a wholesome article of commerce, innocuous in its designed use and unrelated in any way to any possible danger to the public health. Then and then only will any act prohibiting it constitute an arbitrary interference with the property and liberty of the citizen. It is plainly not enough that the question should be regarded as debatable; for if it is doubtful, the Legislature is entitled to its own judgment — a judgment not to be superseded by verdict of a jury or decision of a court. Price v. Illinois, 238 Ill. 446, 35 S.Ct. 892, 59 L.Ed. 1400. See Hebe Co. v. Shaw, 248 U.S. 297, 39 S.Ct. 125, 63 L.Ed. 255; Gant v. Oklahoma City, 289 U.S. 98, 53 S.Ct. 530, 77 L.Ed. 1058; Rast v. Van Deman & Lewis, 240 U.S. 342, 36 S.Ct. 370, 60 L.Ed. 679, L.R.A.1917A, 421, Ann.Cas.1917B, 455; Stafford v. Wallace, 258 U.S. 495, 42 S.Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229.

That the Congress had reliable information before it supporting the wisdom of the proposed legislation appears from the reports of its committees. Those bodies found and reported certain facts: The mixture of skimmed milk and oil is an exact imitation of pure condensed or evaporated milk; it has the same consistency, color and taste; the difference in the two products can be detected only by an expert or by chemical analysis; the compound can be made more cheaply than the regular article, and in view of the fact that the imitation is perfect, many people buy it in the belief that they are getting full condensed or evaporated milk; manufacturers do not label it as milk but it is put up in the same sized cans as regular condensed milk and is advertised by the retail dealers as milk and evaporated milk. Storekeepers sell it with the statements that "it takes the place of milk," "is just as good as condensed milk and much cheaper"; that there is "nothing better on the market" and "takes the place of condensed milk." Instances were reported in which coconut fat had been mixed with milk and sold as cream and others in which the compound had been used in making ice cream. The article is sold largely in sections inhabited by people unable to read English and of limited means, and scarcely at all in the more enlightened districts. As a consequence, the label is of little or no protection to the purchasing public, in advising them that the product they buy is a mixture of milk and vegetable oils.

The scientists before the committees pointed out that milk is a food for which there is no effective substitute and upon which we have depended for generations; that the valued Vitamin A of milk occurs in no vegetable oil; that an infant fed for a few weeks on a milk substitute, such as here involved, will develop rickets, scurvy, serious eye diseases; beriberi; that even tuberculosis may be traced...