93 F.2d 202 (7th Cir. 1937), 6283, Carolene Products Co. v. Evaporated Milk Ass'n

Docket Nº:6283.
Citation:93 F.2d 202
Case Date:December 02, 1937
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 202

93 F.2d 202 (7th Cir. 1937)




MILK ASS'N et al.

No. 6283.

United States Court of Appeals, Seventh Circuit.

December 2, 1937

Rehearing Denied Jan. 7, 1938.

Page 203

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,

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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 constitutional 1 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....

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