Bloemer v. Turner

• Decision Date: 05 December 1939
• Citation: 281 Ky. 832
• Parties: Bloemer et al. v. Turner et al.
• Court: United States State Supreme Court — District of Kentucky

Page 832

281 Ky. 832

Bloemer et al. v. Turner et al.

Court of Appeals of Kentucky.

December 5, 1939.

1. Adulteration. — The Legislature by specifying in statute regulating manufacture and sale of concentrated commercial feeding stuff, publication on labels of canned food for domestic animals, of percentages of nutritious quality of the food and by confining position of penalties to that feature, manifested intent not to require other percentages including percentage of water content to be stated (Ky. Stats., sec. 1719a-1 et seq.).

2. Statutes. — The maxim "expressio unius est exclusio alterius," which means that the enumeration of particular things excludes the idea of something else not mentioned, is a primary rule of statutory construction.

3. Adulteration. — The purpose of statute regulating manufacture and sale of concentrated commercial feeding stuff, is to protect the purchasers of stock feed from imposition and the stock from deleterious food (Ky. Stats., sec. 1719a-1 et seq.).

4. Constitutional Law. — The Kentucky General Assembly may not delegate power to enact a law whether delegation is in form or effect (Constitution, secs. 27, 29).

5. Constitutional Law. — The General Assembly cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend (Constitution, secs. 27, 29).

6. Adulteration; Constitutional Law. — The statute regulating the manufacture and sale of concentrated commercial feeding stuff in setting up standards and empowering Director of Agriculture Experiment Station authority to determine facts or conditions on which it becomes operative and then to apply and execute the law, is valid and does not constitute delegation of authority of the General Assembly (Ky. Stats., secs. 1719a-1 et seq., 4636f-1 et seq.; Constitution, secs. 27, 29).

7. Statutes. — Section of statute regulating manufacture and sale of concentrated commercial feeding stuff, which empowers Director of Agriculture Experiment Station to adopt standards for concentrated commercial feeding stuffs and make and enforce such rules as he may deem necessary to carry fully into effect the true intent and meaning of the statute, is required to be read in connection with other parts of the statute (Ky. Stats., secs. 1719a-1 et seq., 1719a-13).

8. Statutes. — A primary rule in construing grants of authority requires that general terms yield to specific terms.

9. Constitutional Law. — The General Assembly does not have province to delegate to an individual or board the power to create a crime (Constitution, secs. 27, 29).

Statutes. — The cardinal principle of judicial construction is to save and not to destroy.

11. Adulteration. — The statute regulating manufacture and sale of concentrated commercial feeding stuff, which required percentage of nutritious qualities of concentrated commercial food to be printed on label or tag of each package, and which authorized Directors of Agriculture Experiment Station to adopt standards for concentrated commercial feeding stuffs and make necessary regulations, is construable as not authorizing the Director to require printing on label of the percentage of water in such food, and making of such requirement is in excess of Director's administrative powers (Ky. Stats., secs. 1719a-1 et seq., 4636f-1 et seq.; Constitution, secs. 27, 29).

Judge Cammack dissenting.

Appeal from Franklin Circuit Court.

William Marshall Bullitt, Leo T. Wolford and Bruce & Bullitt for appellants.

Job. D. Turner, Jr. and Hubert Meredith, Attorney General, for appellees.

Before W.B. Ardery, Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Reversing.

The case presents a question of statutory construction with respect to the authority of an administrative bureau. It relates to labels on canned dog food. It is a representative suit by a distributor and manufacturer of such commodity against the Director of the Kentucky Agriculture Experiment Station and the Head of the Department of Feeding Stuffs of that Station, seeking a declaration of rights and injunctive relief. The circuit court upheld the authority of the administrative officers and its exercise.

No claim is made that canned dog food is not within the terms of Section 1719a-1 et seq. of the Statutes, which regulate the manufacture and sale of "concentrated commercial feeding stuff." The statute is administered by the Director of the Kentucky Agriculture Experiment Station, which is a part of the College of Agriculture of the University of Kentucky. Section 4636f-1 et seq., Statutes. The Act (Chapter 48, Acts of 1906) defines the term to include certain specified articles of food for domestic animals, requires inspection and analysis, provides for branding and labeling, and imposes civil liability as well as a criminal penalty for its violation. In many respects the statute is vague and ambiguous. Section 1 of the Act, Section 1719a-1, Statutes, sets out the requirements as to labeling or tagging the containers of such feeding stuff. So much of that section as bears on the question before us may be thus abridged:

Every container shall bear a tag or label on which is shown (1) the number of net pounds therein; (2) the name, brand or trade-mark; (3) the name and address of the manufacturer; (4) "and the guaranteed analysis, stating the percentage of fat and the percentage of protein, allowing one percentum (1%) of nitrogen to equal six, twenty hundred percentum (20.-100%) of protein, these constituents to be determined by the methods adopted by the Association of Official Chemists of the United States;" and (5) the ingredients from which the feed is compounded. The package must also bear a stamp showing payment of the inspection fee. Section 13 of the Act, Section 1719a-13, Statutes, provides:

"The director of said experiment station is empowered to adopt standards for concentrated commercial feeding stuffs and to make and enforce such rules and regulations as he may deem necessary to carry fully into effect the true intent and meaning of this act."

There has been a phenomenal development of this new industry of preparing and marketing food for dogs in cans. It is principally made of the by-products or offal of meat packing and the fishing industry, with cereals added. It is declared by the chemists and others who testified to be nutritious, clean and wholesome, but the Director seriously questions this. The record indicates that the manufacturers and distributors have cooperated and worked in harmony with the Agriculture Experiment Station, there being unquestionably a need for regulation and an advantage to be derived from having the product bear the approval of the Station with its consequent guarantee. As counsel expresses it, they seek "not to destroy but to fulfill" the law. However, a disagreement arose over the order of Dean Thomas Cooper, the Director, and his representative, J.D. Turner, the Head of the Department of Feeding Stuffs, that there be printed on the label of each can the statement that it contained, "Water, maximum 74%." The director had promulgated a document styled, "Standards Rules and Regulations for Dog Feed," which required that all cans should contain protein, minimum 10%; fat, minimum 2%; fiber, maximum 1.5%; water, maximum 74%.

Later the Department sent out a circular letter to manufacturers and distributors requiring that for the purpose of registration such dog food should be guaranteed as to the maximum percentage of water; that water be declared as one of the ingredients; and that the labels on the cans should contain essentially the information guaranteed by the registration. The industry sought to have him withdraw that part of the order requiring that the labels should state the water content. They did not object to the fixing of a maximum or to the maximum so fixed. They objected only to printing the statement on the labels that the can contained 74% water because it would be misleading since (a) the principal water content is the natural moisture of the ingredients of meat and vegetables, with only a small amount of water added for cooking and processing; and (b) a false impression would be given the trade that the dog food actually contains 74% of added water, whereas it is a spongy mass, substantially solid, and contains no free liquid. There would be, the appellants maintain, an immovable sales resistance. It is pointed out in the evidence by way of illustration that a label on a bottle of milk that it contains 90% water would be ruinous to the dairymen, even though such be a fact. There are other detriments and disadvantages claimed. The Director refused to recede from his position, justifying his action upon deception of the public as to the nutrition in and actual worth of the product. He states there has been adulteration and much water added by some manufacturers, and claims gross exaggeration of merit in the product. Official notice was given that prosecutions under the penal provision of the statute would be instituted against those who failed to show the maximum water content on the labels. This suit followed.

The basis of the objection by manufacturers and distributors and the justification by the Director have little to do with the decision of the legal question involved, since the plaintiffs do not rely upon the ground of an arbitrary abuse of official discretion. They challenge only the authority of the Director to require that the labels on the cans bear the statement, "Water, maximum 74%." Appellants argue that the statute cannot be rightly and fairly construed to give the Director such power; that such a construction would make the act invalid as an unconstitutional delegation of legislative power. The due process clauses of the Federal Constitution, U.S.C.A. Constitution Amendments 5, 14, are invoked because the statute provides for no hearing before the...