Carolene Prods. Co. v. Thomson

• Decision Date: 16 June 1936
• Docket Number: No. 133.,133.
• Citation: 276 Mich. 172,267 N.W. 608
• Court: Michigan Supreme Court
• Parties: CAROLENE PRODUCTS CO. v. THOMSON et al.

276 Mich. 172

267 N.W. 608

CAROLENE PRODUCTS CO.

v.THOMSON et al.

No. 133.

Supreme Court of Michigan.

June 16, 1936.

Suit by the Carolene Products Company against James F. Thomson, as commissioner of agriculture of the state of Michigan, and another. Decree for defendants, and plaintiff appeals.

Reversed and remanded.Appeal from Circuit Court, Ingham, County, in Chancery; Leland W. Carr, Judge.

Argued before the Entire Bench.

Judson E. Richardson, of Lansing, and George N. Murdock, of Chicago, Ill., for appellant.

David H. Crowley, Atty. Gen., and Edmund E. Shepherd, Asst. Atty. Gen., for appellees.

FEAD, Justice.

Plaintiff manufactures and sells a milk product under two names-Carolene and Milnut. Defendants' predecessors in office notified plaintiff that the product does not conform to Michigan law and threatened arrest of any dealer selling it. Plaintiff filed petition for declaration of rights and prayed that the invoked statute be declared unconstitutional and defendants restrained from interference with sales. It appeals from decree dismissing the bill.

The product is sold in cans, bearing labels describing its elements and uses as follows:

In the center--

(Not less than 18% Milk Solids Total Solids 25 1/2%)

‘Carolene

‘So Rich It Whips'

(Not less than 6% Nut Oils)

‘A Compound of Refined Nut Oils & Evaporated Skimmed Milk’

Vertically--

‘Not to be Sold for Evaporated Milk.’

At the side--

‘A high grade wholesome food product, composed of a mixture of:

Concentrated skimmed milk and highly refined cocoanut oils.

Especially prepared for use in coffee, baking and for other culinary purposes. This product complies in all respects with the Federal Food and Drugs Act of June 30, 1906, and is neither adulterated nor misbranded under the provisions thereof.'

The Milnut label is substantially the same except as to name.

Testimony was taken. It is undisputed that the label correctly states the ingredients of the product; that both skim milk and cocoanut oil have substantial food value; that the product contains the full food values of both; and has no properties harmful to health. The statute involved is 1 Comp.Laws 1929, § 5358:

‘Section 1. It shall be unlawful for any person, firm or corporation, by himself, his servant or agent, or as the servant or agent of another, to manufacture, sell or exchange, or have in possession with intent to sell or exchange, any milk, cream, skim milk, buttermilk, condensed or evaporated milk, powdered milk, condensed skim milk, or any of the fluid derivatives of any of them to which has been added any fat or oil other than milk fat, either under the name of said products or articles or the derivatives thereof or under any fictitious or trade name whatsoever. Nothing in this act shall be construed to prohibit the manufacture, sale, exchange or possession of preparations containing milk in any form intended exclusively for the feeding of infants and young children and sold to be used under the order of physicians.’

Section 2 (Comp.Laws 1929, § 5359) exempts interstate transactions and section 3 (Comp.Laws 1929, § 5360) provides criminal penalties for violation. The statute in Act No. 23, Pub.Acts 1923, and is found in 1 Comp.Laws 1929 in the chapter devoted to ‘Dairy Products,’ which contains several acts regulating the production and marketing and prohibiting the adulteration of milk and its derivatives, condensed whole milk, condensed skim milk, butter, imitation butter, renovated butter, oleomargarine, cheese, and ice cream. 1 Comp.Laws 1929, §§ 5307-5394. In addition, other statutes prohibit adulteration, fraud, and deception in the manufacture and sale of articles of food and drink generally. 1 Comp.Laws 1929, § 5425 et seq.

The first consideration is the construction of the act.

Because the statute does not differentiate between harmful and harmless foreign oils or fats, it is not an adulteration act. Its evident primary purpose is to prevent fraud of the public through sale of filled milk or its fluid derivatives as natural milk or its derivatives, whether marketed under its true name or under the subterfuge of a trade or fictitious name.

To work out its purpose, the Legislature had a choice of remedies, commensurate with the evil and effective to abate it. If protection of the public demanded an inclusive and drastic measure, the Legislature could have prohibited the sale of filled milk absolutely and under whatever guise it may be offered. On the other hand, protection of the public might be fully served by regulation and the Legislature could have imposed restrictions upon the production and sale.

The state contends the act is prohibitory and forbids the sale of plaintiff's product regardless of actual misrepresentation or deception or fraud. This construction seems necessary because it is in accordance with the terms of the act, whose language is direct, plain, and unambiguous.

The power of the Legislature to regulate the production and sale of milk and its derivatives cannot be doubted. But the police power of regulation does not include the absolute prohibition of trade in useful and harmless articles of commerce. Being prohibitory, the act must be declared invalid.

The principles involved are well settled and do not need extensive citation of authorities. The Constitution guarantees to citizens the general right to engage in any business which does not harm the public. People ex rel. v. Berrien Circuit Judge, 124 Mich. 664, 83 N.W. 594,50 L.R.A. 493, 83 Am.St.Rep. 352. The constitutional right to engage in business is subject to the sovereign police power of the state to preserve public health, safety, morals, or general welfare and prevent fraud. In the exercise of the police power, there must be not only a public welfare to be conserved or public wrong to be corrected, but there must be also a reasonable relation between the remedy adopted and the public purpose. 12 C.J. 929.

The primary determination of public need and character of remedy in the exercise of the police power is in the Legislature. Unless the remedy is palpably unreasonable and arbitrary so as needlessly to invade property or personal rights as protected by the Constitution, the act must be sustained. The presumption favors validity and, if the relation between the statute and the public welfare is debatable, the legislative judgment must be accepted. Kelley v. Judge of Recorder's Court, 239 Mich. 204, 214 N.W. 316, 53 A.L.R. 273;Price v. Illinois, 238 U.S. 446, 451, 35 S.Ct. 892, 59 L.Ed. 1400.

But the ultimate duty to determine the validity of the act is in the courts. People v. Snowberger, 113 Mich. 86, 71 N.W. 497,67 Am.St.Rep. 449.

Possibility of wrong to the public does not always justify prohibition of a business. Regulation only may be the reasonable remedy.

‘The constitutional guaranties may not be made to yield to mere convenience. Schlesinger v. Wisconsin, 270 U.S. 230, 46 S.Ct. 260, 70 L.Ed. 557 . The business here involved in legitimate and useful; and, while it is subject to all reasonable regulation, the absolute prohibition of the use of shoddy in the manufacture of comfortables is purely arbitrary and violates the due process clause of the Fourteenth Amendment.’ Weaver v. Palmer Bros. Co., 270 U.S. 402, 415, 46 S.Ct. 320, 323, 70 L.Ed. 654.

‘Invalidity may be shown by things which will be judicially noticed (Quong Wing v. Kirkendall, 223 U.S. 59, 64, 32 S.Ct. 192, 56 L.Ed. 350) or by facts established by evidence.’ Weaver v. Palmer Bros. Co., 270 U.S. 402, 410, 46 S.Ct. 320, 321, 70 L.Ed. 654.

The state contends that plaintiff's product is harmful to public health, not in that it has deleterious properties, but because it does not contain vitamin A, an element of whole milk and cream, which inheres in the cream in the process of skimming, which is wholly or substantially absent from skimmed milk, is not found in cocoanut oil, and is an essential of health. Vitamin A is also lacking in other common articles of food. Hence the need for a balanced diet.

The argument of the state might have force were the statute confined to skimmed milk. But that the act has no concern with the lack of vitamin A is conclusively demonstrated by the fact that (1) it merely prohibits addition to, not subtraction from, milk and its derivatives; (2) the prohibition applies alike to whole milk and cream, which contain vitamin A, as to skim milk, which lacks it; and (3) the Legislature would be guilty of gross inconsistency in permitting, in other acts, production and sale of skim milk although it does not contain vitamin A, and, in this act, prohibiting sale of skim milk because it does not contain vitamin A, the addition of the foreign oils and fats having no effect upon the presence of such vitamin.

Prohibition of manufacture and sale of...