Carolene Products Co. v. Mohler

• Decision Date: 08 June 1940
• Docket Number: 34307.
• Citation: 102 P.2d 1044,152 Kan. 2
• Parties: CAROLENE PRODUCTS CO. v. MOHLER, Secretary of Agriculture, et al.
• Court: Kansas Supreme Court

102 P.2d 1044

152 Kan. 2

CAROLENE PRODUCTS CO. v. MOHLER, Secretary of Agriculture, et al.

No. 34307.

Supreme Court of Kansas

June 8, 1940

Syllabus by the Court.

The "filled milk act", providing that it shall be unlawful to manufacture, sell, keep for sale, or possess 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 such products or articles or derivatives thereof, or under any fictitious or trade name whatsoever, is intended to safeguard the health of the citizens of the state and to prevent deception of the citizens. Gen.St.1935, 65-707(F) (2).

A statute must, if possible, be so construed as to be constitutional.

A statute should not be declared unconstitutional unless its infringement of the Constitution is clear beyond substantial doubt.

Every presumption is indulged in favor of the validity of legislative acts.

Findings which were supported by substantial competent evidence would not be disturbed on appeal.

Where findings covered the material issues, the request for additional findings was properly refused.

The "filled milk act", providing that it shall be unlawful to manufacture, sell, keep for sale, or possess 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 such products or articles, or derivatives thereof, or under any fictitious or trade-name whatsoever, is valid. Gen.St.1935, 65-707(F) (2).

The "filled milk act", providing that it shall be unlawful to manufacture, sell, keep for sale, or possess 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 such products or articles, or derivatives thereof, or under any fictitious or trade-name whatsoever, does not violate the due process clauses of the Federal Constitution or the Constitution of the State of Kansas. Gen. St.1935, 65-707(F) (2); U.S.C.A.Const. Amend. 5; Amend. 14, § 1, Const.Kan.Bill of Rights, § 1.

The "filled milk act", providing that it shall be unlawful to manufacture, sell, keep for sale, or possess 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 such products or articles, or derivatives thereof, or under any fictitious or trade-name whatsoever, does not violate the equal protection clause of the Federal Constitution. Gen.St. 1935. 65-707(F) (2); U.S.C.A.Const. Amend. 14,§ 1.

The "filled milk act", providing that it shall be unlawful to manufacture, sell, keep for sale, or possess 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 such products or articles, or derivatives thereof, or under any fictitious or trade-name whatsoever, is not a "special law" in violation of the constitutional provision, in all cases where a general law can be made applicable, no "special law" shall be enacted. Gen.St. 1935, 65-707(F) (2); Const. art. 2, § 17.

The Kansas filled milk statute, being paragraph 2, subdivision (F), of G.S.1935, 65-707, provides: "It shall be unlawful to manufacture, sell, keep for sale, 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."

In an action to enjoin the defendants as state officials from enforcing the statute, the record is examined, and held the statutes do not violate the Constitution of the United States, or the Constitution of the State of Kansas, and no error being found in the record the judgment is affirmed.

Appeal from District Court, Shawnee County, Division No. 2; Paul H. Heinz, Judge.

Action by the Carolene Products Company against J. C. Mohler, Secretary of Agriculture of the State of Kansas, and H. E. Dodge, Dairy Commissioner of the State of Kansas, from enforcing the statute known as the "filled milk" act. From a judgment in favor of the defendants, the plaintiff appeals.

Judgment affirmed.

T. M. Lillard, J. Glenn Logan, and Harold L. Doherty, all of Topeka, George N. Murdock, of Chicago, Ill., and Boyle G. Clark, of Columbia (Howard C. Knotts, of Springfield, Ill., of counsel), for appellant.

Jay S. Parker, Atty. Gen., C. Glenn Morris, Asst. Atty. Gen., and Warden Noe, Sp. Asst. Atty. Gen., for appellees.

ALLEN Justice.

This action was to enjoin the defendants as state officials from enforcing the statute known as the "filled milk" act. Judgment for defendants. Plaintiff appeals.

The so called filled milk statute, being paragraph 2, subdivision (F), of G.S.1935, 65-707, reads: "It shall be unlawful to manufacture, sell, keep for sale, 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."

The petition alleges: The business of the plaintiff, a Michigan corporation, is the sale of an article of food sold under the trade names of Carolene and Milnut. It is alleged:

"5. That plaintiff's said product Carolene is made by taking sweet skimmed milk and adding thereto approximately six percent (6%) pure coconut oil and vitamin concentrates to an amount so that each 14 1/2 ounce-can of the product contains in excess of 2000 U.S. P. XI units of Vitamin A and in excess of 400 U.S. P. XI units of Vitamin D, and then evaporating the moisture content from the mixture until approximately twenty percent (20%) skimmed milk solids remain; that Milnut is composed of the same ingredients or constituents, and is manufactured in the same manner.

"6. That the coconut oil used in the manufacture of Carolone and Milnut is a pure, wholesome and nutritious food product and that neither it nor any combination of it with skimmed milk and Vitamins A and D as done by plaintiff, is deleterious to health; that a manufacture of plaintiff's said products is done in a wholly sanitary and healthful manner and that the manufacture, sale, possession and or use thereof is not in any manner harmful or injurious to health or dangerous to the public."

It is alleged that a large number of retail grocers have been selling plaintiff's product; that a large and valuable business in the sale of such product has been established; that the agents and inspectors of defendants assert that the sale and possession of such product is unlawful and that the law will be enforced; that as a result of such warning and the threat of prosecution plaintiff's customers have cancelled orders for such product and have refused to purchase it; that unless the court shall find and declare the sale of such product is lawful, plaintiff will be deprived of its constitutional right to do business in the state and will suffer great and irreparable injury and damage, and that plaintiff has no adequate remedy at law. It is further alleged:

"11. That this plaintiff contends that said Act is unconstitutional and void, for the following reasons:

"(a) Because it deprives this plaintiff of its property without due process of law, in violation of the Fifth Amendment of the Constitution of the United States, of Section One of the Fourteenth Amendment to the Constitution of the United States and of Paragraph One of the Constitution of the State of Kansas [Bill of Rights].

"(b) Because it denies to the plaintiff the equal protection of the laws of the state in violation of Section One (1) of the Fourteenth Amendment to the Constitution of the United States and of the Constitution of the State of Kansas in that said Act is discriminatory and an arbitrary and unreasonable classification because the sale in this state of each ingredient contained in Carolene and Milnut either by itself or in combination with other substances is permitted while prohibiting the sale of Carolene and Milnut.

"(c) Because the said law is prohibitive and not regulatory and prevents the carrying on of a perfectly legal and beneficial trade and business.

"(d) That said law is a special law in violation of Paragraph 17 [art. 2] of the Constitution of the State of Kansas.

"(e) Because it is contrary to public policy to so prohibit the sale of a pure, wholesome, sanitary and nutritious article of food.

"(f) Because it is an arbitrary and unreasonable interference with private business, imposes harsh and unreasonable restrictions upon a lawful occupation, and is an abuse of the police power of the state, there being nothing about plaintiff's product that is injurious to the health, safety, morals or

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