Carolene Products Company v. Banning
| Decision Date | 08 July 1936 |
| Docket Number | 29759 |
| Citation | 268 N.W. 313,131 Neb. 429 |
| Parties | CAROLENE PRODUCTS COMPANY, APPELLEE, v. WILLIAM BANNING ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: FRANCIS M DINEEN, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. A statute adopted by the Legislature to protect the public health and secure the public safety and welfare must have some relation to those proposed ends, as the rights of property will not be permitted to be invaded under the guise of the exercise of the police power.
2. If such a statute be enacted under the police power of the state which does not tend to preserve the public health, safety or welfare, it is void as an invasion of the property rights of the individual.
3. Section 81-1022, Comp.St.1929, commonly called the " filled milk" act, is invalid as being an arbitrary and unreasonable regulation of a lawful occupation in so far as it prohibits the manufacture, sale and distribution of a food product composed of evaporated skim milk and cocoanut oil both of which are wholesome and nutritious.
4. The remedy for fraud in the sale of a wholesome and nutritious food product is by legislative regulation and not by a destruction of the business.
5. Section 81-1022, Comp.St.1929, is an unreasonable and arbitrary use of the police power of the state and is therefore violative of the Fourteenth Amendment to the Constitution of the United States and of section 3, art. 1 of the Constitution of Nebraska.
Appeal from District Court, Douglas County; Dineen, Judge.
Action by Carolene Products Company against William Banning, Director of the Department of Agriculture and Inspection, and another. From a judgment awarding an injunction, defendants appeal.
Affirmed.
William H. Wright, Attorney General, Paul P. Chaney, William C. Ramsey and Lester A. Danielson, for appellants.
George N. Murdock and Bernard R. Stone, contra.
Crossman, Munger & Barton and Varro H. Rhodes, amici curiae.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and CARTER, JJ., and YEAGER, District Judge.
This action was commenced by the plaintiff to secure an injunction to restrain defendants from enforcing section 81-1022, Comp. St. 1929, known as the "filled milk" statute, for the reason that it is unconstitutional and void. From a decree awarding an injunction, defendants appeal.
Section 81-1022, Comp. St. 1929, provides as follows: "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."
Section 81-1024, Comp. St. 1929, provides that a violation of any of the provisions of the act shall constitute a misdemeanor punishable by fine, jail sentence, or both.
The record discloses that plaintiff is a sales company selling filled milk manufactured by the Litchfield Creamery Company of Litchfield, Illinois, such compounds being known as "Carolene" and "Milnut." The testimony shows that these two products were manufactured in the same manner and contained the same ingredients. They were manufactured by taking sweet milk from which substantially all the butterfat had been removed by the ordinary process of separation, evaporating the moisture content thereof until approximately 18 per cent. skim milk solids remain, and then adding approximately 6 per cent. cocoanut oil. This product was packed and sold in air-tight tin cans bearing Carolene or Milnut labels. On the Carolene label the following is printed:
The evidence establishes the fact that Carolene was being sold in the city of Omaha and that the defendants, who are officers of the state charged with the duty of enforcing its laws pertaining to the distribution of food products, have prevented and are preventing the sale of this product in the city of Omaha and elsewhere in the state by virtue of section 81-1022, Comp. St. 1929, and will continue to do so unless restrained by the courts.
Plaintiff contends that this act is null and void for the following reasons: (1) Because said statutes deprive the plaintiff of its property without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States, which provides in substance that no state shall make or enforce any law which shall abridge any of the privileges or immunities of the citizens of the United States, nor shall it deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws; and (2) because said statutes are in violation of section 3, art. I of the Constitution of the state of Nebraska, which provides with reference thereto as follows: "No person shall be deprived of life, liberty, or property without due process of law."
A great amount of evidence was taken in this case on the question whether Carolene was a deleterious food product. We will not burden this opinion with a discussion of the evidence but will content ourselves with a statement of the conclusions we have drawn therefrom. The evidence establishes that Carolene is similar in taste, appearance, consistency and manner of packing to evaporated or condensed milk. The cocoanut oil added to the skim milk to take the place of the extracted butterfat is much less expensive than butterfat. Carolene can therefore be sold, and is sold, to jobbers and retailers cheaper than the evaporated or condensed milk. The compound is not delterious in itself but it does not have the same quality or food value as the genuine condensed milk. The evidence of expert witnesses was to the effect that it is lacking in a certain chemical substance known as vitamin A, which is an essential element of a proper dietary. This vitamin may be supplied from other foods. It is admitted that Carolene is not a proper substitute for milk or condensed milk for infants and, if used exclusively for long periods of time, will cause a child to suffer harmful effects. The record shows that it was advertised by retailers in Omaha as "milk" and "Carolene compound," and sold at a less price than condensed milk. This compound is labeled to indicate that it was more or less equivalent to or better than the genuine evaporated milk, although the ingredients thereof were truthfully stated on the labels. We conclude therefore that Carolene is a nutritious and healthful food and in no way deleterious to health in its ordinary use. Under these facts, has the legislature exceeded constitutional limits in passing this act?
It must be conceded at the outset that the act was not passed to prevent an adulteration of milk products, as no distinction is made between the addition of harmless and harmful oils and fats. Its purpose must therefore be the prevention of fraud upon the public through the sale of filled milk as natural milk or its derivatives, whether sold under its true name or under a trade-name.
The legislature, under the policy power, can regulate the production and sale of milk and its derivatives. The power to regulate does not, however, include the power to prohibit the sale of useful and harmless articles of commerce. In order that a statute may be sustained as an exercise of the police power, the courts must be able to see that the enactment has for its object the prevention of some offense or manifest evil or the preservation of the public health, safety, morals or general welfare; that there is some clear, real and substantial connection between the assumed purpose of the enactment and the actual provisions thereof; and that the latter do in some plain, appreciable and appropriate manner tend toward the accomplishment of the object for which the power is exercised. 12 C. J. 929.
It is the duty of the legislature, of course, to use its judgment in exercising the police power of the state. The presumption is that any such law enacted by it is constitutional, and it is only when the courts determine that an enacted law invades personal and property rights protected by the Constitution that it will not be sustained. The question to be determined herein is whether the act in question does...
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Neb. Const. art. I § I-3 Due Process of Law; Equal Protection
...the Constitution as being arbitrary and unreasonable and taking property without due process of law. Carolene Products Co. v. Banning, 131 Neb. 429, 268 N.W. 313 Statute regulating size of loaf of bread and authorizing Secretary of Agriculture to fix reasonable excess tolerance is not viola......