Dairy Queen of Wis. v. McDowell
| Decision Date | 08 January 1952 |
| Citation | 51 N.W.2d 34,260 Wis. 471 |
| Parties | DAIRY QUEEN OF WISCONSIN, Inc. v. McDOWELL. |
| Court | Wisconsin Supreme Court |
Action by the plaintiff, Dairy Queen of Wisconsin, Inc., a Minnesota corporation, to enjoin the defendant Donald N. McDowell, director of the state department of agriculture, from prohibiting the sale of the product known as 'Dairy Queen' in Wisconsin. From a judgment dismissing the complaint, plaintiff appeals.
During the course of the trial, many facts being undisputed, a stipulation was entered into, introduced and received in evidence. Material facts so stipulated are: Plaintiff corporation proposes to engage in the business of establishing retail outlets for a semi-frozen product named 'Dairy Queen.' It owns and operates such outlets and enters into franchise agreements with dealers for the exclusive right to prepare and sell this product to the public. These franchise agreements provide that no ice cream or other products may be sold in such outlets; the stores are usually built for the specific sale of Dairy Queen. The ingredients in Dairy Queen, as compared to ice cream, consist of the following, in the approximate proportions indicated:
Dairy Queen Ice Cream
Fat 6% 13%
Solids not fat 13.5% 10.5%
Sugar 15% 15%
Stabilizer 5% 5%
The only difference between the ingredients of ice cream and Dairy Queen is in the proportionate amounts of butter fat and milk solids-not-fat contained therein.
The liquid mix is prepared for plaintiff and its franchise holders by companies separate from the plaintiff. It is proposed that such liquid mix will be produced within this state so that it will be subject to the supervision and control and sanitary regulations pertaining to such manufacture in Wisconsin.
Dairy Queen will be served to the public only from the places of business described above. All non-edible containers will be clearly marked and designated as Dairy Queen and a sign will be posted in all such stores stating that Dairy Queen is not ice cream or sherbet.
Each of the ingredients contained in Dairy Queen is nourishing, wholesome and healthful, and the product contains no element deleterious to health. The franchises provide that Dairy Queen will not be served in solid form; it is forced from a machine in semi-solid, partially frozen form through a spigot into a container. The method employed is similar to that employed in dispensing some custard ice cream.
Both ice cream and Dairy Queen are agitated during the freezing process, resulting in an increased volume of the product, known as 'overrun.' The overrun of Dairy Queen, as proposed to be sold in this state, is thirty-five to forty per cent; ice cream has an overrun of from seventy-five to one hundred per cent.
Sec. 97.02, Stats., provides that ice cream (vanilla) shall contain not less than thirteen per cent of milk fat nor less than twenty-one per cent milk solids; that custard ice cream shall contain not less than one and two-thirds ounces of egg yolk solids per gallon of the finished product; that sherbet shall contain not more than 3.5 per cent of milk fat nor more than ten per cent of milk solids. Sec. 97.025(1) provides that no person shall manufacture or sell any milk product which shall be in imitation of ice cream, sherbet or ices as defined by sec. 97.02.
Sec. 97.25 defines adulteration as resulting when 'any valuable or necessary ingredient has been wholly or in part abstracted from it, or if it is below that standard of quality, strength or purity represented'.
The trial court held that the statutes involved prohibit the sale of Dairy Queen in this state and that such statutes are constitutional and valid.
Flynn & Greenquist, Racine, for appellant.
Vernon W. Thomson, Atty. Gen., Richard E. Barrett, Asst. Atty. Gen., for respondent.
Two questions are presented on this appeal:
1. Does sec. 97.025, Stats., prohibit the manufacture and sale of appellant's product?
2. If so, is the statute constitutional?
Most of the facts were stipulated, there being few, if any, in dispute, and those not in sharp conflict. Here we have the trial court applying the law to the facts or the facts to the law, as it sees it. In such cases this court is not bound by the findings of the trial court, and the rule that the findings must be sustained unless against the great weight and clear preponderance of the evidence is not applicable. In re Will of Mechler, 1944, 246 Wis. 45, 16 N.W.2d 373.
The lower court held that the statutes mentioned prohibit the sale of Dairy Queen as an imitation of ice cream and as an adulterated product or substandard ice cream. We do not agree.
There is no question but that Dairy Queen is a healthful and nutritious food. That fact is stipulated. The essential elements, so far as nutrition is concerned, are contained in the skim milk. These elements are present in greater quantity in Dairy Queen than in ice cream.
Certain types of ice cream may legally have a fat content of not less than eleven per cent. The fat content of sherbet and ices is to be not more than 3.5 per cent. Thus, Dairy Queen, having a fat content of six per cent, falls in the 'no man's land' in between. Respondent contends that the purpose of these legislative requirements as to butter fat content was to keep a wide margin between the two classes of frozen milk products, and that the sale of a six per cent product would work a fraud upon the public.
Counsel conceded on oral argument that the only reason for barring the sale of Dairy Queen was that it might perpetrate a fraud upon the consumer. The question then follows, Is it necessary to bar the product, or has the department sufficient authority under ch. 93 to so regulate it as to prevent fraud?
Hutchinson Ice Cream Co. v. Iowa, 1916, 242 U.S. 153, 37 S.Ct. 28, 61 L.Ed. 217, upheld the constitutionality of an act fixing minimum standards of ice cream on the ground that its purpose was to prevent the perpetration of fraud on the public from inferior makes of ice cream. The United States supreme court said that the acts there considered merely prohibited the sale of certain compounds as ice...
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...unless against the great weight and clear preponderance of the evidence is not applicable." (Quoting Dairy Queen of Wisconsin, Inc. v. McDowell, 260 Wis. 471, 474, 51 N.W.2d 34, 36 (1952), reh. den. 52 N.W.2d 791 The trial court's decision was based primarily upon two findings: (1) confusio......
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