Fisher Flouring Mills Co. v. Brown

• Decision Date: 29 January 1920
• Docket Number: 15581.
• Citation: 109 Wash. 680,187 P. 399
• Court: Washington Supreme Court
• Parties: FISHER FLOURING MILLS CO. et al. v. BROWN, Pros. Atty., et al.

187 P. 399

109 Wash. 680

FISHER FLOURING MILLS CO. et al. v. BROWN, Pros. Atty., et al.

No. 15581.

Supreme Court of Washington

January 29, 1920

Department 1.

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by the Fisher Flouring Mills Company and others against Fred C. Brown, prosecuting attorney of King County and others. From an order granting a temporary injunction defendants appeal. Reversed.

Donworth Todd & Higgins, of Seattle (Hyman Zettler, of Seattle, of counsel), for respondents.

MITCHELL J.

This is an appeal from an order granting a temporary injunction restraining the defendants from enforcing so much of the Concentrated Commercial Feeding Stuffs Act, enacted by the Legislature of 1919, as purports to limit to 10 per cent. the amount of crude fiber which the feeds enumerated in section 1 of the act may lawfully contain. The act in question is chapter 101, p. 248 et seq., Laws of 1919. The sections thereof material to this case are 1, 2, 3, 4, 6, and 10, and are as follows:

'Section 1. The term 'concentrated commercial feeding stuffs' as used in this act shall include linseed meals cocoanut meats, gluten feeds, sugar feeds, dried brewer's or distiller's grains, malt sprouts, feeds made from ground cereals or by-products therefrom, including slaughterhouse waste products when sold as feeds, mixed feeds, and mixed meals made from seeds or grains, and all materials of similar nature used for food for domestic animals, condimental feeds, stock feeds, and all patented proprietary or trade stock and poultry feeds for which nutritive value is claimed, but it shall not include hay or whole seeds, or unmixed meals made from entire grains of wheat, rye, barley, oats, corn, or other cereals, nor wheat flour or other flours.

'Sec. 2. Before any concentrated commercial feeding stuff is sold, offered or exposed for sale in Washington, the manufacturer, importer, dealer, agent, or person who causes it to be sold or offered for sale, by sample or otherwise, within this state, shall file with the commissioner of agriculture a statement that he desires to offer such concentrated commercial feeding stuff for sale in this state, and also a certificate, the execution of which shall be sworn to before a notary public, or other proper official, for registration, stating the name, brand or trade-mark under which the concentrated commercial feeding stuff will be sold, and the minimum percentage of crude fat and crude protein and maximum per cent. of crude fiber (allowing 1 per centum nitrogen to equal 6.25 per centum of protein) which the manufacturer or person offering the concentrated commercial feeding stuff for sale guarantees it to contain, these constituents to be determined by the methods recommended by the association of official agriculture chemists of the United States.

'Sec. 3. Any person, company, corporation or agent, that shall sell, offer or expose for sale, any concentrated commercial feeding stuff in this state shall state in the invoice of every bulk shipment, shall affix or cause to be affixed to every package or sample of such concentrated commercial feeding stuff, in a conspicuous place on the outside thereof, a tag or label, which shall be accepted as a guarantee of the manufacturer, importer, dealer, or agent and which shall have plainly printed thereon, in the English language, the number of net pounds of concentrated commercial feeding stuff in the package or bulk shipment, the name, brand or trade-mark under which the concentrated commercial feeding stuff is sold, the name and address of the manufacturer, importer, dealer or agent, the guaranteed analysis stating the minimum percentage of crude fat and crude protein and maximum per cent. of crude fiber, which shall not exceed 10 per cent. (10%), determined as described in section 2, and the ingredients from which the concentrated commercial feeding stuff is compounded. The agency distributing to users of such feed in less than carload lots shall deliver to the purchaser of each lot regardless of quantity sold a bill showing current analysis of such feeding stuffs.

'Sec. 4. Any person, company, corporation, or agent, that shall offer or expose for sale, or sell, any package or sample or any quantity of any concentrated commercial feeding stuff which has not been registered with the commissioner of agriculture, as required by section 2, or which does not have affixed to it the tag or label required by section 3, or which is found by analysis made by or under the direction of the chemist of Washington Agricultural Experiment Station to contain a smaller percentage of crude fat or protein or larger percentage of crude fiber than stated in the guaranty, or who shall affix a tag or label which is false or inaccurate in any respect, or who shall adulterate any concentrated commercial feeding stuff, or who shall adulterate with any substance injurious to the health of domestic animals, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in the sum of one hundred dollars ($100.00) for the first offense, and in the sum of five hundred dollars ($500.00) for each subsequent offense. In all litigation arising from the purchase or sale of any concentrated commercial feeding stuff, in which the composition of the same may be involved, a certified copy of the official analysis, signed by the chemist of the Washington Agricultural Experiment Station, shall be accepted as prima facie evidence of the composition of such concentrated commercial feeding stuff: Provided, that nothing in this act shall be construed to restrict or prohibit the sale of concentrated commercial feeding stuff in bulk to each other by importers, manufacturers or manipulators who mix concentrated commercial feeding stuffs for sale, or as preventing the unrestricted shipment of these articles in bulk to manufacturers or manipulators concentrated commercial feeding stuffs for sale, or to prevent the State Experiment Station, or any person or persons authorized by the State Experiment Station, from making experiments with concentrated commercial feeding stuffs for the advancement of science in agriculture.'

'Sec. 6. It shall be unlawful to include in any concentrated commercial feeding stuff, any buckwheat hulls, rice hulls, cottonseed hulls, peanut hulls, oat hulls, peanut shells, corn cobs, cocoanut shells, ground or shredded straw, sawdust, cellulose, dirt, damaged or decayed feed, mill, elevator or other sweepings or dust, marble dust, or any injurious, deleterious, or, for feeding purposes, worthless or damaged ingredient.'

'Sec. 10. It shall be the duty of the state Attorney General or the prosecuting attorneys of the several counties of this state, to cause proceedings to be commenced against any person or persons whom the commissioner of agriculture shall report to have violated any section of this act, and to prosecute the same in the manner required by law.'

Other sections make general provisions for the enforcement of the act including such rules and regulations as the commissioner of agriculture may deem necessary.

The complaint alleges that plaintiffs are, and for years have been, engaged in the manufacture in this state of certain named concentrated commercial feeding stuffs, which contain over 10 per cent. crude fiber, in which they do an extensive business, and that such feeding stuffs are wholesome and beneficial for domestic animals and are in general use by feeders throughout the state; that the limiting of the crude fiber content to 10 per cent. is arbitrary and in violation of all custom and precedent, and no other law has ever been enacted in any state or country restricting the crude fiber content in such feeds to any percentage at all approaching 10; that in this state there are numerous mills manufacturing breakfast and cereal foods for human consumption, such as oatmeal, rolled oats, and other preparations of oats, wheat, and barley, and many flouring mills, all of which manufactories and mills produce large quantities of oat by-products, wheat bran, wheat mill feed, barley shorts and screenings, and other by-products that are of great value for animal feed, and for years, here and throughout the United States, all such by-products have been used for animal feed by combining them with other wholesome feed substances; that to prohibit such combinations on account of feeds containing an excess of 10 per cent. of crude fiber is arbitrary and unreasonable and would result in the total loss and waste of such by-products; that the enforcement of said clause limiting the fiber contents of such feeds would deprive plaintiffs of the right guaranteed by the Constitution of the United States to engage in lawful and ordinary business, would seriously impair and destroy the established business of each of the plaintiffs, would prevent each plaintiff from making lawful contracts for the sale of wholesome feeds, and would discriminate unlawfully between feeds now manufactured by them and other feeds containing 10 per cent. or less of crude fiber, on a purely arbitrary basis; that the 10 per cent. crude fiber clause is unconstitutional because not covered by or included within the title to the act; and that in all other respects the act is valid and commendable. Against the proposed enforcement by defendants of the 10 per cent. clause as to crude fiber, an injunction is prayed for, as well as a judgment that the clause be declared invalid.

As it already appears, the provision or language objected to is 'which shall not exceed 10 per cent. (10%),' immediately following the words 'maximum per cent. of crude fiber,' in section 3 of the act. The provision of the state Constitution claimed to be violated is section 19, art. 2, as...