Heath Milligan Manufacturing Company v. Worst

• Decision Date: 09 December 1907
• Docket Number: No. 41,41
• Citation: 207 U.S. 338,52 L.Ed. 236,28 S.Ct. 114
• Parties: HEATH & MILLIGAN MANUFACTURING COMPANY, The Sherwin-Willams Company, et. al., Appts., v. J. H. WORST, Director of the North Dakota Government Agricultural Experiment Station
• Court: U.S. Supreme Court

207 U.S. 338

28 S.Ct. 114

52 L.Ed. 236

HEATH & MILLIGAN MANUFACTURING COMPANY, The Sherwin-Willams Company, et. al., Appts.,

v J. H. WORST, Director of the North Dakota Government Agricultural Experiment Station.

No. 41.

Argued November 7, 8, 1907.

Decided December 9, 1907.

This is a direct appeal from the circuit court for the district of North Dakota, sustaining the constitutionality of a statute of that state, requiring the manufacturers of mixed paints to label the ingredients composing them.

The statute is as follows:

An Act to Prevent the Adulteration of and Deception in the Sale of White Lead and Mixed Paints.

Be it enacted by the legislative assembly of the state of North Dakota: 1. Every person, firm, or corporation who manufactures for sale or exposes for sale, or sells, within this state, any white lead paint or compound intended for use as such, shall label the same in clear and distinct open gothic letters upon a white background, and show the true per cent of each mineral constituent contained in said paint, or, if other than linseed oil is used in its preparation, the names of such oils or substitutes shall be shown, together with the percentage thereof, and every person, firm, or corporation who manufactures for sale, or exposes for sale, or sells within this state, any mixed paint or compound intended for use as such which contains any ingredient other than pure linseed oil, pure carbonate of lead, oxid of zinc, turpentine, Japan dryer, and pure colors, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall, for each offense, be punished by a fine of not less than twenty-five and not more than one hundred dollars and costs, or by imprisonment in the county jail not exceeding sixty days; provided, that any such person, firm, or corporation, who shall manufacture for sale, or expose for sale, or sell within this state any white lead paint or mixed paint, containing ingredients other than those as above enumeroated, shall not be deemed guilty of a violation of this act in case the same be properly labeled showing the quantity or amount of each and every ingredient used therein and not specified above, and the name and residence of the manufacturer or person for whom it is manufactured.

It is made the duty of the appellee, in his official capacity, to enforce the statute. A few days before the statute took effect (January 1, 1906), the appellants filed a bill to restrain its enforcement, and prayed a preliminary as well as a permanent injunction. A preliminary injunction was granted. It was dissolved on final hearing, and a decree was entered, dismissing the bill for want of equity.

The grounds of attack upon the statute are that it offends against the 14th Amendment of the Constitution of the United States, in that it deprives appellants of their property and liberty without due process of law, and denies them the equal protection of the laws. How it is contended the statute produces these effects will be pointed out hereafter.

The stress of the case is upon paragraph 17 of the bill and the special paragraphs 'A' and 'B.' To these paragraphs an answer was filed. The legal effect of the others was submitted upon demurrer. Upon the issue of fact formed by the answer to paragraph 17 and the special paragraphs, testimony was taken, and upon it and the demurrer to the other allegations, and the affidavit of one Professor Ladd, the case was submitted.

The bill is voluminous. It alleges that the plaintiffs are manufacturers of mixed paints, and sell their respective products in North Dakota, and that each 'had established an enviable reputation for its goods;' that each sold in North Dakota mixed paints containing ingredients other than those specified in the statute, which is set out. It is alleged that mixed paint has an absolutely defined meaning in the trade, and means a paint so thinned, 'by admixture of the proper liquid vehicles, as to reduce it to a consistency which makes it ready for use.' The term mixed paint, it is alleged, is used in contradistinction to 'a paste paint,' which paint has also a well defined meaning, meaning a paint ready for use, except that it requires thinning material to give it the necessary consistency. White lead, it is alleged, is a commercial, not a scientific, term, and is commonly understood to be a dry powder consisting of commercial carbonate of lead. When ground in oil to a paste consistency it is commonly called in the trade white lead in oil, colloquially referred to frequently as 'white lead.' In the statute these terms are used interchangeably, and are intended to denote white lead in oil, as above defined. That various compounds containing no carbonate of lead or other ingredients in addition to carbonate of lead are frequently sold in the market labeled as 'white lead.' And that the words 'any white lead paint, or compound intended for use as such,' in the act, 'are intended to denote a paste paint, intended as a substitute for white lead, and labeled or sold as 'white lead' or 'white lead in oil,' but which does not contain any carbonate of lead, or contains other ingredients in addition thereto.'

Paragraph 17 is as follows:

'Your orators further show unto your honors that the manufacture of paint, and more particularly of mixed paint, involves many practical problems, the proper solution of which demands the application of a variety of scientific principles, and is the result of a great variety of practical tests and experiments; that the means, methods, and processes employed in said manufacture have changed materially in the course of years to conform to the discovery of new scientific facts and the results of practical experiments; that the technology of paint manufacturing has made gradual and constant progress during the last fifty years, during which time it has undergone an evolutionary process which is still far from completed; that until about twenty-five years ago carbonate of lead was the only material which was universally conceded by manufacturers and users of paint to be a proper pigment to be used in paints requiring or admitting of the use of a white pigment; that since said time, and within the last twenty-five years, oxid of zine gradually gained recognition among manufacturers and users of paint as being equally appropriate for the purposes for which theretofore carbonate of lead had alone been recognized as appropriate, and has come to be universally conceded as possessing important useful qualities as a white pigment not possessed by carbonate of lead; that within the last fifteen years practical experiments and tests, made with a view to widening the range of white pigments properly usable in the manufacture of paint, have demonstrated the following facts, which are now conceded by the most advanced and most successful paint manufacturers of the world, viz.:

'a. That there are materials other than carbonate of lead and oxid of zinc which, in some cases, may be used in connection therewith and in other cases may be used instead thereof, and which, either without carbonate of lead or oxid of zinc, or in connection with one or both of these, according to circumstances, are as efficient as, and in some respects more efficient than, carbonate of lead or oxid of zinc, or a combination of the two, for the purposes for which the latter are used in paint; that among said materials are (a) sublimed lead (which is an artificial product consisting of sulphate of lead and oxy-sulphate of lead), (b) standard zinc lead white (which is commonly called zinc lead, and is an artificial product, made by the United States Smelting Company, and sold in large quantities, and consists of a combination of sulphate of lead and oxid of zinc united by a furnace process), (c) zinc made from Western ores, which carries in its natural composition varying proportions of sulphate of lead and oxid of zinc, and (d) an artificial opaque white pigment, consisting essentially of zinc sulphid, zinc oxid, and barium sulphate, which is known to the paint manufacturing trade under various trade names, such as lithopone, ponolith, lithophone, charlton white, becton white, and Orr's white.

'b. That there are certain white pigments other than carbonate of lead and oxid of zinc which constitute proper and useful ingredients of paints, and which, if so used in connection with carbonate of lead or oxid of zinc, or a combination of the same, or in connection with one or more of said other materials described in the last preceding paragraph as proper substitutes for carbonate of lead and oxid of zinc, furnish to the paint wherein used important useful qualities not possessed by either carbonate of lead or oxid of zinc, or any of said substitutes therefor; that among said other pigments are sulphate of barium, silica, silicate of magnesia, calcium carbonate, hydrated sulphate of lime, and others; that the proportionate amount of the pigments last named which may properly and usefully be made an ingredient of paint, and whether any of them may be properly used as such ingredients, depends upon a great variety of conditions and circumstances, but all of said pigments may, under proper conditions, serve a highly useful purpose, and where properly used do essentially increase the durability and density of the paint.'

It is further alleged that the statute, in condemning inferentially the use of the materials mentioned in paragraph 17 and its subparagraph, 'as ingredients of mixed paint, and branding them as adulterants, ignores the fact that all said substances constitute proper, useful, and necessary ingredients of paint, is based upon antiquated, obsolete, and quite generally discarded prejudices regarding the ingredients proper, useful, and necessary to be used in paint, and is therefore unreasonable and void.'

That complainants and most of the successful paint manufacturers of the United States have for many years maintained, and continue to...