Martin v. Wholesome Dairy, Inc.
| Citation | 437 S.W.2d 586 |
| Decision Date | 29 January 1969 |
| Docket Number | No. 11652,11652 |
| Parties | Crawford C. MARTIN et al., Appellants, v. WHOLESOME DAIRY, INC., Appellee. . Austin |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Crawford C. Martin, Atty. Gen., Nola White, First Asst. Atty. Gen., A. J. Carubbi, Jr., Executive Asst. Atty. Gen., J. C. Davis, W. O. Shultz and Pat Bailey, Asst. Attys. Gen., Austin, for appellants.
Potash, Cameron, Bernat & Studdard, Don Studdard, El Paso, for appellee.
This suit was brought by Wholesome Dairy, Inc., appellee, against Crawford C. Martin, Attorney General of Texas, James E. Peavy, Commissioner, Texas State Board of Health and Manuel D. Hornedo, M.D ., Director, El Paso City County Health Unit, seeking a declaratory judgment that Art. 713a, V.T.P.C., is unconstitutional or inapplicable to an imitation milk product known as 'Farmer's Daughter High Protein Drink' which appellee desired to manufacture and sell in the State of Texas. 1
In a non-jury trial the trial court declared Art. 713a, V.T.P.C., unconstitutional and enjoined appellants from enforcing it.
The pertinent portions of Art. 713a read:
'Sec. 1. Where used in this Act:
(a) The word person shall mean any individual, firm, copartnership, or corporation.
(b) Filled milk shall include any milk, cream, or skimmed milk whether or not condensed, evaporated, concentrated, powdered, dried, or desiccated, to which has been added or which has been blended or compounded with any fat or oil other than milk fat so that the resulting product is in limitation or semblance of milk, cream, or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried or desiccated. Provided, that this definition shall not be construed to include any distinctive proprietary food compound prepared, and designated for feeding infants and young children, and cutomarily used on the order of a physician.
Sec. 2. It shall hereafter be unlawful to handle for use, manufacture, or sale within this State any form of filled milk. It is declared that filled milk is an adulterated article of food injurious to the public health, and its sale constitutes a fraud upon the public. It shall be unlawful for any person to manufacture within this State or to ship or deliver for shipment in intrastate commerce any filled milk.'
The trial court made and filed findings of fact and conclusions of law, and we quote those deemed material here:
Findings of Fact
'2. 'Farmer's Daughter High Protein Drink' is an imitation milk, which is manufactured by plaintiff, is composed of a mixture of water, nonfat dry milk, coconut oil, corn syrup solids, sodium caseinate, mono-diglycerides, starch, and carotene. This article of food can be manufactured by using various vegetable oils other than coconut oil.
4. An imitation milk product can be made by combining fat-free milk solids with some vegetable oils so that the resulting product will be wholesome, nutritious, beneficial to health, and comparable to although less nutritious than natural whole milk.
5. Reasonable minds can differ as to whether or not an imitation milk product made by combining fat-free milk solids with coconut oil is wholesome, nutritious, beneficial to health, and comparable to natural whole milk.
6. When the 'Farmer's Daughter High Protein Drink' is made with coconut oil and the label of such product represents that it contains only vegetable oil, the product is misleading to persons on a diet intended to reduce their serum cholesterol level.
7. The manner in which 'Farmer's Daughter High Protein Drink' is packaged and labeled is not misleading to the general public and does not mislead people into believing that it is natural whole cow's milk.
8. When consumed as a dietary fat, coconut oil produces a higher serum cholestrol level than other vegetable oils and high serum cholestrol levels are related to coronary heart disease especially atherosclerosis.
9. The 'Farmer's Daughter High Protein Drink' is intended to be used as a dietary replacement for whole cow's milk.
10. When milk fat is removed from cow's milk specific nutrients are removed with the milk fat and these nutrients are not found in the vegetable oil used in lieu of milk fat in a filled milk.'
'4. The Filled Milk Statute, Article 713(a), Texas Penal Code, transcends the police powers of the State for the reason that the food products prohibited are nutritious, wholesome, and healthy; hence, its sale and consumption by the citizens of the State do not affect the health, welfare, safety, or morals of its citizens, and it cannot deceive or defraud them so long as it is sold in cartons bearing the information as shown on Plaintiff's Exhibit 9.
5. A wholesome and nutritious food product such as the one involved in this case may be strictly regulated because of its resemblance to milk, but it may not be prohibited. The prohibition of its manufacture and sale as provided by Article 713(a) is not a valid exercise of the police power, and it is in contravention to Article 1, Section 19, of the Constitution of the State of Texas.
6. The Filled Milk Statute is discrimininatory and arbitrary and denies Plaintiff equal protection of the law as guaranteed by Article 1, Section 3, of the Constitution of the State of Texas, for the reason that it prohibits the sale of harmless compounds when the same are blended so that the product is an imitation of milk, while other forms of imitation products containing substantially identical ingredients are permitted.'
The product which appellee desires to sell looks like the mild of a cow, smells like it and tastes like it.
'Farmer's Daughter High Protein Drink' is a mixture of water, nonfat dry milk, coconut oil, corn syrup solids, sodium caseinate, mono-diglycerides, starch and carotene which is an imitation or semblance of milk. Its manufacture and sale is prohibited by Art. 713a.
We picture three sides of the carton in which this imitation milk is marketed. The front or spout side does not have the words 'Imitation Milk' on it. The side opposite the front or back side has the nutritional analysis and other lettering on it. The other two sides are identical. As to them it should be noted that the words 'Imitation Milk' are on the slanted portion of the carton which makes the roof like top of the carton.
These cartons are of the same shape and design as the cartons in which whole milk is sold. They are colored in part blue, green, black and white.
Appellee bases its contention of unconstitutionality of Art. 713a upon Secs. 3 and 19 of Art. 1 of the Texas Constitution, Vernon's Ann.St. These sections are the 'equal rights' and 'due course of law' provisions of the Constitution, appellee contending that the statute denies it rights equal to rights accorded other citizens and deprives it of its property without due course of law. On the other hand appellants contend that Art. 713a is a valid exercise of police power by the Legislature. This power is an attribute of sovereignty, not derived from the Constitution but is the inherent power of the State to protect the peace, health, happiness, and general welfare of the people. Constitutional Law, 12 Tex.Jur.2d, Sec. 70, p. 415.
We make the following quotations in order to authoritatively define the scope of our inquiry herein.
Smith v. Davis, 426 S.W.2d 827, Tex.Sup. (1968) .
'The question of whether a legislative act or ordinance is void is often difficult to determine. This is true because police power is broad and indefinite. It is thought that the following considerations are material and essential to a correct determination of the question: (1) is the ordinance appropriate and reasonably necessary under all the circumstances to accomplish a purpose within the scope of the police power: (2) is the ordinance reasonable in the sense of not being arbitrary and unjust, or is the effect on individuals of the action taken so unduly harsh and hard as to be out of proportion to the end sought to be accomplished. In the case of Houston & T.C. Ry. Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648, 653, 70 L.R.A. 850, Judge Williams used the following language: ...
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