Reesman v. State

• Decision Date: 10 October 1968
• Docket Number: No. 39941,39941
• Citation: 74 Wn.2d 646,445 P.2d 1004
• Court: Washington Supreme Court
• Parties: Kenneth REESMAN and Myrtle Reesman, husband and wife, doing business as Reesman's Dairy, Respondents, v. The STATE of Washington and Donald Moos, Director of Agriculture for the State of Washington, Appellants.

Page 646

74 Wn.2d 646

445 P.2d 1004

Kenneth REESMAN and Myrtle Reesman, husband and wife, doing

business as Reesman's Dairy, Respondents, v. The STATE of Washington and Donald Moos, Director of

Agriculture for the State of Washington, Appellants.

No. 39941.

Supreme Court of Washington, En Banc.

Oct. 10, 1968.

Lyon, Beaulaurier & Aaron, J. Hugh Aaron, W. L. Weigand, Jr., Yakima, for respondents.

John J. O'Connell Atty. Gen., E. E. Bill Rosatto, Asst. Atty., Olympia, for appellants.

Helsell, Paul, Fetterman, Todd & Hokanson, Harold D. Johnson, Seattle, for amicus curiae.

HAMILTON, Judge.

The trial court declared pertinent portions of RCW 15.38 (Filled Dairy Products Act) unconstitutional, and enjoined the Director of Agriculture from enforcing the act against Mr. and Mrs. Kenneth Reesman, doing business as Reesman's Dairy. The state of Washington and the Director of Agriculture have appealed. We reverse the judgment.

The respondents, Mr. and Mrs. Reesman, own and operate a dairy plant in Toppenish, Washington. Their products are distributed generally in the Yakima area, and retailed in part through their own drive-in outlets. In the course of their operation they acquired a franchise to manufacture and distribute a product known as 'Farmer's Daughter.' This is a high protein drink, consisting of powdered milk from which the butter fat has been removed and to which has been added, water, vegetable oil, sodium caseinate, corn syrup solids, starch, monodiglyceride, carotene, and units of vitamins A and D. The product, when compounded, is the color of milk, has the general viscosity of milk, and to some tastes and smells like milk. It is to be distributed in a paper carton identical in shape and design to a standard half-gallon paper milk carton. A dairy and a dairymaid are pictured on the carton, around and about which is written in varying size print, 'farmer's daughter,' 'Hi-Protein Drink,' 'Pasteurized Homogenized,' 'Delicious Nutritious,' 'Contains No Animal Fat,' and 'Modern science has now achieved a unique, healthful liquid--as nutritious and tasty as the natural product. It is made possible by a secret formula recently discovered by one of America's leading dairy scientists.' The ingredients are listed and Reesman's Dairy is named as the processor and distributor.

Because of the composition and milk-like qualities of the product it comes within the scope of the Filled Dairy Products Act, RCW 15.38, which provides in pertinent part:

Whenever used in this chapter:

(2) The term 'filled dairy products' means any milk, cream, or skimmed milk, or any combination thereof, whether or not condensed, evaporated, concentrated, frozen, powdered, dried, or desicated, or any food product made or manufactured therefrom, 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 imitation or semblance of any dairy product, including but not limited to, milk, * * * skimmed milk, * * * or skim-milk, * * *. (Italics ours.) RCW 15.38.010.

(1) It shall be unlawful in intrastate commerce for any person to manufacture, sell, exchange, purvey, transport or possess any filled dairy product or to offer or expose for sale or exchange or to be purveyed any such product; * * *. RCW 15.38.020.

The provisions of this chapter may be enforced by injunction brought by any private person, firm, or corporation or by a municipal corporation or agent or subdivision thereof, in any court having jurisdiction to grant injunctive relief.

In addition, all filled dairy products as defined herein and all food products containing filled dairy products as an ingredient are hereby declared to be adulterated for all purposes of law including all the purposes of the Washington uniform food, drug and cosmetic act, RCW 69.04.001 to 69.04.870, inclusive. RCW 15.38.040.

Upon discovering the applicability of the foregoing statutes to their proposed product, respondents commenced this action challenging the constitutionality of RCW 15.38 as a whole, and particularly that portion of the legislation declaring a filled dairy product to be adulterated. They predicated their challenge upon the ground that the legislation transcended the state's police power in violation of article 1, section 3, of the state constitution and the due process and equal protection clause of the fourteenth amendment to the U.S. Constitution in that the statute totally prohibited, rather than merely regulated, the marketing of a wholesome and nutritious food product. Thereafter, the state acting through the Director of Agriculture answered the respondents' claim and sought to impose an embargo on the product pursuant to the Uniform Food, Drug and Cosmetic Act, RCW 69.04. The embargo was restrained pending trial of the action, which in turn resulted in the trial court's judgment invalidating RCW 15.38.020(1) and permanently enjoining enforcement of that section against respondents.

In reaching its conclusion, the trial court in substance found as a fact that the product in question was (a) a filled dairy product within the contemplation of RCW 15.38.010(2)(b) in the semblance of milk, and (c) harmless, nutritious and wholesome. The trial court then concluded that the complete prohibition of the manufacture and sale of the product was an invalid exercise of the state's police power.

The primary issue thus presented on appeal is whether the legislature exceeded its constitutional powers in enacting a statute Prohibiting the manufacture and distribution of a nondeleterious and nutritious dairy product on the basis of its being 'filled' with nondairy ingredients, the combination of which result in a product resembling a natural dairy product.

We have many times emphasized the broad scope of the state's police power, consistently approving of the following language found in Shea v. Olson, 185 Wash. 143, at 153, 53 P.2d 615, at 619, 111 A.L.R. 998 (1936) However difficult it may be to give a precise or satisfactory definition of 'police power,' there is no doubt that the state, in the exercise of such power, may prescribe laws tending to promote the health, peace, morals, education, good order and welfare of the people. Police power is an attribute of sovereignty, an essential element of the power to govern, and a function that cannot be surrendered. It exists without express declaration, and the only limitation upon it is that it must reasonably tend to correct some evil or promote some interest of the state, and not violate any direct or positive mandate of the constitution.

A broad discretion is thus vested in the legislature to determine what the public interest demands under particular circumstances, and what measures are necessary to secure and protect the same. Unless the measures adopted by the legislature in given circumstances are palpably unreasonable and arbitrary so as to needlessly invade property or personal rights as protected by the constitution, the legislative judgment will prevail. With this in mind, we stated in Clark v. Dwyer, 56 Wash.2d 425, at 431, 353 P.2d 941, at 945 (1960):

Where the validity of a statute is assailed, there is a presumption of the constitutionality of the legislative enactment, unless its repugnancy to the constitution clearly appears or is made to appear beyond a reasonable doubt. Port of Tacoma v. Parosa, 52 Wash.2d 181, 324 P.2d 438; In re Bartz, 47 Wash.2d 161, 287 P.2d 119; Union High School Dist. No. 1 v. Taxpayers of Union High School Dist. No. 1, 26 Wash.2d 1, 172 P.2d 591. Where possible, it will be presumed that the legislature has affirmatively determined any special facts requisite to the validity of the enactment, even though no legislative finding of fact appears in the statute. State ex rel. Collier v. Yelle, 9 Wash.2d 317, 333, 115 P.2d 373.

And, as we stated in Lenci v. City of Seattle, 63 Wash.2d 664, at 668, 388 P.2d 926, at 929 (1964):

These rules are more than mere rules of judicial convenience. They mark the line of demarcation between legislative and judicial functions.

Against this backdrop then, we turn to the legislation in question to ascertain whether its repugnancy to the constitution clearly appears or is made to appear beyond a reasonable doubt.

The declared legislative purpose motivating the enactment of the Washington Filled Dairy Rpoducts Act is stated in RCW 15.38.001 as follows:

Filled dairy products resemble genuine dairy products so closely that they lend themselves readily to substitution for and confusion with such dairy products and in many cases cannot be distinguished from genuine dairy products by the ordinary consumer. The manufacture, sale, exchange, purveying, transportation, possession, or offering for sale or exchange or purveyance of filled dairy products creates a condition conducive to substitution, confusion, deception, and fraud, and one which if permitted to exist tends to interfere with the orderly and fair marketing of foods essential to the well-being of the people of this state. It is hereby declared to be the purpose of this chapter to correct and eliminate the condition above referred to; to protect the public from confusion, fraud and deception; to prohibit practices inimical to the general welfare; and to promote the orderly and fair marketing of essential foods.

The legislature has thus put its finger squarely upon the evil which the enactment was designed to guard against, I.e., the manufacture, distribution and sale of a substitute dairy product which, by its resemblance to the natural product, is conducive to consumer confusion and deception. This has been held to be a valid basis upon which to rest the exercise of the state's police power, for the prevention of deception and fraud upon the consuming public is in the public interest. Carolene Products Co. v. United States, 323 U.S. 18, 65 S.Ct. 1, 89 L.Ed. 15 (1944); Sage Stores Co. v. State of Kansas ex rel. Mitchell, 323...