State ex rel. Carnation Milk Prods. Co. v. Emery

• Decision Date: 20 July 1922
• Citation: 189 N.W. 564,178 Wis. 147
• Parties: STATE EX REL. CARNATION MILK PRODUCTS CO. ET. AL. v. EMERY, DAIRY AND FOOD COM'R.
• Court: Wisconsin Supreme Court

178 Wis. 147

189 N.W. 564

STATE EX REL. CARNATION MILK PRODUCTS CO. ET. AL.

v.EMERY, DAIRY AND FOOD COM'R.

Supreme Court of Wisconsin.

July 20, 1922.

Action under the original jurisdiction of the court by the State of Wisconsin, upon the relation of the Carnation Milk Products Company and another, against J. Q. Emery, as Dairy and Food Commissioner of the State of Wisconsin, for an injunction. Action dismissed.

Eschweiler, J., dissenting.

An action under the original jurisdiction of this court, upon the relation of the plaintiff corporations, to enjoin the defendant from enforcing the provisions of chapter 409 of the Laws of 1921, this state, as against the plaintiffs so far as the same applies to the manufacture and sale by the plaintiffs of the product known as “Hebe.”

Upon the filing of the complaint, an answer was served, raising certain issues of fact, which were referred to a referee for his findings. Chapter 409, in so far as it affects the plaintiffs, is as follows:

“2. It shall be unlawful for any person, firm or corporation, by himself, his servant or agent, or as the servant or agent of another, to manufacture, sell or exchange, or have in possession with intent to sell or exchange, any milk, cream, skim milk, buttermilk, condensed or evaporated milk, powdered milk, condensed skim milk, or any of the fluid derivatives of any of them to which has been added any fat or oil other than milk fat, either under the name of said products or articles or the derivatives thereof or under any fictitious or trade name whatsoever.”

The plaintiffs manufacture and have in their possession for sale Hebe, which is a compound composed chiefly of milk from which the butter fat has been extracted and cocoanut oil injected in place of the butter fat.

Plaintiffs contend that this provision of law as applied to their business is in contravention of the Fourteenth Amendment to the Constitution of the United States, and similar provisions of the state Constitution, and to the commerce clause of the federal Constitution.

Hebe is manufactured by the Carnation Milk Products Company in Wisconsin, and its entire product sold to the Hebe Company. The Hebe Company sells the compound to jobbers and wholesalers only. The compound contains 92.2 per cent. skimmed milk or buttermilk, and 7.8 per cent. of cocoanut oil similarly evaporated as condensed milk. It is similar in taste, odor, appearance, consistency, and manner of packing to evaporated milk. The butter fat extracted from the milk is much more expensive than the cocoanut oil injected into the milk to take the place of the butter fat. Hebe can therefore be sold, and is sold, to wholesalers and retailers cheaper than the genuine evaporated or condensed milk.

The compound has been manufactured in the state for the last five years, while condensed or evaporated milk has been manufactured and on the market for the last 25 or 30 years. The compound is not deleterious in itself, but it is not of the same quality or food value as the genuine evaporated milk. It is lacking in a certain chemical substance known as vitamines A, which are essential elements of a proper dietary. These vitamines may be supplied by other foods. It is admitted that the compound is not a proper substitute for the genuine for infants.

Hebe has been extensively advertised as a substitute for milk, through the press and magazines, and by means of cook books prepared by the Hebe Company. It has been advertised in the newspapers of Wisconsin as “milk,” “milk compound,” and “compound of milk.” It has been sold by retailers in Wisconsin as “milk” or “evaporated milk.”

There have also been advertised and sold four other similar compounds in the state of Wisconsin, either as “milk” or “compound of milk.” These compounds are also shipped out of the state and advertised and sold in other states as substitutes for evaporated milk.

In some cases the compounds are sold by the retailers at the same price as the genuine evaporated milk. The compounds have been variously labeled at different times to indicate that they were more or less equivalent to or better than the genuine evaporated milk. At the time of the commencement of this action, Hebe was labeled:

“A COMPOUND OF EVAPORATED SKIMMED MILK AND VEGETABLE FAT. Contains 7.8 per cent. Vegetable Fat, 25.5 per cent. Total Solids.”

On the margin of the label was printed:

“FOR COOKING AND BAKING--Do not Use In Place of Milk For Infants.”

The Carnation Milk Products Company has an investment in its plants in Wisconsin of about $650,000, and of this about $50,000 in its plants is used for the manufacture of Hebe.

Richmond, Jackman, Wilkie & Toebaas, of Madison, for petitioners.

William J. Morgan, Atty. Gen., and Ralph M. Hoyt, Deputy Atty. Gen., for defendant.

CROWNHART, J. (after stating the facts as above).

I. It is but trite to say that the Constitution of our state is the supreme law. Therein will be found the powers of the executive, legislative, and judicial branches of government, each supreme in its field, but co-ordinate in their sources of powers and the exercise thereof.

The greatest deference must be paid by each department to the other acting within the scope of its powers. Any usurpation of power by one department at the expense of another is a wrong against the people who adopted the Constitution as their charter of liberties and rights.

[1] To the Legislature was given the power to enact laws not in contravention to the Constitution. A law so enacted becomes the public policy of the state. Borgnis v. Falk Co., 147 Wis. 351, 133 N. W. 209, 37 L. R. A. (N. S.) 489.

Before a statute can be said to be unconstitutional, the statute must lack in public purpose “so clear and palpable as to be perceptible to the mind at first blush.” So said the great Chief Justice Dixon who sat in the constitutional convention and helped frame the charter of our state. Brodhead v. Milwaukee, 19 Wis. 652, 88 Am. Dec. 711.

“We must bear in mind,” said Chief Justice Winslow, “the well-established principle that it [the statute] must be sustained unless it is clear beyond reasonable question that it violates some constitutional limitation or prohibition.” Borgnis v. Falk Co., 147 Wis. 348, 133 N. W. 209, 37 L. R. A. (N. S.) 489.

“The rule of all courts,” said Justice Bardeen, “is that a statute will be declared unconstitutional only when it is shown beyond reasonable doubt that it conflicts with the fundamental law. It is equally true that the courts will seek every reasonable mode of reconciliation of the statute with the Constitution, and it is only when reconciliation has been found impossible that it will be declared void.” State ex rel. Hicks v. Steens, 112 Wis. 172, 88 N. W. 49.

Said Mr. Justice Dodge:

“We must and do concede to the legislative branch of the government the fullest exercise of discretion within the realm of reason, and, if a public purpose can be conceived which might rationally be deemed to justify the act, the court cannot further weigh the adequacy of the need or the wisdom of the method.” State ex rel. Zillmer v. Kreutzberg, 114 Wis. 549, 90 N. W. 1105, 58 L. R. A. 748, 91 Am. St. Rep. 934.

The courts will presume in favor of the constitutionality of the acts in a case of doubt and sustain them. State ex rel. Brayton v. Merriman, 6 Wis. 14;Smith v. Mariner, 5 Wis. 551, 68 Am. Dec. 73;In re Oliver, 17 Wis. 681;State ex rel. Kellogg v. Currens, 111 Wis. 431, 87 N. W. 561, 56 L. R. A. 252;Northwestern National Bank of Superior v. City of Superior, 103 Wis. 43, 79 N. W. 54.

The United States Supreme Court has declared equally emphatically in favor of sustaining acts of Congress and the statutes of states. Price v. Illinois, 238 U. S. 446, 35 Sup. Ct. 892, 59 L. Ed. 1400;Rast v. Van Deman & L. Co., 240 U. S. p. 357, 36 Sup. Ct. 370, 60 L. Ed. 679, L. R. A. 1917A, 421, Ann. Cas. 1917B, 455;Hebe Co. v. Shaw, 248 U. S. p. 303, 39 Sup. Ct. 125, 63 L. Ed. 255.

Cooley on Constitutional Limitations, p. 236, says:

“The rule of law upon this subject appears to be, that, except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the State, except as those rights are securedby some constitutional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the lawmaking power. Any legislative act which does not encroach upon the powers apportioned to the other departments of the government, being prima facie valid, must be enforced, unless restrictions upon the legislative authority can be pointed out in the constitution, and the case shown to come within them.”

Again, on page 239:

“Nor are the courts at liberty to declare an act void, because in their opinion it is opposed to a spirit supposed to pervade the constitution, but not expressed in words.”

II. The act sought to be avoided was passed in the exercise of the police power of the state.

[2] The police power covers all matters having a reasonable relation to the protection of the public health, safety, or welfare. McLean v. Arkansas, 211 U. S. 539, 29 Sup. Ct. 206, 53 L. Ed. 315.

[3] As applied to food, this authority extends to requiring a fixed minimum amount of nutritional elements. Hutchinson Ice Cream Co. v. Iowa, 242 U. S. 153, 37 Sup. Ct. 28, 61 L. Ed. 217, Ann. Cas. 1917B, 643;Hebe Co. v. Shaw, 248 U. S. 297, 39 Sup. Ct. 125, 63 L. Ed. 255.

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