State ex rel. Mitchell v. Sage Stores Co.

• Decision Date: 02 October 1943
• Docket Number: 35143.
• Citation: 157 Kan. 404,141 P.2d 655
• Parties: STATE ex rel. MITCHELL v. SAGE STORES CO. et al.
• Court: Kansas Supreme Court

141 P.2d 655

157 Kan. 404

STATE ex rel. MITCHELL v. SAGE STORES CO. et al.

No. 35143.

Supreme Court of Kansas

October 2, 1943

Rehearing Denied Dec. 11, 1943.

Syllabus by the Court.

In original quo warranto action in Supreme Court, findings of fact made by commissioner are advisory only and do not have the effect of finality accorded to findings of fact made by a trial court.

In original quo warranto action where findings of fact made by commissioner are challenged, it is duty of Supreme Court to examine entire record for purpose of reaching its own independent conclusions.

The filled-milk statute has for its purpose the preservation of public health and the prevention of fraud and deception on consumers. Gen.St.1935, 65-707(F) (2).

Every presumption must be indulged in favor of validity of legislative acts.

If character or effect of an article, as intended to be used, is debatable, the Legislature is entitled to its own judgment which cannot be superseded by views of court.

The constitutionality of a statute may be challenged on ground that it has no rational basis, as applied to an article, or that facts which existed when statute was enacted have ceased to exist.

The fact that a food product is wholesome does not of itself make a prohibitory statute either inapplicable to the product or unconstitutional as applied to it.

Whether the purposes of a statute may be attained by regulation or whether absolute prohibition is necessary are questions for the Legislature.

Defendant's milk product to which had been added various fats and oils other than milk fat was within purview of the filled-milk statute even though defendant's product was unknown when the statute was enacted. Gen.St.1935, 65-707(F) (2).

The Legislature is not required to cover all evils of a like character in a single act, but it may proceed step by step.

Where defendant's product was susceptible of being sold as and for evaporated milk, the Legislature had the right in the exercise of the police power to prohibit its sale as an instrument of fraud even though defendant intended that its product should be sold for what it really was. Gen.St.1935 65-707(F) (2).

The filled-milk statute is constitutional as applied to defendant's milk product to which had been added various fats and oils other than milk fat and which is susceptible of being sold as and for evaporated milk and which is so sold. Gen.St.1935, 65-707(F) (2).

Defendant was ousted from abusing its corporate franchises and privileges by selling products in violation of the filled-milk statute. Gen.St.1935, 65-707(F) (2).

Alleged discriminatory enforcement of filled-milk statute against corporate defendant did not deny to it "equal protection of law" nor abridge "privileges and immunities" of corporate defendant as a "citizen" of the United States since corporation does not possess privileges and immunities of a citizen. Gen.St.1935, 65-707(F) (2); Const.Kan. Bill of Rights § 1 and art. 2, § 17; U.S.C.A.Const. Amend. 14.

The filled-milk statute is general and uniform as to each of the respective classifications of milk, whether they are liquid or powder and the statute does not constitute "special legislation" where a general law could be made available so far as defendant's liquid product is concerned. Gen St.1935, 65-707(F) (2).

The Kansas filled-milk statute, being paragraph 2, subdivision F of G.S.1935, 65-707, provides: "It shall be unlawful to manufacture, sell, keep for sale, 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 record in an original action in quo warranto examined and held: (a) the statute does not violate section 1 of the bill of rights, or section 17, article 2, of the constitution of the state of Kansas or the fourteenth amendment to the constitution of the United States; (b) the writ is allowed but ouster of the defendant, the Sage Stores Company, to transact business under its charter is limited and restricted as provided in the opinion; (c) judgment is rendered against both defendants, the Sage Stores Company and Carolene Product Company, for the costs of the action.

Limited writ allowed.

WEDELL, SMITH, and HOCH, JJ., dissenting.

C. Glenn Morris and Warden L. Noe, both of Topeka (A. B. Mitchell, Atty. Gen., on the brief), for plaintiff.

Tinkham Veale, of Topeka, for defendant Sage Stores Co.

Boyle G. Clark, of Columbia, Mo., and T. M. Lillard, of Topeka (Paul M. Peterson and W. L. Nelson, Jr., both of Columbia, Mo., on the brief, Clark, Boggs, Peterson & Becker, of Columbia, Mo., of counsel), for defendant Carolene Products Co.

WEDELL Justice.

This is an original action in quo warranto, instituted by the state on the relation of the attorney general, to oust the defendant, the Sage Stores Company, a Kansas corporation, chartered to transact a general mercantile business, from doing business in this state on the ground it is unlawfully keeping for sale and selling a "filled-milk" product under the trade-names of Milnot and Carolene. The product is manufactured and distributed by the defendant Carolene Products Company, a Michigan corporation.

Plaintiff's amended petition alleged the latter corporation, although not authorized to do or doing business in Kansas, had an interest in the product, that an actual controversy had arisen concerning the lawful sale of its product and that it should be made a party defendant in the litigation. The defendants filed separate answers.

The statute involved is G.S.1935, 65-707 and is commonly known as the "filled-milk" statute. The particular portion thereof alleged to have been violated is subdivision (F) (2), which reads: "It shall be unlawful to manufacture, sell, keep for sale, 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."

In addition to facts previously stated plaintiff's amended petition in so far as material, in substance, alleged:

The defendant, Carolene Products Company, was organized for the purpose of engaging in the distribution of milk products and derivatives thereof (the petition named the milk products enumerated in the statute) and defendant, the Sage Stores Company, unlawfully has in its possession and is unlawfully selling in this state such milk products to which have been added various fats and oils other than milk fat under the fictitious trade-name of Carolene and Milnut; such acts are in violation of the milk, cream and dairy public health laws of this state, Article 7, Chapter 65, General Statutes of Kansas, and particularly G.S.1935, 65-707 (F) (2); the Sage Stores Company, according to its annual statement filed with the Secretary of State for the year 1940, described its business to be "retail groceries and meats"; the state of Kansas is a market for the product of the Carolene Products Company and the Sage Stores Company and other retailers are market outlets for such products if they can be sold lawfully in Kansas; by reason of the described unlawful acts of the Sage Stores Company it has misused and abused the franchises, privileges and authority conferred upon it; such unlawful acts have been of great harm and injury to the general public and the state.

Plaintiff prayed that the Sage Stores Company be ousted, restrained and enjoined from transacting any further business under its charter and that defendant, Carolene Products Company, be restrained and enjoined from distributing and selling its product in this state.

The pertinent portions of the separate answers filed by the defendants are identical or sufficiently similar to make it unnecessary to duplicate the averments thereof. This court appointed the Hon. J. B. McKay of El Dorado as its commissioner, directed him to take testimony and to make findings of fact and conclusions of law. His findings of fact are appended to this opinion and made a part hereof. The commissioner has referred to the Carolene Products Company as the defendant. In order to avoid confusion we shall do likewise. In the hearing before the commissioner the parties stipulated concerning some facts alleged in defendant's answer which were denied in plaintiff's reply. The stipulated facts are embodied in the commissioner's findings of fact and constitute the first eleven paragraphs thereof. The answer of the defendant is quite voluminous. In setting forth such averments thereof as were in substance later admitted, we shall refer to such facts alleged in the answer by directing the reader to pertinent stipulated findings of fact.

The answer denied: That defendant at the institution of this suit, or at any time thereafter, had shipped into Kansas for sale or had sold any products containing coconut oil in violation of the previous decision of this court; that its present products, Carolene and Milnot, contained coconut oil and alleged that among other ingredients, they contained cottonseed oil. (For admissions of averments in the answer pertaining to products defendants were selling or distributing at the time the stipulation was made, the ingredients thereof, the sanitary method of their manufacture and distribution and the labels used...