State v. A. J. Bayless Markets, Inc.

• Decision Date: 24 July 1959
• Docket Number: No. 1158,1158
• Citation: 342 P.2d 1088,86 Ariz. 193
• Parties: STATE of Arizona, Plaintiff, v. A. J. BAYLESS MARKETS, INC., a corporation, Alfred M. Lewis, dba Orange Empire, a Co-op., Joseph Naifeh, dba Russ Keaton Save Way Market and Imperial Ice Cream, Inc., a corporation, Defendants.
• Court: Arizona Supreme Court

Page 1088

342 P.2d 1088

86 Ariz. 193

STATE of Arizona, Plaintiff, v. A. J. BAYLESS MARKETS, INC., a corporation, Alfred M. Lewis, dba Orange Empire, a Co-op., Joseph Naifeh, dba Russ Keaton Save Way Market and Imperial Ice Cream, Inc., a corporation, Defendants.

No. 1158.

Supreme Court of Arizona.

July 24, 1959.

Wade Church, Atty. Gen., John Vanlandingham and H. B. Daniels, Asst. Attys. Gen., Charles C. Stidham, County Atty., Donald D. Meyers, Deputy County, Atty., Phoenix, for plaintiff.

Shimmel, Hill & Kleindientst, Phoenix, for defendants.

PHELPS, Chief Justice.

There was certified to us in this case under the provisions of Rule 346, of Rules of Criminal Procedure, 17 A.R.S., the question of whether A.R.S. §§ 3-630 and 3-632 as applied to the sale or the intent to sell imitation ice cream and imitation ice milk as alleged in the information filed herein are contrary to the provisions of the constitution of the United States and of the state constitution.

The law under which the prosecution is brought provides as follows:

' § 3-630. * * *

'A. It is unlawful for a person to manufacture, sell, exchange or have in possession with intent to sell or exchange, any milk, cream, skim milk, buttermilk, condensed or evaporated milk, powdered milk, cheese or hceese product, condensed skim milk, ice cream or iced milk, frozen custard, ices or sherbert or any fluid derivative thereof to which has been added fat or oil other than milk fat. * * *.

'B. * * *

'C. No person shall produce, sell, offer or expose for sale or have in his possession with intent to sell, a dairy product which is adulterated or misbranded. * * *.'

It is stipulated by and between counsel for the state and counsel for the defendant that defendant Imperial Ice Cream Company is a corporation organized under the laws of the state of California and is engaged in the manufacture and sale of 'Imitation Ice Milk' and 'Imitation Ice Cream'; that its products are sold and delivered in California at its place of manufacture to persons who transport such products from California to Arizona and distribute and sell the same in this state; that defendants are some of the persons who distribute and sell said products in Arizona; that the manufacturer owns and operates a modern sanitary and hygienic plant for the purpose of producing and selling its products; that the products are nutritious, wholesome and healthful and that the ingredients used therein and the percentage they bear to the entire product are as follows: vegetable fat 6%; non-fat dry milk solids 11%; liquid sugar 9 1/4%; liquid corn sugar 9%; stabilizer and emulsifier .49%; vanilla flavoring .14%; and water 64.12%; that these ingredients are processed and brought into solution under agitation and under proper temperatures, and in texture, body, taste and other physical characteristics cannot be readily distinguished from ice cream and ice milk.

There is attached to the record a photostatic copy of a half gallon carton constituting the orginal package in which the product is placed for sale. This clearly indicates the character of its contents. It has printed in large letters apparently on both sides thereof the words, 'Big Hit', 'Imitation Ice Milk', 'Strawberry Big Hit Imitation Ice Milk'. In smaller type on one side thereof it has printed thereon 'A superior quality product' and in still smaller type the following: 'Ingredients water, milk solids non-fat, sucrose, corn syrup solids, pure hydrogenated vegetable fat, stabilizer, emulsifier, natural and artifical flavoring and coloring.' There is nothing in the record to indicate that any of the defendants sold said product except in the carton above described. They kept and displayed said product in refrigerated display cases together and intermingled with ice cream and other frozen food products.

Defendants claim that the above numbered sections violate various provisions of the state and federal constitutions among which are the due process and equal protection clauses thereof. We deem it necessary, however, to consider only the Fourteenth Amendment to the federal constitution and Article 2, § 4 of our state constitution, A.R.S., and the excessive exercise of the police power.

We believe the inference may be drawn from the stipulation of facts that the product here involved was not brought into Arizona by defendants or their servants or agents and therefore when it was delivered to defendants it no longer possessed any of the characteristics of an interstate transaction, but that it had become commingled with the mass of commodities within the state and subject to proper state legislation. We are definitely of the view, however, that so long as it is sold by the local distributor in cartons describing it as an 'Imitation Ice Milk' which is further stipulated to be mutritious, wholesome and healthful and by the printed information on the carton advises the purchaser thereof of the ingredients used in its preparation showing the percentage of each ingredient used therein, it is not within the police power of the state to prohibit its sale. Under the circumstances above described no one could be deceived as to its nature.

We recognize the fullness and the adequacy of the police power of the state, inherent in sovereignty, to enact legislation for the protection of the safety, health, morals and general welfare of its citizens within constitutional limitations. One of its limitations, however, is that such legislation must bear some reasonable relationship to the object sought to be achieved. Under such circumstances courts will not substitute their judgment for that of the legislature. Edwards v. State Board of Barber Examiners, 72 Ariz. 108, 231 P.2d 450. Applying this test and bearing in mind that courts should give a sensible construction to statutes and uphold them if possible (see State v. Airesearch Mfg. Co., 68 Ariz. 342, 206 P.2d 562) we feel that A.R.S. § 3-630, supra, 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 does 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 above set forth.

It will be observed that the specific charge against defendants is that they sold or had in their possession with intent to sell, an adulterated milk product, to wit, 'Imitation Ice Milk' or 'Imitation Ice Cream' to which had been added a fat or oil other than butter fat contrary to the provisions of the law above quoted. There is no charge of misbranding. There is no charge of fraud other than that the milk is adulterated by a fat or oil other than butter. The record clearly shows that no deception or fraud could possibly result therefrom because full information thereof is given in various size types of print on both sides of the carton container. It is not claimed that the vegetable oil used is injurious in the slightest degree to the health of those who may consume the product involved. On the other hand it is freely admitted that such product is nutritious, wholesome and healthful. Therefore the legislation has no reasonable relationship to any legitimate object or ends sought to be achieved by the legislature in its enactment.

In the case of Dairy Queen of Wisconsin v. McDowell, 260 Wis. 471, 51 N.W.2d 34, 52 N.W.2d 791, plaintiff sought an injunction against the department of agriculture of the state prohibiting it from selling a product similar to ice cream but which contained less butter fat than that required by the department. In that case as in this one, it was admitted that such product was healthful and nutritious. It was claimed the butter fat content in plaintiff's product was less than required by the department which constituted fraud upon the consumer. The court held that the state could not prohibit the sale of such food product as long as it was shown that its consumption did not endanger the public health and welfare. The facts in that...