No. 8559 | D. Or. | Jul 5, 1921
(after stating the facts as above).
“It is plainly not enough,” says the court, in Price v. Illinois, 238 U.S. 446" court="SCOTUS" date_filed="1915-06-21" href="https://app.midpage.ai/document/price-v-illinois-98521?utm_source=webapp" opinion_id="98521">238 U. S. 446, 452, 35 Sup. Ct. 892, 894 (59 L. Ed. 1400" court="SCOTUS" date_filed="1915-06-21" href="https://app.midpage.ai/document/price-v-illinois-98521?utm_source=webapp" opinion_id="98521">59 L. Ed. 1400), “that the subject should be regarded as debatable. If it be debatable, the Legislature is entitled to its own judgment, and that judgment is not to be superseded by -the verdict of a jury upon the issue which the Legislature has decided.”
See, also, Hebe Co. v. Shaw, 248 U.S. 297" court="SCOTUS" date_filed="1919-01-07" href="https://app.midpage.ai/document/hebe-co-v-shaw-99255?utm_source=webapp" opinion_id="99255">248 U. S. 297, 303, 39 Sup. Ct. 125, 63 L. Ed. 255" court="SCOTUS" date_filed="1919-01-07" href="https://app.midpage.ai/document/hebe-co-v-shaw-99255?utm_source=webapp" opinion_id="99255">63 L. Ed. 255.
Neither the “contract” clause of the Constitution nor the “due process” clause thereof “has the effect of overriding the power of the state to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community”; and “all contract and property rights are held subject to its fair exercise.” Atlantic Coast Line v. Goldsboro, 232 U.S. 548" court="SCOTUS" date_filed="1914-02-24" href="https://app.midpage.ai/document/atlantic-coast-line-railroad-v-city-of-goldsboro-98111?utm_source=webapp" opinion_id="98111">232 U. S. 548, 558, 34 Sup. Ct. 364, 368 (58 L. Ed. 721" court="SCOTUS" date_filed="1914-02-24" href="https://app.midpage.ai/document/atlantic-coast-line-railroad-v-city-of-goldsboro-98111?utm_source=webapp" opinion_id="98111">58 L. Ed. 721).
Congress has by its legislation expressly recognized state authority through its legislative function to exercise its police powers respecting all articles known as oleomargarine, imitation, process, or adulterated butter, or any substance in the semblance of butter, or not the usual product of the dairy, and not made exclusively of pure or unadulterated milk or cream, to the same extent and in the same manner as though such articles or substances had been produced in such state, and such articles and substances are not exempt therefrom by reason of being introduced therein in original packages or otherwise. 3 Fed. Stat. Ann. (2d Ed.) 353 (Comp. St. § 8740). And while Congress itself has primarily dealt with the product known as oleomargarine, and the manner in which it shall be handled in trade, the state has heretofore denounced the act of selling as butter any article, product, or compound made wholly or partly out of any fat, oil, or compound thereof, not directly or wholly produced from pure, unadulterated milk or cream of the same, which has been or is colored to imitate yellow butter produced from pure unadulterated milk or cream of the same. Oregon Laws, § 8725; 1915 Laws of Oregon, c. 343, § 72. The state has also dealt with the subject of food and articles which enter into the composition thereof, and the misbranding of the same, to protect the public from having foisted upon it adulteration, or food containing poisonous or deleterious substances. Section 8687, Oregon Laws; 1915 Laws of Oregon, c. 343, § 35.
The single question presented is whether the act constitutes a reasonable exexcise of the police power; or, putting it conversely, whether it is merefy arbitrary denunciation of an act or supposed practice without any reasonable basis for its promulgation as a law or regulation. The act can be sustained only upon the ground that it is reasonably calculated in some way to promote the health, comfort, safety, or welfare of society.
Concretely, the act denounces the use by any person, firm, br corpo - ration dealing in any product used or designed to be used as a substitute for milk, butter, and the like as a part of his or their trade or corporate name, or as a name or description of his or their product, or to use in his or their labels, packages, containers, or advertising matter or sales literature any of the words or names indicated both in the title and in the act.
The act has three aspects; that is, it is directed to the use of these words (1) in the trade or corporate name, (2) as descriptive of the product, and (3) to the use of such words upon labels, containers, or in advertising matter.
It will not be gainsaid that the. pure dairy product is one of the most wholesome and nutritious of all food products, and It enters largely into the food consumption of the world. No other substance from' which butter, so denominated, is manufactured contains exactly the same food or nutritive elements or ingredients as does the pure dairy product. This affords some reason, at least, why the public should be protected to the utmost against the imposition upon it of other articles of manufacture of inferior food properties under the guise of butter, cheese, and the like manufactured from pure dairy products. Experience has taught us that the strenuous competition in trade circles affords an inducement, in some directions at least, to disregard the strict observance of fair exposition of products in the market, and goods of inferior grade are often so represented as to be obtruded upon the public as goods of a better or superior or different quality. Food products arc no exception to the practice. This reaches the health and general weal or welfare of the community, and the public is entitled to be protected against the foisting upon it, through any means, of any inferior or different product as and for a pure dairy product. This must be conceded.
Now, the circumstances are, as presented by the present controversy, that plaintiff was incorporated prior to the adoption of the act in question, that it has in its corporate name the word “creamery,” and that it is dealing in a product known in the trade as “Nucoa Butter Margarine,” a product of the Nucoa 'Butter Company, manufactured in San Francisco, principally of cocoanut oil and ,peanut oil, and that, at
The effect of the act, if it is to be upheld, is to deprive the plaintiff of either the right to use the word “creamery” in its corporate name or the right to deal in the product of the Nucoa Butter Company. It must abandon either the word “creamery” in its corporate name or its traffic in the Nucoa Butter Company’s product. As is said by counsel in their brief:
“The statute does not in any way prohibit those dealing in dairy products from also dealing in oleomargarine.”
But it does prohibit the dealing in both if the corporate name is descriptive of the dairy product in the manner inhibited.
It is urged with much force that the statute prohibits the use of the proscribed terms without regard to whether or not as used they tend or may tend to deceive, and this irrespective of any such intention or apparent intention on the part of those using them. This is the crux of the controversy.
As I have shown, the statute not only inhibits the use of the proscribed words in the corporate name, but also in the description of the substitute products and in advertising matter pertaining thereto. So that the statute really has a wider scope than the circumstances of this case portend. It must therefore be sustained- as a whole or invalidated as a whole. Extending to the Legislature its proper function of judging for itself the necessity and exigency for adopting the measure, I am unable to say that it is without sufficient reason to support it, or that it is void as an arbitrary fiat of supposed legislative power. The act must therefore be held to be valid. The authorities heretofore cited lead to this conclusion.
The bill of complaint will be dismissed, at plaintiff’s cost.
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