*1 38,478 No.
Dairy Roy a corporation, Appellant, v. Belle, Inc., Freeland, Kansas, of Secretary Agriculture of the State of and H. E. Dodge, Kansas, Dairy Commissioner the State of Appellees. of
(264 894) P. 2d Opinion filed December 1953. Kdhrs, Wichita, argued cause, Nelson, W. A. of and Robert H. Clarence Holeman, Wallis, Wichita, N. and Keith L. all Porter, W. of To- James peka, Hugo Swan, Dallas, Texas, were with him on the briefs for the appellant. Noe, attorney special general, argued cause, Warden L. assistant Fatzer, general, attorney Harold R. him appellees, was with on the briefs for the Bryant, Dodge; Wichita, Freeland and Dale M. Fistere, and Charles M. Washington, C., appellees, were Dairy D. on the briefs Gardiner and Ice Co., City, Dairy Co., Pittsburg, Cream Garden Puritan Products Dairies Jo-Mar Co., Salina, Creamery Company, Norton; and Ambrose LeRoy P. K. Smith and Warner, Wichita, Jeffrey, Topeka, both of ánd S. were on the briefs Balfour appellee, Armstrong Co., Creamery Wichita; Allen, Topeka, Otis was on appellee, County briefs for Shawnee Milk Producers Association. Flansburg Flansburg, Leonard A. and Charles H. Lincoln, both of were on the briefs as amici curiae. delivered by the court was opinion originally appeal This submitted on Smith, November J.: were a involved The questions 1952. construction and the con- n appeal Before this and 721. stitutionality G. house bill 458. enacted at for 1953 the session decided dealt with chapter This This is now Laws chapter *2 and 1949, and 721 65-720 as G. S. subject same or similar matter existing to supplemental that it should be contained provision the section of repealing any and not be deemed as statutes should had asked was for dairy plaintiff of the state. The relief which law and a statute to officers from injunction enjoin public enforcing We operate in favor of would judgment plaintiff futuro. decided, therefore, to arguments have the benefit of briefs and effect, 1953, 8, on if counsel to be Laws of any, given chapter Gibson, and Ash v. constitutionality of that act. 146 Kan. (See 756, 1953, P. 2d 14, 74 May was on reset 136.) appeal 2, 1953, on argument November on the effect to be given above chapter. Briefs were filed and oral had arguments were on day. The has now appeal been finally submitted on question of the 1949, construction and of G. constitutionality 65-720 to effect be given Laws all chapter under facts surrounding and circumstances. our Although order 14,1953, May ordered argument the effect to be given chapter Laws of counsel argued have also the question of the con- stitutionality of that chapter. We shall consider both questions well as the questions formerly submitted.
After alleging the incorporation plaintiff and the identity official capacity defendants, of the the petition alleged it duty of defendants to enforce the laws of the state with refer- ence to dairy products, particularly subsection 2 of F of paragraph section 65-707 of the General Kansas, 1935, Statutes of now G. S. 1949, 65-707, and were to required enforce the provisions of sub- sections and 4 of section 65-708 of the General Statutes of amended and 1, 1949, effective July being now G. S. 65-721, and concieved it their duty enforce these statutes
against plaintiff the sale of its product. The petition alleged then that plaintiff was engaged in the sale of an article of food general public known as “SOYA. Frozen Dessert” which contained 38.3 percent solids, total as follows: n “Vegetable soy fat 10% bean Serum solids (milk solids, fat) 13% not milk Sugar 15% .3%” Stabilizer frozen and thereafter the solids were then alleged
The petition the container full description sold in waxed containers with defendant then alleged The petition no fraud was practiced. Dessert” “SOYA the sale of had notified Dodge plaintiff of manu- the withdrawal threatened and had was violation of law that because product; manufacturer facturing license of the customers new unable to create plaintiff of these threats market profitable there was a thereby and damages would sustain unless itself could not avail the' The petition law. court should declare sale not violation of defendants was that on account of the acts alleged then in the state do business deprived right its constitutional at remedy adequate it had no would be caused for which damage in their defendants informed alleged law. The then petition constituted official “SOYAFrozen Dessert” ruled the sale of capacity ice cream and a violation of because it was semblance the law then petition contained fat mixed with milk solids. soybean *3 if and by law “SOYA Frozen Dessert” was not alleged prohibited and unconstitutional the did sale the acts were prohibit statutes its due without would of its they deprive plaintiff property void because con- law, of of the fifth amendment were violation process States, amend- of of the fourteenth stitution of the United section 1 state, the the because ment and of 1 of the constitution of paragraph classification, and an unreasonable discriminatory acts would the it and not and regulatory prevented because was prohibitive business, arbitrary on of a trade and because was carrying legal and unreasonable interference with business private and nothing of the state since there was abuse of the police power health, the morals or welfare injurious safety, plaintiff’s product re- unnecessary the acts referred created public, of the because trade, since there was no unrea- legislation, straint of created class classification, had for the because the legislature sonable basis the of an innocent act a criminal no to make power performance not in danger, in fact the health and welfare was public one when unjust make an and unreasonable classifica- because law would was, product tion and discriminated between and business and therefore, and unconstitutional and void. legislation class enjoined attempting was that the defendants be prayer F enforce the of G. S. subsection of provisions paragraph 65-708, 65-707, and subsections 3 and 4 of G. S. as amended of bouse bill 406 of now of the “SOYA Frozen and from sale of attempting or from arrest or threatening prosecution plaintiff Dessert” do not prevent that the court determine that the statutes agents; it, such prevent the manufacture and sale and that if the do statutes sale, held manufacture and then such unconstitutional statutes be and void and that the final temporary injunction decision a pending be issued.
Soon after the action a order filing restraining temporary issued. The answer of defendants admitted in- Dodge Freeland and corporation identity the defendants and that plaintiff was in the sale to of the engaged the general at known “SOYA time as Creme.” answer then alleged that a frozen made in the sem- blance of ice cream but milk fat containing percent less than ten fell within milk,” the classification of “ice by chapter defined 330 of 721; Laws of Kansas now G. S. 65-720 and that it contained fats other than milk fat in substantial quantity and was an adulterated meaning within of that chapter; that was offered for violation of statutes. these The answer then contained the following allegation: “8. That in the ordinary commerce, manufacture of ice con- taining a fat, perceive substantial amount of milk consumers a richness of cream; associated whereas, soya with in the case of the aforesaid creme, containing vegetable frozen inoil a false and substitution deceptive impression present that milk fat is created in the mind of the consumers. compliance requirements In “9. ice milk in with manufacture of statute, used, significant pro- that a where milk fat is it is found portion palatable necessary acceptable of milk fat to render the *4 consumers; customarily milk Kansas con- that the ice manufactured in fat; plaintiff’s product a tains substantial milk is made in amount of content; milk, having semblance of ice in a cream and semblance ice milk odor, taste, ap- ordinary distinguish and that the consumer is unable to pearance, consistency from made made with milk fat those with cheaper, vegetable oils, soy rea- inferior and subsituted bean or other richness, gives op- give impression son the fact that such oils portunity temptation deception, intended to which the statutes were prohibit. readily may “10. That the such that it sold to the con- accepted by part sumer him the belief on his that it is ice milk made with part cream, cream', fact, by in a matter of or that is ice when as rea- fats, son than milk is deficient substitution of other oils equal ice milk qualities value with nutritional and is not of certain nutritional milk fat made with the content.” contain- a statement that the package then contained The answer used for package it was the same and coloration as the ing shape milk ice made and it was sold as susceptible ice cream an opportunity that its offers from cream with the result part thereby; deceived for fraud and public as “ice falls the statute though even its within the con- though placed upon milk” even adulterated had not been tainers in which it a label of milk” its failure so was sold “ice alleged plain- to do was violation of law. The answer then tiff supplied knowledge establishments with with sold it that “ice milk” is sold they posting without notice here. The answer an as follows: then contained allegation fraud, cited enacted to “15. That the hereinbefore were statutes protect by preventing deception, health and confusion and to fats, legislative clearly were within the substitution of inferior fats for power; and constitutional.” that such statutes are valid companies four ice cream in- dairy permitted Some were substantially just tervene and filed the one set out. answers trial there extended trial At the court made hearing. fact and conclusions of law after the formal ones as fol- findings lows: plaintiff corporation “3. Defendants notified the officers of the that the Soya sale and manufacture of Frozen Dessert is in of law. Defendants violation prosecution plaintiff’s company threatened and the withdrawal of the manu- product. facturer’s license for the manufacture of said Soya parties pre-trial Frozen admitted Dessert was con- “4. ference to be ‘non-toxic.’ Soya Frozen following “5. a frozen Dessert is made of the in- » gredients: “Vegetable soy bean fat 11% Powdered skim milk 10/2% Sugar 16% Stabilizer of 1% 3/10 Egg Powdered Yolk of 1% 6/10 Total Solids 38 4/10% Soya wholesome, edible, consump- “6. Frozen Dessert is and fit human produced following vanilla,
tion. It is flavors: chocolate and straw- berry. The method of manufacture is the same as that for ice with equipment the same used. Dessert, product, Soya “7. Plaintiff’s is sold to retail trade and only pint cartons, ‘Soya plainly marked Frozen Dessert.’ It is not sold aas *5 product. form, ready any substitute for other It is sold its final consumption packed for when carton. is not sold in bulk. product. deception “8. There no fraud or in the sale of the Soya “9. Frozen is made ‘in of ice cream.’ Dessert semblance Most samples per (10%) Ordinary than ten cent milk are show less fat. consumers distinguish it, by appearance, odor, consistency unable to from ice taste cream made with milk fat. hydrogenated soya twenty-two per pound fat “10. The cost of cents compared pound seventy-seven per for butter fat. cents plaintiff controversy plain- between the “11. exists defendant as to A Dessert; Soya right product, Frozen to enter into sell its contracts for tiff’s product, by the sale and for of the same under the manufacture of the others plaintiff. a market said There is franchise with the within the plaintiff avail itself of which cannot because of state Kansas threats of prosecution by made the defendants. necessary findings as to a conclusions are violation of the Kansas “12. No (2) Statute, (F) because Filled Milk Section defendants abandoned that contention. Law
“Conclusions Soya product prohibited by “1. is a Milk Dessert the Ice Statute (S. 330, p. 567, 3) Sec. and therefore controlled it. L. Ch. 1935, 65-708, Statute, Milk G. as amended Session Laws “2. The Ice II, 330, page 567, does not violate Article Sec. 16 of the Kansas Con- Ch. stitution. granted injunction temporary “3. The now dis- heretofore this court is solved. judgment “4. Defendants should have for their costs.” The motion for plaintiff’s an order to set vacating judgment aside fact findings of and conclusions of and for a law new trial was overruled, also the motion of defendants and intervenors to strike Finding No. 8 and for an additional finding that plaintiff’s product ‘Soya susceptible “The Frozen Dessert’ is confusion and of sold as and for ice cream and ice milk and is itself labeling plaintiff’s product of fraud. instrument is not sufficient to prevent deception upon consuming public.” fraud and given permission to amend its petition to chal- lenge constitutionality of the act because of its Judgment title. was entered in accordance with the findings fact and conclusions of law.
The dairy commissioner argues plaintiff is violating G. S. 65-720. It provides follows: “ defined; labeling; ‘Ice milk’ consumption, immediate notice. Ice means and includes a frozen or semifrozen made in containing semblance of ice but percent less (10%) than ten milk fat. fat. the milk paraffins than fats, other oils or not contain Ice milk shall *6 wrappers, the containers unless packages, cans or in sold Ice milk shall not be words, Milk.’ Ice ‘Ice type, point with the legible eight plainly labeled in are establishments, consumption in business for immediate
milk be sold shall not showing premises a card place conspicuous posted on a there is in unless Here,’ unless such word- following: type Is Sold ‘Ice Milk in two-inch largest type type than the ing appears prominently no smaller the menu with 3; 30.)” 1949, 330; (L. appearing ch. § thereon. June as follows: 1949, It provides 65-721. section is G. penalty any ice “Same; sell penalty. for sale or to offer It shall be unlawful in forth as set therefor and standard which does conform to definition not penalty act, a any provision for which Any person of this who violates this act. misdemeanor, and shall provided guilty of a shall be deemed is not otherwise ($25) than twenty-five nor more punished a fine of not less than dollars be 4; 30.)” (L. 1949, ($200) ch. § two hundred dollars for each offense. June oil 11 vegetable a product Plaintiff’s is frozen dessert made stabi- percent, skim milk 16 percent, powdered sugar 10Mpercent, and 62 lizer percent of 1 of 1 percent, powdered egg yolk 3/10 6/10 that argued Defendants in percent water. the former appeal made in it was violated the statute in that product above is, ice cream cream, like the semblance of ice that it looked and tasted it oil) it had this case yet vegetable soybean oil added (in the statute contained than milk fat. The percent theory less 10 is that ice cream contain milk fat and percent must at least that contains less than that much milk fat and looks is, tastes like ice in the case turning cream is “ice milk.” The point of, is, that this is in the that looks and tastes semblance it like ice yet has no milk fat and has oil added. soybean The plaintiff argues first that its not prohibited second, the statute quoted; if the statute construed to pro- hibit the sale of “Soya Frozen it It Dessert” was unconstitutional. argues also that 65-721, 65-720 and violates article section of the constitution of the State.
Plaintiff argues first that neither statute Its applies its product. argument is the statutes merely define ice milk as a con- fat, is, less taining than ten of milk it a percent statute of definition rather than of We must prohibition. concede the statute is not artfully However, drawn as it might have been. we have no difficulty reaching conclusion the legislature intended provide did actually provide that no product which looked and tasted like ice cream and had vegetabe oil added could be sold Kansas. The said ice milk should not contain any vege- not ice milk—hence Plaintiff its argues table fats. con- it though it from sold even does statute not however, of ice is, made the semblance tains fats. vegetable If for- than butterfat. we percent cream and does contain less ten difficulty- for a moment we have no get about name “ice milk” both made in the concluding statutes provide containing semblance ice milk and less than ten butter- percent fat cannot be sold if contains vegetable oil.
After a consideration of the briefs and final submission of .this 2, 1953, on November appeal we have concluded that while enactment, is, later chapter Laws of is more sweeping in its scope applied dairy still products generally, terms is supplemental to the former statute. This appeal may very well be decided upon consideration of G. S.
65-721, and its validity.
We go now to a consideration of the of question whether these two sections violate the constitution. The questions may be stated in the words of counsel for plaintiff as well as any other. He says: “It is Legislature conceded the authority by Legislative has enactment prohibit any product to the sale of consuming public Legislation if such (b) necessary (a) preserve public is to prevent the health and to fraud and de- ception consumers, in the sale thereof to the Sage Company, State vs. The Stores Legislature Kan. But the arbitrarily prohibit cannot the sale of a product public wholesome where the health is not affected and when such product being deception is sold without and fraud as in the casé at bar.”
Counsel relies on the of finding the trial court that there fraud is no the of sale this particular product wholesome, is edible and fit for human consumption.
Plaintiff concedes the legislature has the authority prohibit to of if to the product legislation necessary preserve sale such is fraud such prevent health and to sale of deception consumers. or find- product to There is this record no argument to health. The outcome of the case fraud feature. ings as rests the trial no must be conceded the court found there fraud in not quite the sale of this is particular product. problem readily If it such a as to be product susceptible however. is simple, legislature then the has fraudently, power of sold being sale. rel., State, under the facts ex v. this case not controlled While is 655, it in Co., 157 Kan. 141 P. 2d is controlled by Stores Sage challenge action to the quo legality That was warranto principle. milnot. It was a milk product of the sale of a known as product 1949, 65-707, known as oil had been added. vegetable the “filled milk the of such a Where prohibited product. statute” the situation in that on the that “milnot” case differs this facts is frozen one. liquid product was a and “SOYA Frozen Dessert” is a statute one fats prohibited vegetable the sale of either where had been added. There a health in that case also. We question a commissioner and made appointed findings who took evidence fact the was the constitu- questions and conclusions of law. One of tionality of the statute. On that we said: purpose determining constitutionality question “For the law it is immaterial whether we believe defendant’s considered when as a inferior, equal superior exaporated (sic) whole is or to whole milk or whole disagreement respect inferiority milk if substantial in fact exists with compared evaporated milk, as with whole milk or whole legislature believing likely has some basis for a filled-milk sold is to be susceptible evaporated or is sold as for whole milk or whole public may words, thereby. with the result be deceived In other governing product, the view we take of the law this case the sale of a filled-milk although nutritious, may constitutionally prohibited well wholesome merely regulated legislature believing if the has some basis for evaporated inferior to whole milk or whole milk that the sale of opportunity prohibition for fraud and offers and that regulation necessary adequate protection mere its sale rather than for the general public health think basis welfare. We there was a sufficient legislative judgment for the exercise of as to a filled-milk adopted legislative remedy purpose.” to efEectthe however, time, was a health feature in that case. Each There to enact legislation such question power fraud as well prevent discussed it was said it could be done *8 to health. preserve said: For instance in conclusion of Law No. 1 the commissioner question (G. Supp. (F) (2) a 1941 has two-fold “The statute in S. health, prevention purpose: (1) (2) of fraud of the Preservation deception on the consumers of state.” No. 3 Also conclusion used, debatable, article, intended to be be character or effect of an “If the judgment, legislature is entitled its own . . .” 6 conclusion No.
Also by regulation may purposes be attained or “Whether the of the statute legislature.” questions prohibition necessary are for the absolute whether us out and approved set conclusions law were All these in the opinion.
353 Our was judgment appealed Supreme Court of the United States. (See Kansas, Stores Sage Co. v. 323 U. S. 65 S. 89 Ct. L. Ed. 25.) The supreme court out that a pointed writ of certiorari granted issue, is, to examine a single whether the Kansas statute arbitrary, unreasonable and discriminatory interfer- ence with petitioner’s rights liberty and in violation property due process and equal protection clauses of the Fourteenth Amend- ment of the Federal Constitution.
After discussing the health feature of the record the court said:
approved by
“It was also determined
the commissioner and
the court that
purpose
legislature
prevention
one
of the
was the
of fraud and
in
compounds.
Co.,
Sage
sale of these
State v.
Stores
157 Kan.
412-13.
consequence
evidence, findings
law,
“As
of this
of fact and
conclusions
prohibiting
sale,
rational basis for the action of the
in
or
keeping
sale,
compounds
even
more definite and clear than in
States, ante, p.
products
Carolene Products Co. v.
petitioners’
United
18. Since
taste, consistency,
appearance
had the
products,
color and
of whole
we
validiy
not
applied
compounds
need
consider the
of the Kansas act as
readily distinguishable
are
compounds.
from whole milk
is made
Reference
part
opinion
“Third” of the Carotene
discussion as
or not a
to whether
prohibition
products
process.”
of these
violates due
S.,
This was
companion case of Carolene Products Co. v. U.
323 U.
65
S.
S. Ct.
But little setting would be added to the force of this opinion out quoting from other are dis- opinions. The authorities well cussed opinions. above of the trial court judgment is affirmed. the un- (concurring My concerning views specially): Wedell, J.
constitutionality of a statute to the one under similar in now purpose State, ret., ex consideration are contained in my dissenting opinion 404, 419, Sage Co., v. 2d The supreme Stores 157 Kan. 141 P. 655. rejected Sage United those Stores Co. court States views Kansas, 323 U. ed. v. L. S. Ct. decision, is con- appears me last-mentioned principle, *9 I ex- adhere to views Personally, instant case.
trolling for the reasons therein stated. dissent former my pressed court, the decision I am bound this However, member of aas consti- question States on the United court of the supreme to concur in obliged I am that reason For law. tutionality the instant decision. foregoing concurring opinion. JJ., join Wertz,
Smith 38,778 No. Clyde Messmore, Kansas, v. Robert Appellee,
The State Appellant. 911) (264 2dP.
Opin- ion filed December appellant pro se. on briefs Crossan, deputy county attorney, argued cause, Tom and Harold R. Fatzer, attorney general, Roy Kirby, county attorney, him were with appellee.
the briefs for the court opinion was delivered by Wedell, The defendant was charged and convicted of violat- J.: