DAIRY QUEEN OF WISCONSIN, INC., Appellant, vs. McDOWELL, Director of State Department of Agriculture, Respondent.*
Supreme Court of Wisconsin
December 6, 1951-January 8, 1952.
Motion for rehearing denied April 8, 1952
471
* Motion for rehearing denied, without costs, on April 8, 1952.
I would reverse the order of the trial court. I am authorized to state that Mr. Justice BROWN concurs in this dissent.
For the respondent there were briefs by the Attorney General and Richard E. Barrett, assistant attorney general, and oral argument by Mr. Barrett.
A brief amici curiae was filed by George L. Mooney of Plymouth, George M. St. Peter of Fond du Lac, and Ela, Christianson & Ela of Madison, on motion for rehearing.
MARTIN, J. Two questions are presented on this appeal:
1. Does
2. If so, is the statute constitutional?
Most of the facts were stipulated, there being few, if any, in dispute, and those not in sharp conflict. Here we have the trial court applying the law to the facts or the facts to the law, as it sees it. In such cases this court is not bound by the findings of the trial court, and the rule that the findings must be sustained unless against the great weight and clear preponderance of the evidence is not applicable. Will of Mechler (1944), 246 Wis. 45, 16 N. W. (2d) 373.
The lower court held that the statutes mentioned prohibit the sale of Dairy Queen as an imitation of ice cream and as an adulterated product or substandard ice cream. We do not agree.
Certain types of ice cream may legally have a fat content of not less than eleven per cent. The fat content of sherbet and ices is to be not more than three and one-half per cent. Thus, Dairy Queen, having a fat content of six per cent, falls in the “no man‘s land” in between. Respondent contends that the purpose of these legislative requirements as to butterfat content was to keep a wide margin between the two classes of frozen milk products, and that the sale of a six per cent product would work a fraud upon the public.
Counsel conceded on oral argument that the only reason for barring the sale of Dairy Queen was that it might perpetrate a fraud upon the consumer. The question then follows, Is it necessary to bar the product, or has the department sufficient authority under
Hutchinson Ice Cream Co. v. Iowa (1916), 242 U. S. 153, 37 Sup. Ct. 28, 61 L. Ed. 217, upheld the constitutionality of an act fixing minimum standards of ice cream on the ground that its purpose was to prevent the perpetration of fraud on the public from inferior makes of ice cream. The United States supreme court said that the acts there considered merely prohibited the sale of certain compounds as ice cream. That is what the statutes here prohibit. The court specifically said that it was not called upon to determine whether the state of Iowa could, in the exercise of its police power, prohibit the sale of a wholesome product if the public welfare appeared to require such action.
We cannot infer from the provisions of
In Rigbers v. Atlanta (1910), 7 Ga. App. 411, 413, 66 S. E. 991, in considering a municipal ordinance providing for a butterfat content in ice cream of at least ten per cent, the court said:
“It will be noticed that under this ordinance the prohibition is not against selling ice cream of less than the prescribed percentage, as ice cream, but against selling it at all. Though the seller distinctly informs the purchaser that the ice cream contains less butterfats than ten per cent, the sale is unlawful, according to the ordinance. Even if the city has the power to prescribe that no ice cream of less than a certain percentage of richness in butterfats shall be sold as standard ice cream, it still would not have the power to say that ice cream below that standard should not be sold at all. For instance, it might be permissible to say that the term ‘ice cream,’ or ‘standard ice cream,’ or ‘first-class ice cream,’ should relate only to ice cream of a certain prescribed richness, and that whoever sold ice cream of poorer quality should, either by calling it under some other name, or by indicating on the vessel in which it is delivered, or otherwise, disclose the inferiority of its quality. But under the ordinance before us, if a physician desired that a patient should have ice cream, but did not deem it safe for him to take the richer ice cream, it would be illegal for any one to furnish the grade of ice cream actually suited to the sick man‘s physical condition.”
The court there held that the ordinance was so unreasonable that it could not be upheld.
It is contended that Dairy Queen is an imitation ice cream in that it resembles ice cream in taste, texture, and consistency. Appellant does not concede this, but even if it were so, a resemblance to ice cream does not make the product an imitation. There is no artificiality employed in producing
In United States v. 62 Cases (10th Cir. 1950), 183 Fed. (2d) 1014, 1018, it was said:
“If it is sold under a name of a food for which a definition and standard has been prescribed, if it looks and tastes like such a food, if it is bought, sold, and ordered as such a food, and if it is served to customers as such a food, then it purports to be, and is represented to be, such a food.” (Emphasis ours.)
According to the stipulation, Dairy Queen will not be sold as ice cream. Whatever resemblance it may have to ice cream, therefore, cannot mislead the public in buying it.
Respondent argues that in removing some of the butterfat, which is the more expensive ingredient, and adding more of the cheaper nonfat solids, the appellant manufactures an inexpensive product which would tempt retailers to pass it off as ice cream. This so-called substitution has no effect upon the wholesomeness or nutritious properties of the product, and is not sufficient reason to bar it, especially in view of the authority granted to the respondent by
Under
We do not agree with respondent‘s contention that products such as Dairy Queen are difficult to label. It seems to us that the proposed method of selling Dairy Queen—in a store of its own, where no other product is sold; with a posted sign that the product is not ice cream and the containers are so labeled—and where it will not be sold outside its containers, such as in restaurants and the like—will not perpetrate a fraud upon the public. Furthermore, the department may impose any other regulation which it deems necessary to advise the public that what it is buying is not ice cream.
The provision of
It is our conclusion that the general welfare does not require prohibition of the manufacture and sale of the product here in question, the power of regulation being sufficient to prevent any fraud upon the consuming public.
By the Court.—Judgment reversed and cause remanded with directions to enter judgment consistent with this opinion.
The following opinion was filed April 8, 1952:
PER CURIAM (on motion for rehearing). The brief filed on the motion for rehearing by amici curiae is submitted on behalf of several organizations of farmers, and dealers in and manufacturers of dairy products, including an association of about eighty-five Wisconsin manufacturers of ice cream. It opens with a statement of the reason for its filing and there suggests that the effect of the decision is to destroy a generation‘s work in fixing dairy-product standards and the destruction of the reputation of the state acquired by its maintenance of those standards which is of great importance to the economy of the state, urban as well as rural; and that “maintenance of adequate standards for the protection of consumers is of infinitely greater importance to the entire people of the state than are the economic interests of the promoters of any product or class of products such as ‘Dairy Queen.‘”
We should ordinarily hesitate to discuss the effect of the decision upon the economy of the state, for that appears to be a matter peculiarly for the legislature acting within constitutional limitations. We consider, however, that counsels’ suggestions regarding that aspect of the case permit, if they do not require, us to respond.
As to the consumer—the plaintiff offers to sell him a “nourishing, wholesome, and healthful food” which contains no deleterious substance, to be manufactured and sold “under the supervision and control and in conformity with the rules and regulations for sanitation;” it is so stipulated. It is also stipulated that the product will be advertised to “indicate that the product being sold is Dairy Queen; that a sign will be posted at all places of sale stating that the product sold is not ice cream or sherbet.” No threat of danger to the public health appears from this proposal. Nor does it appear that the product will be offered to the consumer “in imitation of ice cream.”
Amici curiae say that “maintenance of adequate standards for the protection of consumers is of infinitely greater importance to the entire people of the state than are the economic interests of the promoters of any product or class of product such as ‘Dairy Queen.‘” To that we agree. We might inquire in response to the suggestion whether it is proper, in the absence of any showing that sale of the product would prejudicially affect either the milk producer or the consuming public, that the legislature or the court should
If we must construe
In that case the court had for consideration ch. 279, Laws of 1925, an enactment intended to prohibit absolutely the sale of oleomargarine. It purported to make it unlawful to manufacture, sell, or expose for sale any article “which is or may be used as a substitute for butter.” The purpose of
The arguments of amici curiae seem better adapted to promote a restricted market for the dairy farmer‘s product and to control the forms in which the consumer may enjoy it. To sustain their contention would be to encourage monopoly by preventing the introduction of a wholesome product.
“Under the facts proven in this case, whatever the economics of the situation may be, from the standpoint of constitutional right the legislature has no more power to prohibit the manufacture and sale of oleomargarine in aid of the dairy industry than it would have to prohibit the raising of sheep in aid of the beef-cattle industry or to prohibit the manufacture and sale of cement for the benefit of the lumber industry. In some cases a proper exercise of the police power results in advantage to a particular class of citizens and to the disadvantage of others. When that is the principal purpose of the measure, courts will look behind even the declared intent of legislatures and relieve citizens against oppressive acts where the primary purpose is not the protection of the public health, safety, or morals.”
It is urged that the decisions of the United States supreme court in Carolene Products Co. v. United States (1944), 323 U. S. 18, 65 Sup. Ct. 1, 89 L. Ed. 15, and Federal Security Adm‘r v. Quaker Oats Co. (1943), 318 U. S. 218, 63 Sup. Ct. 589, 87 L. Ed. 724, require us to hold
Motion for rehearing denied.
CURRIE, J. (dissenting on motion for rehearing).
The legislature by
During World War II, when the federal government rationed the amount of milk solids that might be used in frozen dairy foods, the legislature enacted as a temporary war measure ch. 5, Laws of 1943, which reduced the minimum fat requirements for ice cream to eight per cent for the duration of the war emergency only, thus enabling a greater quantity of ice cream to be made from the available amount of milk solids. An ice cream having a butterfat of eight per cent is very similar to Dairy Queen with its six per cent fat content. This statute legalizing ice cream with an eight per cent fat content was repealed by ch. 586, Laws of 1945. In the 1949 session of the legislature, Bill 343, S., was introduced, and in the 1951 session of the legislature, Bill 417, S., was introduced, both of which provided for legalizing an iced dairy-food product with a fat content in between sherbet and ice cream, such product to be known as “iced milk.” The purpose of such bills was to legalize a
The learned trial judge personally examined and tasted Dairy Queen and upon the evidence produced and his own personal examination and tasting he found in his findings of fact as follows:
“4. That ‘Dairy Queen’ is a partially frozen food product similar to ice cream, as defined by
sec. 97.02 (10) of the Wisconsin statutes, in its appearance, odor, taste, and texture or consistency; . . .“9. That ‘Dairy Queen’ so closely resembles ice cream in appearance, taste, and texture or consistency that it can be readily substituted for and sold as ice cream; that evidence of this fact has been obtained by inspectors of the dairy and food division of the state department of agriculture in states where ‘Dairy Queen’ has been licensed.”
It is an elementary principle of law that the findings of a trial court, if supported by evidence, will not be disturbed unless the same be against the great weight and clear preponderance of the evidence. Depies-Heus Oil Co. v. Sielaff (1944), 246 Wis. 36, 16 N. W. (2d) 386; Angers v. Sabatinelli (1945), 246 Wis. 374, 17 N. W. (2d) 282, 18 N. W. (2d) 705.
All discussion that the plaintiff‘s program of selling Dairy Queen does not contemplate the sale of its product as an imitation of ice cream by use of signs, labeling, or containers, etc., is therefore beside the point because the legislature, by absolutely prohibiting the sale of an imitation product, left no discretion in the department of agriculture to regulate its sale through proper signs, etc., so as to prevent confusion, deception, and fraud of the consuming public.
In some few cases the legislature has itself specified labels for products which resemble standardized products but which are substandard. It has fixed the labeling for cheese which is wholesome but substandard because of high moisture content (
This refusal of the legislature to rely on labeling for the protection of consumers is reasonable and has been the approach of congress in the Food, Drug and Cosmetic Act
“The provisions [of the federal law] for standards of identity thus reflect a recognition by congress of the inability of consumers in some cases to determine, solely on the basis of informative labeling, the relative merits of a variety of products superficially resembling each other.”
Being satisfied that
The United States supreme court is the final arbiter of what regulatory measures adopted by the legislatures of the various states in the exercise of the states’ police power do or do not violate the due-process clause. The decision of that court in Federal Security Adm‘r v. Quaker Oats Co., supra, in which the opinion was written by Mr. Chief Justice STONE, would seem to be directly in point. In that case the federal security administrator, acting pursuant to the federal Food, Drug and Cosmetic Act promulgated regulations establishing “standards of identity” for various milled-wheat products, excluding vitamin D from the defined standard of “farina” and permitting it only in “enriched farina,” which was required to contain vitamin B1, riboflavin, nicotinic acid, and iron. The Quaker Oats Company had for
“The provisions for standards of identity thus reflect a recognition by congress of the inability of consumers in some cases to determine, solely on the basis of informative labeling, the relative merits of a variety of products superficially resembling each other. We cannot say that such a standard of identity, designed to eliminate a source of confusion to purchasers—which otherwise would be likely to facilitate unfair dealing and make protection of the consumer difficult—will not ‘promote honesty and fair dealing’ within the meaning of the statute.”
In Carolene Products Co. v. United States (1944), 323 U. S. 18, 65 Sup. Ct. 1, 89 L. Ed. 15, the Carolene Company contended that if the federal Filled Milk Act was held to be applicable to the products it manufactured and shipped in interstate commerce, the act, as thus applied, violated the due-process clause. The company based this contention upon the fact that Carolene was a wholesome and beneficial food product, fairly labeled, and sold on its merits without fraud to the public, and having none of the nutritional deficiencies for which congress prohibited the interstate shipment of “filled milk.” The process of manufacturing Carolene consisted of taking natural cottonseed or cocoanut oil or fish-liver oil, which latter oil contains vitamins A and D. The
“The possibility and actuality of confusion, deception, and substitution was appraised by congress. The prevention of such practices or dangers through control of shipments in interstate commerce is within the power of congress. . . .
“Congress evidently determined that exclusion from commerce of filled-milk compounds in the semblance of milk was an appropriate method to strike at evils which it desired to suppress. Although it now is made to appear that one evil, the nutritional deficiencies, has been overcome, the evil of confusion remains and congress has left the statute in effect.
“Here a milk product, skimmed milk, from which a valuable element—butterfat—has been removed is artificially enriched with cheaper fats and vitamins so that it is indistinguishable in the eyes of the average purchaser from whole-milk products. The result is that the compound is confused with and passed off as the whole-milk product in spite of proper labeling.
“When congress exercises a delegated power such as that over interstate commerce, the methods which it employs to carry out its purposes are beyond attack without a clear and convincing showing that there is no rational basis for the legislation; that it is an arbitrary fiat. This is not shown here.”
There is a “rational basis” (to use the language of the United States supreme court in the Carolene Case) for the Wisconsin legislature to set a certain minimum butterfat content for ice cream and to absolutely prohibit the sale of
The comparative nutritional values of milk fat as compared to milk solids was not an issue in the trial below, nor is it on this appeal. However, the evidence disclosed that the market price of milk fat is approximately one dollar per pound and that of milk solids about eleven cents per pound. Furthermore, the legislature has placed great store on the percentage of milk fat in the standards it has established for milk and dairy products. This court can well take judicial notice that the nutritive value of milk fat is essentially calories, and that it provides a concentrated form of energy, and is a carrier of fat-soluble vitamins. These facts provide a reasonable
The memorandum opinion denying the motion for rehearing states that permitting the sale of Dairy Queen will help the farmers by giving them an additional outlet for their milk. In addition to being entirely immaterial on the legal issues presented, it is doubtful if future events will demonstrate it to have been a correct prophesy. Dairy Queen is sold in competition with ice cream and for every sale of a cone of Dairy Queen to a customer there is the likelihood that there has been lost the sale of a cone of ice cream. The farmers receive a higher price for the milk and butterfat ingredients of ice cream than they do for Dairy Queen because of the much higher price that they receive per pound for butterfat than for milk solids.
I am authorized to state that Mr. Justice BROADFOOT joins in this dissent.