193 Wis. 113 | Wis. | 1927
(1) Defendant’s first ground for the abatement of the action is that sec. 352.36 of the Statutes does not apply to the manufacture of Emmenthaier cheese because the word “cheese” as used in this statute applies only to American or cheddar cheese and does not apply to special brands like American Swiss or Emmenthaier cheese. We cannot believe that it was the legislative intent to give the word “cheese” as used in this statute so narrow or limited a meaning.
(2) Defendant’s second ground for an abatement of the action is based upon the contention that the filled-cheese statute (sec. 352.36 of the Statutes) was modified by the exception, printed in italics below, which was added to sub. (9) of sec. 352.03 (formerly sec. 4601 — 4a) of the Statutes by ch. 474, Laws of 1915. This section, so far as material, reads: “cheese contains, in the water-free substance, not less than fifty per cent, of milk fat; . . . except that Emmen-thaier cheese, commonly known as domestic Swiss cheese, shall contain in the water-free substance not less than forty-three per cent, of milk fat.” The case turns upon the question of whether this amendment modifies the filled-cheese statute (sec. 352.36) so as to permit some skimming of the milk in the manufacture of Emmenthaier cheese if the butterfat content was not reduced below the prescribed forty-three per cent., or whether this exception adds another requirement to the filled-cheese statute so that Emmenthaier cheese must not only be made from whole milk, but from whole milk
If it is held that this exception does not modify the filled-cheese statute and that whole milk must always be used in the manufacture of Emmenthaler cheese without regard to the per cent, of butter fat contained in such cheese, then the constitutionality of the filled-cheese act is called into question so far as it affects Emmenthaler cheese. The trial court in a very able and well reasoned, opinion arrived at the conclusion that the filled-cheese act (sec. 352.36 of the Statutes) was unconstitutional so far as it applied to Emmenthaler cheese. This ruling was based upon the fact that the proof shows that the best quality of Emmenthaler cheese cannot be made from milk that contains a large percentage of butter fat without the removal of a small per cent, of that butter fat. We do not determine whether the trial court arrived at the right conclusion when it held sec. 352.36 unconstitutional so far as it applied to Emmenthaler cheese. We merely call attention to his conclusion for the purpose of showing that the constitutionality of the act will be called in question if it be held that the statutes prohibited the manufacture of Emmenthaler cheese from anything but whole milk.
The rule is familiar that this court must presume that the legislature did not intend to pass any act that would be in conflict with any constitutional limitation upon the power of that body, and that it is the duty of the court to give the acts of the legislature a construction that will bring them into harmony with the provisions of the constitution and not into conflict with the fundamental law. '
If the act of 1915 (sub. (9), sec. 352.03, Stats.) was passed in recognition of the well nigh universal practice of slightly skimming milk which is used to make Emmenthaler cheese in order to produce the best quality of such cheese, it will remove all questions as to the constitutionality of the filled-cheese act so far as it is applied to the manufacture of
We therefore hold that sub. (9) of sec. 352.03 and sec. 352.36 of the Statutes should be construed together, and that when so construed they permit the making of Emmenthaler cheese from milk which has been standardized by the removal of a slight amount of butter fat, provided that the amount removed shall be so slight that the Emmenthaler cheese made from such milk shall never contain less than forty-three per cent, of butter fat in the dry matter. The proof also establishes the fact that milk that is standardized — that is, slightly skimmed to give the proper ratio of casein to butter fat— will not produce Emmenthaler cheese which contains less than forty-three per cent, of butter fat in dry matter. It is not alleged and it is not proven that the defendant made any Emmenthaler cheese which contained less than forty-three per cent, of butter fat.
By the Court. — Order affirmed.
