This is an original action brought under the Uniform Declaratory Judgments Act approved April 24, 1929, appearing in sections 25-21,149 to 25-21,164, R. S. 1943.
Declaratory judgment proceedings have frequently been employed to determine questions as to the construction or validity of statutes. 16 Am. Jur., sec. 24, p. 296. See Dill v. Hamilton,
The action is for a construction of that portion of the regulations adopted as to imitation butter in the year 1931. Laws 1931, ch. 131, secs. 1 to 16, pp. 365 to 370; R. S. 1943, 81-294 to 81-2,110. The following facts are admitted by the pleadings: The plaintiff is a resident of Omaha, engaged in the retail grocery business, and the defendant is director of the Department of Agriculture and Inspection of Nebraska. The case proceeds with the present incumbent official substituted for the original dеfendant, as provided for by section 25-322, R. S. 1943. The plaintiff’s customers have sought to purchase from him oleomargarine, hereinafter called margarine, manufactured principally from vegetable oils, and the same product containing less than 50 per cent animal fats and containing imported oils or fáts; that the plaintiff wishes to sell, in the state of Nebraska, margarine the fat or oil of which is derived wholly from domestic vegetable sources, and margarine the fat or oil of which is derived in part from vegetable sources, and in part from animal sources, but in which the animal fats or oils are less than 50 per cent of the total fats and oils, and less than 50
Defendant’s amended answer denies the plaintiff sold margarine containing imported oils or fats to his customers in this state for many years prior to 1931; denies that he proposes to purchase and to sell to his customers margarine made in whole or in part from imported vegetable oil or fat; deniеs that large quantities of margarine containing imported oils or fats were sold in Nebraska prior to the enactment of the act or that the sale of such product containing imported oils or fats practically ceased after the enactment of the statute; or that the statutory tax of 15 cents per pound imposed by the act has rendered imрossible the sale of margarine containing less than 50 per cent of animal oils or fats produced in the United States and vegetable oil margarine and margarine containing imported oils or fats in competition with the tax-free margarines, which contain more than 50 per cent of animal oils or fats produced in the United States and which contain no impоrted oils or fats.
The act is designated, “An Act relating to revenue; to impose a tax upon imitation butter, intended for commercial or domestic consumption; * * * .” The act, on its face, is an act for levying taxes, and its primary object must be assumed to be the raising of revenue. Section 1 of the act provides; “There is hereby levied and assessed and shall be сollected and paid to the Department of Agriculture of the State of Nebraska, prior to or at the time of the sale and delivery by any retail dealer or any agent or employee thereof, upon all imitation butter, a tax of fifteen cents per pound or fractional part thereof, * * * . For the purpose and within the meaning of this act every edible article, substitute or compound other than that entirely produced from pure milk or cream from the same, made in the semblance of butter, or containing any oil or fat other than the fatty constituent of cows milk intended or designed to be used as a substitute for butter, is hereby declared to be ‘imitation butter’; provided, any oleomargarine or imitation butter containing
This case does not present the question that the difference between butter and imitation butter, that is, margarine, is or is not sufficient to justify their separate classification for purposes of taxation, nor is there any question but that the state has a right to regulate the sale of imitation butter, and this right has been recognized and upheld .in this state. In this connection, in Beha v. State,
In the case of Carolene Products Co. v. Banning,
In this case, the plaintiff’s contention is that the act constitutes an arbitrary classification of and a discrimination between margarine without a reasonable basis оf distinction, and that is the issue we determine in this opinion. The testimony is by depositions.
Margarine is entirely a product of the laboratory and factory. Oleomargarine, or margarine as it is commonly called, is an edible fat product made by churning or emulsifying into 80 parts of edible food fat, 20 parts of cultured milk. There are usually incorporated table salt, flavor and bеnzoate of soda, and into the fat portion there are frequently incorporated one or more of the following: Vitamin A, Vitamin D and soya bean lecithin or some other emulsifying agent.
At the time the act was passed, several different kinds of margarine were produced in the industry; margarine, the fat or oil of which is derived wholly from domestic vegetable sourcеs; margarine, the fat or oil of which is derived principally from domestic sources but which contains less than 50 per cent of animal fats or oils; and margarine made in whole or in part from imported animal fats or oils. Under the act, all three of the foregoing are taxable. Margarine, the fat or oil of which is derived in part from domestic vegetable sourcеs and in part from animal sources but in which the animal oils or fats are more than 50 per cent of the total oils and fats, is, nontaxable.
In 1930 and early in 1931 imported vegetable oils constituted approximately 70 per cent of all of the oils and fats used in all of the margarine produced in the United States. Domestic vegetable oils constituted approximately 10 per cent of all the oils and fats used in all the margarine produced in the United States. Animal fats and oils consti
The defendant offered evidence that in the manufacture of margarine from vegetable oils the process of hydrogenation is essential to change the oil which occurs in the form of a liquid, to a solid state. Although there is nothing deleterious to the health in the vegetable oils which are used in the manufacture of margarine, the resultant solid may have a melting point above body temperature, and in the process оf digestion it may go through the entire alimentary system without particular change and without absorption. It having been admitted by the witness that the fats or oils which are the base of margarine carry certain solubles having a food value, it would seem to be at once apparent that this melting point would be of extreme value in determining the digestibility or the desirability of the use оf margarine in the diet. This is based on the testimony of the witness that the difference between animal fats and vegetable oils is that the former is'a solid and the latter is a liquid, and therefore in the using of vegetable oil alone, it is necessary to have it go through a process of hydrogenation. This process has the effect on the liquid vegetable oil to change the melting point and raise it until it is solid at ordinary temperature. The witness further explained that with the exception of
Digestibility of fats, either animal or vegetable, is related to the melting point, and margarines are all made to melt in the mouth. The fat part of margarine is food at the temperature of the body, and fats in all foods at the temperature of the body are practically completely digested.
All classes of margarines are used for the very same purpose, as s'pread for bread, in cooking, baking and frying, and by appearance, use, odor or flavor, there is no apparent distinction between the different margarines, and the nutritive values of the different classes are not affected in any way by whether they are one type or another. True, in the original state, before the finished product is manufactured, there is a difference between vegetable oils and fats and animal oils and fats, as heretofore pointed out. In the manufactured product there may be a slight chemical difference which is not detectable, and we are here concerned with the finished product, and the defendant’s witness admits this to be true when he testified the color, body, nutritional value and useability of the manufactured products of margarine are the same. The only qualifying statеment is that there would still remain the. chemical differences in composition in the finished product which were present in the raw materials from which the margarine was made.
Defendant cites Coy v. Linder,
The defendant further cites Carolene Products Co. v. United States,
This brings us to an analysis, and 'the effect of the act here under consideration. A margarine containing 51 per cent of animal fats, and the balance containing domestic cotton-seed oil, is nontaxable. A margarine containing 51 per cent of animal fats and the balance imported cottonseed oil is taxable. There is no difference between imported cotton-seed oil and domestic cotton-seed oil. They are identical.
Under the Nebraska Constitution, art. III, section 18 and art. VIII, section 1, classification of property or business for taxation, whether the tax is a property tax or an excise tax, can be permitted only if the classification is reasonable and the tax operates uniformly upon all members of the class. The principle is announced in Continental Ins. Co. v. Smrha,
The record conclusively shows that the classification attempted on the basis of benefits received and objects to be accomplished does not rest upon any rеal differences in sit
We necessarily conclude that the classification in the instant case does not meet the requirements of uniformity as to class, required by art. VIII, section 1 and art. III, section 18 of the Constitution.
It is obvious that the unconstitutional provision was the principal inducement for the passage of the act, and consequently we will not undertake to sever the constitutional and unconstitutional portions, and the entire act must fall. When sections of a legislative act are unconstitutional, and such sections were an inducement to the passage of an act in its entirety, then the entire act is void, notwithstanding a saving clause therein. Moeller, McPherrin & Judd v. Smith, supra.
If portions of an act are unconstitutional, and the rеmainder is so connected with the invalid portions that it cannot be upheld without doing violence to the legislative intent as a whole, the entire act must fall. See State ex rel. Taylor v. Hall, supra.
Other constitutional questions are raised, but in view of our holding, need not be determined.
For the reasons given in this opinion, sections 81-294 to and including 81-2,110, R. S. 1943, are unconstitutional, being in violation of art. III, section 18 and art. VIII, section 1 of the Constitution of the state of Nebraska, and as to this plaintiff is void and to no effect, and judgment is entered accordingly.
Judgment for plaintiff.