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Defiance Milk Products Co. v. Du Mond

Supreme Court of New York, Appellate Division

December 28, 1954

Defiance Milk Products Co.
Du Mond

APPEAL from a judgment of the Supreme Court in favor of plaintiff, entered March 2, 1954, in Albany County upon a decision of an Official Referee (CHRISTOPHER J. HEFFERNAN,    

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Off.Ref.), declaring that subdivision 2 of section 64 of the Agriculture and Markets Law is unconstitutional and void insofar as it prohibits the sale in the State of New York of evaporated, skimmed milk in containers containing less than ten pounds avoirdupois net weight.


Robert G. Blabey and George G. Fiesinger for appellant.

David S. Williams for respondent.


Subdivision 2 of section 64 of the Agriculture and Markets Law of this State reads, 'No person shall sell or exchange, or offer or expose for sale, or exchange, any condensed or evaporated skimmed milk, except it be in containers or packages containing ten pounds avoirdupois net weight or more, which containers or packages shall be distinctly labeled, branded or marked in block letters not less than one-half inch in height, with the words 'Condensed Skimmed Milk' or 'Evaporated Skimmed Milk"'. Plaintiff has brought action for a judgment declaring unconstitutional, invalid and void that portion of the section which prohibits the sale of evaporated skimmed milk except in containers holding ten pounds or more.

Plaintiff is an Ohio corporation manufacturing evaporated milk, evaporated skimmed milk, and other dairy products in Ohio and Illinois. It began distributing evaporated skimmed milk packaged in fourteen and one-half ounce containers in 1950 and that year sold 27,000 cases of forty-eight containers. In 1951 it sold 103,000 cases and in 1952 about 143,000 cases.

The article here under consideration is produced by removing from fresh cows' milk substantially all of the butterfat and by then reducing its volume, by means of a vacuum process, to a ratio of about 1 to 2.3, with the addition of vitamins in place of those said to be removed with the fat in the skimming process.

Plaintiff began shipping the milk to wholesalers in this State in 1951. It was advised by the Department of Agriculture and Markets that the sale was in violation of subdivision 2 of section 64, following which sales were discontinued and the goods recalled. This action was instituted subsequently and, after issue was joined, plaintiff moved for summary judgment. The motion was denied by order of Special Term and an appeal from that order was taken to this court. (See Defiance Milk Products Co. v. Du Mond, 282 App. Div 977.) In our decision it was said (p. 978), 'The matter should not be determined until all of the background and history of the legislation is before the court.' The action was then tried before Hon. CHRISTOPHER J. HEFFERNAN, Official Referee, and judgment

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entered on his decision in favor of the plaintiff. This appeal is taken from that judgment.

Statutes enacted under the police power, as was this law, are presumed to be constitutional, but the presumption is one of fact and rebut table. 'When the classification made by the legislature is called in question, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of the existence of that state of facts' but 'immunity [is not] achieved by treating any fanciful conjecture as enough to repel attack.' In case of a challenge to its validity 'one who assails the classification must carry the burden of showing by a resort to common knowledge or other matters which may be judicially noticed, or to other legitimate proof, that the action is arbitrary.' (Borden's Co. v. Baldwin, 293 U.S. 194, 209.)

Nor is it questioned that traditional principles of court inquiry into the constitutionality of such statutes are applicable. We need not labor the point that, in the exercise of the police power, broad discretion resides in the Legislature in deciding what is required in the interest of the public and the kind of measures necessary to protect such interests. What interest of the public was sought to be protected by this statute? Does its requirement have a real and substantial relation to the protection of that interest or, generally, to the protection of the health, safety, morals or general welfare of the public? (People ex rel. Pinello v. Lead bitter, 194 Misc. 481, affd. 275 App.Div. 864, affd. 301 N.Y. 695.)

By stipulation of the parties, the healthfulness of the product is not in question. Plaintiff does not question, and the markings on its containers conform to, the mandate of the law. Thus the issue here is limited to the requirement that evaporated skimmed milk be sold only in packages containing ten or more pounds. This law was a part of the former Farms and Markets Law (L. 1922, ch. 48). Appellant urges that the purpose was to protect the public interest against fraud and deceit in the sale of evaporated skimmed milk in containers similar to those used in the sale of evaporated milk. It does not appear to have been possible to provide the background and history of the enactment to conform to the suggestion of this court in the earlier proceeding. In an attempt to supply some historical data, defendant was permitted on the trial to put into evidence affidavits used on the motion for summary judgment. In an answering affidavit, Kenneth F. Fee, Director of Division of Milk Control, referred to his attendance at a legislative hearing in 1922, at which there were testimony and discussion of the

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question of deceit. He stated that a woman testified that she had asked for a can of evaporated milk in an Albany store and received a can of evaporated filled milk. He averred that a reading of section 64 clearly demonstrates that, as a result of the amendment, the prohibition of 'such products' in containers similar to those in which evaporated milk is customarily sold was intended.

It should be noted that we are not here concerned with 'filled' milk, skimmed or otherwise. That product is not defined in our statute except as it is naturally included in the definitions of adulterated milk. (Agriculture and Markets Law, § 46.) It is defined in a Federal statute as 'any milk * * * or skimmed milk * * * to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, so that the resulting product is in imitation or semblance of milk'. (U. S. Code, tit. 21, § 61, subd. [c].) It is there declared to be an adulterated article of food, injurious to public health, and its sale a fraud upon the public. Its manufacture is prohibited in any Territory, possession or the District of Columbia, as well as its shipment or delivery for shipment in interstate or foreign commerce. (U. S. Code, tit. 21, § § 61, 62.) United States v. Carolene Products Co. (304 U.S. 144), cited by appellant, found for the constitutionality of that statute and thus was concerned with filled milk only.

The difference between whole milk and evaporated milk and between skimmed milk and evaporated skimmed milk is, in each case, a matter of water content. If, in 1922, when this statute was enacted, or since, there existed a 'state of facts reasonably * * * [to] be conceived that would sustain it [other than the somewhat chimerical fear of confusion leading to fraud and deceit],' (Borden's Co. v. Baldwin, 293 U.S. 194, 209) it must relate in some manner to the difference between whole and skimmed milk. That, essentially, is the basis of appellant's argument. No question has been raised about the sale of evaporated milk in convenient small containers. No other reason than possible confusion is urged against similar merchandising of the skimmed product.

Skimmed milk is a recognized food product. The record asserts that it retains all the minerals and other essentials of milk other than the fat, is low in fat and calories, and is useful to a person on a diet. These, we believe, are now matters of common knowledge. Dr. Edward J. Stieglitz, of Washington, D. C., has said, 'Unfortunately, the majority of older persons

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dislike or resent the prescription of milk. Milk is not only a valuable source of protein but also a major source of calcium. Skim milk may be preferable to whole milk as a source of extra protein, especially if one wants to avoid increasing the fat intake. Dried skim milk preparations, particularly those fortified with additional iron and vitamins, are of considerable value in the maintenance of good nutrition in the senile person.' That statement was in an article confined to nutritional needs in diseases of old age and did not purport to exclude consideration of the health values of skimmed milk to other than elderly people. (Stieglitz, 'Nutrition Problems of Geriatric Medicine', The Journal of the American Medical Association, Vol. 142, No. 14, April 8, 1950, p. 1070.)

It is also a matter of common knowledge or readily ascertainable that skimmed milk is obtainable from one's milkman in bottles distinguishable from those containing whole milk only by the wording on the small cap at the bottle top. No one suggests that such similarity in containers demonstrates a tendency to deception and fraud. The experience of plaintiff demonstrates the existence of a large and growing demand for the evaporated form of skimmed milk packaged in small containers.

We do not question the legislative power to assure a minimum of nutritive elements in a widely used article of food and to protect the public from fraudulent substitutes. (U. S. v. Carolene Products Co., 304 U.S. 144, 148, supra.) Nor is it questioned that, at least in cases involving substitute products, the power has been sustained over the contention that the substitute may be or is as wholesome and useful as the simulated article. We do emphasize, however, that the recognized value of skimmed milk and the evident wide demand for it serve to throw into sharp contrast the complete absence of any showing of a reason justifying the legislation in question or that that product can be considered as a fraudulent substitute for anything else.

Furthermore, though we assume the power of the Legislature in 1922, to enact a law which would, in effect, prohibit the sale of evaporated skimmed milk at retail, it remains necessary to consider the statute in the light of its present effect upon sales practice when its enforcement is being sought. A century ago some people of sense thought tomatoes were poisonous, but it would not now be seriously argued that legislation of that period prohibiting their sale could be sustained today in the light of the present regard for them. A 'police regulation,

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although valid when made, may become, by reason of later events, arbitrary and confiscatory in operation.' (Abie State Bank v. Bryan, 282 U.S. 765, 772; Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 415.) A half century ago skimmed milk was treated as a by-product of milk production, inferior in character. Now it is recognized as a dietary component because of its retention of proteins and of the reduction of fat and calorie content. Its value is thoroughly and widely understood. We can see no present-day justification for preventing the average man or woman from buying it as conveniently as evaporated whole milk, on the one hand, or skimmed fluid milk, on the other. In our view the enforcement of this 1922 statute in this period of greatly changed conditions is unreasonable and arbitrary.

We do not agree that the testimony for the defendant demonstrates the asserted tendency to fraud and deceit. His several investigators, employees of the Department of Agriculture and Markets, 'shopped' in stores in this and neighboring States. Their procedure is indicative of an effort to be fooled. It is a reasonable inference that they were disinterested in observing, in the stores, whether the clerks wrapped the articles called for or, even, whether the orders were clearly understood. Not until they were out of the stores did they open the packages to see if they had been correctly served. On the trial it was clear that they had no trouble reading and understanding the half-inch letters of the markings on plaintiff's cans.

There appears no reasonable basis for the law. It must be deemed an invasion of plaintiff's rights as arbitrary, unreasonable and discriminatory, and as not reasonably related to the protection of the public from fraud or otherwise. On the other hand, it may be said to operate against the public interest, as a disservice to those persons desiring or required to use skimmed milk, but who prefer to purchase it in evaporated form by reason of economic necessity, convenience, or otherwise. Now they must buy it in ten pound containers, with the consequent inconvenience of handling and storage, extra financial outlay, and the possibility of waste because so large a quantity cannot be used while it is fit for consumption.

Appellant urges the further contention that plaintiff has no standing to challenge subdivision 2 of section 64 because its product is neither milk nor skimmed milk by the legislative standard, but is an adulterated milk, the sale of which is prohibited by section 50 of the Agriculture and Markets Law. The claim of adulteration is predicated upon plaintiff's testimony

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relating to the addition of vitamins to its milk for the purpose of restoring vitamins said to be removed in the skimming process. We do not concur with this view.

Eight statutory definitions of adulterated milk are found in section 46 of the statute. The two which might be applicable to this inquiry are contained in paragraphs 7 and 8. Paragraph 7 classes as adulterated milk that 'from which any part of the cream has been removed'. Paragraph 8 describes as adulterated any milk 'which has been diluted with water or any other fluid, or to which has been added or into which has been introduced any foreign substance whatever.' (Italics supplied.) In general usage, adulterate is '2. To corrupt, debase, or make impure by an admixture of a foreign or a baser substance; to prepare, esp. for sale, with one or more ingredients included which are not part of the professed substance; as, to adulterate food, drink, drugs, coin, etc. * * *. 3. Figuratively, to make corrupt or impure by adding new, strange, or foreign elements.' (Webster's New International Dictionary [2d ed.].)

Subdivision 1 of section 64 states, 'The prohibitions contained in this article against the sale of adulterated milk shall not apply to skimmed milk as defined in section forty-six, which is unadulterated, except by skimming, if it is sold for and as skimmed milk.'Section 46 defines the term 'skimmed milk' as milk 'from which part or all of the cream has been removed'.

Plaintiff's milk is and 'is sold for and as skimmed milk.'That fact cancels out the application of paragraph 7 of section 46 describing the removal of cream as adulteration.

Plaintiff's president testified that the added 'vitamin A is in the form of a concentrated oil and the vitamin D3 comes to us in a concentrate already mixed with milk.' If the end product is adulterated, it is so by reason of the fact that the added vitamins are foreign substances (§ 46, par. 8) or are new, strange or foreign elements which corrupt, debase or ...

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