State ex rel. Mitchell v. Sage Stores Co.

— 405 — The opinion of the court was delivered by Wedell, J.: This is an original action in quo warranto, instituted by the state on the relation of the attorney general, to oust the defendant, The Sage Stores Company, a Kansas corporation, chartered to transact a general mercantile business, from doing business in this state on the ground it is unlawfully keeping for sale and selling a “filled-milk” product under the trade names of Milnot and Carolene. The product is manufactured and distributed by defendant Carolene Products Company, a Michigan corporation. Plaintiff’s amended petition alleged the latter corporation, although not authorized to do or doing business in Kansas, had an interest in the product, that an actual controversy had arisen concerning the lawful sale of its product and that it should be made a party defendant in the litigation. The defendants filed separate answers. The statute involved is G. S. 1935, 65-707, and is commonly known as the “filled-milk” statute. The particular portion thereof alleged to have been violated is subdivision (F) (2), which.reads: “It shall be unlawful to manufacture, sell, keep for sale, or have in- possession with intent to sell or exchange, any milk, cream, skim milk, buttermilk, condensed or evaporated milk, powdered milk, condensed skim milk, or any of the fluid derivatives of any of them to which has been added any fat or oil other than milk fat, either under the name of said products, or articles or the derivatives thereof, or under any fictitious or trade name whatsoever.” In addition to facts previously stated plaintiff’s amended petition, insofar as material, in substance, alleged: The defendant, Carolene Products Company, was organized for the purpose of engaging in the distribution of milk products and derivatives thereof (the petition named the milk products enumerated in the statute) and defendant, The Sage Stores Company, unlawfully has in its possession and is unlawfully selling in this state such milk products to which have been added various fats and oils other than milk fat under the fictitious trade name of Carolene and Milnut; such acts are in violation of the milk, cream and dairy public health laws of this state, article 7, chapter 65, General Statutes of Kansas, and particularly G. S. 1935, 65-707 (F) (2); The Sage Stores Company, according to its annual statement filed with the secretary of State for the year 1940, described its business to be “retail groceries and meats”; the state of Kansas is a market for the — 406 — product of the Carolene Products Company and The Sage Stores Company and other retailers are market outlets for such products if they can be sold lawfully in Kansas; by reason of the described unlawful acts of The Sage Stores Company it has misused and. abused the franchises, privileges and authority conferred upon it; such unlawful acts have been of great-harm and injury to the general public and the state. Plaintiff prayed that The Sage Stores Company be ousted, restrained and enjoined from transacting any further business under its charter and that defendant, Carolene Products Company, be restrained and enjoined from distributing and selling its product in this state. The pertinent portions of the separate answers filed by the defendants are identical or sufficiently similar to make it unnecessary to duplicate the averments thereof. This court appointed the Hon. J. B. McKay, of El Dorado, as its commissioner, directed him to take testimony and to make findings of fact and conclusions of law. His findings of fact are appended to this opinion and made a part hereof. The commissioner has referred to the Carolene Products Company as the defendant. In order to avoid confusion we shall do likewise. In the hearing before the commissioner the parties stipulated concerning some facts alleged in defendant’s answer which were denied in plaintiff’s reply. The stipulated facts are embodied in the commissioner’s findings of fact and constitute the first eleven paragraphs thereof. The answer of the defendant is quite voluminous. In setting forth such averments thereof as were in substance later admitted, we shall refer to such facts alleged in the answer by directing the reader to pertinent stipulated findings of fact. The answer denied: That defendant at the institution of this suit, or at any time thereafter, had shipped into Kansas for sale or had sold any products containing coconut oil in violation of the previous decision of this court; that its present products, Carolene and Mil-not, contained coconut oil and alleged that among other ingredients they contained cottonseed oil. (For admissions of averments in the answer pertaining to products defendants were selling or distributing at the time the stipulation was made, the ingredients thereof, the sanitary method of their manufacture and distribution and the labels used on the products, see findings 2 to 11, inclusive.) From the above admissions it is clear the ingredients of Carolene — 407 — and Milnot are identical. We shall therefore hereafter refer to them as defendant’s product instead of products. Defendant’s answer, in substance, further alleged: The natural ingredients of its product are each and all wholesome and none of them is damaged in the process of manufacturing the completed product; defendant’s completed product is not deleterious or unwholesome but on the contrary is wholesome and nutritious; vitamins A and B are fat solubles; in vitamin A and B content defendant’s product is superior for human need to whole milk and evaporated whole milk for the reason that such vitamin content fluctuates in whole milk or evaporated whole milk, depending upon the season, the feed of the cow, the breed of the cow and the condition of the cow, whereas the vitamin A and B content in defendant’s product is superior in both quantity and uniformity; defendant’s product with respect to the remaining vitamins in whole milk or evaporated whole milk, is demonstrably superior; at the time the law in question was enacted defendant’s product was unknown; defendant’s fortified milk product has come to be regarded by biochemists, physicians, dietitians and nutritionists as wholesome, healthful, growth-producing, nutritious and beneficial generally as a food in every respect; its product is unusually well fitted as an infant food and is used in many instances where whole milk or evaporated whole milk cannot be fed to infants; the product is not sold in imitation of milk but is properly and plainly labeled with a prominent warning that it is not evaporated milk or cream; defendant’s product complies in all respects with the federal food and drug laws and with all Kansas laws relating to and prohibiting the adulteration and misbranding of food products; there is no foundation in fact for the presumption and charge that defendant’s product is adulterated or that its sale is a fraud on the public; there is no difference of opinion concerning the wholesomeness and sufficiency of the product as a milk compound and the vitamin sufficiency thereof; there is no rational basis for prohibiting the manufacture, possession or sale of defendant’s product. The answer, in substance, further alleged: Much skimmed milk is now wasted, fed to animals, or discarded and the public is deprived of the benefits of the supply of this highly nutritive and essential food; the cost of evaporated milk and whole milk is so high as to make it prohibitive for general consumption; the manu — 408 — facture of defendant’s product not only permits utilization of the butterfat in the form of butter and cream, after separation, but preserves for the public use at low prices the skimmed milk which otherwise would be unavailable and the product is, therefore, a great benefit to the public rather than a detriment; by reason of the use defendant makes of skimmed milk the farmer and dairyman are paid a higher price for the surplus milk than they receive from the whole milk evaporator, the fluid milk distributor and pasteurizer, or from any other processor of milk products; while extending the benefits of milk consumption by producing a cheaper and superior product from the skimmed milk, the manufacturer of the product is at the same time able to increase the income of the farmer and dairyman engaged in the production of milk, with the result that a benefit rather than a detriment accrues to the public; the prohibition of the manufacture, sale or possession of defendant’s product, and criminal punishment therefor, notwithstanding the product is a wholesome nutritious food product rich in vitamins, is unconstitutional and void for the following reasons: “(a) Such prohibition, and punishment under any statute relating thereto and not embracing generally all food containing oil or fat, other than milk fat, or all foods in which milk and oil or fat, other than milk fat, are compounded is in violation of section 17 of article II of the constitution of Kansas, prohibiting the enactment of a special law where a general law can be made applicable. “(b) Such prohibition and punishment violates section 1 of the bill of rights of the constitution of Kansas by denying to this defendant its natural and constitutional rights of life, liberty and the pursuit of happiness. “(c) Such prohibition and punishment deprives this defendant of its liberty and property without due process of law in violation of the fourteenth amendment to the constitution of the United States, and deprives this defendant of the equal protection of the laws of the state of Kansas in violation of said constitutional provisions, and abridges the privileges and immunities of this defendant as a citizen of the United States in violation of said constitutional provisions. “(d) The prohibition of the sale of a pure, wholesome, sanitary, nutritious, and unharmful food compound, and punishment therefor, is contrary to public policy, is an arbitrary and unreasonable interference with private persons, is wholly without the scope of the police power, is an unreasonable and unnecessary restriction upon trade, and is therefore unlawful, oppressive and unrelated to the health, welfare, safety or morals of the people of this state or any of them.” Defendant’s answer also, in substance, alleged: Various milk products (naming them) which are fortified with — 409 — fat or oil, other than milk fat, are being sold in the state without interference by state or county officials; if the sale of defendant’s product is prohibited by the statute, such other products are likewise prohibited; action to prohibit only the sale of defendant’s product constitutes a denial to defendant of the equal protection of the laws of this state and constitutes enforcement of the laws in a manner that abridges the privileges and immunities of defendant as a citizen of the United States, all in violation of the first section of the fourteenth amendment to the constitution of the United States. Plaintiff filed a separate reply to the separate answers of the defendants. The replies are identical or sufficiently similar, with respect to essential matters, to. make it unnecessary to duplicate the contents thereof. We shall summarize the material averments of the reply to the answer of the defendant Carolene Products Company. The reply denied that failure to bring actions to prohibit the sale of other milk products to which fat, other than milk fat, had been added constituted a defense to the present action and alleged such averments should be stricken from the answer. Plaintiff’s reply contained the same denial and made the same request with respect to defendant’s answer which raised economic issues and which pertained to the effect of the manufacture and sale of defendant’s product upon the dairy industry. The court, after the completion of the pleadings and prior to the hearing before the commissioner, sustained plaintiff’s motion relative to averments in the answer which charged discriminatory enforcement of the law (see finding 54) and overruled plaintiff’s motion touching the other defenses mentioned in the last preceding paragraph. The reply admitted the averments of defendant’s answer with respect to the contents, or ingredients, of defendant’s product, the sources of its ingredients and the manner in which the product was manufactured. (See findings 6, 7, 8, 9 and 11.) The reply, in addition to a general denial of all averments not admitted, in substance, further alleged: Defendant’s product is the identical product heretofore condemned by this court in the case of Carolene Products Co. v. Mohler, No. 34,307 (152 Kan. 2, 102 P. 2d 1044), with the exception that the defendant’s present product, Carolene and Milnot, contains cottonseed oil where the former product, Carolene and Milnut, contained coconut oil; irrespective of the trade name, the product is not milk, — 410 — is inferior to the natural product, milk; the statute prohibits the addition of any fat or oil, other than milk, fat, to milk in any of the forms or derivatives named in the statute; the statute is designed to protect the public health, morals and welfare of the people and to prevent fraud and deception in the purchase and consumption of milk, cream and other dairy products and violates no provision of the state or federal constitution. After the introduction of evidence before the commissioner was concluded defendants, with consent of the court, were permitted to file supplemental answers in which they, in substance, alleged: The prohibition of the sale of its product, Milnot and Carolene (a liquid product), and the permission by the state to sell for infant and human consumption other combinations of dried milk, skimmed milk and milk derivatives and vegetable oils constitute arbitrary and unreasonable discrimination against the defendant and denies to it the equal protection of the law; the statute constitutes the enactment of a special law where a general law can be made applicable ; the statute violates state and federal constitutional provisions (previously designated in its answers); it appears from the statute itself that it is not a health measure. Touching the subjects of the commissioner’s permission to introduce additional testimony after the filing of the supplemental answer, the rejection of the offer by the parties and the question of the validity of the statute itself, see finding 55. The foregoing summary of the pleadings, considered in connection with the facts agreed upon by the parties, quite clearly discloses the remaining questions of fact upon which issues were joined. This summary also discloses the general legal contentions of the parties which it is unnecessary to repeat. The report of the commissioner discloses the extensive scope and character of the evidence introduced and the eminence of the expert witnesses in their respective fields. Those subjects require no further comment. Requests for findings of fact and conclusions of law were submitted to the commissioner by both parties. Defendants have excepted to the failure of the commissioner to make' certain findings of fact and conclusions of law requested by them. Defendants have also excepted to certain findings of fact and to the conclusions of law made by the commissioner. We have considered the grounds of the various exceptions. Plaintiff asks for judgment on the commissioner’s findings of fact and conclusions of law. — 411 — This is an original action in this court. Findings of fact made by the commissioner are advisory only and do not have the effect of finality accorded to findings of fact made by a trial court. In the latter type of case we examine the record only sufficiently to determine whether there is substantial testimony to support the findings made and not whether there is evidence which would support, or would tend to support, contrary findings, if made. In an original action, such as the instant one, the findings of the commissioner being challénged are not conclusive but are advisory only. Under such circumstances it is the duty of this court to examine the entire record for the purpose of reaching its own independent conclusions. (State, ex rel., v. McKnaught, 152 Kan. 689, 690, 107 P. 2d 693, and cases therein cited.) The fact that ultimate responsibility to determine the facts and to reach a conclusion remains with the court does not mean, however, that the findings of the commissioner are not helpful. In Hunt v. Gibson, 99 Kan. 371, 161 Pac. 666, it was said: “Being challenged, the commissioner’s findings are advisory only. In the solution of doubtful questions of fact, some weight may be given them because the commissioner had the advantage of personal observation of the witnesses while they were undergoing examination. With this exception the court considers the evidence as though it had been taken by deposition.” (p. 375.) In keeping with the court’s responsibility it has examined the record and after careful consideration thereof has concluded that while some exceptions have some merit, the findings on material matters are substantially correct. We have concluded that if certain additional requested findings, which have evidentiary support and which defendants contend are necessary to a proper determination of this case, had been included in the findings made, such fact would not require conclusions of law contrary to those made by the commissioner. For example, defendants take exception, on various grounds, to finding 53. The exceptions go primarily to the affirmative finding with respect to the inferiority of defendant’s product as to certain nutritive ingredients as compared with the nutritive value of whole milk or evaporated whole milk. There is competent evidence to support that finding. There is also competent testimony of experts that as to certain vitamins, particularly A and D, defendant’s product is superior to evaporated whole milk and that it is preferred by them to evaporated whole milk or the special-purpose infant foods in the diet of infants under their care. (Finding 52.) — 412 — For the purpose of determining the constitutionality of the law in question it is immaterial whether we believe defendant’s product when considered as a whole is inferior, equal or superior to whole milk or exaporated whole milk if substantial disagreement in fact exists with respect to the inferiority of the product as compared with whole milk or evaporated whole milk, and the legislature has some basis for believing a filled-milk product is likely to be sold or is susceptible of being sold as and for whole milk or evaporated whole milk with the result that the public may be deceived thereby. In other words, in the view we take of the law governing this case the sale of a filled-milk product, although wholesome and nutritious, may be constitutionally prohibited as well as merely regulated if the legislature has some basis for believing the product is inferior to whole milk or evaporated whole milk and that the sale of the product offers an opportunity for fraud and deception and that prohibition rather than mere regulation of- its sale is necessary for the adequate protection of the public health or general welfare. We think there was a sufficient basis for the exercise of legislative judgment as to a filled-milk product and the remedy adopted to effect the legislative.purpose. Our independent examination of the record leads us to believe that notwithstanding the label correctly describes the contents of the product and conforms to the regulations and requirements of the federal food and drug administration and notwithstanding the fact the defendant Carolene Products Company puts into the cases of its product a “Notice” stating, among other things, “It is improper to advertise, represent, display or sell either of these products as milk, or evaporated milk or cream,” the product nevertheless in numerous instances is sold as canned milk by dealers, accepted as such by some customers, and is used as advertised by the defendant Carolene Products Company to wit: — “Milnot can be used for all culinary purposes wherever you now use whole milk, cream, whipping cream, or a canned milk.” As a result of our study of the record and in view of what already has been said, we have concluded the material findings of the commissioner are substantially accurate and sufficiently extensive to form a proper basis for the formulation of conclusions of law. The following conclusions of law made by the commissioner are supported by authorities indicated thereunder by the court: "1. The statute in question (G. S. 1941 Supp. 65-707 (F) (2) — 413 — has a two-fold purpose: (1) Preservation of the public health, and (2) prevention of fraud and deception on the consumers of the state.” (Carolene Products Co. v. Mohler, 152 Kan. 2, 8, 102 P. 2d 1044 [1940]; Hebe Co. v. Shaw, 248 U. S. 297, 63 L. Ed. 255, 258 [1919]; U. S. v. Carolene Products Co., 304 U. S. 144, 149, 82 L. Ed. 1234 [1938]; Carolene Products Co. v. Wallace, 27 F. Supp. 110, 112 [1939]; Carolene Products Co. v. Harter, 329 Pa. 49, 197 Atl. 627, 119 A. L. R. 235 [1938].) “2. Every presumption must be indulged in favor of the validity of legislative acts. Before a statute enacted in the exercise of the police power can be held unconstitutional, it must be shown that there was no conceivable reason for the legislative act.” (Carolene Products Co. v. Mohler, 152 Kan. 2, 8, 10, 102 P. 2d 1044, [1940]; O’Gorman & Young v. Hartford F. Ins. Co., 282 U. S. 251, 75 L. Ed. 324 [1931]; Hebe Co. v. Calvert, 246 Fed. 711, 717 [1917]; Setzer v. Mayo, 150 Fla. 734, 9 So. 2d 280, 281 [1942].) “3. If the character or effect of an article, as intended to be used, be debatable, the legislature is entitled to its own judgment, and its judgment cannot be superseded by the views of the court.” (Carolene Products Co. v. Mohler, 152 Kan. 2, 8, 102 P. 2d 1044 [1940]; Powell v. Pennsylvania, 127 U. S. 678, 685, 32 L. Ed. 253 [1888]; Hebe Co. v. Shaw, 248 U. S. 297, 303, 63 L. Ed. 255 [1919]; U. S. v. Carolene Products Co., 304 U. S. 144, 154, 82 L. Ed. 1234 [1938]; Hebe Co. v. Calvert, 246 Fed. 711, 717 [1917]; Carolene Products Co. v. Evaporated Milk Ass’n, 93 F. 2d 202, [1937]; Carolene Products Co. v. Wallace, 27 F. Supp. 110 [1939]; Setzer v. Mayo, 150 Fla. 734, 9 So. 2d 280 [1942].) “4. The constitutionality of an act may be challenged on the ground that it has no rational basis, as applied to a particular article, or that the facts which existed when the statute was enacted have ceased to exist, but such inquiries, where the legislative judgment is drawn in question, must be restricted to the issue whether any state of facts, either known or which could reasonably be assumed, affords support for the act.” (Weaver v. Palmer Bros. Co., 270 U. S. 402, 70 L. Ed. 654, [1926]; U. S. v. Carolene Products Co., 304 U. S. 144, 154, 82 L. Ed. 1234 [1938]; Carolene Products Co. v. Wallace, 27 F. Supp. 110 [1939]; Setzer v. Mayo, 150 Fla. 734, 9 So. 2d 280, 282 [1942]; Carolene Products Co. v. Hanrahan, Com. Atty., 291 Ky. 417, 164 S. W. 2d 597 [1941].) “5. The fact that a food product is wholesome does not of itself — 414 — make a prohibitory statute either inapplicable to the product or unconstitutional as applied to it.” (Carolene Products Co. v. Mohler, 152 Kan. 2, 102 P. 2d 1044 [1940]; Powell v. Pennsylvania, 127 U. S. 678, 684, 32 L. Ed. 253 [1888]; Hebe Co. v. Shaw, 248 U. S. 297, 303, 63 L. Ed. 255 [1919]; Carolene Products Co. v. Wallace, 27 F. Supp. 110 [1939]; Setzer v. Mayo, 150 Fla. 734, 9 So. 2d 280 [1942]; Carolene Products Co. v. Hanrahan, Com. Atty., 291 Ky. 417, 421, 164 S. W. 2d 597 [1941]; Carolene Products Co. v. Harter, 329 Pa. 49, 197 Atl. 627, 119 A. L. R. 235 [1938].) “6. Whether the purposes of the statute may be attained by regulation or whether absolute prohibition is necessary are questions for the legislature.” (Powell v. Pennsylvania, 127 U. S. 678, 32 L. Ed. 253 [1888]; U. S. v. Carolene Products Co., 304 U. S. 144, 154, 82 L. Ed. 1234 [1938]; Carolene Products Co. v. Wallace, 27 F. Supp. 110, 111 [1939]; Setzer v. Mayo, 150 Fla. 734, 9 So. 2d 280, 282 [1942]; Carolene Products Co., v. Hanrahan, Com. Atty., 291 Ky. 417, 425, 426, 164 S. W. 2d 597 [1941]; Carolene Products Co. v. Harter, 329 Pa. 49, 197 Atl. 627, 119 A. L. R. 235 [1938].) “7. It is not material that defendant’s product was unknown when the statute was enacted.” (Hebe Co. v. Calvert, 246 Fed. 711, 717 [1917].) “8. Defendant’s product is within the purview of the statute.” (Hebe Co. v. Shaw, 248 U. S. 297, 63 L. Ed. 255 [1919]; Carolene Products Co. v. Hanrahan, Com. Atty., 291 Ky. 417, 164 S. W. 2d 597 [1941].) “9. The legislature is not required to cover all evils of a like character in a single act. It may proceed step by step.” (State v. Nossaman, 107 Kan. 715, 193 Pac. 347, [1920]; U. S. v. Carolene Products Co., 304 U. S. 144, 151, 82 L. Ed. 1234, [1938]; Carolene Products Co. v. Harter, 329 Pa. 49, 56, 197 Atl. 627, 119 A. L. R. 235, [1938].) “10. Whether other products and compounds come within the statute is not an issue in this case.- “11. It is not material that defendant intends for its product to be sold for what it really is and without fraud or deception. Since the product is susceptible of being sold as and for evaporated milk, and is so sold, the legislature has the right in the exercise of the police power to prohibit its sale as an instrument of fraud.” (Carolene Products Co. v. Mohler, 152 Kan. 2, 10, 102 P. 2d 1044 [1940]; — 415 — Hebe Co. v. Calvert, 246 Fed. 711, 717 [1917]; Carolene Products Co. v. Evaporated Milk Ass’n, 93 F. 2d 202 [1937].) “12. Tested by the foregoing principles, the statute, as applied to defendant’s product, is constitutional and valid. “13. Defendant The Sage Stores Company should be ousted from abusing its corporate franchises and privileges by selling Milnot and Carolene in violation of the statute. “14. Judgment should be rendered against both defendants for the costs of this action.” Conclusion of law 10 is correct. In our view of the matter the charge of discriminatory enforcement was properly stricken from the answer. Mere failure to bring actions against others selling a product which, on the face of the statute, was barred, is no defense to the instant action. (State, ex rel., v. Wheat Farming Co., 137 Kan. 697, 715, 22 P. 2d 1093, Boynton v. Fox West Coast Theatres Corporation, 60 F. 2d 851, 854, and see, also, Buxbom v. City of Riverside, 29 F. Supp. 3, 8, which distinguishes the noted case of Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220, and similar cases.) Defendant’s contention the alleged discriminatory enforcement of the law denied to it the equal protection of the laws of this state and abridged the privileges and immunities of defendant as a citizen of the United States in violation of the first section of the fourteenth amendment to the federal constitution, is not good. A corporation does not possess the privileges and immunities of a citizen of the United States within the meaning of the federal constitution. (Warehouse Co. v. Tobacco Growers, 276 U. S. 71, 72 L. Ed. 473; Blake v. McClung, 172 U. S. 239, 43 L. Ed. 432; Selover, Bates & Co. v. Walsh, 226 U. S. 112, 57 L. Ed. 146.) In this connection we may state also that during oral argument before this court on the subject of alleged discriminatory enforcement, defendant’s counsel was reminded by the court that this was an original action in this court and that we could yet permit evidence to be -introduced upon the subject. Defendant’s counsel was asked whether it desired to have such permission granted and the reply was that counsel was not insisting upon it. In its supplemental answer defendant alleged the statute constituted the enactment of a special law where a general law could be made applicable and it, therefore, violated the state and federal constitutions. Under this contention defendant raises a question of — 416 — statutory construction. It argues if the statute be construed to permit the sale of powdered, or dried, skimmed milk which is fortified with fat or oil other than milk fat and, if the statute prohibits the sale of powdered whole milk which is fortified with fat or oil other than milk fat, the statute is unreasonable and arbitrary and violates the state and federal constitutions. Defendant’s product is not a powdered whole milk or a powdered skimmed milk product and the question it raises is not properly an issue in this case and need not be determined. In any event the statute does not constitute special legislation insofar as defendant’s product is concerned. The law is general and uniform as to each of the respective classifications of milk, whether they be liquid or powdered. The classification of liquid and powdered products has a sound basis at least insofar as prevention of misrepresentation or fraud is concerned. The liquid product is made far more nearly in semlance, if not in imitation, of milk than the powdered product and thus lends itself more easily to being sold or purchased as milk. Touching a related discussion see Carolene Products Co. v. Harter, 329 Pa. 49, 56, 57, 197 Atl. 627. Defendant raised the economic issue over plaintiff’s objection. In its answer defendant alleged facts which it claimed constituted the manufacture and sale of its product a benefit rather than a detriment to the public. Those allegations need not be repeated. This being an original action and the court desiring not to exclude any testimony which might become material, overruled plaintiff’s motion to strike allegations of the answer touching economic aspects of the case. Defendant claims the evidence suppoi’ts the averments contained in its answer and that the economic benefits resulting to the public from the sale of its product are particularly important in view of food shortages resulting from the war. Defendant contends the prohibition of its product cannot be sustained on economic grounds alone or as a trade barrier statute for the protection of the dairy industry, or any other trade group. We, however, do not understand that defendant contends the economic issue is controlling in the event the statute is held to be a valid health measure designed to protect the public against deception and fraud. We have held it to be such a measure in Carolene Products Co. v. Mohler, supra, and we adhere to that view now. The legislature, in the enactment of the law, had the right to weigh every factor germane to the sub — 417 — ject of the public health, including economic considerations, and we cannot assume it did not do so. Defendant earnestly argues its product was not known when the statute was enacted in 1923 and it could not have been the intention of the lawmakers to prohibit the sale of its product which is equal or superior to whole milk. We need not repeat what previously has been said relative to the comparative nutritive value of defendant’s product and whole milk. In support of its contention that an act will not be literally construed when it appears the lawmakers could not reasonably have intended to prohibit the particular thing in question, defendant cites the noted case of Holy Trinity Church v. United States, 143 U. S. 457, 12 S. Ct. 511, 36 L. Ed. 226; United States v. Aetna Explosives Co., 256 U. S. 402, 41 S. Ct. 513, 65 L. Ed. 1013; Carolene Products Co. v. Mahoney, 294 Fed. 902; and In re Di Torio, 8 F. 2d 279. In our opinion these cases are not controlling here.' (See case cited under conclusion of law 7 and also Carolene Products Co. v. Wallace, 27 F. Supp. 110, 112, on the subject of fortification of milk with new vitamins.) While it probably is true the legislature, when it enacted the statute, did not have knowledge of defendant’s particular product, it is also true the product is clearly within the prohibition of the statute and that the question of its inferiority as compared with products containing milk fat remains a debatable question among scientists today. Under these circumstances we cannot say the product is not now within the terms of the statute. In defendant’s exhaustive brief are cited numerous cases which we do not deem it necessary to discuss separately. The important aspects of the case are treated'in the authorities listed under the various conclusions of law previously stated. Defendant relies upon the following decisions involving wholesome and nutritious filled-milk products: Carolene Products Co. v. Thomson, 276 Mich. 172, 267 N. W. 608; Carolene Products Co. v. Banning, 131 Neb. 429, 268 N. W. 313; John F. Jelke Co. v. Emery, 193 Wis. 311, 214 N. W. 369, which in effect overruled State, ex rel. Carnation M. P. Co., v. Emery, 178 Wis. 147, 189 N. W. 564; State, ex inf. McKittrick, v. Carolene Products Co., 346 Mo. 1049, 144 S. W. 2d 153; Carolene Products Co. v. Mahoney, 294 Fed. 902, and affirmance of the last case in Mahoney et al. v. Carolene Products Co., 2 F. 2d 366. Defendant relies also upon that portion of the majority opinion in Setzer v. Mayo, 150 Fla. 734, 9 S. 2d 280, 283, where it was said: — 418 — “In fine, food values and the place of vitamins in the food is a subject that is still open for added knowledge. Well recognized food concepts of yesterday are being discarded because of scientific discoveiy. If therefore relators can show that notwithstanding their product is produced by substituting cotton seed oil or some other substitute for butter fat and vitamins it is wholesome and nutritious and that it is equal to or superior to whole milk as a food, the test prescribed in the last two cited cases is met and their product relieved from condemnation by the act.” (p. 283.) The last two cases referred to in the above quotation were U. S. v. Carolene Products Co., 304 U. S. 144, 58 S. Ct. 778, 82 L. Ed. 1234, and Carolene Products Co. v. Wallace, 27 F. Supp. 110, affirmed without opinion in 308 U. S. 506, 60 S. Ct. 113, 84 L. Ed. 433. The above quotation is not very helpful to defendant in the instant case for the reason that under the evidence in this case it remains a doubtful or debatable question whether defendant’s product is equal or superior to whole milk. Defendant also leans heavily upon the decision in Weaver v. Palmer Bros. Co., 270 U. S. 402, 46 S. Ct. 320, 70 L. Ed. 654, as authority for the principle that an act which completely prohibits and suppresses the sale of an article which is not injurious is invalid under the equal protection clause of the federal constitution for the reason that protection against possible deception in the sale of such an article or product may be accomplished by adequate regulation. In support of the same principle defendant relies upon the Michigan, Nebraska and the most recent Wisconsin case cited, all supra (filled-milk cases) and People v. Weiner, 271 Ill. 74, 78, 110 N. E. 870; People v. Biesecker, 169 N. Y. 53, 57, 58, 61 N. E. 990; The People v. Marx, 99 N. Y. 377, 2 N. E. 29; Meyer v. Nebraska, 262 U. S. 390, 43 S. Ct. 625, 67 L. Ed. 1042, and Schollenberger v. Pennsylvania, 171 U. S. 1, 18 S. Ct. 757, 43 L. Ed. 49, the oleomargarine case. In support of defendant’s contention that it is not responsible for the false representations of retail advertisers when defendant has done its legal duty to properly distinguish its product from whole milk or evaporated whole milk it cites Rathbone, Sard & Co. v. Champion Steel Range Co., 189 Fed. 26, 37 L. R. A., n. s., 258 and Carolene Products Co. v. Banning, supra. In support of defendant’s contention that a statute valid when enacted may become invalid by reason of changed conditions it cites Nashville, C. & St. L. Ry. Co. v. Walters, 294 U. S. 405, 415, 55 S. Ct. 486, 488, 79 L. Ed. 949; Abie State Bank v. Bryan, 282 U. S. 765, 772, 51 S. Ct. 252, 75 L. Ed. 690; Smith v. Illinois Bell — 419 — Tel. Co., 282 U. S. 133, 162, 51 S. Ct. 65, 75 L. Ed. 255; Chastleton Corp. v. Sinclair, 264 U. S. 543, 44 S. Ct. 405, 68 L. Ed. 841; Shallenberger v. First State Bank, 219 U. S. 114, 31 S. Ct. 189, 55 L. Ed. 117. In our view of this case it will serve no useful purpose to 'extend this opinion by a discussion of the conflict, or apparent conflict, of authorities. We think the decision in this case is governed by the authorities cited in support of the conclusions of law previously stated. Those authorities, especially the later ones, treat the subject of conflict in the decisions. In quite a number of the cases the sharp conflict of authority is disclosed by dissenting opinions or by specially concurring opinions and what is there said need not be repeated here. While in this opinion we have referred to defendants in the singular, the principles of law stated, of course, govern both defendants. The writ is allowed, but in conformity with finding 56, ouster of the defendant, The Sage Stores Company, is hereby limited and restricted to the extent of enjoining it from selling or keeping for sale the product of the defendant, Carolene Products Company, whether sold or kept for sale under the trade name of Carolene and Milnot or under any other fictitious or trade name. Judgment is hereby rendered against both defendants for. the costs of the action.