The ordinance here under attack is not sustainable as a labelling ordinance because its object is to prohibit altogether the sale or disposition of bottled (but not unbottled) chocolate milk unless it is made from milk containing at least 3 1/2% butter fat. The state *Page 675 statute recognizes that chocolate milk manufactured with a butter fat content of as low as 2% is not inimical to health nor productive of fraud against the public.

While the fact has almost been lost sight of by the lawmaking bodies of the nation, high and low, state and municipal, there is a well defined limit beyond which the police power cannot be exercised to accomplish spoliation of private business under guise of promoting either public health or affording protection from fraud.

The City of Tampa has undoubted police power to require chocolate milk to be so labelled or even packaged that a prospective purchaser of bottled goods offered for sale and sold under the designation of "chocolate milk" to the public shall be so informed of the contents as to enable the would be purchaser to see at a glance whether he is buying 3 1/2% butter fat chocolate milk or 2% butter fat chocolate milk. But the right to protect the health of the public does not give rise to a power toprohibit absolutely any sale of an article of diet or drink, which is admittedly wholesome per se, but is sought to be madefiat contraband because it does not rise to a certain qualitative standard prescribed by or under authority of the Legislature. See: Rigbers v. City of Atlanta, 7 Ga. App. 411, 66 S.E. Rep. 991; Weaver v. Palmer Bros. 20, 270 U.S. 402, 46 Sup. Ct. Rep. 320, 70 L. Ed. 654.

If this present ordinance of the City of Tampa is properly sustained as a valid exercise of the city's police power, I see nothing left in the Constitution or laws of Florida to render void a like ordinance declaring that nobody shall sell liquor in bottles unless the liquor contains 75% pure grain alcohol, or that bread shall not be sold in standard loaves unless made out of Pillsbury (a high quality) flour. On like principle, ordinances could be passed saying that the *Page 676 chocolate itself put into any bottled drink offered for sale as "chocolate milk" shall be 25% of the gross content of the bottle, and to propose an extreme case, the manufacturers of separated cream might, in the near future, successfully promote and secure the enactment of valid legislation by cities and towns declaring that no drink described as chocolate milk shall be sold in bottles unless it contains 75% pure cream (or butter fat) in its contents, or that firewood must consist entirely of lightwood knots holding a certain "fat" composition in its makeup.

I think that the ordinance challenged in this case is void because it prescribes an arbitrary absolute prohibition against the sale of a legitimate article of trade recognized by state statute as being in nowise detrimental to health or to the public welfare, but merely deficient in qualitative content as compared with an arbitrary standard set up by legislative fiat as beingsine qua non for bottled chocolate milk sold within the limits of the City of Tampa.

In Weaver v. Palmer Bros. Co., 270 U.S., supra, the United States Supreme Court definitely held that absolute prohibition of sale and commerce in an article of trade could not be sustained as a mere matter of enforcement convenience or where regulations short of absolute prohibition would suffice for the protection of the public.

The power to regulate the sale of milk so far as is necessary for the prevention of impurities, adulterations and other similar detrimentals to health and welfare is undoubtedly well within the police power, but we are carrying that power a long way beyond its legitimate scope when we allow it to be used as a means of attaining commercial advantages for one group of people at the expense of others by countenancing an absolute prohibition of the sale of a food or drink that can be adequately regulated by a labelling *Page 677 or container law or ordinance not amounting to a complete destruction of the producer's and dealer's constitutional right to liberty of trade as guaranteed to him by the fourteenth amendment to the U.S. Constitution, subject to regulation, but not prohibition, in cases like this one.

Hebe Co. v. Shaw, 248 U.S. 297, 39 Sup. Ct. Rep. 125, 63 L. Ed. 255, and kindred cases cited by appellee, are not analogous to this case nor in point here, because those cases really involve, in their ultimate analysis, the forbidden sale of products of one kind in effect mis-labelled as products defined by statutes to be something else as commonly understood when that something else was asked for in dealing with a vendor. The cited cases would be no authority in support of a law saying that no radio could be sold under any circumstances, under the name of radio or something else, unless it was equipped with 12 tubes, instead of a less number sufficient to satisfy the specifications of a prospective customer.

With one Congress, forty-eight state legislatures and some thirty-six hundred local governing bodies all vested with authority to oppress and stifle the profitable conduct of private business in the United States within the scope of their acknowledged police powers which are oftentimes unwisely exercised at the behest of special blocs and groups and only nominally to promote the common welfare, I think the courts should give practical utility to the constitutional guarantee of life, liberty, property and the right to pursuit of happiness, by striking down regulations plainly beyond the sanctions of organic law in the premises, thereby making it possible for private business to so plan its affairs as to operate on more than a Congress to Congress, Legislature to Legislature, or City Council meeting to City Council meeting, basis — a condition of affairs greatly contributing *Page 678 to, if not the actual cause of, our great national depression.