Judges: TERRELL, J.:
Attorneys: H.H. Wells, and James H. Finch, for petitioners.
H.E. Carter and William C. Pierce, for respondent.
Filed: Jan. 27, 1942
Latest Update: Mar. 02, 2020
Summary: The legislature of 1941 enacted Chapter 20496 defining and prohibiting the manufacture, possession, or sale of "Filled Milk." The pertinent part of Section 1 of the Act is as follows: "That the term "Filled Milk" means any milk, cream, or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried or desiccated, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, whether in bulk or in containers, hermetically *Page 736
Summary: The legislature of 1941 enacted Chapter 20496 defining and prohibiting the manufacture, possession, or sale of "Filled Milk." The pertinent part of Section 1 of the Act is as follows: "That the term "Filled Milk" means any milk, cream, or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried or desiccated, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, whether in bulk or in containers, hermetically *Page 736 s..
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Even if the Act could be held constitutional on its face, which I do not think could be, it seems to me that the answers filed by the defendant and intervenor in the court below, if true, each present a good defense to the bill. These answers in effect allege that while the butter fat has been extracted, its place has been filled with pure refined cotton seed oil to which the vitamins which are contained in butter fat have been added, making the product as wholesome and nutritious as if the butter fat itself had not been extracted. If these facts are proven then this statute cannot be constitutionally applied so as to prohibit the sale of
this product. I think the court below erred in striking the paragraphs in the answers presenting this defense. The motions to strike admitted these facts well pleaded in the answers for the purpose of obtaining the court's ruling thereon. There is no question here of misbranding this product so as to deceive the public. The containers were labeled so as to honestly show the nature and constituents of the contents.
