Setzer v. Mayo , 150 Fla. 734 ( 1942 )

This case presents primarily two questions.

1st. Has the legislature the power to prohibit the sale of a food product which is admittedly wholesome and nutritious and sold without fraud merely because same is used as a substitute for another food?

2nd. Where the aforesaid statutory prohibition is based upon the legislative findings of fact, are such facts rebuttable in a judicial proceeding?

The act in question is based on a legislative finding of fact that "Filled Milk as defined in the act, is injurious to public health and a fraud upon the public.

The police power is the only basis to sustain acts of this character. This power is essential and inherent in all governmental bodies. 6 R.C.L. 183. Under it individual rights are subordinated to those of the State. It should be applied with caution and due regard for the rights of the citizen.

The majority opinion holds the act in question valid but remands the case to allow evidence to determine if defendant's product is one excepted from the act. The answer admits defendant's product is compounded as charged in the bill and as such is condemned by the act.

The supreme law which will ultimately control this case is found in the decisions of the Supreme Court of the United States. O'Gorman Young v. Phoenix Assurance Company,282 U.S. 251, 75 L.Ed. (Adv. 162), 51 S. Ct. 130; Hebe Co. v. Shaw,248 U.S. 297, 63 L. Ed. 255, 39 S. Ct. 125; Chestleton Corp. v. Sinclair, 264 U.S. 543, 68 L. Ed. 841, 44 S. Ct. 405; Weaver v. Palmer Bros., 279 U.S. 402, 70 L. Ed. 654, 46 S. Ct. 320. From these decisions the law appears settled that the legislature is powerless to outlaw a wholesome and useful food product. And, too, where the statutory prohibition is based on facts found by the legislature to exist, those facts are presumed true but may be rebutted on proper showing.

In testing the order for error we must assume the stricken parts of the answers, i. e., that the product is wholesome, nutritious and marketed free of fraud, to be true. If true, then is the act good?

It is the writer's conclusion that the lower court was in error in striking the answers.

If the product is wholesome and nutritious there is no reason why it should not be available to the general public as long as the public is not misled as to the contents.

It sometimes happens that one economic group will successfully sponsor the passage of a law of this character, the result of which is to favor one food product in law to the detriment of another. In such instance, it is the duty of the court, in appropriate proceedings, to strike down the act. We can take judicial notice that valuable, wholesome and nutritious oils are extracted from cotton seed, peanuts and fish livers. If the evidence will show that these oils will blend with skimmed milk and produce a wholesome food the petitioners have a property right in the same which is entitled to the protection of the law, and the general public has a right to use the same.

To hold the legislative findings of fact conclusive would take property without due process and would throttle the inventive genius which has given us so many useful products. As has been pointed out in some of the cited cases, the facts found by the legislature frequently change and for that reason they should not be conclusive.

It is the writer's view that the writ should be granted and the order striking the answers should be quashed.

BROWN, C. J., and BUFORD, J., concur.