This appeal brings for review final decree of the Circuit Court of Hillsborough County in denying injunction and dismissing bill of complaint.
The bill of complaint sought to enjoin the City of Tampa from enforcing an ordinance which required that all bottled chocolate milk offered for sale and sold in the City of Tampa should be manufactured from Grade A whole milk, raw or pasteurized, and that Grade A whole milk, raw or pasteurized, shall contain 3 1/2% butter fat. The ordinance made it unlawful to sell or dispose of bottled chocolate milk unless the product is made from milk containing at least 3 1/2 butter fat.
There is no contention that the City of Tampa is not authorized to regulate by ordinance the sale of food products, including milk, within the corporate limits of that municipality. *Page 671
The appellant contends that the proper standard is fixed by Chapter 14762, Acts of 1931, which deals with this subject. Section 1 of that Act, amongst other things, provides:
"Milk is hereby defined to be whole, fresh, clean lacteal secretion obtained by the complete milking of one or more healthy cows, properly fed and kept, excluding that obtained within fifteen days before and five days after calving, or such longer period as may be necessary to render such milk practically colstrom-free; and shall contain not less than eight and fifty one-hundredths per cent. (8.50%) solids not fat, and three and one-quarter per cent. (3.25%) butter fat."
Further, that Act provides:
"Chocolate Milk is hereby defined to be whole or skimmed milk to which has been added in a sanitary manner a chocolate or cocoa syrup composed of wholesome ingredients and shall contain not less than two per cent. (2%) butter fat."
Section 26 of the Act provides:
"Whenever any municipality shall have established any standard of qualification for sale of dairy products within its jurisdiction which is in excess of the requirements of this Act defining dairy products, nothing in this Act shall be construed as superseding or rendering ineffective or invalid any local regulation of any such municipality prescribing standards of dairy products and requirements under which same shall be produced in order to be sold within the jurisdiction of the particular municipality, but compliance with the standard fixed by this Act shall be sufficient as to all inspections made by or under the supervision of the State authorities outside of such particular municipality." *Page 672
So it appears that in the very Act in which the Legislature fixed the standards of content of butter fat for certain dairy products it recognized in terms the right of municipalities to fix other standards. In State, ex rel. McAuley v. York, 90 Fla. 625,106 So. 418, we held:
"When the municipal power to regulate is shown to exist, a regulatory ordinance valid on its face and pursuant to the power, will be presumed to be applicable to, and justified by, local conditions, unless the contrary is made clearly to appear.
"When an ordinance is within the grant of power to the municipality, the presumption is that it is reasonable, unless its unreasonable character appears on its face, and the person attacking it as unreasonable or unjustly discriminatory must assume the burden of affirmatively showing that as applied to him it is unreasonable, or unfair and oppressive."
Much might be written concerning the power of municipalities to enforce such ordinances as the one here under consideration but we can see no good purpose to be served by doing so because the legal principles have been established by the highest courts in the land and have been enunciated through well reasoned opinions by learned judges. See Hebe Co. v. Norman E. Shaw, Secretary of Agriculture of Ohio, et al., 248 U.S. 297, 39 Sup. Ct. Rep. 125, 63 Law Ed. 255; and Hutchinson Ice Cream Co. v. State of Iowa,242 U.S. 153, 37 Sup. Ct. Rep. 28, 61 Law Ed. 217.
It is not contended that chocolate milk manufactured from milk having not less than 2% butter fat is not a wholesome article having food value and good for human consumption, but the contention is that the public when purchasing chocolate milk for consumption is entitled to know the contents and it is also contended that chocolate milk containing as *Page 673 little as 2% butter fat is not a balanced ration and is not a proper food for children. It is also contended that milk containing not more than 2% butter fat is milk which has been partly skimmed, the cream being taken off, and which is what is generally known as skimmed milk.
No question is presented in this record contesting the propriety of the declaration in the ordinance to the effect that Grade A or whole milk must contain not less than 3 1/2% butter fat. So far as the record discloses that standard is reasonable and well founded, but the appellant contends that to require him to manufacture chocolate milk of Grade A or whole milk is unreasonable and arbitrary because a good, wholesome chocolate milk can be made of milk containing only 2% butter fat; that it will sell as readily as that made from milk containing 3 1/2% butter fat and is not injurious, that by setting the standard of 3 1/2% butter fat content the ordinance requires the dairymen to use a milk of such expensive quality that he cannot meet the competition of imitation milk drinks or beverages which are not labeled as milk or milk products on the market and thereby deprives him of the sale of large quantities of partly skimmed milk which he could sell profitably in competition with those other drinks or beverages, if he were allowed to utilize his partly skimmed milk in the making of chocolate milk.
The learned chancellor, in determining this question said:
"I think the decree will have to be for the defendant. The ordinance merely requires that which is sold as milk to be so in fact and to be accordingly labeled. The addition of the foreign matter does not change its character as milk although the mixture be called chocolate milk, nor can it make any difference whether the mixture be considered a beverage or a food. Assuming the right of the city to *Page 674 do so it seems that anything used as milk or milk products and sold as such by any name, whether correctly labeled or not, may be prohibited if it were necessary to go that far in this case. See Hebe Company v. Shaw, 63 Law Ed. 255.
"I am, therefore, of the opinion that the city clearly had the right, as it did in the ordinance, to require anything labeled, and sold as milk or chocolate milk to meet the standard of not less than 3 1/2% butter fat content, the equivalent of whole milk of Grade A quality. The ordinance is not unreasonable or arbitrary."
The evidence as disclosed by the record, we think, shows conclusively that for all practical purposes chocolate milk of Grade A or whole milk containing not less than 3 1/2% butter fat is a more wholesome product and has greater food value than chocolate milk made of a milk containing only 2% butter fat; that the ordinance is not unreasonable in requiring those who place this product on the market to furnish the article of that high standard which the consumer is entitled to have.
On the whole, the record supports the finding of the chancellor and the decree should be affirmed.
It is so ordered.
Affirmed.
ELLIS, P.J., and TERRELL, J., concur.
WHITFIELD, C.J., and BROWN, J., concur in the opinion and judgment.
DAVIS, J., dissents.