We have been very much impressed by the forceful argument presented herein on behalf of the appellant.
The chief infirmity of his argument is that it is based on the erroneous premise that the ordinance under consideration is prohibitive and not regulatory, and further, that the ordinance does not deal with a compound. The ordinance does not prohibit the sale of chocolate milk but only prohibits the sale of "bottled chocolate milk" made of milk containing less than three and one-half per cent. butter fat.
Chocolate milk is a compound composed of whole or skimmed milk and chocolate or cocoa syrup. Chapt. 14762, Acts 1931. In 19 R.C.L. 864, it is said:
"It is well settled that it is within the ordinary police powers of a municipal corporation to prohibit the sale of milk below a certain standard of richness, since the character of milk is difficult for an unskilled person to detect, and the health and vitality of consumers and particularly of children are impaired by the constant use of milk of an inferior grade."
There the following authorities are cited, which support the text; In re Hoffman, 155 Cal. 114, 99 P. 517; 132 A.S.R. 75 and note; State v. Dupaguier, 46 La. Ann. 577, 15 So.2d 502, 49 A.S.R. 334 and note; 26 L.R.A. 162; Deems v. Baltimore, 80 Md. 164, 30 A. 648, 45 A.S.R. 339 and note, 26 L.R.A. 541; St. Louis v. Leissing, 190 Mo. 464, 89 S.W. 611, 109 A.S.R. 774 and note; 4 Ann. Cas. 112 and note, 1 L.R.A. (N.S.) 918 and note. St. Louis v. Grafman Dairy Co., 190 Mo. 507, 89 S.W. 627, *Page 679 1 L.R.A. (N.S.) 926 and note. See also Foon, Vol. II, page 1102, 1109, et seq.
In the case of In Re Hoffman, supra, it was held:
"The Constitution (Article 11, Section 11), empowers a city to make and enforce within its limits `all such local, police, sanitary and other regulations as are not in conflict with general laws.' It is insisted that, the state having thus provided a standard for pure milk, the attempt of the city ordinance to vary that standard creates a conflict in the law, with the necessary result that the ordinance must fall. Undoubtedly, if such a conflict exists, the ordinance must give way to the paramount law of the state. But does such a conflict exist? For, if it does not, then it is well settled that the mere fact that the state, in the exercise of the police power has made certain regulations does not prohibit a municipality from exacting additional requirements. So long as there be no conflict between the two, and so long as the requirements of the municipal by-law are not in themselves pernicious as being unreasonable or discriminatory, both will stand. Ex parte Hong Shen, 98 Cal. 681, 33 P. 799; In re Murphy, 128 Cal. 29, 60 P. 465; Bellingham v. Cissna, 44 Wn. 397, 87 P. 481. In the first case cited the principle is fully recognized and expounded, and assent is refused to the argument, there advanced, that an ordinance is in conflict with the general laws when it makes another and different regulation for the sale of an article of commerce than that provided by the statute of the state. In the last case cited the City of Bellingham had by ordinance declared it unlawful for an automobile to be driven on public streets at a greater rate of speed than six miles per hour. Subsequently, the state passed an Act prohibiting the driving of automobiles within the thickly settled or business portion of any *Page 680 city at a greater speed than 12 miles an hour. There, as here, the State law was passed subsequent to the enactment of the municipal ordinance. There, as here, a conflict between the terms was urged but it was held, upon the soundest principles, that there was no conflict and that it was competent for the authorities of Bellingham to prescribe a rate of speed less than that which the State law permitted."
And in the same case it is said:
"Petitioner charges that this particular ordinance is unreasonable and in restraint of trade in exacting too high a standard for the milk permitted to be sold. In his petition he avers, `that milk may come direct and pure in its natural state from the cow, and especially from Holstein cows, and yet be below the standard fixed by the city ordinance; and, upon his best information and belief, the milk used in his restaurant and upon which his conviction is based, could have been milk from Holstein cows.' This averment stands unchallenged and is, therefore, to be taken as true. Ex Parte Smith, 143 Cal. 370, 77 P. 180. It may be that a municipality may pass an ordinance imposing a standard for milk which would be unreasonable, oppressive, in restraint of trade, and therefore void. It may even be, for aught that this court can judicially know, that this ordinance is of that character. But the mere averment that milk below standard might come from one or another cow is not sufficient to tender an issue of this character. Nor is it any objection to the validity of the ordinance that its regulatory provisions and the penalty for its violation differ from those of the state law."
In Hebe Company v. Shaw, 63 Law. Ed. 255, it was said by the Supreme Court of the United States:
"It is argued that, as Hebe is a wholesome, or not unwholesome product, the statutes should not be construed to *Page 681 prohibit it if such a construction can be avoided, and that it can be avoided by confining the prohibition to sales of condensed milk as such, under the name of condensed milk, as was held with regard to ice cream in Hutchinson Ice Cream Co. v. Iowa,242 U.S. 153, 61 L. Ed. 217, 37 Sup. Ct. Rep. 28, Ann. Cas. 1917B 643. But the statute could not direct itself to the product as distinguished from the name more clearly than it does. You are not to make a certain article, whatever you call it, except from certain materials, the object plainly being to secure the presence of nutritious elements mentioned in the Act and to save the public from the fraudulent substitution of an inferior product that would be hard to detect. Savage v. Jones,225 U.S. 501, 524, 56 L. Ed. 1182, 1192, 32 Sup. Ct. Rep. 715. By Section 5778 a food is adulterated if a valuable ingredient has been wholly or in part abstracted from it, and the effect of this provision upon skimmed milk is qualified only by Section 12,720, which states the stringent terms upon which alone that substance can be sold. It seems entirely clear that condensed skimmed milk is forbidden out and out. But if so, the statute cannot be avoided by adding a small amount of coconut oil. We may assume that the product is improved by the addition, but the body of it still is condensed skimmed milk, and this improvement consists merely in making the cheaper and forbidden substance more like the dearer and better one, and thus at the same time more available for a fraudulent substitute. It is true that so far as the question of fraud is concerned, the label on the plaintiffs' cans tells the truth, but the consumer in many cases never sees it. Moreover, when the label tells the public to use Hebe for purposes to which condensed milk is applied, and states of what Hebe is *Page 682 made, it more than half recognizes the plain fact that Hebe is nothing but condensed milk of a cheaper sort.
We are satisfied that the statute as construed by us is not invalidated by the 14th amendment. The purposes to secure a certain minimum of nutritive elements and to prevent fraud may be carried out in this way even though condensed skimmed milk and Hebe both should be admitted to be wholesome. The power of the legislature `is not to be denied simply because some innocent articles or transactions may be found within the prescribed class. The inquiry must be, whether, considering the end in view, the statute passes the bounds of reason and assumes the character of a merely arbitrary fiat.' Purity Extract Tonic Co. v. Lynch,226 U.S. 192, 204, 57 L. Ed. 184, 188, 33 Sup. Ct. Rep 44. If the character or effect of the article as intended to be used `be debatable, the legislature is entitled to its own judgment, and that judgment is not to be superseded by the verdict of a jury,' or, we may add, by the personal opinion of judges, `upon the issue which the legislature has decided.' Price v. Illinois,236 U.S. 446, 452, 59 L. Ed. 1400, 1405, 35 Sup. Ct. Rep. 892; Rast v. Van Deman, L. Co., 240 U.S. 342, 357, 60 L. Ed. 679, 687, L.R.A. 1917A 421, 36 Sup. Ct. Rep. 370, Ann. Cas. 1917B 455. The answer to the inquiry is that the provisions are of a kind familiar to legislation and often sustained, and that it is impossible for this court to say that they might not be believed to be necessary in order to accomplish the desired ends. See further Atlantic Coast Line R. Co. v. Georgia, 234 U.S. 280, 288, 58 L. Ed. 1312, 1316, 34 Sup. Ct. Rep. 829."
It appears to us that if this ordinance applying only tobottled chocolate milk is to be held invalid, then Chapter 14762, Laws of Florida 1931, defining the word "Milk" and *Page 683 fixing the standard of milk and prohibiting the sale of milk as such which does not meet the standard therein fixed, must also fall, but there is no question that such legislative Act is entirely valid in this regard.
If a law or ordinance or statute may require that milk when offered for sale to the public as such shall contain 3 1/2% of butter fat, we can see no reason why an ordinance or statute requiring bottled chocolate milk to be made with milk of no lower standard when it too is to be offered for sale to the public as a food, may not be valid.
With the question of the wisdom of the ordinance the courts are not concerned. That is a matter to be settled between the lawmakers and their constituents.
For the reasons herein stated and the reasons stated in the original opinion, the original judgment entered herein by opinion filed May 29th, 1935, is adhered to.
It is so ordered.
ELLIS, P.J., and TERRELL, J., concur.
BROWN, J., concurs in the opinion and judgment.
DAVIS, J., dissents on same grounds as stated on original hearing.