The following opinion was filed April 8, 1952:
Per Curiam{on motion for rehearing). The brief filed on the motion for rehearing by amici curiae is submitted on behalf of several organizations of farmers, and dealers in and manufacturers of dairy products, including an association of about eighty-five Wisconsin manufacturers of ice cream. It opens with a statement of the reason for its filing and there suggests that the effect of the decision is to destroy a generation’s work in fixing dairy-product standards and the destruction of the reputation of the state acquired by its maintenance of those standards which is of great importance to the economy of the state, urban as well as rural; and that “maintenance of adequate standards for the protection of consumers is of infinitely greater importance to the entire people of the state than are the economic interests of the promoters of any product or class of products such as ‘Dairy Queen.’ ”
We should ordinarily hesitate to discuss the effect of the decision upon the economy of the state, for that appears to be a matter peculiarly for the legislature acting within constitutional limitations. We consider, however, that counsels’ suggestions regarding that aspect of the case permit, if they do not require, us to respond.
*478bWe doubt that Wisconsin’s dairy farmers will suffer loss by the introduction into the retail market of a new product which is stipulated to be “a nourishing, wholesome, and healthful food and contains no element deleterious to health,” and which the trial judge observed from demonstration to be “more tasty and palatable than soft ice cream.” On the contrary, it would seem that the proposal of the plaintiff to engage in business in this state would open a new market and a new demand for the farmer’s milk, if for no other reason than that it would provide a substitute containing a lesser amount of fat for those who for various reasons are denied the pleasure of eating ice cream. The argument that the interests of the dairy farmer will be prejudicially affected by this decision is not based on experience or logic.
As to the consumer — the plaintiff offers to sell him a “nourishing, wholesome, and healthful food” which contains no deleterious substance, to be manufactured and sold “under the supervision and control and in conformity with the rules and regulations for sanitátionit is so stipulated. It is also stipulated that the product will be advertised to “indicate that the product being sold is Dairy Queen; that a sign will be posted at all places of sale stating that the product sold is not ice cream or sherbet.” No threat of danger to the public health appears from this proposal. Nor does it appear that the product will be offered to the consumer “in imitation of ice cream.”
Amici curiae say that “maintenance of adequate standards for the protection of consumers is of infinitely greater importance to the entire people of the state than are the economic interests of the promoters of any product or class of product such as ‘Dairy Queen.’ ” To that we agree. We might inquire in response to the suggestion whether it is proper, in the absence of any showing that sale of the product would prejudicially affect either the milk producer or the consuming public, that the legislature or the court should *478cbe party to an act which appears to have no purpose except to protect the interests of the eighty-five manufacturers of ice cream who now appear here against the competition of Dairy Queen.
If we must construe sec. 97.025 (1), Stats., as meaning that by its enactment the legislature intended absolutely to prohibit the sale of a product such as plaintiff’s whether or not it be sold in imitation of ice cream, then we run squarely into the rule of John F. Jelke Co. v. Emery (1927), 193 Wis. 311, 214 N. W. 369, which, so far as we have been able to find, has not been since referred to by either this court or the United States supreme court. Given that construction, the rule of the Jelke Case requires that we hold the statute invalid.
In that case the court had for consideration ch. 279, Laws of 1925, an enactment intended to prohibit absolutely the sale of oleomargarine. It purported to make it unlawful to manufacture, sell, or expose for sale any article “which is or may be used as a substitute for butter.” The purpose of sec. 97.025, Stats., to prohibit absolutely the sale of a product such as plaintiff’s is expressed just as clearly; it provides that no person manufacture, sell, or expose for sale any product which “shall be in imitation of ice cream, etc.” It appears from the stipulation that Dairy Queen resembles ice cream in its appearance, but that it is to be sold upon its own merits and under such circumstances that the purchaser will not be deceived into believing that he is buying ice cream. It was conceded in the Jelke Case that the sale of oleomargarine effects a loss to the dairy industry. Despite that concession the enactment was held to be invalid.
The arguments of amici curiae seem better adapted to promote a restricted market for the dairy farmer’s product and to control the forms in which the consumer may enjoy it. To sustain their contention would be to encourage monopoly by preventing the introduction of a wholesome product. *478dWhat was said by the court in the Jelke Case is applicable here (p. 323):
“Under the facts proven in this case, whatever the economics of the situation may be, from the standpoint of constitutional right the legislature has no more power to prohibit the manufacture and sale of oleomargarine in aid of the dairy industry than it would have to prohibit the raising of sheep in aid of the beef-cattle industry or to prohibit the manufacture and sale of cement for the benefit of the lumber industry. In some cases a proper exercise of the police power results in advantage to a particular class of citizens and to the disadvantage of others. When that is the principal purpose of the measure, courts will look behind even the declared intent of legislatures and relieve citizens against oppressive acts where the primary purpose is not the protection of the public health, safety, or morals.”
It is urged that the decisions of the United States supreme court in Carolene Products Co. v. United States (1944), 323 U. S. 18, 65 Sup. Ct. 1, 89 L. Ed. 15, and Federal Security Adm’r v. Quaker Oats Co. (1943), 318 U. S. 218, 63 Sup. Ct. 589, 87 L. Ed. 724, require us to hold sec. 97.025, Stats., valid. We prefer to abide by the rule of the Jelke Case and to conclude that if a law creating, maintaining, or sustaining a monopoly and purporting to prevent the sale of a wholesome product under circumstances which will not deceive the public, and to be sold without injury to any group except the monopoly is to be declared a valid enactment, some other court be called upon to do so.
Motion for rehearing denied.