E OFTEXAS

MAY 8, 1959

Honorable Don Kennard, Chairman PublicHealth Committee House of Representatives Austin, Texas Opinion No. W-622
Re: Constitutionalityof Dear Mr. Kennard: House Bill No. 50.

You have requestedan opinion from this office concerning four questions in regard to House Bill No. 50. The ~flrstof these questions is:

“Is House Bill 50 which requires labeling of milk with the minimummilk fat or butterfat content a reasonable exercise of the police powers of this State and, therefore, constitutional?” It has been generally held that the courtswill not , invalidatea statutewhere the exercise of the power of the Legislature bears a reasonable relation to a legitimatepurpose. The test which has been applied In determiningthe validity within the police power, is whether the ends sought to be attained are appropriate and the regulations prescribed are reasonable. The courts have furtherheld that the measure of reasonableness of a policeregulation iswhat Is fairly appropriate to Its purpose under all circumstances,and not necessarilywhat Is best. The test of reasonableness is whether the attempted regulationmakes efficient constitutional guarantees and conserves rights, or is distructive of Inherent rights. The presumption is in favor of the reasonablenessand validltv of the law. and to .lustiPy Interference,excessive

1905);Reel v. Texas Tex.Civ.App. 195 & Refining Co.I 1Honorable Don Kennard, page 2 (WW-622)

Federation of Labor v. Mann, 188 S.W.2d 276 (Tex.Civ.App.1945).

In 16 Corpus Juris Secundum 951, Sec. 198, It is stated: I,

. . .All matters relating to the policy, wisdom, or expediency of particularregulations under the police power are exclusivelyor primarily for legislative,rather than judicial, determination,and the determinationof the legislature in this regard will not be disturbed by the courts, ,unlesssuch regulationhas no relation to the ends for which the policepower exists. Moreover, courts generallyare indisposed to suffer the police power to be impaired or defeatedby-constitutional llmltatlons. "When, therefore, a subject lieswithin the police power of the state, debatablequestions as to reasonablenessare not for the courts but for the legislature,which Is entitled to form its own judgment;and its actionwithin its range of discretion cannot be set aside because compliance lb burdensome.

. . ." (Citingauthorities)
In applying the test that the courts have used In determiningthe validity of a statute within the police power of the state, we find that the purpose stated In House Bill 50 Is to require the labeling of the minimum percentageof milk fat or butterfat content of all milk produced,offered for sale, or sold in this state.

Article 165-3, Vernon's Civil Statutes of Texas, provides for a system of grading of milk and milk products in Texas and labeling such milk in the classificationsof eitherA, B, C, or D, as the State Health Officer shall determine and he shall base same on the specificationsset forth In the current United States Public Health Service Milk Ordinance. The courts of this state have upheld the validity of Article 165-3,Revised Civil Statutes, in Prescott v.-City of Borger 238 S.W.2d 559, a;d FalfurriasCreamery Company v. C Y 158 S.W.2d’578; PortArthur v. Ca;rt;ofn Co., Laredo. 276 S.W.2d 351.

Both House Bill 50 and Article 165-3, Revised Civil Statutes, definemilk:Honorable Don Kennard, page 3 (W-622)

II

. 0 .tobe the lacteal secretionobtalnfd by the completemilking of one or more healthy cows, . . .which contains not less than eight percent (8%)of milk solids-notfat, and not less than three and one-fourth percent (34) of milk fat.” House Bill 50 seeks to go one step further than Article 165-3 by requiring that each container of milk list the minimum percentageof milk fat br butterfat content of such milk therein.

It is our opinion that the Legislaturehas the right to protect the public by guaranteeing to the purchasersof milk for consumption,that they are receiving that quality of milk they are paying for and that this requirement is not an unreasonableexercise of the State’s police powers.

Section 6 of House Bill 50, states as follows: “Any personviolating any provisionof this Act shall be flned by the Department In the sum of not less than Twenty-five ( 25.00) Dollars nor moSe than Two Hundred ($200.00 Dollars and each separateviolation shall constitutea separate offense.” (Emphasisadded) Section 1 of Article II of the Texas Constitution, provides that: “The powers of the Government of the State

of Texas shall be divided Into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons,being of one of these departments,shall exerciseany power properlyattached to either of the othersh except in the instancesnereln expressly permitted. Section 19 of Article V of the Texas Constitution, provides in part:

“Justicesof the peace shall have jurisdiction In criminalmatters of.ail c&ties where ‘the penalty or fine to be imposedby lawmay not be moreHonorable Don Kennard, page 4 (WW-622)

than for two hundred dollars,

. . .' The State Department of Public Health has no constitutionalauthority to impose a criminal penalty of this kind as it Is not a Court and to give them such authority by the legislature would be in violation of the above quoted constitutionalprovision.

It Is, therefore, our opinion that the answer to your first question Is that House Bill 50 is not an unreasonable exercise of the police powers of this State and is, therefore, constitutional,with the exceptionthat Section 6 above quoted is unconstitutionalfor the resons stated.

Your second question Is: wTowhat extentwould House Bill 50, if enacted into law, conflictwith existing law, particularly Article 165-3,V.C.S., relating to the labeling of milk and milk products? In this connection your attention Is Invited to that provisionof the proposedbill which states that It Is to be 'cumulative'of other laws.' Volume 10,Words and Phrases PermanentEdition, page 653, defines the term "cumulative":

0

. . . indicatesa harmonious coexistence and cooperationrather than a consolidationof two things into one." State v. Laredo Ice Co., 73 S.W. 951, g$~‘%‘Tex. 461. Article 165-3,Vernon's Civil Statutes gives the State Health Officer the authority to fix the speciflcatons for grading milk in the State and establishingthe rules by which any person, firm, association or corporationdesiring to use any of these grades in representing, publishingor advertising any milk product offered for sale. House Bill 50 provides for the labeling of the minimum percentageof milk ;;ieor butterfat content of all milk produced, offered for or sold in glass bottleswithin this Statewith certain excebtions.

In our opinion there Is no conflictbetween the two and House Bill 50 would be "cumulative"of ai1 other laws.

Your third question Is:Honorable Don Kennard, page 5 (~~-622)

"Does the language contained in Sections 2, 3 and 4 pertainingto th= label Containing 'theminimum percentageof milk fat or butterfat content of such milk' mean (a) that the minimum percentageof milk fat allowed by law for suchmilk in the particularcontainer is to be on the label thereof; or-(b) that the milk fat content of suchmilTIn that particular containermust be on the label thereof? Furthermore,would not the ambiguity, conflic.ts and uncertainltyof these provisionsresult in repeal by implicationthe present statutes?" Both Article 165-3, Revised Civil Statutes and House Bill 50 define the minimum percentageof milk fat allowed by law in this State. In our opinion House Bill 50 does not intend to diminishnor to restrict the milk fat or butterfat content below the minimum standardrequired by Article 165-3, but providesthat whatever statement Is used on these containersmust state the minimum percentageofmilk fat or butterfat content of the milk in the aontainer.

It is, therefore, our opinion that "themilk fat content of such milk in that particularcontainer must be on the label thereof".

Your fourth question is: "What regulatory agencywould enforce the provisionsof HouseBill 50 if It Is enacted into law?"
In the event that the words "by the department"are deleted from Section 6, itwill be the duty of the District or the County Attorney In the County where an offense against the Penal Laws occurs, to prosecute the violator or violators In a court of competent jurisdiction.

It Is our opinion that the State Department of Public Health would be chargedwith the duty of lnvestigatlon to see that the provisionsof this Act are enforced and to file the necessary complaintsagainst those who would violate its provlslons. SUMMARY 1. House Bill 50, which would require labeling of milk with the minimum milk fat- .

Honorable Don Eennard page 6 (WI?-622)

or butterfat content, IS reasonable exercise of the police powers of this State and is constitutional. However, Section 6 of House Bill 50 which authorizes the Department to impose a fine on a violator Is unconstitutional for stated reasons. 2. House Bill 50 would be "cumulative" of other laws, particularlyArticle 165-3 Revised Civil Statutes. 3. The language contained in Sections 2, 3 and 4 of House Bill 50 pertainingto the label containing "theminimum percentageof milk fat or butterfat content of suchmilk" means that the milk fat content of such milk in that particular containermust be on the label thereof. 4. The District or the CountyAttorney would enforce the provisionsof House Bill 50 if It Is enacted into law, and the State Department of Public Health would be charged with the duty of investigationto see that the provisionsare not violated. Yours very truly,

LFP:sd APPROVED: OPINION COMMITTEE Geo. P. Blackburn, Chairman
L. P. Lollar Leonard Passmore JoeAllen Osborn James Daniel McKeithan Tom I. McFarllng REVIEWED FOR THE ATTORNEY GENERAL BY: W. V. Geppert.