                E

                        OFTEXAS




                         MAY   8,   1959


Honorable Don Kennard, Chairman
Public Health Committee
House of Representatives
Austin, Texas
                              Opinion No. W-622
                                  Re:      Constitutionality of
Dear Mr. Kennard:                          House Bill No. 50.
           You have requested an opinion from this office con-
cerning four questions in regard to House Bill No. 50. The
~flrst of these questions is:
               “Is House Bill 50 which requires labeling
          of milk with the minimum milk fat or butterfat
          content a reasonable exercise of the police
          powers of this State and, therefore, constitu-
          tional?”
          It has been generally held that the courts will not ,
invalidate a statute where the exercise of the power of the
Legislature bears a reasonable relation to a legitimate pur-
pose. The test which has been applied In determining the
validity within the police power, is whether the ends sought
to be attained are appropriate and the regulations prescribed
are reasonable. The courts have further held that the measure
of reasonableness of a police regulation is what Is fairly
appropriate to Its purpose under all circumstances, and not
necessarily what Is best. The test of reasonableness is
whether the attempted regulation makes efficient constitutional
guarantees and conserves rights, or is distructive of Inherent
rights. The presumption is in favor of the reasonableness and
validltv of the law. and to .lustiPy Interference, excessive




 1905); Reel v. Texas
 Tex.Civ.App. 195
& Refining Co. I 1
Honorable 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 particular regulations
          under the police power are exclusively or pri-
          marily for legislative, rather than judicial,
          determination, and the determination of the
          legislature in this regard will not be disturbed
          by the courts, ,unlesssuch regulation has no
          relation to the ends for which the police power
          exists. Moreover, courts generally are indis-
          posed to suffer the police power to be impaired
          or defeated by-constitutional llmltatlons.
               "When, therefore, a subject lies within the
          police power of the state, debatable questions
          as to reasonableness are not for the courts but
          for the legislature, which Is entitled to form its
          own judgment; and its action within its range of
          discretion cannot be set aside because compliance
          lb burdensome. . . ." (Citing authorities)
            In applying the test that the courts have used In
determining the 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 percentage of
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 classifications of
either A, B, C, or D, as the State Health Officer shall
determine and he shall base same on the specifications set
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 158 S.W.2d’578;  Port Arthur v. Ca;rt;ofn Co.,
238 S.W.2d 559, a;d Falfurrias Creamery Company v. C Y
Laredo. 276 S.W.2d 351.
          Both House Bill 50 and Article 165-3,   Revised Civil
Statutes, define milk:
Honorable Don Kennard, page 3   (W-622)


               II
                . 0 .to be the lacteal secretion ob-
          talnfd by the complete milking of one or more
          healthy cows, . . . which contains not less
          than eight percent (8%) of milk solids-not-
          fat, 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 percentage of milk fat br butterfat content of such
milk therein.
          It is our opinion that the Legislature has the right
to protect the public by guaranteeing to the purchasers of
milk for consumption, that they are receiving that quality of
milk they are paying for and that this requirement is not an
unreasonable exercise of the State’s police powers.
          Section 6 of House Bill 50, states as follows:
              “Any person violating any provision of 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
         separate violation shall constitute a separate
         offense.” (Emphasis added)
          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
         exercise any power properly attached to either of
         the othersh except in the instances nereln expressly
         permitted.
          Section 19 of Article V of the Texas Constitution,
provides in part:
              “Justices of the peace shall have jurisdiction
         In criminal matters of.ail c&tieswhere ‘the
         penalty or fine to be imposed by law may not be more
Honorable Don Kennard, page 4   (WW-622)


          than for two hundred dollars, . . .'
          The State Department of Public Health has no
constitutional authority 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 constitutional provision.
          It Is, therefore, our opinion that the answer to
your first question Is that House Bill 50 is not an unreason-
able exercise of the police powers of this State and is,
therefore, constitutional, with the exception that Section 6
above quoted is unconstitutional for the resons stated.
         Your   second question Is:
               wTo what extent would House Bill 50, if enacted
          into law, conflict with 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 provision of the
          proposed bill which states that It Is to be
          'cumulative' of other laws.'
          Volume 10, Words and Phrases Permanent Edition, page
653, defines the term "cumulative":
                0
                . . . indicates a harmonious coexistence
          and cooperation rather than a consolidation of
          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 establishing the rules by
which any person, firm, association or corporation desiring
to use any of these grades in representing, publishing or
advertising any milk product offered for sale. House Bill 50
provides for the labeling of the minimum percentage of milk
;;ieor butterfat content of all milk produced, offered for
      or sold in glass bottles within this State with certain
excebtions.
          In our opinion there Is no conflict between 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 pertaining to th= label Containing
          'the minimum percentage of milk fat or butter-
          fat content of such milk' mean (a) that the
          minimum percentage of milk fat allowed by law
          for such milk in the particular container is
          to be on the label thereof; or-(b) that the
          milk fat content of such milTIn that parti-
          cular  container must be on the label thereof?
          Furthermore, would not the ambiguity, conflic.ts
          and uncertainlty of these provisions result
          in repeal by implication the present statutes?"
           Both Article 165-3, Revised Civil Statutes and
House Bill 50 define the minimum percentage of milk fat
allowed by law in this State. In our opinion House Bill 50
does not intend to diminish nor to restrict the milk fat
or butterfat content below the minimum standard required by
Article 165-3,  but provides that whatever statement Is used
on these containers must state the minimum percentage of milk
fat or butterfat content of the milk in the aontainer.
          It is, therefore, our opinion that "the milk fat
content of such milk in that particular container must be
on the label thereof".
          Your   fourth question is:
               "What regulatory agency would enforce the
          provisions of House Bill 50 if It Is enacted
          into law?"
          In the event that the words "by the department" are
deleted from Section 6, it will 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 charged with the duty of lnvestiga-
tlon to see that the provisions of this Act are enforced
and to file the necessary complaints against 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 unconstitu-
            tional for stated reasons.
                 2. House Bill 50 would be "cumulative"
            of other laws, particularly Article 165-3
            Revised Civil Statutes.
                 3.  The language contained in Sections
            2, 3 and 4 of House Bill 50 pertaining to the
            label containing "the minimum percentage of
            milk fat or butterfat content of such milk"
            means that the milk fat content of such
            milk in that particular container must be
            on the label thereof.
                 4. The District or the County Attorney
            would enforce the provisions of House Bill 50
            if It Is enacted into law, and the State
            Department of Public Health would be charged
            with the duty of investigation to see that
            the provisions are not violated.
                                 Yours very truly,




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