The opinion of the court was delivered by: FORMAN
Plaintiff, a corporation of the State of Pennsylvania, is licensed to distribute and sell a product known under the trade-mark or trade name of 'Instantwhip'. The product or 'Mix', as it is sometimes called, consists of the following ingredients: Milk or cream of a certain butterfat content, sugar and vanilla. This combination is placed in a specially constructed pint container and seven grams of nitrous oxide gas are inserted in the overhead space under pressure. Each container consists of an all steel bottom with a separate stem in which a valve core is inserted. Furnished with the container is a dispenser, which screws on the valve. Pressure upon the pin in the dispenser releases the valve and allows the mix to be emitted at which time it assumes a fluffy appearance similar to whipped cream. It was the custom to pack forty such containers in one large container and to provide ice around the small containers while the product was in transit. The milk or cream used in the mix was pasteurized. The product, like whipped cream, is used as a topping for desserts, pies, cakes, sundaes, etc. Instantwhip found its outlet chiefly in distribution to ice cream soda fountains and restaurants, and thence to the ultimate consumer.
On April 3, 1941, plaintiff made an application to the defendant, the Department of Health of the State of New Jersey, for a permit to sell its product in New Jersey. The application was rejected by J. Lynn Mahaffey, Director of said Department of Health, the other defendant in this suit.
Plaintiff brought this action to have the defendants enjoined from interfering with its sale of the product in New Jersey and to have declared as unconstitutional the statute under which defendants claim they derive their authority. It came on for trial on the second amended complaint and answer filed. At the trial the defendants moved to dismiss the second amended complaint on numerous grounds. Since this motion was delayed until the time of final hearing, decision upon it was reserved and the case heard upon its merits. The contentions advanced by defendants in their motion were repeated as part of their defense and are considered herein.
The Department of Health of the State of New Jersey is given the power to govern the production, handling and distribution of milk, cream and milk products pursuant to Title 24, Chapter 10, sections 1, 3, 4, 5, 6 of the Revised Statutes of New Jersey of 1937, N.J.S.A. 24:10-1, 3, 4, 5, 6. The Director of the Department of Health is responsible for the execution and enforcement of these laws. N.J.S.A. 26:2-15.
The pertinent sections of the statute for purpose of discussion follow:
'For the purposes of this article the following definitions are set up:
'Cream. a. Cream is a portion of milk which contains not less than sixteen per cent of milk fat and shall not contain any foreign fat or oils.
'Milk. g. Milk is defined to be the 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 the milk practically colostrum free; which contains not less than eleven and one-half per cent of milk solids, and not more than eighty-eight and one-half per cent of watery fluids, or less than three per cent of milk fats.
'Milk products. j. Milk products is defined as cream, ice cream, ice cream mix, sherbets, cream cheese, or other food for human consumption made from milk or cream, or both. * * * ' N.J.S.A. 24:10-1.
'No person shall distribute, sell or hold for sale or manufacture into milk products, any milk or cream which has been collected or assembled from a dairy or dairies into any creamery, milk plant or other establishment in which milk or cream are handled, processed or stored or manufactured into milk products or from which milk, cream or milk products are shipped, transported or imported for the purpose of distribution, sale or resale, and no person shall distribute, sell or hold for sale any milk or cream which for any other purpose has been collected or assembled from a dairy or dairies, within this state, unless the person engaged in collecting or assembling such milk or cream shall have first obtained a permit from the state department to engage in such business, in the manner hereinafter set FORTH.' N.J.S.A. 24:10-2.
'The state department, before it issues any permit under the provisions of this article, shall be satisfied of the following facts:
'a. That the milk, cream and milk products are of the standard and quality required by and
'b. Are produced, handled, processed and transported in accordance with the rules and regulations established by the state department as well as the statutes of this state, with relation thereto.
'c. Unapproved milk, cream or milk products shall not be allowed to enter a milk plant from which milk, cream or milk products are distributed, sold or held for sale in this state.' N.J.S.A. 24:10-6.
'All milk, cream or milk products and all milk and cream used in said milk products produced within this state, and all milk, cream or milk products and all milk and cream used in said milk products produced outside of this state and intended for use within this state, shall be subject to inspection at its source of supply, and all dairies, milk plants and transportation equipment wherein such milk, cream or milk products and all milk and cream used in said milk products are produced, handled, processed, manufactured or transported shall likewise be subject to inspection to determine if it, or they, meet the minimum requirements set forth in sections 24:10-15 and 24:10-16 of this title.' N.J.S.A. 24:10-11.
'Any milk or cream which fails to meet the minimum requirements set forth in sections 24:10-15 and 24:10-16 of this title shall not be sold, offered or exposed for sale, distributed or held in possession with intent to sell or distribute or for manufacturing into food for human consumption.' N.J.S.A. 24:10-14.
'Cream. 2. Cream shall not contain less than sixteen per cent of milk fat. * * * ' N.J.S.A. 24:10-15.
Defendants contend that this action is brought against the State of New Jersey without its consent in violation of the Eleventh Amendment to the federal Constitution. This is precisely one of the problems considered and determined in the Third Circuit Court of Appeals in the case of Central R. Co. of New Jersey v. Martin, 115 F.2d 968, certiorari denied 313 U.S. 568, 569, 61 S. Ct. 943, 85 L. Ed. 1527, wherein the court said:
'The defendants also urge that these suits were in substance brought against the State of New Jersey without its consent and therefore in violation of the Eleventh Amendment to the federal Constitution. It is clear that the injunctions granted in these cases run against the defendants as state officers and relate to their performance of duties imposed upon them by the statutes of the state. We have seen that their action is in accord with the statutes and the settled practices of the state and that these do not violate the federal Constitution. Under these circumstances it is settled that the suits are in reality suits against the state and therefore not within the jurisdiction of the district court. Worcester County (Trust) Co. v. Riley, 302 U.S. 292, 58 S. Ct. 185, 82 L. Ed. 268. It is only in cases where state officers have attempted to enforce an unconstitutional law or to administer a valid law wrongfully that their acts have been held to be so disassociated from the state for which they purport to act as to permit a suit to be brought against them with respect to those acts. Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764; Greene v. Louisville & Interurban R.R. Co., 244 U.S. 499, 37 S. Ct. 673, 61 L. Ed. 1280, Ann. Cas. 1917E, 88.' 115 F.2d 968 at page 972.
The first issue to consider is whether the statute of New Jersey is constitutional.
On this issue plaintiff contends (a) that the statute in New Jersey conflicts with federal legislation on the same subject and must give way to the paramount right of the federal government to control the subject, (b) that the inclusion of plaintiff's product in the definition of milk products provided for in the statute would render it unreasonable, arbitrary and in violation of plaintiff's constitutional rights, and (c) that the New Jersey statute violates the federal Constitution in that it interferes with, and burdens, the freedom of interstate commerce.
The federal government has set up controls for the importation of milk and cream under the Pure Food & Drug Act, 21 U.S.C.A. 141-149, inclusive, but we can find no conflict between that legislation and the statute in question. Each deals with a distinct phase of regulation covering milk and cream, and the federal regulations do not begin to approach the scope of those enacted by the Legislature of the State of New Jersey. The Supreme Court has recently said that an "Intention of Congress to exclude states from exerting their police power must be clearly manifested." Allen-Bradley Local No. 1111, etc., v. Wisconsin Employment Relations Board, 315 U.S. 740, 749, 62 S. Ct. 820, 825, 86 L. Ed. 1154, and cases cited therein. Consequently the state is free to legislate upon those matters not dealt with by the federal government. The law in ...