Opinion
Docket No. 226.
Decided June 21, 1965. Leave to appeal denied by Supreme Court August 17, 1965.
Appeal from Wayne; Bowles (George E.), J. Submitted Division 1 April 7, 1965, at Detroit. (Docket No. 226.) Decided June 21, 1965. Leave to appeal denied by Supreme Court August 17, 1965.
Complaint by Coffee-Rich, Inc., a Delaware corporation, and Mildred L. Larck, doing business as CPA Grill, against the Department of Agriculture, George S. McIntyre, director, and J. Lyle Littlefield, chief of foods and standards division, for a declaratory judgment and an injunction to prevent enforcement of PA 1961, No 235. Judgment for plaintiffs. Defendants appeal. Affirmed.
Dykema, Wheat, Spencer, Goodnow Trigg ( John R. Dykema, of counsel), and Arnall, Golden Gregory ( Ellis Arnall and Elliott H. Levitas, of counsel), for plaintiffs.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Maurice M. Moule and Franklin J. Rauner, Assistant Attorneys General, for defendants.
This is an appeal from the Wayne county circuit court. Plaintiffs-appellees prevailed in that court. Cause was heard by judge without jury.
Plaintiffs-appellees are a Delaware corporation doing business in Michigan and a restaurant owner who served its food product. Defendants-appellants are the Michigan department of agriculture and two of its officials. The issues were accurately stated at the trial level in trial court's pretrial statement:
"This is an action for a declaration of rights and to enjoin the enforcement by defendants of PA 1961, No 235, as applied to plaintiffs' product `Coffee-Rich.' The ground of plaintiffs' petition is that the act in question does not apply to plaintiffs' product Coffee-Rich, because the product is not an imitation of cream, half and half, or milk, and on the further ground that the statute does not apply to the plaintiffs' product because there is no intentional imitation or copying of cream, half and half, or milk.
"The further ground for plaintiffs' petition is that if the statute be held to apply to plaintiffs' product, such application denies plaintiffs the due process of law and equal protection of the laws guaranteed to it by the Constitution of the United States and of the State of Michigan."
The controlling language of the statute which was applied is found in PA 1961, No 235 (CLS 1961, § 238.401 et seq. [Stat Ann 1963 Cum Supp §§ 12.619 (1)-12.619(6)]:
"(a) `Imitation cream' means any substance, mixture or compound, excluding all dairy products but containing vegetable or animal fats or oils and other substances or compounds, which is made in imitation of cream, half and half, or milk, and is used or mixed with coffee or other beverages, cereal, sauces, soups, or other foods."
The pivotal language, and that upon which the Wayne county circuit court based the decision is "made in imitation of cream, half and half, or milk". Unless the product is found to be "made in imitation of cream, half and half, or milk" it does not come within the purview of the statute. The lower court found, from the testimony, the pleadings, and the exhibits, from tasting and comparing the product, that Coffee-Rich was an all-vegetable coffee whitener and was not made in imitation of cream, half and half, or milk.
This Court, in order to overrule that finding of fact and law, must find that the record does not justify such a finding, and that such a finding was clearly erroneous, GCR 1963, 810(2). This was a suit for injunctive relief and a declaratory judgment. Formerly, this would have been an equity action, and is still an action equitable in nature. In such a situation, this Court, on appeal, reviews de novo the entire record of the lower court. Quackenbush v. Quackenbush (1943), 305 Mich. 704. This Court has reviewed the entire record and finds that it cannot be held that the finding of the trial court, sitting without a jury and acting as the finder of fact and of law, was clearly erroneous.
See CL 1948, § 691.501 et seq. (Stat Ann § 27.501 et seq.), repealed by PA 1961, No 236, § 9901 (CLS 1961, § 600.9901 [Stat Ann 1962 Rev § 27A.9901]). See, currently, GCR 1963, 521. — REPORTER.
There was an abundance of testimony for both sides, most of it expert testimony from qualified expert witnesses. The testimony and the pleadings from the lower court number approximately 800 pages. The lower court examined the product Coffee-Rich and compared it with the dairy products which defendants-appellants contend it imitates. The trial court had adequate basis for finding that Coffee-Rich was an all-vegetable product, wholesome, of a nature which was sui generis, and that it was not in imitation of cream, half and half, or milk under the statute. This Court will not disturb that finding.
Since the product in question must come under the statute, PA 1961, No 235 (CLS 1961, § 288.401 [Stat Ann 1963 Cum Supp § 12.619]) before any question of constitutionality of that statute or its application can be raised, this Court, like the lower court, finds it unnecessary to rule on the constitutional issue. The product is not in imitation of cream, half and half, or milk, and does not come under the purview of the statute, hence there is no constitutional question involved.
Judgment of the Wayne county circuit court affirmed. No costs, a public question being involved.
J.H. GILLIS and QUINN, JJ., concurred.