Heath Milligan Manufacturing Company v. Worst/Opinion of the Court
It appears from the evidence that the statute which is assailed by appellants was one, among others, passed to prevent the adulteration of articles or to provide for the publication of their composition. That both purposes are within the competency of the state can hardly be denied. A discrimination is, however, asserted to have been made in the exercise of the power, with the following results: (1) The imposition of the burden of analyzing and labeling the ingredients of mixed paints, from which burden the manufacturers of paste paint and manufacturers of mixed paints containing only the ingredients specified in the act are to be free. (2) Holding up to the prejudice of dealers in and users of mixed paints containing ingredients other than those specified, branding them as suspicious or adulterated, and rendering them unsalable or less salable than mixed paints containing the statutory ingredients, though more efficient than the latter for certain purposes. We can see that expense will be cast on the manufacturers of mixed paint not containing ingredients enumerated in the statute, but that such paint will be branded as adulterated is not easy to accept, and seems to be opposed by other allegations in the bill. It is averred that the complainants have a yearly increasing trade in the state of North Dakota, which has at tained to many thousands of dollars per annum, and that, by the high quality of their goods and by advertising, they have attained an enviable reputation for them. How the firmness and profit of that trade, how the excellence and degree of that reputation, can be affected by revealing the composition of the goods, is not by us discernible. Manufacturers who use inferior materials because they are so, or from a mistaken opinion of their quality, though they have statutory sanction, would be more affected than complainants. Consumers of paint, we may assume, like the consumers of other kinds of goods, seek excellence in them, and, where excellence is demonstrated by use, will care little of what pigments it is composed. This, however, is anticipating somewhat, and we will pass to the statute, consider its purpose, and see whether its classification is justified by that purpose.

We will omit from citation the cases in which this court has passed upon the power of the states to classify objects for the purpose of government. A review of them is not necessary in this case. Counsel have collected and analyzed them, applied or rejected them as they have thought they supported or opposed their respective contentions. We have declared many times, and illustrated the declaration, that classification must have relation to the purpose of the legislature. But logical appropriateness of the inclusion or exclusion of objects or persons is not required. A classification may not be merely arbitrary, but necessarily there must be great freedom of discretion, even though it result in 'ill-advised, unequal, and oppressive legislation.' Mobile County v. Kimball, 102 U.S. 691, 26 L. ed. 238. And this necessarily on account of the complex problems which are presented to the government. Evils must be met as they arise and according to the manner in which they arise. The right remedy may not always be apparent. Any interference, indeed, may be asserted to be evil, may result in evil. At any rate, exact wisdom and nice adaptation of remedies are not required by the 14th Amendment, nor the crudeness nor the impolicy nor even the injustice of state laws redressed by it.

Keeping these principles in mind, let us examine the North Dakota statute. Its purpose, as expressed in the title, is 'to prevent the adulteration of, and deception in the sale of, white lead and mixed paints.' It attempts to accomplish this purpose by the following requirements: (1) All white lead and compounds intended for use as a substitute therefor must be labeled to clearly show the per cent of each mineral therein. (2) All mixed paints must show their true composition, unless made of pure linseed oil, carbonate of lead, or oxid of zinc, turpentine, Japan dryer, and pure colors. (3) All substitutes for linseed oil in the preparation of paints must be clearly shown on the label.

The second and third divisions we are concerned with in this case, and it is insisted their requirements work a discrimination between mixed paints which contain and those which do not contain any ingredients other than those specified. It will be observed that the manufacture for sale and the selling of the first kind is made a misdemeanor unless the paint be labeled as required by the statute. The manufacture or sale of the other kind is free from such consequence or condition. It is also charged that the statute discriminates between mixed paints and paste paints, it being asserted that the latter, no matter what their ingredients, need not be labeled. To this charge we may immediately answer that it is open to contest whether the act exempts paste paint from its requirements, and the executive officers of the state have construed it as not exempting them. But be this as it may, there is a distinction between the paints, and the evils to which the statute was addressed may not exist or be as flagrant in one as in the other. There indeed may be a degree of competition between them, but other circumstances and conditions may have directed the legislative discretion. This record certainly does not present any data to make it certain that the discretion was arbitrarily exercised. Legislation which regulates business may well make distinctions depend upon the degrees of evil without being arbitrary or unreasonable. Ozan Lumber Co. v. Union County Nat. Bank, 207 U.S. 251, 52 L. ed.--, 28 Sup. Ct. Rep. 89.

2. The argument which attacks the discrimination between mixed paints is an elaboration of paragraph 17 of the bill. It is able, circumstantial, and variously illustrated. It has been given careful consideration, but it would extend this opinion too much to answer it in detail or review its specifications. It is ultimately grounded on the contention that the pigments enumerated in the statute, and hence denominated statutory pigments, are not more efficient,-may be not as efficient to the manufacture of paint, either in themselves or as depending upon the particular use to which paint may be put, the proportion of ingredients varying with such use, or even with the fancy or taste of the user, or the atmospheric conditions to which paint may be exposed, as the pigments mentioned in subparagraphs 'A' and 'B' of paragraph 17, and hence called class 'A' and class 'B' pigments. And it is contended that there is 'neither a standard of purity nor general or widely-accepted standard of purity;' and that the statute, by making a standard of some ingredients and excluding others 'useful, efficient, harmless, and in some cases most essential,' is an arbitrary discrimination and an improper exercise of the police power of the state, not justified by the comparative newness of the excluded ingredients, or because they are not used by unprogressive manufacturers, or used by unscrupulous ones in excessive proportions to cheapen their products. And this, it is urged, is all that is established against such ingredients. Besides, it is further urged, the charge that they are used to cheapen paint is true of one of the statutory ingredients.

The claims for class 'A' and 'B' pigments are controverted, and if they are sustained at all are sustained upon the balancing of, and the judgment between, the testimony of experts, certain publications and exhibits. But a problem of a different kind was presented to the legislature of North Dakota. It was not what scientific men might find out by chemical and laboratory tests, or progressive men might discover by practical experiments, but what the people of the state could find out or be justified in accepting as established. It was the experience of the people, not the acts of some progressive manufacturers, which directed the legislation, and it was to protect the people, when following the opinions formed from that experience, from deception, that the statute was enacted. It may be that the purpose could have been accomplished better in some other way. It may be that it would have been more entirely adequate, let us say, even more entirely just, to have required that all paint should be labeled; the statute nevertheless cannot be brought under the condemnation of the 14th Amendment. Legislatures, as we have seen, have the constitutional power to make unwise classifications. But we may be going too far in concession to the argument of appellants. The legislatute of North Dakota may have met the evils which exist as best it could, and there is a strong presumption that it did. At any rate, a fair question was presented, whether to take as a standard the ingredients that years of use had demonstrated as excellent or make regulation universal. We think it would be limiting the power of the state too much to say that a judgment exercised under such circumstances must be condemned as denying the equal protection of the laws, or that the liberty assured by the Constitution of the United States in the 14th Amendment gives a right to either progressive or conservative tendencies in legislation.

Appellants not only attack the standard adopted by the statute, but attack the use made of it. They assert that the standard is of 'purely negative character,' in that it fails to 'require all allowable ingredients essential for efficiency to be used, and its failure to prescribe maximum and minimum percentages,' and, therefore, it is insisted, 'permits of the manufacture and sale under the special sanction of the law of that which is inefficient, useless, and a fraud upon the purchaser.' It is besides asserted that the statute enumerates among the allowable ingredients a material which cannot be used, to wit, pure carbonate of lead, and it is asked whether a statute having these effects can be a valid exercise of the police power of the state. The answer is ready enough. The enumeration of 'pure carbonate of lead' may be corrected into commercial carbonate by a perfectly allowable exercise of construction; and as to the other charge, the inefficiency of the statutory ingredients on account of the failure to define the proportions in which they must be used goes to the defect or incompleteness of the legislation, not to its legality. Were the proportions ever so exactly defined, the relation of mixed paints to the resultant product or its liberty of sale or power of competition would not be lessened.

There is a special and earnest criticism of the provision of the statute requiring varnish when used as a thinning material to be specified, and a like criticism of the term 'pure colors' to designate one of the statutory ingredients. 'The exclusion of varnish,' it is said, 'from the list of allowable ingredients is indefensible and undefended.' The bill alleges, and it is not denied, that there is a very large demand for certain mixed paints, which are enumerated, that are capable of producing a high gloss for decorative purposes and have high resisting power to moisture, and that varnish is the 'only thinning material now known which may appropriately be used as an ingredient of mixed paint to produce said effects.' 'Notwithstanding these admitted facts,' counsel's comment is, 'varnish is branded as an adulterant by the statute.'

The term 'pure colors,' it is alleged, is intended to refer to coloring material used by paint manufacturers in powdered form, and is known in trade as 'dry colors;' that the term 'pure colors' neither has a definite meaning nor is 'it capable of an exact or even approximately exact definition;' that some dry colors are regarded as 'pure' and others 'impure' by individual manufacturers, but there is 'nothing approaching a consensus of opinion,' and 'no rational classification on the subject has ever been attempted.' The standard 'applied to dry colors is not purity, but efficiency.' We regard these criticisms answered by our general discussion, and we have specially noticed them that it may not be thought we have overlooked them. They may emphasize what we have already said as to the possible imperfection of the classification of the statute. It must not be forgotten, however, that inaccuracies of definition may be removed in the administration of the law. And it must be borne in mind that the use of the nonenumerated ingredients is not forbidden nor the advantages of the practical tests and scientific research made by appellants taken away from them. The sole prohibition of the statute is that those ingredients shall not be used without a specific declaration that they are used,-a burden, maybe, but irremediable by the courts,-may be inevitable, in legislation directed against the adulteration of articles, or to secure a true representation of their character or composition.

Decree affirmed. 

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