Richardson-Gay Oil Co. v. Ashton

Opinion of the court by Hainer, J.: The sole question presented by the record is this: Whether under the laws of Oklahoma oil that ha» been brought into the territory and inspected, as required by law, and then stored beyond the limits of the territory, should be re-inspected before it can be sold within the territory. It is contended by the attorney general, on behalf of-the territory, that under such circumstances a re-inspection is required, and the court below so held. On the other hand. *405 counsel for plaintiff in error earnestly contends that where oil is brought into the territory and inspected in accordance with the laws of the territory, and is held in storage outside of the territory, and then sold to consumers within the territory, that it may be sold within the territory without a second inspection. A determination of this question involves an examination and interpretation of the laws of this territory with reference to the inspection of oil. Section 1 of chapter 17, page 180, of the acts of the legislature of Oklahoma of 1903, .is as follows: “That all oils and liquids, the product of coal, petroleum or other bituminous substances or into which the product of petroleum enters, by whatever name called, which may or can be used for illuminating, heating or power purposes, manufactured in this territory, or brought into it, shall be inspected by an authorized inspector of this territory, before the same are consumed, used, sold or offered to be sold, or disposed of to merchants, consumers or other persons within this territory.” Section 3 of said act provides that: “It shall be the duty of the said territorial inspector of oils, or his deputies hereinafter provided for, to examine and test within this territory, the safety and quality of all oils before the same shall be offered for sale by the manufacturer, vendor, or dealer, and if, upon such examination and testing, they shall meet the requirements hereinafter specified, in all cases where the oils inspected are in tanks, reservoirs, barrels, or casks, he shall issue his certificate to the person or agent in possession of such oil, certifying that said oils have been inspected and approved or rejected, as the law provides, before the same has been mixed with other oils of like tests and inserting in said certificate the actual test. And, where oils are found in packages, barrels or casks, then *406 he shall fix his brand, giving the actual test with the date of his official signature, upon the package, barrel or cask containing the same. If such oils, so examined or tested, shall not meet the required test as hereinafter specified, the words 'unsafe, rejected/ shall be marked in plain letters on the package, barrel, cask, reservoir or tank containing the same.” Section 8 of said act provides as follows: . "If any person in this territory shall use, sell, or dispose of to merchants, consumers, or any other persons or persons within this territory, any of the oils or fluids specified in section one of this act, without the same having been first inspected by an authorized inspector of this territory, and the barrels, casks, or packages containing the same branded by him , as provided in this act, said person so offending shall be punished by a fine not exceeding one hundred dollars for each barrel, cask or package of oils or fluids aforesaid so used by, sold or offered for sale to merchants, consumers, or any other person or persons, within this territory.” Section 15 of said act provides as follows: "The provisions, of this law shall not apply to oils or fluids brought into this territory in transit for shipment to and consumption in other states or territories.” It will thus be seen from an examination of the provisions of our statute bearing upon this question, that before oil that is brought into the territory can be sold to consumers therein, it must be inspected and branded by the duly authorized inspector, and that a violation of any of the provisions of the statute is made a high penal offense. It is admitted by the agreed statement of facts that the oil in controversy was regularly inspected by the oil inspector of Oklahoma, at Oklahoma City, and that thereafter the oil was stored in the warehouse of the plaintiff in error at Chick *407 asha. It is also admitted that the two barrels of oil that were attempted to be sold to the plaintiffs consumers at Cement, Oklahoma, was the identical oil, in the identical barrels, inspected by the oil inspector at Oklahoma City. We are unable to find any provision in the statute which requires a second inspection of oil, where it has been once regularly inspected. It being admitted that the identical oil was inspected and stored in the warehouse at Chickasha, Indian Territory, and subsequently a part of the same oil, contained in the same barrels, was attempted to be sold in Oklahoma, in such circumstances we think one inspection satisfied the requirements of the statute, and that no second inspection was required. The law with reference to the inspection of oils was enacted to protect the public against the sale of unsafe and dangerous oils, and for those purposes is a remedial statute, to be interrupted so as to reasonably carry into effect its objects. Prior, to the enactment of such statutes, it was not an offense to sell impure oils. In other words, it is purely statutory crime, and is not a cyime in itself. And the statute was not intended to make an act criminal which was prior to its enactment lawful, unless it is clearly shown that such act falls within the prohibition of the statute. We think this doctrine is fully sustained by the courts that have had this subject under consideration. In State v. Finch, 34 N. W. 904, the supreme court of Minnesota, in passing upon a similar question, uses the following language: “In construing such statutes, we should be careful to distinguish between what may have been desirable in the en *408 actment in order that it should effectually accomplish its purpose, and what has been really prohibited or commanded by it. Before conduct hitherto innocent can be adjudged to have been criminal, the legislature must have defined the crime, and the act in question must clearly appear to be within the prohibitions or requirements of the statute, that being reasonably construed for the purpose of arriving at the legislative intention as it has been declared. It is not enough that the case ma}'" be within the apparent reason and policy of the legislation upon the subject, if the legislature has omitted to include it within the terms of its enactments. What the legislature has from inadvertence or otherwise omitted to include within the express provisions of a penal law, reasonably construed, the courts eannoj; supply.” State ex rel. Waters-Pierce Oil Co. v. Baggot, 8. S. W. 737, was a proceeding in mandamus, and the question there arose whether oil could be transferred from a branded cask to an unbranded receptacle and sold from such unbranded receptacle, and the supreme court of Missouri, in passing upon this question, uses the following language: “We fail to find anything in the statute which prohibits the transfer of the fluid, in whole or in part, from a branded cask to an unbranded receptacle, or which prohibits the sale of it from such unbranded receptacle. Unless the law so declares, it may be done. Woodworth v. State, 4 Ohio St. 488; Cheadle v. State, Id. 478. The argument against this conclusion of most merit is that the detection of violations of the law will be rendered difficult. This may be true, to some extent; but it is not the test by which the statute must be tried. The theory' of the respondent would prevent the sale of oils designed for illuminating purposes in any other way than in branded packages, so that the consumer would be required to buy a whole package or none. The law does not prohibit breaking bulk after inspection, for purposes of sale *409 and one inspection is sufficient, and we conclude tbe retail dealers may purchase from branded tanks and sell the same to consumers without any other or further inspection or branding.” In Waters-Pierce Oil Co. v. State, 18 S. W. 57, the supreme court of Arkansas, in construing the statute of that state which provides that illuminating oils manufactured in or brought into the state, shall be inspected and approved by an authorized inspector, and the barrels, casks, and packages containing the same shall be branded by him with the words “Standard Oil,” and which provides that if any person or persons in that state shall sell any of the fluids therein specified, without first having the same inspected by an authorized inspector of that state or some other state, shall be punished etc., it was held that the statute, which must be strictly construed, does not prevent the owner, after his oil has been properly inspected and branded by an inspector of another state, from transferring it to another receptacle, and selling it therefrom without re-mspeetion and re-branding. Applying the principles announced in these cases to the admitted facts upon which this case was tried, we are clearly of the opinion that the plaintiff was entitled to the relief prayed for, and therefore the court erred in rendering judgment for the defendant. The judgment of the district court is reversed, and the cause remanded, with directions to render judgment for the plaintiff. Burford, C. J., who presided in the court below, not sitting; all the other Justices concurring.