State v. Hammond Packing Co.

JAGGARD, J. Complaint was filed against the defendant for violation of the following sections of the state dairy and food laws: Section 1753, R. E. 1905, provides: “The manufacture or sale of oleomargarine, butter-ine, or similarly constituted butter substitute, which is made or colored to imitate yellow butter is prohibited. Every violation of the provision of this section shall be deemed a misdemeanor, the punishment whereof shall be a fine of not less than fifty dollars or imprisonment for not less than sixty days.” Section 1754 provides that each wrapper or receptacle in which a butter substitute shall be kept for sale or sold shall be plainly and conspicuously branded by stamp or label with the word “oleomargarine” or “butterine” in the English language of described type. Section 1755 requires every establishment using such a substitute to cause the word “oleomargarine” or “butterine” or other substitute to be plainly printed in the English language in letters of a described type on the bill of fare, or, if there should be no bill of fare, then to post on each side of the dining or eating room, in a conspicuous place, “Oleomargarine (or butterine or other substitute) used in place of butter.” Defendant pleaded not guilty. — 367 — The facts were stipulated by the attorneys, subject to the right of either party to object to any part on the grounds of incompetency or irrelevancy. A considerable portion of the stipulation was stricken out by the court, subject to the objection and exception of the défend-ant. This appeal was taken from the judgment. The stipulation of the parties was to the following effect: The oleomargarine which was sold had been manufactured by the defendant for the purpose of selling the same, and was at the time of such sale labeled in the manner provided by the laws of Minnesota, and was sold by the defendant to one Toy as and for oleomargarine or but-terine, and not otherwise. The package was both labeled and sold «trictly in -accordance with the regulations of the internal revenue laws and regulations of the United States. The oleomargarine involved contained the following ingredients, in quantities and proportions specified: Oleo oil, neutral lard, cotton seed oil, milk, and salt. It contained no coloring matter of any sort, other than that naturally contained in these ingredients. It was a healthful and wholesome article of food. All the ingredients contained therein were healthful and wholesome, and were ingredients recognized as commonly used and essential in the manufacture of oleomargarine. The said ingredients were combined in the said product in the manner and in the proportions usual and necessary in the manufacture of oleomargarine. It is possible to manufacture oleomargarine so that it will not resemble butter having a deeper yellow color than that produced in winter and not artificially colored; but in order to do so it would be necessary to select the fats of stall-fed or dry-fed cattle in manufacturing the oleo oils for such oleomargarine and to discard all other fats. It would be impossible, even by selecting the fats as hereinabove stated, to manufacture oleomargarine so as not to resemble some butter made in the winter months and not artificially colored. Defendant had no intention of deceiving the purchaser or the public in the manufacture and sale of oleomargarine. Such article was manufactured and sold as oleomargarine, and as a substitute for butter. At that time butter was on sale for ten cents per pound more than oleomargarine; factors determining the market price of each being affected by the same causes. — 368 — The essential question involved in this appeal is the construction to be placed upon the first sentence of section 1753: “The manufacture or sale of oleomargarine * * * which is made or colored to> imitate yellow butter is prohibited.” The state contends that if it appears from the evidence that the defendants, in the ordinary course of business, took certain materials, all of them wholesome, and combined them in such a way as to produce a product which in taste, texture, smell, color, and general appearance, resembled yellow butter, the defendant “made” a substance which resembled j^ellow butter, and is within the purview of the statute, and that, as it appears from the evidence in this case the defendant selected in the making of the oleomargarine in question such materials as would give the product a deep yellow color, defendant “wilfully and intentionally” made a product which resembled yellow butter. This construction appears to us to be forced and unreasonable,, and to endanger the constitutionality of the law. The obvious purpose of the law as a whole is to prevent the manufacture and sale of something which was intentionally made to imitate yellow butter, so as to defraud and deceive, and not to prohibit the exercise of the right of manufacturing and selling a wholesome article of food. This purpose is evident from the juxtaposition of section 1753 with sections 1754 and 1755, which are designed solely to protect the consumer against fraud. These sections not only require that the package must be labeled, but also that bills of fare and placards must indicate its use. The right to manufacture arid sell oleomargarine includes the right to sell such an article as that upon which this prosecution was based. The color of the product was a necessary and natural incident of the use of proper and recognized and necessary ingredients. It was not the result of attempted imitation. Within the usual and accepted meaning of the term “oleomargarine,” the elimination of any one of’ the ingredients here used would have prevented the product from being oleomargarine at all. Of such ingredients three — namely, neutral lard, milk, and salt — could not impart any color to the compound, unless we regard white as a color. The remaining two ingredients form the fundamental basis for the substance. Oleo oil is the most substantial element involved. Unless the manufacturer is to be compelled to select only the fats of dry-fed cattle, and shut down his. — 369 — plant during the seasons of the year when such cattle do not come into market in sufficient quantities, the oleo oil used at certain times is bound to have a yellowish color, and therefore to impart some color to the product. The other substantial element consists of either butter or cotton seed oil. The evidence is that one or the other must be used. If butter is employed, we are compelled to take notice that no butter is pure white, and that all butter varies in color from a light yellow in the winter months to a more or less deep shade of yellow in the summer time, even though no artificial coloring matter is used. Cotton seed oil is frequently used in this connection as a substitute for butter, because it is cheaper and serves the same purpose. It was so used in the formula from which the sample before us was prepared. The stipulation expressly recites that the substitution of cotton seed oil for butter had no effect so far as color was concerned. This construction is further necessitated by the fact that, in order to sustain this, a criminal prosecution, there must have been evidence of intent that the oleomargarine was made or colored to imitate yellow butter. No such intent was shown, nor was there any evidence shown from which that intention might be inferred. This is, therefore, not a case in which the effect of the evidence is for the trial court, whose conclusion will not be disturbed upon appeal. It is to be noted, moreover, that the law prescribes no standard for determining what, is yellow butter. Entirely natural butter is of many shades of yellow. If the trade fixes the criterion, then the law is open to the objection that it puts it into the power of private persons to create and define ,an offense. That power belongs to the legislative branch alone, and cannot be delegated. Cf. State v. Emery, 55 Oh. St. 364, 45 N. E. 319. As here construed the'statute is not unconstitutional, under either the state or federal constitutions, as an absolute prohibition of “an important branch of industry, not injurious to the community, and not fraudulently conducted, solely for the reason that it competes with another, and may reduce the price of an article of food.” See People v. Marx, 99 N. Y. 377, 2 N. E. 29, 52 Am. 34; People v. Gillson, 109 N. Y. 389, 17 N. E. 343, 4 Am. St. 465; Colon v. Lisk, 153 N. Y. 188, 47 N. E. 302, 60 Am. St. 609; People v. Plawkins, 157 N. Y. 1, 51 N. E. 257, 42 E. R. A. 490, 68 Am. St. 736; People v. Biesecker, — 370 — 169 N. Y. 53, 61 N. E. 990, 57 L. R. A. 178, 88 Am. St. 534; Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832; Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937; Butchers’ Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co., 111 U. S. 746, 4 Sup. Ct. 652, 28 L. Ed. 585; Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220; 1 Tiedeman, State and Federal Control of Persons and Property, pp. 517, 254, 510; 2 Id. p. 1045; Freund, Police Power, p. 56. Not only principle, as has appeared, but the overwhelming weight of authority is with the defendant. An essentially similar question was presented in Massachusetts. The statute there read in part: “Whoever * * * sells * * * an article * * * made wholly or partly out of any fat, oil, or oleaginous substance or compound thereof, not produced from unadulterated milk or cream * * shall be punished,” etc. In Plumley v. Massachusetts, 155 U. S. 461, 15 Sup. Ct. 154, 39 L. Ed. 223, this statute was construed. Mr. Justice Harlan, inter alia, said: “The statute seeks to suppress false pretenses and to promote fair dealing in the sale of an article of food. It compels the sale of oleomargarine for what it really is, by preventing its sale for what it is not. * * * [The statute] is aimed a all oleomargarine artificially colored so as to cause it to look lile genuine butter and offered for sale in Massachusetts.” [The word| cause is in italics in the original.] This is a fair statement of th effect of the law under consideration. That opinion refers to the rule in New York. There an absolub prohibition of the manufacture and sale of oleomargarine was hel< unconstitutional. People v. Marx, supra. A subsequent law, similar to the one at bar, was held constitutional, because “the producer: of butter from animal fats or oils, although the product may be wholesome, nutritious and suitable for food, and so the manufacture an sale thereof may not be prohibited, have no constitutional right to resort to devices for the purpose of making their product resemble dai: butter, and the legislature has power to enact such laws as it ma; •deem necessary to prevent the simulated article being put upon th< market in such form or manner as to be calculated to deceive.” People v. Arensberg, 105 N. Y. 123, 11 N. E. 277, 59 Am. 483, api proved in Plumley v. Massachusetts, supra. The statutory prohibition — 371 — was construed to have been aimed at a designed and intentional imitation of dairy butter in manufacturing the new product, and not a resemblance in qualities inherent in the articles themselves and common to both. To sustain a conviction under a later form of the law it was held that there must be shown that the oleomargarine was made -in imitation or semblance of natural butter. People v. Meyer, 44 App. Div. 1, 60 N. Y. Supp. 415. So the New Jersey act has been held not to have been violated where only materials are used which are “employed chiefly, to make up the substance of the compound, and which impart some color only as a necessary incident of their use.” Ammon v. Newton, 50 N. J. L. 543, 14 Atl. 610. To the same effect, see Bennett v. Carr, 134 Mich. 243, 96 N. W. 26; McCann v. Com., 198 Pa. St. 509, 48 Atl. 470; Com. v. Mellet, 27 Pa. Super. Ct. 41; and Com. v. Vandyke, affirming Arnold, J., 13 Pa. Super. Ct. 484. See also Schollenberger v. Pennsylvania, 171 U. S. 1, 18 Sup. Ct. 757, 43 E. Ed. 49. Meyer v. State, 134 Wis. 156, 114 N. W. 501, is substantially in accord. It was there said: “The words, 'which shall be in imitation of,’ used -in describing the contraband compound, imply a conscious imitation in the manufacture thereof.” As opposed to this array of authority is the single case of State v. Armour, 124 Iowa, 333, 100 N. W. 59, in which, however, a different, although similar, statute was construed. It is accordingly ordered that the judgment in the court below be reversed.