Friedman v. Harrington

COLT, Circuit Judge. This case raises the question of the constitutionality of a law of the state of Massachusetts, passed March 10, 1891, relating to the coloration of oleomargarine. Acts 1891, c. 58. The same question is raised in two -suits (Com. v. Huntley and In re Plumley) now pending before the United States supreme court upon appeal from the supreme judicial court of Massachusetts. Under such circumstances, I do not think that the circuit court should be required to pass upon this question, unless there are special reasons calling for such decision. The plaintiffs in the 861 present ¡bill seek to enjoin the defendant, who is the milk inspector for the citj of Boston, from instituting any criminal prosecution or other proceeding against them or their agents under the said act. This hearing was had upon demurrer to the bill. The bill alleges that the plaintiffs, who are citizens of the state of Illinois, are wholesale dealers in oleomargarine, and that they have heretofore sold, and propose hereafter to sell, the same, only in the original package's brought into the state of Massachusetts. The statement is made by the attorney general of Massachusetts, representing the defendant, that no case has been brought under (his act against a. dealer in the original packages, and that it is not proposed to bring any until the constitutionality of the law has been passed upon by the supreme court, of the United States in the test cases pending there. This statement is not denied, by the plaintiffs. Under these circumstances. I do not see what good a decision of this court can do the plaintiffs. If a decision were made in their favor, it would undoubtedly be appealed by the commonwealth io the supreme court; and, if an injunction were granted against the defendant pending a decision upon such appeal, its operation would be of no substantial benefit to the plaintiffs, because the commonwealth has not and does not propose to enforce lire law against sales of original packages of oleomargarine. It is possible' that the .supreme court may, upon motion, advance the cases them pending upon its calendar, or they may be submitted upon printed arguments, and thus a final determination of this question may be speedily reached. As the property rights of the defendant are not endangered by delay, and as this question can only be settled by a decision of the supreme court, I must, decline to pass upon the question at this time, and direct that the case be continued until the next term of this court.