67 Neb. 27 | Neb. | 1903
The defendants in the trial court, who appear here as plaintiffs in error, were convicted of -violating the provisions of section 24:5m2 of the Criminal Code (Session Laws, 1895, ch. 78, sec. 2). They were charged with having sold and with keeping for sale oleomargarine or imitation butter, colored to resemble butter made of milk and the cream thereof, the product of the dairy.
One of the grounds presented on which a reversal of the judgment of the lower court is asked is that the section on which the prosecution is grounded has no legal existence. It is argued that the provisions of the act of 1895 providing for punishment for selling or keeping for sale “imitation butter” colored so as to resemble the genuine article were repealed by implication by the passage of the act of 1899 entitled “Food Commission.” Session Laws, 1899, ch. 35; Compiled Statutes, 1901, ch. 33. The substance of the argument is that by the latter act it was made lawful to sell imitation butter, even though colored to resemble the genuine article, which of necessity would repeal the
The act of 1895 is “An act. concerning imitation butter and imitation cheese, defining the same, prohibiting their being colored in semblance of butter, and cheese, regulating their manufacture, shipping and selling, and protecting the consumers at the table, and prescribing penalties for the violation thereof.” By section 1 imitation butter is defined as every article, substitute or compound, other than that produced from pure milk or cream from the same, made in the semblance of butter and designed to be used as a substitute for the same, provided, it is said, the use of salt, rennet, and other harmless coloring matter for coloring the product of pure milk or cream shall not be construed to render such product an imitation. Section 2 declares that no person shall coat, powder or color with annatto or any coloring matter whatever any substance designed as a substitute for butter or cheese, whereby such substitute or product, so colored or compounded, shall be made to resemble butter or cheese, the product of the dairy, and provides a suitable penalty for its violation. It is also provided that this same section shall not be construed to prohibit the manufacture and sale, under the regulations provided for in the act, of substances designed to be used as a substitute for butter, and not manufactured or colored as therein prohibited. Briefly, then, the act of 1895 divides the product of the dairy, which we term “butter” and all substitutes thereof, such as oleomargarine, butterine, and “imitation butter,” into two classes, with
The act of 1899 creates a food commission and regulates the manufacture and sale of foods, including “imitation butter” and “imitation cheese,” and dairy products, and provides for a system of reports, inspection, and the issuance of permits, fixing fees for the same, and providing penalties for a violation of the act. Compiled Statutes, 1901, ch. 33. By section 6 it is enacted that every person, firm or corporation who sells or offers for sale or has in his possession for sale, “imitation butter” in packages containing ten pounds or more, shall be deemed a wholesale dealer, and in packages containing less than ten pounds shall be deemed a retail dealer, in “imitation butter”; and by section 7 it is made unlawful for any Avholesale or retail dealer in “imitation butter” to engage in the business of handling or having in his possession for sale or selling, “imitation butter,” without first procuring from the food commissioner an annual permit, such permit describing the occupation and place of business of the person, firm, or corporation receiving the same, and conditioned on tifie faithful observance of the laws of the state by the recipient thereof. The latter act, it will be observed, in nowise affects the provisions of the former, nor the definitions as therein found by which to distinguish the dairy product from the substitutes; nor does it in terms directly or inferentially seek to make lawful the sale of “imitation butter” by securing a license or permit for the keeping or selling of the substitute, when compounded or colored, contrary to the provisions of the act of 1895, so as to resemble genuine butter. The latter act can be regarded only in the nature of an additional regulation, "which requires the dealer of the substitute article to obtain a permit before engaging in the business, and leaves unaffected otherwise all of the provisions of the act of 1895.
It is next argued that the provisions of the act of 1895 are unconstitutional, in that it dei>rives a person of his property without due process of law; that the Avhole purpose and effect of the act is to take value from one man’s property and add it to the value of another’s property. Tt is argued that in the absence of all constitutional restraints, the legislature can not take A’s property and give it to B, and yet it is said this is clearly the purpose and effect of the law under which the defendants were convicted. Counsel argue on the proposition that the coloring matter which may be used to make genuine butter more attractive and salable is harmless in itself, whether used in the genuine article or the substitute; and that, therefore, it is unlawful to prohibit the dealer in imitation or substitute butter to use the same or similar ingredient to make his article of commerce likewise more attractive and salable; that, there being nothing deleterious to the
It is contended that the provisions found in the act for packing, wrapping and labeling the “imitation butter” answer all purposes of regulation and are sufficient to prevent imposition and deception in the sale thereof, without the added provision making it unlawful to color it so as to resemble butter. But certainly, because these other
We do not wish to be understood as saying that as now manufactured the product is unhealthy and unwholesome, hut only that it might be made so, and that regulative measures by way of legislation are permissible in order to avoid this undesirable condition. A law in substance quite similar to our own has been under consideration by the supreme court of Ohio. State v. Capital City Dairy Co., 62 Ohio St., 350. It is there held to be a valid exercise of the police powers of the state. It is held in the syllabus that the police power of the state is properly exercised in the prevention of deception in the sale of dairy products and in the protection of the health of the public; that the several acts of that state on the subject, the purpose of Avhich, it is said, is to prevent deception in the sale of dairy products and to preserve the public health, are a reasonable exercise of the police power and do not contravene any section of the constitution. The case was appealed to the supreme court of the United States, and the judgment of the state court upheld. Capital City Dairy Co. v. Ohio, 22 Sup. Ct. Rep., 120. In the opinion of the state supreme court it is said (p. 363) : “At the outset it should be understood that the statutes do not undertake to prohibit the manufacture or sale of oleomargarine; on the other hand their expressed purpose, gathered from text and title as well, is to regulate its manufacture and sale. In substance they provide that no one shall manufacture for sale any article in imitation of butter, or any compound or substance or any human food in imitation or semblance of natural butter which is not pure butter; that no one shall manufacture or offer or expose to sale any oleomargarine which contains any coloring matter; that no one shall sell any substance purporting, appearing or represented to be butter or having.a semblance of butter, unless it be under its true name and with proper mark designating such name, and that all persons dealing in food shall, upon proper application and tender of price, furnish a sample suitable
The conclusion we reach is that the section of the act of 1895 which is complained of conies within the proper scope and power of the lawmaking branch of the state government, and that it is competent for the legislature to provide for the regulations imposed by it on those engaged in the buying and selling of imitation butter, for the better protection of the public health, and to prevent fraud and deception; and also to provide proper penalties for a violation of such regulations. The judgment of the district court should be, and accordingly is, in all things
Affirmed.