164 Wis. 167 | Wis. | 1916
Lead Opinion
It is obvious tbat in tbe instant case no damage resulted to tbe seller by reason of tbe use of tbe weight in question because tbe buyer correctly disclosed its value on tbe scale used. But tbe purpose of tbe ordinance was to require tbe use of weights and measures which themselves correctly express their value so that neither party shall be compelled to rely upon tbe representations of tbe other. Tbe intention was to require true weights and measures to be used so tbat recourse need be bad to such weights and measures only in order to determine tbe correct quantity weighed or measured. This intention is disclosed by tbe language used ; by tbe evident object sought to be reached; by tbe fact tbat other parts of tbe ordinance penalize tbe buyer who represents tbe quantity less than it is; and by tbat part thereof .forbidding tbe use of weights or measures not sealed by.tbe sealer of weights and measures. Tbe ordinance requires not only tbat true weights and measures be used, but tbat they shall have been tested and sealed by tbe designated authority, thus enabling any party to determine by an inspection of tbe weight or measure that it has been duly tested and sealed, and is correct. Manifestly tbe weight in question bad not been tested and sealed as a true weight on tbe scale used. It spoke falsely. - It said, I represent 100 pounds, when- in fact it represented 200 pounds. Tbe ordinance requires the language of tbe weight to be truthful, to tbe end tbat reliance need not be placed upon human representations, which may be affected more or less by self-interest. Tbe only way to reasonably safeguard tbe interests of buyers and sellers of commodities, as to weighing and measuring, is to require the use of instrumentalities tbat are in fact what they purport to be; tbat speak for themselves, and speak tbe truth. Any departure from such scheme opens tbe door to misrepresentations and fraud, tbe very door which tbe ordinance declares shall be closed.
By the Court. — Judgment reversed, and cause remanded with directions to enter a judgment of guilty, and for further proceedings according to law.
Dissenting Opinion
I must dissent from the conclusion of the court in this case. The plain purpose and only reason for the existence of sec. 1428 of the City Ordinances of Milwaukee is the proper one of preventing fraud in buying and selling of commodities either by false representations as to quantities or by the use of weights which deceive. It should be construed when applied to any particular set of facts in the light of its purpose. State v. Halt, 141 Wis. 30, 34, 123 N. W. 251; Weirich v. State, 140 Wis. 98, 101, 121 N. W. 652; State v. Boliski, 156 Wis. 78, 81, 145 N. W. 368.
The construction put upon this ordinance by the decision in this case places one who has been found to have worked no wrong to any one, who explained to the person whose commodities were being weighed the real facts, so that as to such person the weight placed in the scale was not a false one, on the same footing with one who uses some trick, device, or artifice to deceive to his own benefit and another’s harm.
I think the ordinance should be construed to hold persons liable to the penalty therein provided who either, first, de^ ceive by untrue representations as to quantity; or secondly,
It has been held in Comm. v. Patterson, 138 Mass. 498, that the word “use” has included in it some element of permanency; in State v. Stanley, 84 Me. 555, 24 Atl. 983, 984, that a single sale of liquor does not constitute a “use” of a building for the sale of intoxicating liquors; and in a number of cases, including Pacific Mut. L. Ins. Co. v. Terry, 37 Tex. Civ. App. 486, 84 S. W. 656; Grand Lodge A. O. U. W. v. Belcham, 145 Ill. 308, 33 N. E. 886; Chambers v. Northwestern Mut. L. Ins. Co. 64 Minn. 495, 67 N. W. 367; and 25 Cyc. 809, that an occasional drink of intoxicants is not a “use” of liquors such as to negative a statement in an application for life insurance that the applicant does not use intoxicating liquors.
It is contended that the construction given by the court in this decision is necessary, otherwise the city would be put to hardship in proving that the use of false weights was a repeated or continuous use. , Such a situation is not in this particular case, for the testimony shows that, after using the two weights of 1,000 and 500 pounds respectively, a 200-pound weight was needed, and, not being then found, that this old weight, which, after it had been discarded with an old scale, on which old scale it was a true weight, had been used as a paper weight, was used to complete that particular weighing with the knowledge and at least tacit consent of the only person interested, thus clearly showing that in this particular instance before us this was an isolated, sporadic use, and not such a use as would come within the reasonable con
I do not think a defendant in a gitasi-criminal prosecution, such as cases of this kind have been designated (State v. Hamley, 137 Wis. 458, 460, 119 N. W. 114; Milwaukee v. Ruplinger, 155 Wis. 391, 394, 145 N. W. 42), should be used for what might seem demonstrating purposes, or that respect for such ordinances will be heightened by the hardship imposed on defendant in this case. I fear that the construction placed upon this ordinance under the facts in this case by the majority opinion might have applied to it the suggestion found in Rider v. Ashland Co. 87 Wis. 160, 164, 58 N. W. 236: “Where the intention is clear, too minute a stress should not be laid on the strict and precise signification of words. Qui hceret in litera hceret in cortice.”
It appears to me that under a reasonable and fair construction given the ordinance in question, under the facts in this case, the judgment of the court below was right and should have been affirmed.
