39 Pa. Super. 338 | Pa. Super. Ct. | 1909
Opinion by
This action was begun by the commonwealth to recover from the defendants the fine imposed by sec. 9 of the Act of June 1, 1907, P. L. 386, upon any person who shall have violated any of the provisions of said act. The magistrate before whom the suit was brought- entered judgment against the defendants for the statutory fine and costs. An appeal from the said judgment was allowed by the court of common pleas of Clearfield county, which court afterwards, in an opinion filed, reversed the judgment of the magistrate and entered judgment in favor of the defendants with costs. In the court below all of the material facts were agreed on by the parties, making practically a case stated for the opinion of the court on the questions of law arising upon the admitted facts.
The material facts thus agreed -upon may be summarized as follows: The defendants were retail grocers doing business in the county of Clearfield, and offered for sale, and had in their possession with intent to sell, “evaporated peaches,” which are articles of food. They sold to the agent of the commission of the dairy and food division of the department of agriculture of the commonwealth a portion of said “evaporated peaches,” which were subsequently submitted to a chemical analysis which showed that the same had been preserved by the use of sulphur dioxide; that the peaches thus sold-were taken from the box in which they had been purchased by the defendants, which box had a label thereon containing the following directions and instructions: “For the purpose of shipment the peaches contained herein are preserved by the external application of sulphur fumes which are. removed by macer
Under the foregoing facts the commonwealth contended that the defendants had been guilty of a violation of the fifth clause or subsection of sec. 5 of the act of 1907 aforesaid, and as a consequence that the judgment of the magistrate ought to be affirmed. The defendants defended on three grounds: (a) that they were protected from prosecution by the terms of the first proviso of the said fifth clause or subsection of sec. 5 of the act referred to; (b) that under the second proviso to the same clause they could not be convicted unless it should appear that the foreign preservative remained in the article of food after it had been subjected to the process of maceration or soaking and when ready for consumption; and (c) that under sec. 8 of the said act, the liability to prosecution, if any existed in such case, was confined to the dealer who had sold to them the peaches, and that said liability must be enforced only in the manner provided in said sec. 8.
The first section of the act of 1907 declares, “That it shall be unlawful for any person within this state to manufacture, sell, offer for sale, or have in possession with intent to sell, any article of food which is adulterated or misbranded within the meaning of this act.” Sec. 5 undertakes to declare, in six separate subsections or clauses, when an article of food shall be deemed to be adulterated within the meaning of the act, and it is in the fifth of these subsections or clauses that the provisos already referred to are contained. It may be here proper to remark that this act of 1907 was evidently intended to take the place of and be substituted for the earlier Act of June 26, 1895, P. L. 317, because, in its last section, it expressly repeals the said last named act. The subsections or clauses of the fifth section of the act of 1907, however, are almost literally the same as those of the third section of the act of 1895 dealing with the same subject-matter, to wit: defining when articles of food shall be deemed to be adulterated. The enacting portion of the fifth subsection or clause of sec. 5 of the act of 1907 is in the precise language of the seventh subsection or clause of sec. 3 of the act of 1895, and is in the following language: “Fifth. If it contains any added substance or ingredient which is poisonous or injurious to health.” Had the legislature stopped here, there could be no doubt as to the construction of the fifth subsection of sec. 5 already quoted. Indeed, since the case of Commonwealth v. Kevin, 18 Pa. Superior Ct. 414,
In the meantime, however, to wit: on June 30, 1906, the congress of the United States enacted a statute for the purpose of regulating this entire question in so far as it was within the domain of national legislation. Recognizing, no doubt, the vast extent of our territory, the great diversity of the soil and climate of the different sections of the country and the consequent variety of the food products produced therein, and the practical impossibility of transporting these products from one distant section to another without the aid of some artificial preservative, the congress declared, inter alia, that the use of sulphur dioxide, in certain quantities, as such preservative would, under certain conditions, be lawful. Our own legislature in 1907, legislating with the knowledge of the construction of the act of 1895, adopted by our own Supreme Court and of the act of congress referred to, was not content to simply re-enact the provision of the act of 1895, and thus leave the situation as it was before; but evidently sought to bring our legislation as nearly as possible into harmony with that enacted by the general government, and to relieve dealers in Pennsylvania from some of the hardships that would follow an enforcement of the
The commonwealth rests its contention that the defendants in this case were properly fined on the ground that in selling, or having for sale, a food article containing “any added substance or ingredient which is poisonous or injurious to health,” to wit: sulphur dioxide, they were doing what was prohibited by the enacting clause of the fifth subsection of clause 5 of the act of 1907. In other words, they occupied the same position as if the sale complained of had been made whilst the act of 1895, as construed in Commonwealth v. Kevin, 18 Pa. Superior Ct. 414; s. c., 202 Pa. 23, was still in force.
It is manifest that this position is untenable as long as the first proviso above referred to is permitted to stand, because, it is agreed, that the peaches in question were not adulterated within the meaning of the provisions of the “Food and Drugs Act” enacted by congress, and therefore, under the terms of the proviso, no action can be brought or sustained for such adulteration. The commonwealth must, therefore, at the same time, uphold the enacting clause of subsection 5, and expunge
In Titusville Iron Works v. Keystone Oil Company, 122 Pa. 627, Mr. Justice Williams said: “But the constitution of 1874, sec. 6 of art. Ill, already referred to, requires all statutes to be self-explanatory and complete in their provisions, and forbids the extension, amendment, revival, or the use of any other method of conferring the benefits of previous legislation short of a re-enactment at length.” Innumerable cases reiterating this doctrine could be cited if necessary.
We must next consider to what extent the act of 1907, viewed as a whole, is affected by striking from it the unconstitutional proviso. It is clear, we think, that at least the whole of subsection 5 of the fifth section of the act must fall. As we have already seen, the enacting portion of this clause or subsection is precisely the same asrthat of subsection 7, sec. 3 of the act of 1895. If, notwithstanding the construction placed upon that act in Commonwealth v. Kevin, 18 Pa. Superior Ct. 414; s. c., 202 Pa. 23, and the passage of the act of congress of June 30, 1906, our legislature had been willing to continue the same policy that followed from the earlier act, it would have stopped with the enacting portion of clause 5, sec. 5 of the act of 1907. The very fact that it incorporated the proviso, along with the enacting clause in that subsection,
We are necessarily led to the conclusion, therefore, that the whole of the fifth clause or subsection of sec. 5 must be stricken down. The only theory upon which the learned and ingenious counsel for the commonwealth urges us to declare the enacting clause operative, but the proviso inoperative, is that the latter is wholly unintelligible; that “it might as well be Greek or other dead language so far as the average citizen is concerned. It is surplusage. ... It is as though it consisted of unintelligible strokes and marks, meaningless and void. It is a mere blot upon the statute. It does not affect either preceding or succeeding language. It may be removed without destroying unity and without sacrificing intelligibility.”
We are unable to accept this theory as sound. It seems clear to us that the proviso is sufficiently intelligible, and unmistakably indicates that the legislature intended to withdraw, from the sweep of the earlier enacting clause, those who would be within the shelter of the provisions of the act of congress.
But it does not follow that the whole of the act, or even the whole of sec. 5 of the act, must be declared void. The rule on this subject is well stated by Henderson, J., in Commonwealth v. Shaleen, 30 Pa. Superior. Ct. 1, in the following language: “It is a familiar rule that a part of a statute may be unconstitutional and the remainder constitutional, and that that which is constitutional will stand unless its provisions are so connected and dependent on each other in subject-matter that it must be presumed the legislature would not have enacted one without the other.” Many cases are there cited in support of the principle which is indeed so familiar that it needs no citation of authorities to sustain it. Looking then at
Moreover, we are advised by counsel, in their printed briefs, that all of the other paragraphs of see. 5 are in harmony with the national act, and the proviso, as to them, would therefore be needless. But the enacting clause of subsection 5, standing alone, would not be in harmony with the national act, and hence the necessity of the proviso. The only objection, we think, that can be successfully advanced to this construction, is the fact that it will leave the act with a gap in it, a casus omissus. This, however, does not furnish to our minds any satisfactory reason for striking down the act as a whole. Every other part of it we think may stand and be operative without the fifth subsection of sec. 5, and if this be true, it is our plain duty so to hold. If that results in leaving the act less perfect and comprehensive than it was intended to be, the remedy is with the legislature.
Even if, however, it were possible to allow the enacting clause of subsection 5 to stand, and at the same time strike down the qualifying proviso, we think the court below was nevertheless right in reversing the judgment of the magistrate, because the defendants, under the facts of this case, were further protected by the provisions of sec. 8 of the act. That section provides that: “No prosecution shall be sustained under the provisions of this act for the selling, etc., of any article, when the same is found to be adulterated within the meaning of this act, when the accused can show a guarantee signed by the person, residing in the United States, from whom
Judgment affirmed.