131 Pa. 118 | Pa. | 1890
Lead Opinion
Opinion,
The defendant is the proprietor of a restaurant in the city of Pittsburgh; his business consists, in part, in furnishing meals to transient and regular patrons, who pay for the same daily or by the meal, according to the ordinary usage in that business. From the facts set forth in the case stated it appears that on January 31, 1889, William McRay and George Spence called at this restaurant and ordered meals, which were served to them in the usual manner. Among other food furnished by the defendant on this occasion was a small quantitj'- of what appeared to be butter, but which in fact was oleomargarine, an article of manufacture and sale which is prohibited by the act of May 21, 1885, P. L. 22, entitled “ An Act for the protection of the public health, and to prevent adulteration of dairy products, and fraud in the sale thereof.” It is admitted that this oleomargarine was furnished for food, as an imitation of butter, and that it was designed to take the place of butter in the meals' thus served. McRay and Spence, having partaken of the food served to them, paid each fifty cents for their meals, “ including said small dish of oleomargarine,” which, however, for some reason they did not eat, but carried the same away, presumably for examination. This suit is brought to recover the penalty provided in the third section of the act, for the manufacture or sale of the prohibited article, and the single question for our determination is whether or not, under the facts stated, there was a sale of the oleomargarine, within the meaning of the act referred to.
The purpose of the act is expressed in the title. It is to prevent adulteration of dairy products, and fraud in the sale thereof, and to protect the public health. It is plain that the exact legislative intent was to prevent the sale, and thereby prevent the use of these adulterations and admixtures as articles of food. It was the use, as food, and the frauds perpetrated upon
Judgment affirmed.
Dissenting Opinion
I am unwilling to be held responsible for this judgment, and therefore dissent. I am opposed to extending penal laws beyond their plain and obvious meaning, and am of opinion that the act of May 21, 1885, P. L. 22, prohibitihg the sale of the article, of food known as “oleomargarine,” was intended to apply only to dealers, or persons engaged in the sale thereof in the line of their business. When the legislature used the word “ sale,” it is fair to assume that it was employed in the sense in which it is popularly understood. If it was the indention not only to prohibit sales of oleomargarine, but also its use as an article of food, or in the preparation of food, by proprietors of eating-houses, restaurants, and hotels, it was easy to have said so in express terms. As the act stands, there is nothing to warn this defendant that he violated it by placing oleomargarine on his table as an article of food.
I am unable to see how the legal or the popular meaning of the word “ sale ” will support this judgment. A sale is the transfer of the title to property at an agreed price: Story on Sales, § 1; Creveling v. Wood, 95 Pa. 152. I find nothing in the facts, as set forth in the case stated, to justify the conclusion that there was a sale of the oleomargarine. The two individuals referred to entered the defendant’s place of business, and ordered a meal. It was furnished, but oleomargarine formed no part of it. It is true, there was some of that article on the table. They might have partaken of it, but they did not. When they left they carried the oleomargarine' away with them. This in my opinion, they had no right to do. A guest at a hotel may satisfy his appetite when he goes to the table. He may partake of anything that is placed before him; but, after filling his stomach, he may not also fill his pockets, and carry away the food he cannot eat. This I understand to he the rule as applicable to hotels and eating-houses in this country, and if there is anything in this case to take it out of its operation it does not appear in the case stated. The illustration of the bottle of wine, referred to in the opinion of the court, does not appear to me a happy one. Surely, i'f the proprietor of a hotel places a bottle of wine before his guest, who does not partake thereof, it cannot be said that it is a sale of the wine, nor has the guest the right to carry it away. He might