Commonwealth v. Miller
18 A. 938
Pa.
1890
Check Treatment

Lead Opinion

Opinion,

Mr. Justice Clark:

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 prеvent 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, аnd 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 thеm, 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 manufacturе 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 оf the oleomargarine, within the meaning of the act referred to.

The purpose of the act is expressed in the title. It is to prevent adultеration of dairy products, and fraud in the sale thereof, and to protect the public health. It is plain that the exact ‍​​​​​‌‌‌​‌‌‌‌​‌‌‌‌​​​‌​‌‌‌‌​‌‌‌​​​​‌‌‌‌‌​​​​​​‌​‍legislative intent was tо 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 *123the public in the sale, which was the mischief to be remedied; and the statute, of course, must be construed with refеrence to the old law, the mischief, and the remedy. That the food furnished to McRay and Spence, or so much of it as they saw fit to apprоpriate, was sold to them, cannot be reasonably questioned ; when it was set before them, it was theirs to all intents and purposes, to eat аll, or a part, as they chose, subject only to the restaurateur’s right to receive the price, which it is admitted was promptly paid. They might not еat all of the article set before them, but they had an undoubted right to do so; and, even assuming that the meal is the portion of food' taken, in the sense stated, the transaction must be regarded as a sale wholly within the purport and meaning of the statute. It is certain that.-the oleomargarine composed a part of the meal the price of which was paid, and was embraced in the transaction as an integral part thereof. If an unlicensed keeper of a restaurant may set before his guests a bottle of wine, or other intoxicating liquor, charging a regular рrice for the same, with other articles of food furnished, with liberty to take much or little of the liquor ‍​​​​​‌‌‌​‌‌‌‌​‌‌‌‌​​​‌​‌‌‌‌​‌‌‌​​​​‌‌‌‌‌​​​​​​‌​‍as the guest may choose, or, failing to drink it with his meal, permit him to take it away with him, then the liquor laws of the commonwealth are of no avail, and the license to sell liquor is wholly unnecessary. When the liquоr is thus furnished and paid for, it is in legal effect a sale, for the very act has been done which it is the policy of the law to prevent, and which it chаracterizes as a crime, viz., furnishing intoxicating liquors at a price which is paid. So, in this case, the oleomargarine was furnished to the person nаmed as food, and the price was paid. As the learned judge of the court below well said, it was not given away, and the fact that it was not sold sеparately, but with other articles, for a gross sum, would not make it less a sale. It therefore comes within the letter of the law, and it is also within its spirit. If the use of such articles is injurious, it would seem to be especially within the spirit of the act to prohibit public caterers from selling them to their guests as рart of an ordinary meal. Penal statutes are to be strictly construed, but both the letter and the spirit of the act of 1885 cover this case, and wе think the judgment was properly entered.

Judgment affirmed.





Dissenting Opinion

*124Opinion dissenting,

Mr. Chief Justice Paxson :

I am unwilling to be held responsible for this judgment, and therefore dissent. I am opposed to extending penal lаws 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 oleоmargarine 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 supрort 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 thе case stated, to justify the conclusion that there was a sale of the oleomargarine. The two individuals referred to entered the defеndant’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 articlе 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 *125as well carry off the table furniture. It is quite possible, under our construction of thе act of 1885: Powell v. Commonwealth, 114 Pa. 265, the legislature may have the power to prohibit the use of oleomargarine as an article of food in hotels and eating-houses, and punish a landlord who places it before his guests, but this has not yet been done, and I would not extend a highly penal law by implication.