96 F. 963 | U.S. Circuit Court for the District of Minnesota | 1899
This case arises from the attempted enforcement of a statute of the state of Minnesota designed to prevent the sale, or having in possession for the purpose of sale, of oleomargarine colored with any coloring matter so as to resemble butter made from cream. Section 16 of an act of the legislature of the stare of Minnesota, entitled “An act to prevent fraud in the sale of dairy products, their imitations or substitutes, to prohibit and prevent the manufacture or sale of unhealthy or adulterated dairy products, and to preserve the public health,” approved April 19, 1899, reads as follows:
“See. 16. No person, by himself or his agents, or his agents or servants, shall manufacture for sale, have in his possession with intent to sell, expose or offer for sale, or soil as butter or as cheese, or as substitutes for butter or cheese, or as imitations of butter or cheese, under any name or title whatsoever, any mixture or compound, which is designed to take the place of butter or of cheese, and which is made from animal or vegetable oils or fats, or by the mixing or compounding of the same, or any mixture or compound consisting in part of butter or of cheese in mixture or combination with animal or vegetable oils or fats, nor shall any person mix, compound with or add to milk, cream, butler or cheese any animal or vegetable oils or fats, with design or intent to make or produce any article or substance in imitation of butter or cheese, nor shall any person coat, powder or color with annotto or with any*964 other coloring matter whatever, butterine or oleomargarine or any mixture or compound of the same, or any article or compound made wholly or in part froto animal or vegetable oils or fats not produced from milk or cream, whereby the said article or compound shall be made to resemble butter or cheese, nor shall any person offer or expose for sale or sell any article, substance or compound made, manufactured or produced in violation of the provisions of this section, whether such article, substance or compound shall have been made, manufactured or produced within this state or in any other state or country; and the having in possession by any person, firm or corporation of any article, substance or compound made, manufactured or produced in violation of the provisions of this section shall be considered as prima facie evidence of an intent to sell the same as butter or as cheese contrary to the provisions of this section.”
The violation of any of the provisions of this act was made a misdemeanor, punishable by fine or imprisonment. ‘ The petition and return show that upon complaint made a'nd filed in-the municipal court of the city of Minneapolis the petitioner, Charles hi. Brundage, was charged with having, on the 22d day of May, 1899, at said city, willfully and unlawfully offered and exposed for sale,-and having in his possession with intent to sell, “a quantity of a certain compound designed to take the place of butter, and made in part from animal and vegetable oils and fats not produced from milk or cream, said compound being an article commonly known as ‘oleomargarine,’ and being then and there colored with a coloring matter whereby the said article and compound was made to resemble butter”; whereupon a warrant was issued by said court upon which the petitioner was arrested, and upon trial was by said court convicted, and sentenced to pay a fine of $25 and $8 costs, or be imprisoned in the workhouse of said city for the term of 30 days at hard labor. As the petitioner did not pay the fine, he was taken into custody by Harry M. Burke, a police officer of said city, upon a warrant for his commitment to the said workhouse. On the hearing it was admitted that all the testimony at said trial was correctly set forth in Exhibit A, attached to said petition. Prom this testimony it appears, in brief, that the petitioner was and is the manager of the business at Minneapolis of the Hammond Packing Company, an Illinois corporation, dealing at-wholesale in beef and provisions, including oleomargarine; and that on May 22, 1899, William C. Corbett, an inspector of the state dairy and food department of the state of Minnesota, asked for and purchased from the petitioner, at the place of business of said Hammond Packing Company, a 10-pound package of oleomargarine for the sum of $1.40, paid by him therefor. The said 10-pound package was an original package of oleomargarine, manufactured by the G-. H. Hammond Company, of Hammond, in the state of Indiana; the inclosure of the package being a wooden box, having thereon the revenue stamps and marks required by law; and upon the sale thereof at said Hammond was thence consigned by railroad by the said manufacturer to the purchaser, the Hammond Packing Company, at Minneapolis, where it was received by the said purchaser, and sold entire in the same package to said William C. Corbett, who thereafter made in said municipal court the said complaint upon which said petitioner was prosecuted as aforesaid. The oleomargarine so sold was the
• Comparing section 16 of the Minnesota act of April 19, 1899, under which the petitioner is prosecuted, with the above quotation from the act of congress of August 2, 1886, it is obvious that the Minnesota act, by its terms, prohibits, and attemps to exclude from the state, oleomargarine compounded of the very materials, including coloring matters, which are described in said act of congress as constituting lawful oleomargarine of commerce, “made in imitation or semblance of butter.” According to the decisions of the supreme court in the Schollenberger and Collins Cases, the Minnesota act is, to this extent, invalid; and, as the conviction and imprisonment of the petitioner rest solely upon this invalid portion ox that act, the conviction was null, and the imprisonment was un-' lawful.
The argument that oleomargarine colored to resemble butter is adulterated by such coloring, so that it may for that cause be excluded from the markets of the state under its unquestioned power to exclude any article of food which is unwholesome or deleterious, fails, because there is no pretense that the coloring matter contained in the oleomargarine sold ,by the petitioner was unwholesome, or that the oleomargarine so colored and sold was different from the “pure oleomargarine” mentioned in the opinions of the supreme court referred to; pure, not as containing no mixture, because oleomargarine is a compound of many ingredients, but pure in the sense of containing nothing debasing, or of a character which would render the article less wholesome, valuable, or desirable. The doctrine, which has apparent support in the Plumley Case, that a state may exclude from its markets, and absolutely prohibit the sale of, an admittedly wholesome article of food merely because it is designedly prepared to resemble so closely another more generally desired article, for which it is a substitute, that persons may be easily deceived, and have it imposed upon them for the other article, is plainly contrary to the holding in the Schollenberger Case, and untenable since that decision, in which the court announces that “the legislative policy does not extend so far as to embrace the right to absolutely prohibit the introduction within the limits of the state-.of an arti.de like oleomargarine, properly and honestly manufactured.”
As to whether, in a case like this, the court should discharge the prisoner on habeas corpus, or, by remanding him, leave him to the remedy of a writ of error, it is hardly necessary to refer to the very numerous authorities. If the imprisonment is upon regular process of a court having jurisdiction, and the prosecution is had under a valid law, alleged errors cannot, usually, be considered upon habeas .corpus. But if the court issuing the process under which the pris-pner is imprisoned had no jurisdiction, or if the prosecution is under