143 Wis. 18 | Wis. | 1910
Lead Opinion
The defendants in these two actions admit that in the conduct of their retail trade at their respective places of business they sold the article as a table syrup, as ■charged in the complaint. It is also admitted that the purchaser received from each defendant a can of goods of what is called “Karo,” “Corn Syrup with (Cane) Flavor,” which is a mixture of glucose and refiners’ syrup.
Oh. 557, Laws of 1907, provides that no person shall sell, offer or expose for sale, or have- in his possession with intent to sell, any of the syrups specified in the act or any molasses •or glucose, unless the same be true to the name under which it is sold and as defined in the standards of purity for food products as latest promulgated by the United States secretary •of agriculture, and unless the barrel, cask, keg, can, pail, or •other original container containing the same be distinctly branded or labeled with the true name of its contents, as defined in the above-named standards; and no person shall sell, •offer or expose for sale, or have in his possession with intent
The defendants assail the validity of this legislation upon several grounds. It is asserted that the act is invalid because the provisions are violative .of the commerce clause of the federal constitution, in that it attempts to regulate interstate commerce in an article of food, and that Congress has heretofore exercised its power by enacting specific regulations on the subject. The legislation, so far as it may be said to affect interstate commerce, falls within what has been termed the field of “concurrent jurisdiction” .of the state and federal governments, and wherein the state may enact appropriate regulations provided they do not conflict with Congressional legislation on the subject. Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. 1091; State v. C., M. & St. P. R. Co. 136 Wis. 407, 117 N. W. 686.
“Reasonable and appropriate laws for the inspection of articles including food products were admitted to be valid, but absolute prohibition of an unadulterated, healthy, and pure article has never been permitted as a remedy against the importation of that which was adulterated and therefore unhealthy or impure.”
The provisions of this statute in no way prohibit the sale ■of the articles embraced within the regulation. Its object is to so regulate the traffic therein as to protect the people against imposition and false pretenses. The context of the law evinces the purpose that the regulations should apply to the traffic in the designated articles of food from the time they become at rest and mingled with the property of the
“It is sufficient for the present to say generally that when the importer has so acted upon the thing imported that it has become incorporated and mixed up with more of the property of the country, it has perhaps lost its distinctive •character as an import. . .
Applying this principle for distinguishing between articles that are within and without the channel of interstate commerce to the facts of the instant case, it seems clear that, when the defendants received the articles at their places of business, removed the cans from the container in which they were shipped, and put the goods up for sale in the cans as they received them, they had so dealt with the articles as to mingle them with the general property of the state before they were sold by them in their retail trade. May v. New Orleans, 178 U. S. 496, 20 Sup. Ct. 976; Plumley v. Massachusetts, 155 U. S. 461, 15 Sup. Ct. 154; Austin v. Tennessee, 179 U. S. 343, 21 Sup. Ct. 132.
It is, however, argued that these articles were in the channels of interstate commerce at the time of the sale because
“Tbat tbe introduction into any state or territory or the-District of Columbia from any other state or territory or the-District of Columbia, or from any foreign country, or shipment to any foreign country of any article of food or drugs-wbicb is adulterated or misbranded, within tbe meaning of tbis act, is hereby prohibited; and any person who shall ship or deliver for shipment from any state or territory or tbe District of Columbia to any other state or territory or tbe District of Columbia, or to a foreign country, or who shall receive in any state or territory or tbe District of Columbia from any other state or territory or tbe District of Columbia, or foreign country, and having so received, shall deliver, in original unbroken packages, for pay or otherwise, or offer to deliver to any other person, any sucb article so adulterated or misbranded within tbe meaning of tbis act, or any person who shall sell or offer for sale in the District of Columbia or tbe territories of tbe United States any sucb adulterated or misbranded foods or drugs, or export or offer to export the-same to any foreign country, shall be guilty of a misdemeanor,” etc.
In so far as this act regulates interstate commerce in articles of food it is a prohibition of tbe introduction of adul
It will be observed that the statute of this state does not prohibit the sale or traffic in the article sold by the defend
The law is also assailed on the ground of indefiniteness in its provisions, and that it attempts to delegate legislative power to the secretary of agriculture of the United States. These alleged objectionable features are embodied in the first clause of sec. 4601- — la, Stats. (Laws of 1907, ch. 557), which prohibits selling, offering, or exposing for sale, or having possession with intent of selling, any unmixed syrup, molasses, or glucose “unless the same be true to the name under which it is sold and as defined in the standards of purity for food products latest promulgated by the United States secretary of agriculture,” and requires the packages or containers to be branded or labeled accordingly. The section in a separate and independent clause next provides that no person shall sell any such syrup or molasses mixed with glucose, unless the original containers be branded or labeled as therein provided. The lower court held that the first part of the act relating to the mixtures of syrups, molasses, and glucose is a separate and independent clause, and wholly distinct from the clause preceding it, which deals with articles in their unmixed state as defined in the prescribed standard of purity. We are of the opinion that this ruling is correct. The pro
The defendants assert that they are deprived of their liberty and property under the provisions of this state statute without due process of law, in that the act violates secs. 1, 8, 9, and 13 of art. I of the state constitution and the XIVth amendment of the constitution of the United States. The propositions involved in this claim of the defendants, as we •comprehend them, are that as a matter of fact the article sold is a wholesome article of food for table use; that it is in fact ■a syrup as this term is commonly used and understood; that the terms “glucose” and “corn syrup” are synonymous and are in commerce interchangeably applied to the product obtained from the starch-containing part of com; that the article
In reviewing the cases on this subject, the court in Plumley v. Massachusetts, 155 U. S. 461, 472, 15 Sup. Ct. 158, said:
“If there be any subject over which it would seem the state ought to have plenary control, and the power to legislate in respect to which it ought not to be supposed was intended to*38 be surrendered to the general government, it is the protection of the people against fraud and deception in the sale of food products. Such legislation may indeed indirectly or incidentally affect trade in such products transported from one state to another state, but the circumstance does not show that laws of the character alluded to are inconsistent with the power of Congress to regulate commerce among the states.”
Sherlock v. Alling, 93 U. S. 99; Austin v. Tennessee, 179 U. S. 343, 21 Sup. Ct. 132; Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 1257; Meyer v. State, 134 Wis. 156, 114 N. W. 501.
The provisions of ch.'557, Laws of 1907, under which these defendants were prosecuted and fined, clearly forbid sales without labeling or branding the articles as prescribed. That this legislation was a proper exercise of the legislative authority within the police power of the state we think is established by the authorities heretofore cited. Under these circumstances, the defendants’ liberty and property rights secured to them by the state and federal constitutions have not been invaded, and their conviction of the charges preferred against them must be approved.
By the Court. — The judgment in each of the cases separately appealed from is affirmed.
Dissenting Opinion
(dissenting). I cannot bring myself into agreement with the majority opinion. I suppose it is unquestioned law and will be generally conceded that where a regulatory statute restrains, diminishes, or denies a constitutional right, such as liberty or the use and enjoyment of property, it is the duty of and within the power of the court to inquire whether such statute really subserves any public purpose, giving the legislative predicate that it does so the utmost deference. Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273; State v. Redmon, 134 Wis. 89, 114 N. W. 137; Schollenberger v. Pennsylvania, 171 U. S. 1, 18 Sup. Ct. 757; Dobbins v. Los Angeles, 195 U. S. 223, 236, 25 Sup. Ct. 18;
Without pursuing these reflections further, my opinion is that the fraud or deceit upon the public which will uphold such a statute and justify reasonable restriction of constitutional rights must be something which is recognized by law as actionable fraud. In other words, there must be damage as well as deception. To use a simple illustration: I do not think a statute imposing a penalty upon any one who sold salt not branded or designated as “chloride of sodium” or “sodium chloride” would be valid no matter what number of persons would refuse to use it under the latter name because they relished it as salt and despised it as sodium chloride. In such case, in most cases which arise, and in the instant case (unless this ground of invalidity appears on the face of the statute), the court, because of the paramount rule of constitutional law involved, must hold the regulatory statute invalid when from judicial knowledge or notice the court can see that the statute can have no such relation to the public peace, health, morals, or welfare as is requisite to uphold the encroachment upon constitutional rights. Great weight will, of course, be given to the assumed determination of this question by the legislature. All this is now elementary law, but there remains its application.
Oh. 152, Laws of 1905, an act entitled as “relating to the sale of syrups, molasses and glucose mixtures,” provided that no person should
“sell, offer or expose for sale or have in his possession with intent to sell any syrup, sugar-cane syrup, sorghum syrup, molasses or glucose, unless the same be true to the name under which it is sold, and as defined in the standards of purity for food products as adopted by the United States Department of Agriculture and unless the barrel, cask, keg, can, pail or pachage containing the same be distinctly branded or labeled with the true name of its contents as defined in the above-named standards; and no person shall sell, offer or expose for*41 sale or bave in bis possession witb intent to sell any svrnp, sugar-cane syrup, sorgbum syrup, or molasses mixed witb •glucose unless the mixture he sold as and for compound glucose mixture or corn syrup, and unless tbe barrel, cask, keg, can, pail or package containing tbe same be distinctly branded •or labeled ‘Glucose Mixture1 or ‘Gorn Syrup’ in plain Gothic type,” etc.
Ob. 557, Laws of 1907, under wbicb tbe plaintiffs in error were convicted, is entitled “An act to amend secs. 1 and 2 of cb. 152, Laws of 1905, . . . relating to tbe sale of syrups, molasses, glucose mixtures and maple-syrup mixtures, and to protect tbe public health.” It amended tbe first-mentioned act to read:
“No person, firm or corporation, hy himself, officer, servant ■or agent, or as the officer, servant or agent of any other person, firm or corporation, shall sell, offer or expose for sale or bave in bis possession witb intent to sell any syrup, maple syrup, ■sugar-cane syrup, sugar syrup, refiners’ synip, sorgbum syrup, molasses or glucose, unless tbe same be true to tbe name under wbicb it is sold as defined in tbe standards of purity for food products as * * * latest promulgated by tbe United States * * * secretary of agriculture, and unless tbe barrel, cask, keg, can, pail or * * * other original container containing tbe same be distinctly branded or labeled witb tbe true name of its contents as defined in tbe above-named standards ; and no person, firm or corporation, hy himself, officer, servant or agent, or as the officer, servant or agent of any ■other person, firm or corporation, shall sell, offer or expose for ■sale, or bave in bis possession witb intent to sell any syrup, maple syrup, sugar-cane syrup, sugar syrup, refiners’ syrup, sorgbum syrup or molasses, mixed witb glucose, unless tbe * * * barrel, cask, keg, can, pail or * * * other original container, containing tbe same be distinctly branded or labeled * * * so as to plainly show the true name of each and all of the ingredients composing such mixture as follows: * * * Third. In case said mixture shall contain glucose in ■a proportion exceeding 76 per cent, hy weight, it shall he labeled and sold as * * * ‘Glucose Flavored with Refiners’ Syrup/ " etc.
Prior to tbe commission of tbe acts for wbicb plaintiffs in error are prosecuted, tbe United States secretary of agriculture, proceeding under tbe act of Congress of June 30, 1906,. and acting with tbe secretary of tbe treasury and tbe secretary of commerce and labor, made a decision or regulation as. follows:
“Washington, D. C., February 13, 1908.
“We have each given careful consideration to tbe labeling under tbe Pure Food Law of tbe thick viscous syrup obtained by tbe incomplete hydrolysis of the starch of corn and composed essentially of dextrose, maltose, and dextrin. In our opinion it is lawful to label this syrup as com syrup. And if to tbe corn syrup there is added a small percentage of refiners’ syrup, a product of cane, tbe mixture, in our judgment, is not misbranded if labeled ‘Corn Syrup with Cane-Flavor.’ [Signed.]”
Tbe accused at tbe time they acted were then confronted with a Wisconsin statute wbicb on its face authorized them to describe, brand, or label this substance by tbe same name-by wbicb it was lawfully known in interstate commerce and to sell and deal in it within tbe state under that name, viz.,, “Corn Syrup.” Indeed, tbe statute went further, and required them to designate this substance as corn syrup-, at least after tbe latest promulgation of tbe secretary of agriculture on February 13, 1908. But by that part of tbe statute of' 1907 following tbe first semicolon, that substance wbicb in its unmixed condition may or must be called “corn syrup”' under tbe precedent portion of tbe same act, must when mixed with other designated substances be called “glucose.” Would not such a statute rather authorize deception than prevent it ?' Does tbe statute not carry with it tbe inference that tbe leg
“In our opinion it is lawful to label this syrup as com syrup. And if to the corn syrup there is added a small percentage of refiners’ syrup, a product of cane, the mixture, in our judgment, is not misbranded if labeled ‘Corn Syrup with Cane Flavor.’ ”
Without prolonging this dissent further, I think such legislation is unconstitutional both under the constitution of this state and under the XIYth amendment to the constitution of