134 Wis. 156 | Wis. | 1908
Sec. 4607c, Stats. (1898)-, as amended by cb. 151, Laws of 1901, under which the defendants were convicted, and so far as material here, provides that any person who “shall by himself, his agent or servant, render or manufacture, sell or solicit or accept orders for, ship, consign, offer or expose for sale, or have in possession with intent to sell, any article, product or compound made wholly or partly out of any fat oil or oleaginous substance or compound thereof, not produced from unadulterated milk or cream from the same, and without the admixture or addition of any fat foreign to said milk or cream, which shall be in imitation of yellow butter produced from such milk or cream with or without coloring matter,” shall be punished, etc. “Nothing in this section shall be construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form and in such manner as will advise the consumer of its real character, and free from coloration or ingredient that causes it to look like butter.”
We cannot consider the last-quoted sentence as enlarging in any degree the preceding prohibitory or descriptive words of the statute. Manufacturing, selling, or having in possession with intent to sell a described product is prohibited. Following this by a provision that the preceding words shall not be construed to prohibit the manufacture or sale, etc., of oleomargarine in a certain manner and of a certain kind merely indicates that in the exercise of abundant caution the legislature forbade the extension of the prohibitive mandate of the statute so as to take in or include that which is described as excluded. There is a common form of expression often found in statutes and other writings where a general word or words followed by an excepted thing or instance is somewhat broadened by such exception because of the inference that the exception noted is the only exception. But the form of expression under consideration is not within that rule. This last sentence may, however, in connection with other .statutes re
It is established by the evidence and conceded upon the argument that the oleomargarine in question is a healthful food product compounded of oleo oil extracted from beef tallow, neutral lard, cotton-seed oil, and salt. The statutes referred to recognize the right to manufacture, sell, and -deal in this product. The question whether the legislature possesses the power to forbid its manufacture, sale, or use in this state is not before us. It being conceded that the product contains no ingredient injurious or dangerous to health, and the statutes containing provisions recognizing the right to sell, but requiring the seller to disclose the nature of the article sold, and forbidding the product to be in imitation of yellow butter, it must follow that this police regulation respecting the manufacture and sale relates, not to the public health, but to the public safety, that is, to the prevention of frauds or imposition. The statute must be construed accordingly. It was known to the legislature when this law was enacted that butter varies in color from nearly white to yellow. The compound prohibited is only that kind of oleomargarine which shall be in imitation of yellow butter. The statute apparently recognizes the right of a producer of whitish or lightcolored butter to escape from the competition of oleomargarine by dyeing his butter yellow. This has some bearing upon the construction of the statute. But the same statute authorizes the sale of oleomargarine unless it shall be in imitation of yellow butter. The words “yellow butter” require no definition to explain their meaning. They are used in this statute in the popular, rather than in any trade or technical, sense. They
“Butter, that is, natural butter, as is shown by the undisputed testimony in this case and as is a matter of common knowledge, varies in the degree of yellow from light straw color in winter to a rich light orange yellow in the summer. Colored butter varies from a shade of yellow somewhat more pronounced than the natural color of winter butter to shades higher than the highest natural color of summer butter; and all these shades of yellow in butter come within the protection of this law, and it is equally forbidden to sell oleomargarine in imitation of the lightest shade of yellow butter, colored or uncolored, as it is of the most pronounced or intermediate shades.”
Here the jury are'informed that natural butter, as a matter of common knowledge, varies between certain shades of yellow. This must have been understood by the jury to mean all natural butter. This is the ordinary and natural import of the language. It may be that there is no purely white butter, and that placed alongside of white paint the whitest butter would show a yellow tinge, and it may be that light straw color approximates white but never quite reaches it. But after having assumed this to be true and after having thus described butter generally, when the court charged the jury that it was forbidden to sell oleomargarine in imitation of the lightest shade of yellow butter, colored or uncolored, as much as it was forbidden to sell it in imitation of the most pronounced or intermediate shades, he added to the statute something not found therein, and it laid down a rule of law which, if followed by this court, would go far to convict the lawmakers of having, under pretense of making a police regulation to prevent fraud, enacted a law to exclude all competition of oleomargarine with all kinds of butter. This was error.
We are also convinced that the trial court erred in the reception of evidence. After the witness W. D. Hoard testified
One of the contentions of plaintiffs in error is:
“The court erred in instructing the jury that, although the color of Exhibit A was produced solely by its ingredients, they were to consider the claim made by the state ‘that the ingredients were so selected and used in the manufacture of the oleomargarine sold, in such manner and in such quantities and proportion as to produce the oleomargarine so sold which was then and there in imitation of yellow butter.’ ”
The question whether the article sold by the defendants was the identical thing which is contraband by statute must
By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.