Powell v. Commonwealth

Lead Opinion

Mr. Justice Sterrett

delivered the opinion of the court,

In his opinion, overruling the motions for a new trial and in arrest of judgment,, the learned President of the Quarter Sessions has so fully and conclusively vindicated the correctness of the rulings complained of in the several specifications of error, that the judgment may well be affirmed, for the cogent and satisfactory reasons there presented. He has shown, very clearly, we think, that the Act of May 21st, 1885, under which plaintiff in error was indicted, is not in conflict with any provision of either the state or federal Constitution, and that the General Assembly, in enacting the law, did not transcend the limits of legislative authority; but if there should be any doubt as to the constitutionality of the Act on either of these, or on any other ground, that doubt should be resolved in favor of the validity of the Act, as a proper exercise of legislative power. As was said in Erie and North East Railroad Co. v. Casey, 26 Pa., 287-300: “The right of the judiciary to declare a statute void and to arrest its execution is one which, in the opinion of all courts, is coupled with responsibilities so graye' that it is never to be exercised except in very clear cases.. One department of the government is bound to presume that another has acted rightly. The party who wishes to' pronounce a law unconstitutional takes upon himself the burden of proving beyond all doubt that it is so.” Or, as the principle is tersely stated by the late Chief Justice Shars■wood, “Nothing but a clear violation of the Constitution — a clear usurpation of power prohibited — will justify the judicial department in pronouncing an Act of the legislative department unconstitutional and void”: Penna. R. R. Co. v. Riblet, 66 Pa., 164-169. In same case it is further said: “We cannot try the constitutionality of a legislative Act by the motives and designs of the law-makers, however plainly expressed. If the Act itself is within the scope of their authority, it must stand.”

These principles are necessary incidents of the law-making power. In creating a legislative department, and conferring upon it the legislative power, the people must be understood to have conferred the full and complete authority as it vests in and may be exercised by the sovereign power of any state, subject only to such restrictions as they have seen fit to impose, and to the limitations which are contained in the Constitution of the United States. The legislative department is not made a special agency for the exercise of specially defined legislative powers, but is intrusted with the general authority to make laws at discretion: Cooley’s Con. Lim., 87.

The Act of May 21st, 1885, is entitled, “An Act for the protection of the public health, and to prevent adulteration of dairy products and fraud in the sale thereof.” It cannot be doubted that the General Assembly is invested with full power to legislate for the protection of the public health, or to prevent the adulteration of articles of food, as well as imposition or fraud in the sale of such articles. In the absence of any constitutional inhibition or limitation, the sovereign power of the state to enact laws for the public good appears to embrace these subjects of legislation; but, however that may be, they come fairly within the police powers of the state. These powers, as described by Judge Redfield in Thorpe v. Railroad Co., 27 Vermont, 149, extend “to the protection of the lives, limbs, health, comfort and quiet of all persons, and the" protection of all property within the state,.....and by which persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health and prosperity of the state; of the perfect right to do which, no question ever was, or, upon acknowledged general principles, ever can be made,'so far as natural persons are concerned.”

The statute books of this and other states furnish numerous examples of the exercise of the power referred to; but perhaps the laws most nearly identical in principle with our Act are those which prohibit the sale of adulterated provisions. The sale of pure milk and pure water mixed may be made a penal offence (Com. v. Farren, 91 Mass., 489; Same v. Waite, 93 Id., 264), or adulterated confectionary; Com. v. Chase, 125 Mass., 202; Same v. Evans, 132 Id., 11.

The statute of Massachusetts declares: “Whoever sells or keeps or offers for sale adulterated milk, or milk to which water or any foreign substance has been added,” shall be punished, etc. In Com. v. Farran, supra, it was held, under this statute, that guilty knowledge on the part of the seller need not be averred or proved. In Com. v. Waite, supra, the contention was that inasmuch as it is innocent and lawful to sell either pure milk or pure water, or both, separately, the legislature has no power to make the sale of milk and water when mixed a penal offence, unless it is done with a fraudulent intent ; but the court said: “ It is notorious that the sale of milk adulterated with water is extensively practiced with a fraudulent intent. It is for the legislature to judge what reasonable laws ought to be enacted to protect the people against this fraud, and to adapt the protection to the nature of the case......The court can see no.grounds for pronouncing the law unreasonable, and has no authority to judge of its expediency.” Speaking of the prohibitory liquor law of Massachusetts, passed in 1869, the Supreme Court of the United States says: “ If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the legislature cannot be stayed from providing for its discontinuance by any incidental inconvenience which individuals or corporations may suffer. All rights are held subject to the police power of the state......Whatever differences of opinion may exist, as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health and property of the citizens, and to the preservation of good order and the.public morals. The legislature cannot, by any contract, divest itself of the power to provide for these objects. They belong emphatically to that class of objects which demand the application of the maxim, salus popult suprema lex; and they are to be attained and provided for by such appropriate" means as the legislative discretion may devise. That discretion can no more be bargained away than the power itself”: Beer Company v. Massachusetts, 97 U. S., 25.

So far as the constitutionality of the Act under consideration depends on the police power of the state, it may safely be rested on the principle underlying the casés above referred to and others that might be cited. The manufacture, sale and keeping with intent to sell, may all alike be prohibited by the legislature, if in their judgment the protection of the public from injury or fraud requires it. To deny the authority of the legislature to do so, is to attack all that is vital in the police power. To refuse recognition of the power, in a given case, because, in the judgment of some, the legislature, though acting within its proper sphere, may have mistaken the public necessity for a law prohibitory in its character, is to make the individual judgment superior to that of the legislature, to which the people in their sovereign capacity have delegated the law-making power.

The fact that the prohibited substances, in a pure state, may be wholesome and not injurious, is irrelevant in a judicial inquiry. Their wholesomeness will not render the Act unconstitutional. The statute is intended to prevent fraud and protect the public health by prohibiting the manufacture and sale of substances and compounds which furnish the temptation to commit the former, and which may be injurious to the latter. As was said by the Supreme Court of Missouri, in State v. Addington, 77 Mo., 110, the position, that to render the law .unconstitutional the prohibited articles must be unwholesome, would utterly overthrow the police power of the state — overthrow every law, the wisdom of which could not bear the test of scrutiny.

The case last referred to arose under a statute similar to ours, entitled, “ An Act to prevent the manufacture and sale of oleaginous substances, or compounds of the same, in imitation of the pure dairy products.” In a well-considered opinion, the constitutionality of this Act was sustained by the Court of Appeals (12 Mo. Ap. Rep., 214, 228), and afterwards by the Supreme Court of that state: State v. Addington, 77 Mo., 110. The mere fact, as was said in that case, that experts may pronounce a manufactured article, intended for human food, to be wholesome or harmless, does not render it incompetent for the legislature to prohibit the manufacture and sale of the article. The test of the reasonableness of a police regulation, prohibiting the making and vending of a particular article of food, is not alone whether it is in part unwholesome and injurious. If an article of food is of such a character that few persons will eat it knowing its real character; if, at the same rime, it is of such a nature that it can be imposed upon the public as an article of food which is in common use, and against which there is no prejudice; and if, in addition to this, there is probable ground for believing that the only way to prevent the public from being defrauded into the purchasing of the counterfeit article for the genuine is to prohibit altogether the manufacture and sale of the former,— then we think such a prohibition may stand as a reasonable police regulation, although the article prohibited is in fact innocuous, and although its production might be found beneficial to the public, if in buying it they could distinguish it from the production of which it is the imitation.”.....“The manufacturers may brand it with its real name. It may carry that brand into the hands of the broker or commission merchant, and even into the hands of the retail grocer; but there it will be taken off, and it will be sold to the consumer as real butter, or it will not be sold at all. The fact that in the present state of the public taste, the public judgment, or the public prejudice with respect to it, it cannot be sold except by cheating the ultimate purchaser into the belief that it- is real butter, .....stamps with fraud the entire business of making and vending it, and furnishes a justification for a police regulation prohibiting the making and vending of it altogether ”: State v. Addington, supra.

In view of these and other considerations suggested in the opinion referred to, and also in that of the court below, we cannot sa}1" the Act in question is not a valid exercise of the police power of the state. The legislature was doubtless satisfied that the manufacture and sale of the prohibited articles were prejudicial to the public good to such degree that a remedy was needed; and we have no right to say that a penal statute, less severe and sweeping in its terms, would have afforded an effective remedy. That is a legislative and not a judicial question. If it is thought the legislature erred in the solution of that question, the proper course is an appeal to them to correct the error, if an3- there was.

For reasons above suggested, and others more fully elaborated by the court below, we think the judgment should be affirmed.

Judgment affirmed and record remitted.

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Dissenting Opinion

Mr. Justice Gokdon

dissented, and filed the following opinion :—

I regard the Act of the 21st of Ma3>-, 1886, not onty as improvident and unreasonable, -but as unconstitutional. “No person, firm or corporate bod}", shall manufacture out of any oleaginous substance, or any compound of the same, other than that produced from unadulterated milk, or cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk, or cream from the same, or imitation or adulterated butter or cheese, nor shall sell, or offer for sale, or have in his, her or their possession, with intent to sell the same as an article of food.” A glance at this Act shows that its purpose was to protect the dairyman at the expense of the consumer. Cannot a pure, wholesome butter be made from some other oil than that extracted from milk ? Certainly it can. The chemist has discovered that it maj' as well be manufactured from the fat of the cow as from the fat of her milk. “ Oleomargarine, when made under the formula of the French patent, is composed mostly of beef fat churned with milk, and colored with anil atto: ” U. S. Agricultural Report, 1885, p. 100. Here, then, is a pure and wholesome article of food, in every particular as good as the best butter; why, then, shall we not be permitted to make use of if ? The Act cannot properly be regarded as a police regulation, for it is not alleged that the prohibited article is in the slightest degree injurious to the welfare or happiness of the people of the Commonwealth. On the other hand, proof to the contrary was offered, so that the question for discussion really involves the right of the legislature to prohibit the manufacture of an article of food without regard to its character or quality , a question certainly of very serious import. The offer of proof was for the purpose of showing that the proscribed manufacture was not subject to the police power of the state, and from its very nature could not be. But the court ruled out the proposed evidence as irrelevant, thus declaring that the legislature was the sole judge of its own powers. But this amounts to an assumption that the legislative power is such that the manufacture and sale of any article of food whatever may be prohibited. So the question, in fact, is not one of police power, but whether the legislature can in contravention of fact assume that any given article of commerce is within the scope of its police powers, and thereupon prohibit its manufacture and use. Truly, if this position taken by the court b'elow be correct, then is the defendant’s case indefensible, for if the legislature can define its own powers without regard to constitutional limit, an appeal to this court is to no purpose. In this, however, the commonwealth is at fault; the Quarter Sessions has imposed a burthen upon it which it cannot sustain. Its counsel have said a great deal about the police powers of states, and have cited many cases to prove that which no one has pretended to deny, but they have utterly failed to prove that the General Assembly has the unrestricted power claimed for it. But if this astounding assumption fails, the defendant was wrongfully convicted. Let us then consider to what result a doctrine of this kind must necessarily lead. We must take it that that which was sold by the defendant was good, pure and wholesome food, for such was the purport of the proposed proof; hence, it follows, as of course, that if the legislature can prohibit the making of butter from anything but milk, it can prohibit its manufacture altogether, for pure milk is certainly no better than pure tallow, and if it can prohibit its manufacture from the latter, it can also from the former; if it can make unlawful the making and sale of one kind of pure food it can, in like manner, make unlawful the making and sale of any other. Lard, as it is found in the market, is a manufactured article, and is largely used in cooking as a substitute for butter; for ages this has been the case as well in this country as in Europe, and no , legislature has, as yet, taken exception to the practice on the ground of its unhealthfulness. Indeed, in this commonwealth many persons subsist, during the winter season, almost entirely on buckwheat and lard, and with hard working people, who require large quantities of carbonaceous food, this diet is neither unpleasant nor unwholesome. It is true that some may not regard it as good as butter, nevertheless it is cheaper, and, therefore, within the reach of those who cannot afford to pay for butter. Why then shall it not be used as heretofore? This wonderful Act of 1885 will allow us to eat it as a substitute for pork, or beef, or bread, or as a substitute for anything but butter. And yet this is called a police regulation; a law passed for the preservation of the health of the community!— to me it, looks much more like,a regulation passed for the welfare of the dairyman without regard to the welfare of the balance of the people; class legislation, that political curse, which the framers of the Constitution endeavored to prevent, bub which our General Assembly seems disposed to perpetuate. Nor are we to forget that by our decision we do not merely give force to an Act of assembly, but are also establishing a precedent of the most dangerous character. For if the legislature can arbitrarily prevent the citizen from making or selling any given article of food, it can also prevent his buj'ing or using the same however excellent it may be, and however necessary for the preservation .of his own life and happiness, and that of his family. Yet this is the doctrine which this court is about to establish by its decision; a doctrine which must necessarily be founded on the ruins of the bill of rights. What a commentary on ninteenth century progress and civilization ! This Act has made Chinese conservatism respectable. The chemist has discovered a process by which an important article of food can be manufactured more cheaply than by the old methods, and the man of scant means is thus promised an addition to his meager fare which he could not previously afford. Naturally we might suppose that this inventor would be hailed as the benefactor of his race, since he has thereby added much to the happiness of the laboring class of the people. Rut no; say our law makers, he is a malefactor, and shall neither make nor sell his product. And why? If, indeed, the legislature had not in view the protection of the dairyman, I would like to be told by some one what it had in view. Of course, the commonwealth will not admit this as a solution of the question, for if a fact of that kind could be made to appear, the unconstitutionality of the Act would be undoubted; hence, this idea of police power has been set up as a lure which has been only too successful in attracting the attention of the court below, as well as this court, from the real issue. What we hav-e here said with reference to the legislative intention, is made all the more certain from the fact that the Acts of May 22d, 1878, and of June 10th, 1881, had already afforded sufficient protection to the community from deception in the sale and adulteration in the manufrcture, of butter, so that as a police regulation the Act of 1885 was not necessary. We cannot, therefore, but think that there can be but little if any doubt that this Act was designed to protect the interests of the producer at the expense of the welfare and rights of the consumer.

Thus viewing the matter before us, T feel myself constrained to dissent from the judgment of this court.

Case Details

Case Name: Powell v. Commonwealth

Court Name: Supreme Court of Pennsylvania

Date Published: Jan 3, 1887

Citation: 7 A. 913

Court Abbreviation: Pa.