18 N.W.2d 325 | Wis. | 1945
Action by the state of Wisconsin on relation of the State Department of Agriculture against Land O'Lakes Ice Cream Company and others for construction of sec.
Sub. (1) of the statute, sec.
Sec.
Assuming, but not deciding, this position to be correct, we are constrained to hold that the decision of the district court was correct. It based its ruling upon the decision under a like statute of the supreme court of the United States, UnitedStates v. Resnick [Acme Can Co.],
At first blush it might appear that as the instant statute declares that milk bottles of specified contents "shall" be used in the sale of milk the use of bottles of any other content is prohibited, under the rule of inclusio unius est exclusioalterius.
Also sub. (1) of the statute, sec.
"Bottles or jars used for the sale of milk or cream shall have clearly blown or otherwise permanently marked in the side of the bottle, the capacity of the bottle and the word `Sealed' and in the, side or bottom of the bottle the name, initials or the trade-mark of the manufacturer and designating number, which designating number shall be different for each manufacturer and may be used in identifying the bottles."
This with the provision of sec.
The statute involved in the Acme Can Co. Case, supra, declared that standard hampers for the sale of fruits and vegetables should be of nine specified capacities, all fractions of a bushel, and did not include a capacity of two quarts. Sec. 4 provided that no manufacturer should manufacture hampers unless their specified capacity was approved by the secretary of agriculture, who was directed to approve the specified capacity if he found the hampers not deceptive in appearance and that they complied with sec. 1. Sec. 5 declared it unlawful to manufacture hampers not complying with the statute and that violators were guilty of a misdemeanor and punishable by a fine.
The defendant was charged with manufacturing two-quart hampers for use in the sale of fruits and vegetables. The court held that the statute being criminal it should be strictly construed in favor of the accused and that so construed the statute did not forbid the manufacture of two-quart hampers. The court said (p. 210):
"The act . . . expresses no condemnation of two-quart hampers. Before one may be punished, it must appear that his case is plainly within the statute. . . . As in absence of governmental regulation the making and selling of containers is untrammeled, failure expressly to permit is not to prohibit."
Applying the above reasoning to this case the complaint herein does not show the use of gallon bottles to be a violation of the statute, as failure expressly to permit does not prohibit. This statute as applied to the defendants like the federal statute involved in the Acme Can Co. Case, supra, is, as first pointed out, a criminal statute.
Sec.
As it appears upon the face of the statute that it cannot be enforced against dealers by criminal action the motion of the plaintiff for a summary judgment was properly denied. Under sub. (3) of the summary-judgment statute, sec. 270.685, providing that if upon motion of the defendant it appears to the court that plaintiff is entitled to a summary judgment it may be awarded to him even though he has not moved therefor, it would seem that the obverse follows and that the court might properly have granted a summary judgment to the defendant. It is a poor rule that does not work both ways. However it is sufficient to rule that the order of the circuit court be affirmed.
By the Court. — The order of the circuit court is affirmed, without costs to defendants. The plaintiff will pay the fees of the clerk of this court. *31