42 W. Va. 822 | W. Va. | 1896
Lead Opinion
Ou tbe 5tb day of September, 1891, Elgie Myers was arrested on tbe warrant of a justice of tbe peace of Obio county charging him with being a vendor of oleomargarine, artificial or adulterated butter, and that he did, on tbe 5th day of September, 1891, in said county, offer for sale within the limits of this state oleomargarine, artificial or adulterated butter, without the same being colored pink. On the 7th day of October, 1891,'a judgment "was rendered by said justice assessing a fine of twenty dollars against said Myers, and taxing the costs against him at twelve dollars and seventy cents.
Erom this judgment an appeal was taken to the circuit court of said county, which appeal was heard on the 21st of January, 1893, by the court in lieu of a jury, and the defendant, Elgie Myers, was found guilty as in said warrant was charged, and the judgment of said justice was affirmed, and judgment rendered for the sum of twenty dollars assessed as aforesaid, and for the costs of the appeal in the circuit court as well as for the costs that accrued before the justice. On the 21st day of January, 1893, the defendant moved the court to set aside its finding and the judgment rendered therein, and grant him a new trial, which motion was overruled by the court, and the defendant excepted.
The facts agreed were: “That the defendant was a vendor of oleomargarine, and that about September, 1892, received from Chicago, Ill., certain packages containing oleomargarine; that he broke these packages, offered for sale and sold in small quantities in the markets of the city of 'Wheeling, Ohio county, West Virginia, the eleomargarine therein contained; and that no portion thereof was colored pink.”
It is claimed on the part of plaintiff in error that the court erred in finding him guilty, and rendering judgment against him, upon the facts agreed, because the legislature exceeded its constitutional power in enacting the statute which requires that oleomargarine sballnotbe sold, etc., until or unless the said oleomargarine should have been colored pink; and that said statute is unconstitutional, null, and void, because
“Section 1. That from and after the passage of this act, it shall be unlawful for any manufacturer or vendor of oleomargarine, artificial or adulterated butter, to manufacture or offer for sale within the limits of this state, any oleomargarine, artificial or adulterated butter, whether the same be manufactured within or without the state, unless the same shall be colored pink.
“Sec. 2. Any person violating any provision of this act, shall be guilty of a misdemeanor and upon conviction thereof be fined not less than twenty nor more than one hundred’dollars for each offence.
“Sec. 3. Any penalty arising under this act may be enforced by any magistrate within the county in which the offence occurs.”
Now the evident intention of this statute is to protect the citizens of the state and the public generally from imposition and fraud in the manufacture and sale of an article of everyday use and consumption. We have on our statute books provisions for the prevention of fraud in the sale of fertilizers to the farmer requiring that its chemical qualities shall be tested before it is thrown upon the market; also as to the quality of petroleum which is required to be inspected, graded, and measured before the same is transported, with a view of ascertaining its quantity and grade or gravity before it is allowed to go into the markets, with a view of preventing injury from its ignition or explosion; and, indeed, it is difficult to conceive of any higher object or more imperative duty, which devolves upon the legislature than to guard the citizens of the state from impositions occasioned by the adulteration of articles of food or other articles of everyday use. Tiedman, in his valuable work on Limitations of Police Power, on page 207, section 89, under the caption “Regulation of Sale of Certain Articles of Merchandise,”tsays: “The regulations which would fall under this heading are very numerous, and most of them are free from all doubt in respect to their validity under our con
The question presented by this record was before the supreme court of New Hampshire in the case of State v. Marshall, 64 N. H. 549 (15 Atl. 210) in which it was held that “a statute prohibiting the sale of imitation butter unless colored pink has for its object the prevention of fraud on the public in the sale of provisions, and is, therefore, within the purview of the police power of the state.” This question was also before the United States Supreme Court in the case of Powell v. Pennsylvania, 127 U. S. 678 (8 Sup. Ct. 992, 1257) in which it was held that “the fourteenth
If, then, the legislature has the power, under the police power vested in it, to prohibit the manufacture and sale of oleomargarine entirely, we can but conclude that under the same power it may place (as it has done in this state) some distinguishing mark upon it, to prevent deception and imposition in the sale of the same, even though it should have the effect of injuring the sale of the same in the markets; and we can not regard the act in question in this state as inhibited by any clause of the Constitution. The judgment complained of must be affirmed, with costs.
Rehearing
ON REHEARING.
The plaintiff* in error, in his brief filed upon the rehearing of this case, seeks to show that the part of the act of our legislature which has reference to and affects importers into the state as to unbroken bulks or “original packages” is clearly unconstitutional, and, if unconstitutional as to these, it is unconstitutional as to all the parties to whom it applies; in other words, that the sections of the act are not
In the case of Plumley v. Massachusetts, Plumley was arrested for selling in the original package oleomargerine in Illinois, and brought to the state of Massachusetts colored so as to resemble butter manufactured from milk, in violation of the Massachusetts statute. The attempt was made to show that this statute was unconstitutional, but the court sustained the statute, and held it to be constitutional. So, also, in the Case of Rahrer, Petitioner, 140 U. S. 545 (11 Sup. Ct. 865) it was held that the act of August 8, 1890 (26 Stat. 313, c. 728) enacting that “all fermented, distilled or other intoxicating liquors or liquids transported into any state or territory or remaining therein for use, consumption, sale or storage therein shall upon arrival in such state or territory be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers to the same extent and in the same manner as though such liquids or liquors had been produced in such state or territory and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise,” is a valid and constitutional exercise of legislative power conferred upon congress; and, after that act took effect, such liquors or liquids introduced into a state or territory from another state, whether in original packages or otherwise, became subject to the operation of such of its then-existing laws as had been properly enacted in the exercise of its police powers.
Having held in the opinion that the legislature had the right, under its police powers, to require parties offering