McDermott v. State

• Decision Date: 24 May 1910
• Parties: MCDERMOTT v. STATE. GRADY v. STATE.
• Court: Wisconsin Supreme Court

143 Wis. 18

126 N.W. 888

MCDERMOTT

v.STATE.

GRADY

v.STATE.

Supreme Court of Wisconsin.

May 24, 1910.

Error to Circuit Court, Dane County; E. Ray Stevens, Judge.

George McDermott and T. H. Grady were convicted in separate prosecutions for violations of Laws 1907, c. 557, and, on appeal to the circuit court, they were tried together and again convicted, and they bring error. Affirmed.

The defendants were, in separate actions, convicted in the municipal court for Dane county of violating chapter 557, Laws 1907. Upon appeal to the circuit court for Dane county, each of the defendants waived a jury, and entered into a stipulation with the state, whereby the two actions were to be tried together, and the testimony taken was to be regarded as the testimony in each case. The actions are before this court on writs of error to the circuit court for a review of the proceedings wherein they were convicted and sentenced. Chapter 557, Laws 1907, so far as essential to the consideration of these actions, provides as follows: “No person * * * shall sell, offer or expose for sale or have in his possession with intent to sell any syrup, * * * unless the same be true to the name under which it is sold and as defined in the standards for purity for food products as latest promulgated by the United States Secretary of Agriculture; * * * and no person * * * shall sell, offer or expose for sale or have in his possession with intent to sell any syrup, * * * or molasses, mixed with glucose, unless the barrel, cask, keg, can, pail or other original container, containing the 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: First: In case said mixture shall contain glucose in a proportion not to exceed 50 per cent. by weight, it shall be labeled and sold as ‘Maple Syrup and Glucose.’ * * * Second: In case said mixture shall contain glucose in a proportion exceeding 50 per cent. and not more than 75 per cent. by weight, it shall be labeled and sold as ‘Glucose and Maple Syrup.’ * * * Third: In case said mixture shall contain glucose in a proportion exceeding 75 per cent. by weight, it shall be labeled and sold as ‘Glucose Flavored with Maple Syrup.’ * * *” The complaint in one case charges the defendant with having had for sale and selling a certain mixture composed of more than 75 per cent. glucose and less than 25 per cent. cane syrup, and that the can containing the mixture was labeled “Karo Corn Syrup”; “10 per cent. Cane Syrup, 90 per cent. Corn Syrup.” In the case of the other defendant it is charged that the can was labeled “Karo Corn Syrup with Corn Flavor”; “Corn Syrup 85 per cent.” The defendants are retail merchants at Oregon, Dane county. The goods were bought by each of them from wholesalers in Chicago, a number of cans being packed together in a box. When received by the defendants, the goods were removed from the boxes and placed upon the shelves in the stores for sale in their retail trade. The wooden boxes in which the goods were received have been destroyed. The sale of the articles is admitted. Glucose is a viscid product made by treating starch with mineral acids. The acid is then neutralized, the product made colorless, and the water in it largely evaporated. Glucose is of a slightly sweet, insipid taste, and, in order to make it a palatable and saleable article of food, it is mixed with and flavored by cane, maple, refiner's, or sorghum syrup. In Europe the starch used for producing glucose is almost exclusively obtained from potatoes; in the United States from corn. There was evidence that in the United States there exists a prejudice against glucose as an article of food, and that dealers and manufacturers label and sell it as “Corn Syrup.”

Marshall and Timlin, JJ., dissenting.

H. O. Fairchild, for plaintiffs in error.

Frank L. Gilbert, Atty. Gen. (Olin & Butler, of counsel), for the State.

SIEBECKER, J. (after stating the facts as above).

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 refiner's syrup.

Chapter 557, Laws 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 to sell, any syrup or molasses mixed with glucose, unless the barrel, cask, keg, can, pail, or other original container containing the same be distinctly branded or labeled so as to plainly show the true name of each and all of the ingredients composing such mixture. The law then prescribes how syrup and glucose mixtures shall be labeled and branded, and separates the same into three classes: First. If the proportion of glucose does not exceed 50 per cent. by weight, it shall be labeled and sold by prefixing the name of syrup used as “Maple Syrup and Glucose.” Second. If such proportion of glucose exceeds 50 per cent. and not more than 75 per cent., it shall be labeled and sold by adding the name of syrup as “Glucose and Maple Syrup.” Third. If the proportion of glucose exceeds 75 per cent., it shall be labeled and sold by adding the name of syrup used for flavoring as “Glucose Flavored with Maple Syrup.” It also prescribes the type and color of the label and that the ingredients used must be free from substances injurious to health or prohibited for use as articles of food. Any person violating the provisions of the act is deemed guilty of a misdemeanor and subject to fine and imprisonment.

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, 29 L. Ed. 257;State v. Railway Co., 136 Wis. 407, 117 N. W. 686, 19 L. R. A. (N. S.) 326.

The contention, however, is earnestly pressed upon us that the provisions of this state statute which have been applied to these defendants are in conflict with the rights secured under the federal Constitution granting the federal government authority to regulate interstate commerce. To support this claim, it is asserted that defendants' sales of the article in the cans as imported by them were sales in unbroken original packages; that to make such sales is a right secured to them as importers; and that the state regulations impose restrictions on them as importers, and thus violate their rights secured to them by the federal Constitution. In Greek-American Sponge Company v. Richardson Drug Co., 124 Wis. 469, 102 N. W. 888, 109 Am. St. Rep. 961, the right of an importer to sell the articles imported into a state was considered and the original case of Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678, was relied on to the proposition that “sale is the object of importation and is an essential ingredient of that intercourse of which importation constitutes a part.” This right of sale is therefore under the federal authority assured to the importer because it is an act which, if inhibited, would in effect be a prohibition of the importation. In Schollenberger v. Pa., 171 U. S. 13, 18 Sup. Ct. 762, 43 L. Ed. 49, the court, speaking on this subject, says: “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 state. That goods and merchandise transported from one state to another may thus become commingled with property of the state upon arrival at its destination by treating it as other property for sale to customers in a retail business was recognized in Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. 1091, 29 L. Ed. 257. Under such circumstances, the fact that the articles are being sold in the original packages as transported cannot operate to prevent the state from subjecting them to proper police regulation for the protection of the people. Under such conditions, the articles are no longer in the channels of interstate commerce at the point of destination and before sale. Their status at this point is like that of other property held by dealers for...