State v. Makshall

• Decision Date: 19 July 1888
• Parties: STATE v. MAKSHALL. SLAYTON v. SAME.
• Court: New Hampshire Supreme Court

15 A. 210

64 N.H. 549

STATE

v. MAKSHALL.¹

SLAYTON

v. SAME.

Supreme Court of New Hampshire. Hillsborough.

July 19, 1888.

The first case is an indictment upon chapter 68 of the Laws of 1885, for selling oleomargarine, an article made in imitation of butter, not wholly from milk or cream, and being of another color than pink. The second case is an action of debt to recover the fine of $50, prescribed in the statute for selling the same article, one-half for the use of the county.

Sulloway & Topliff, for defendant. R. M. Wallace, for the State.

CLARK, J. The indictment in the first case, and the action of debt in the second case, are founded upon chapter 68, Laws of 1885, which provides that "whoever by himself or his agent shall sell, expose for sale, or have in his possession with intent to sell, any article or compound made in imitation of butter, or as a substitute for butter, and not wholly made from milk or cream, and that is of any other color than pink, shall, for every package that he or they sells or exposes for sale, forfeit and pay a fine of fifty dollars. * * *" The defendant demurs, raising the question of the constitutionality of the statute, and of the form of the remedy, if any. The defendant contends that the legislature has no constitutional authority to compel him to color an article of food which is wholesome and nutritious, with a foreign substance, in a manner that subjects it to ridicule, and degrades it in the eyes of the public, thereby depriving him of his constitutional right to carry on a lawful industrial pursuit. The constitutionality of a legislative act is to be presumed, and a statute is not to be held unconstitutional unless a clear and substantial conflict exists between it and the constitution. Rich v. Flanders, 39 N. H. 304. The question whether a statute is constitutional or not is a question of legislative power. Cooley, Const. Lim. (3d Ed.) 186. Whether it is wise, reasonable, or expedient, is a legislative, and not a judicial, question. The legislature is as capable of determining the question of the wisdom, reasonableness, and expediency of a statute, and of the necessity for its enactment, as the courts. The only inquiry is whether the statute conflicts with the constitution. By article 5 of part 2 of the constitution of the state the legislature is authorized "to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, and instructions, either with penalties or without, so as the same be not repugnant or contrary to this constitution, as they may judge for the benefit and welfare of this state, and for the governing and ordering thereof and of the subjects of the same." Under this grant the power of the legislature to regulate the sale of articles of food and to legislate for the prevention of adulteration, deception, and fraud in the sale of provisions is unquestioned. The enactment of laws for the protection of the public from fraud and deception in articles of food in common and general use is a legitimate exercise of the police power of the state by the legislature. The statutes requiring the inspection of flour, beef, pork, butter, lard, and fish, (Gen. Laws, c. 125-1,29,) are of this class, and the statutes regulating the sale of milk, (Laws 1883, c. 42,) the sale and offering for sale of bread, pressed hay, cord wood, commercial fertilizers, and illuminating oils, (Gen. Laws, c. 122,) and the prevention of adulteration, (Gen. Laws, c. 271,) are founded upon the same principle,— the protection of the public from imposition and fraud. Such legislation is clearly within the scope of legislative authority conferred by the constitution. "A fraud is, of course, a trespass upon another's private rights, and can always be punished, when committed. It is therefore but rational to suppose that the state may institute any reasonable preventive remedy, when the frequency of the frauds, or the difficulty experienced in circumventing them, is so great that no other means will prove efficacious. Where, therefore, police regulations are established, which give the private parties increased facilities for detecting and preventing fraud, as a general proposition these laws are free from all constitutional objections." Tied. Lim. Police Power, 207. The statute under consideration is entitled "An act relating to the sale of imitation butter," and it prohibits the sale of imitation butter as genuine. The purpose and intent of the statute being the protection of the public against imposition, it is within the constitutional power of the legislature to enact it. The demurrer admits that oleomargarine is within the prohibition of the statute, although not specially named in it, and that it is an article or compound made not wholly from milk or cream, in imitation of butter, and as a substitute for butter. The design of the act is to protect purchasers and consumers against deception, and this is accomplished by...