State v. Rogers

• Decision Date: 26 February 1901
• Parties: STATE v. ROGERS.
• Court: Maine Supreme Court

49 A. 564

95 Me. 94

STATE

v. ROGERS.

Supreme Judicial Court of Maine.

Feb. 26, 1901.

(Official.)

Exceptions from supreme Judicial court. Androscoggin county.

Oscar Rogers was convicted of selling oleomargarine, and brings exceptions. Overruled.

The court was requested by the defendant to charge the jury:

(1) That the statute under which this indictment was brought is unconstitutional and void.

(2) That if, from the evidence in the case, the jury shall find that the respondent did have oleomargarine in his store, and did sell to one Bailey a pound of the same, but that it was so like butter made exclusively from milk or cream that when he purchased it, or when it came into his possession, and when he sold it, it could not even by an experienced eye have been distinguished from butter made exclusively from milk or cream, and he sold the same, never having known that it was in fact a substance not made exclusively from milk or cream, or that it was oleomargarine, not having any intention to violate the statute, the respondent must be discharged.

(3) That the state must prove an intention on the part of the respondent in this case to deceive the purchaser, by selling him for pure butter made exclusively from milk or cream that which resembled or imitated pure butter made as aforesaid, but which was in fact oleomargarine.

All of which instructions, so requested, the Justice presiding refused to give to the jury, and the defendant excepted.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, and FOGLER, JJ

Geo. E. McCann, Co. Atty., for the State.

E. M. Briggs, for defendant.

WHITEHOUSE, J. This was an indictment against the defendant for selling a quantity "of a certain substance made in imitation of yellow butter, and not made exclusively and wholly of cream or milk, and then and there containing fats, oil, and grease not produced from milk or cream." The indictment was based on section 3 of chapter 128 of the Revised Statutes, entitled "Offenses against the Public Health, Safety and Policy," as amended by chapter 297 of the Laws of 1885 and chapter 143 of the Laws of 1895.

That part of the statute involved in a decision of this case is as follows: "Whoever by himself or his agent manufactures, sells, exposes for sale or has in his possession with intent to sell, or takes orders for the future delivery of an article, substance or compound made in imitation of yellow butter or cheese, and not made exclusively or wholly of cream or milk, or containing any fats, oil or grease not produced from milk or cream, whether said article, substance or compound be named oleomargarine, butterine or otherwise named, forfeits for the first offense one hundred dollars, and for the second and each subsequent offense, two hundred dollars, to be recovered by indictment with costs, one-third to go to the complainant and the balance to the state."

The presiding judge instructed the Jury, against the defendant's request for contrary rulings, that the statute was constitutional and valid, and that it was not incumbent on the government to show that the defendant had knowledge that the substance sold by him was oleomargarine, or a substance "not made exclusively and wholly of milk or cream," or to prove that there was an intention on his part to deceive the purchaser by selling him, for pure butter, a substance which resembled butter, but which in fact was not butter.

The jury returned a verdict of guilty, and the case comes to this court on the defendant's exceptions to these instructions.

1. The power of the judicial department of the government to prevent the enforcement of a legislative enactment, by declaring it unconstitutional and void, is attended with responsibilities so grave that its exercise is properly confined to statutes that are clearly and conclusively shown to be in conflict with the organic law. It is the duty of one department to presume that another has acted within its legitimate province until the contrary is made to appear by strong and convincing reasons.

Under the constitution of this state "the legislature shall have full power to make and establish all reasonable laws and regulations for the defense and benefit of the people of this state not repugnant to this constitution nor to that of the United States." Article 4, pt 3,§1.

It is important, in the first place, to observe the precise scope and purpose of the statute, the construction and validity of which are to be considered in this case. It will be noted that it does not assume to impose an absolute prohibition on the manufacture or sale of "oleomargarine" or "butterine" in its avowed character as such. It does not seek to interfere with any inherent right or privilege the people may have to engage in the manufacture and sale of any wholesome product or compound designed simply to be used as a substitute for butter, provided it is not made in imitation of yellow butter and the true character of it is openly designated and published. It only prohibits the manufacture and sale of "any substance or compound made in imitation of yellow butter," and not made "wholly of cream or milk." As stated by the court in People v. Arensberg, 105 N. Y. 130, 11 N. E. 279: "It is aimed at a designed and intentional imitation of dairy butter, in manufacturing the new product, and not at a resemblance in qualities inherent in the articles themselves and common to both." The statute prohibits the sale of a simulated article, put upon the market in such form and color as to be calculated to deceive the purchaser. The obvious purpose of it was to prevent the fraud and deception practiced in selling for genuine yellow butter any spurious article or compound made in imitation of it. Where the resemblance between the external appearance of yellow butter and the counterfeit article is so close that it is not practicable by any ordinary inspection for the purchaser to distinguish the one from the other, and the only effective means of protecting the public against the deception are to be found in the absolute suppression of the business and the entire exclusion of such imitations from the market, the enactment of such a prohibitory statute as the one in question, for the prevention of fraud, the protection of public morals, and the promotion of a sound public policy, may well be deemed a reasonable exercise by the legislature of the police powers of the state, and not in conflict with any provision of our state constitution.

Statutes in Massachusetts and New York of precisely the same scope and purpose as ours have been declared by the courts of last resort of those states not to be in conflict with any provision of their constitutions. Com. v. Huntley (Plumley's Case) 156 Mass. 236, 30 N. E. 1127, 15 L....