Alcorn Cotton Oil Co. v. State

• Decision Date: 24 April 1911
• Citation: 100 Miss. 299,56 So. 397
• Court: Mississippi Supreme Court
• Parties: ALCORN COTTON OIL CO. v. STATE

56 So. 397

100 Miss. 299

ALCORN COTTON OIL CO. v. STATE

Supreme Court of Mississippi

April 24, 1911

March 1911

APPEAL from the circuit court of Alcorn county, HON. JNO. H MITCHELL, Judge.

The Alcorn Cotton Oil Company was convicted of violating the laws against the adulteration of cotton seed meal and appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

W. J Lamb, for appellant.

The indictment under which the appellant was tried and convicted charged the following:

"James Sloane, of Corinth, in said county of Alcorn, being then and there engaged in the business, among other things of manufacturing, sacking and selling cotton seed meal, did, then and there, willfully and unlawfully adulterate cotton seed meal by then and there mixing hulls therewith without noting such adulteration in plain and legible character on each sack."

The appellant demurred to this indictment and assigned three grounds of demurrer, alleging that the indictment charged no offense nor had the appellant violated any law; and the third ground, to which we especially call the court's attention, is that section 1317, of the Code of 1906, under which the appellant was indicted, had been repealed by the acts of the legislature of 1908.

Chapter 107, of the acts of 1908, is an act to regulate the sale and inspection of "commercial feeding stuff." Section 2 of this act expressly provides that cotton seed meal, together with other articles enumerated, shall not be considered under the law as commercial feed stuff.

Now, up to this point, the acts of 1908 did not interfere with section 1317, but section 14 of the acts of 1908, says:

"Nothing in this act shall be construed so as to require an analysis and branding of cotton seed, cotton seed hulls and cotton seed meal, or any mixture thereof."

Section 15 of the same act expressly provides all laws in conflict with the provisions of this act are repealed.

Section 1317 of the Code says that it shall be unlawful for any person or corporation to adulterate any cotton seed meal with hulls without noting such adulteration in plain and legible characters on each sack.

Now, the acts of 1908 says that cotton seed meal shall not be considered as a commercial feed stuff and section 14 of this act says no branding is required on any cotton seed meal or any mixture thereof, which is in direct conflict with section 1317 requiring that such shall be branded, and section 15 of the acts says "all laws in conflict with the provisions of this act are hereby repealed." Section 15 of the acts of 1908 has no savings clause, and, as section 14 says it is not necessary to brand cotton seed meal and section 1317 says you shall do so, one is in direct conflict with the other; and, as the acts of 1908 are subsequent to section 1317, we respectfully submit to the court that this section was repealed and that the appellant could not be tried under this statute.

Hirsh, Dent & Landau, for appellant, filed an extended brief contending:

First. That no offense had been charged.

Second. That no law of Mississippi has been violated and cites the following cases: Harrington v. State, 64 Miss 490; Rawls v. State, 70 Miss. 739; Code 1892, section 1089; State v. Bardwell, 72 Miss. 535; Chapter 51 of the Code of 1906; Acts of 1908, p. 98, chapter 107; Sections 2260, 2261 and 2263 of the Code; State v. Dapaquier (Sup. Ct. of La., March 26, 1894), 15 So. 502-3; Commonwealth v. Luscomb, 130 Mass. 42-3; Commonwealth v. Evans, 132 Mass. 11; State v. Crescent Creamery Co. (Sup. Ct. of Minn., May 24, 1901), 86 N.W. 107-8; St. Louis v. Liessing (Mo. Sup. Ct.), 1 L. R. A. (N. S.) 918 and 920; State v. Campbell (Sup. Ct. of New Hampshire, Rockingham, March 16, 1888), 13 A. 585-6; People v. Marx, 2 N.E. 29; State v. Smyth, 51 Am. Rep. 344-5; People v. Worden Grocer Co. (Sup. Ct. of Mich., Dec. 16, 1898), 77 N.W. 315; Commonwealth v. Kevin (Sup. Ct. of Pa., March 3, 1902), 51 A. 594-5; Dorsey v. State (Ct. of Crim. App. of Texas, Feb. 16, 1898), 44 S.W. 515; State v. Weeden (Sup. Ct. of Wyo., March 10, 1909), 100 P. 114; Jesse v. State, 28 Miss. 100; Norris v. State, 33 Miss. 4, 373; Newcomb v. State, 37 Miss. 383-4; cited in Dillard v. State, 58 Miss. 385; Telheard v. City of Bay St. Louis, 87 Miss. 582; Thompson v. State, 51 Miss. 353; Jesse v. State, 28 Miss. 100; Sullivan v. State, 67 Miss. 346-7; Rawls v. State, 79 Miss. 739; Taylor v. State, 74 Miss. 544; State v. Silverberg, 78 Miss. 858; Telheard v. Bay St. Louis, 87 Miss. 580, 40 So. 326.

Jas. R. McDowell, assistant attorney-general, for appellee.

Our statute, section 1317 of the Code, is plain in its terms, being part of the chapter on Crimes and Misdemeanors. It makes it a crime to adulterate cotton seed meal without regard to whether or not it is a commercial feed stuff. Your honors will note that in section 2262 of the Code that cotton seed is there treated as a fertilizer. The legislature of 1908 (chapter 107), enacted a law for the regulation of "commercial feed stuff," but it specially says that cotton seed meal is not a "commercial" feed stuff. The indictment in this case, however, is not drawn under the law of 1908, but is drawn under section 1317 (Crimes and Misdemeanors) which is not repealed, not being in conflict with any of the provisions of chapter 107, of the Laws of 1908. The Law of 1908 fixes a penalty upon the adulteration or sale of certain commercial feed stuffs below a certain standard, and provides for inspection analysis. It has nothing to do with the sale of cotton seed meal. This article is especially exempted from the Laws of 1908, and one guilty of adulterating cotton seed meal is punishable under section 1317. It seems too clear for argument that the two laws are not in conflict. A mere reading of them carries conviction of this proposition, and I wonder that counsel is so insistent in his argument that the latter has repealed the former. This appellant was not tried for adulterating a commercial feed stuff. He was convicted of adulterating cotton seed meal, not a commercial feed stuff, and failure to note the adulteration in plain and legible characters on each sack. Section 14 of the act of 1908 says that cotton seed meal, etc., shall not be subject to the act of 1908 with reference to analysis and branding, but it does not say that it may be adulterated without notation on the sack. It does not repeal or attempt to repeal section 1317 of the Code. It simply exempts cotton seed meal from the provisions of the act of 1908. It seemed to be the purpose all along through this act of 1908 to leave cotton seed meal and several other products just as they were before. In other words, not to put them in this class of commercial feed stuffs. It is well known that cotton seed meal is used for fertilizer, and our legislature has recognized that fact. It is well known also that the public knows what cotton seed meal is if adulterated; the public knows what cotton seed hulls are, that they are nothing but cotton seed hulls. The same is true of corn in the whole grain and other products mentioned in the Law of 1908. The legislature would have been doing a vain thing to class them as a commercial feed stuff, which is usually a mixed product, the adulteration of which cannot readily be detected and the ingredients of which are not generally known unless analyzed and labeled. There is no attempt by the legislature to repeal the criminal offense to sell cotton seed meal which is adulterated by being mixed with hulls to feed his cattle on, he may do so with his eyes open provided there is no deception practiced on him by the same. If one desires to buy cotton seed meal mixed with saw dust, to use as a fertilizer, he may do so under similar conditions. The object of this penal statute is to prevent the practice of deception or fraud. For instance, one might buy cotton seed mixed with saw dust, not noting the ingredients to feed it to his cow and kill her; but if it was stamped cotton seed meal and saw dust, he would use it for fertilizer instead.

Argued orally by W. J. Lamb and Joseph Hirsch, for appellant, and Jas. R. McDowell, assistant attorney-general, for appellee.

OPINION

WHITFIELD, C.

Section 1317 of the Code of 1906 is in the following words: "It shall be unlawful for any person or corporation to adulterate any cotton seed meal with hulls, sawdust or anything else, without noting such adulteration, in plain and legible characters on each sack, and it shall be unlawful for any person to sell in this state any cotton seed meal adulterated with hulls, sawdust or anything else, without such adulteration being noted in plain and legible characters on each sack or receptacle thereof. Any person or corporation violating the foregoing provisions of this section shall be guilty of a misdemeanor, and, on conviction, shall be filed in a sum of not less than one hundred nor more than one thousand dollars."

The appellant was indicted under this statute, the indictment charging that "the Alcorn Cotton Oil Company, being engaged in the business of manufacturing, sacking, and selling cotton seed meal, did then and there willfully and unlawfully adulterate cotton seed meal by mixing hulls therewith, without noting such adulteration in plain and legible characters on each sack." The evidence in the case shows that the appellant sold cotton seed meal to one W. S. Berry, the said sacks of cotton seed meal being composed of fifty per cent. cotton seed meal, and fifty per cent. hulls, without noting such adulteration in plain and legible characters on the sacks. Manifestly, on the facts of the case, the appellant's conduct falls strictly within the condemnation of section 1317.

It is said, first, that this section is repealed by section 14 of ...