American Linseed Oil Co. v. Wheaton
| Decision Date | 23 February 1910 |
| Citation | 125 N.W. 127,25 S.D. 60 |
| Parties | AMERICAN LINSEED OIL CO. v. WHEATON. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Minnehaha County.
Action for injunction by the American Linseed Oil Company against A H. Wheaton, Food and Dairy Commissioner. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.
Hugh A Meyers and C. A. Christopherson, for appellant.
S. W Clark, Atty. Gen., Geo. J. Danforth, State's Atty., and Alpha F. Orr, for respondent.
The plaintiff in its complaint alleged that it has never sold or offered for sale, within the state of South Dakota, any linseed or flaxseed oil purporting to be pure or labeled as such, which did not answer the chemical test for purity as recognized in the United States Pharmacopoeia, unless the same complied with the statute of this state relative to adulterations of linseed oil, and that plaintiff has never sold, or offered for sale, any linseed oil, representing the same to be pure, which was not pure linseed oil, and which was not labeled as required by the South Dakota statute. That plaintiff has a large number of customers within this state and that plaintiff has certain compounds with linseed oil, which it has extensively offered for sale to its said customers, and which compounds are known and labeled as follows: The defendant, the Food and Dairy Commissioner of the state of South Dakota, acting in his official capacity, has opposed the sale and introduction of the aforesaid compounds of linseed oil within this state, and has unlawfully and without authority of law written and advised all dealers in compounds of the aforesaid nature to the effect that said plaintiff was violating the provisions of the law, and advised the customers of plaintiff not to contract for or sell such compounds of plaintiff, under penalty of prosecution, and that plaintiff on account of the acts of defendant has been deprived of its trade in said linseed oil compounds within this state. That plaintiff, with a desire to eliminate all controversy relative to the sale of such compounds within this state, began labeling said compounds as follows: That said compounds thus labeled were offered for sale within this state, and defendant immediately thereafter wrote to and advised plaintiff's customers not to purchase said compounds; that it was unlawful to sell the same, irrespective of how labeled. That defendant still continues and threatens to advise all customers and dealers to refuse to purchase or receive from plaintiff linseed oil compounds thus labeled, and informing them that, if defendant's instructions are not complied with they will be subject to criminal prosecution. That on account of the said acts of defendant plaintiff has suffered irreparable injury, for which it has no adequate remedy at law, and prays for an injunction against defendant. To this complaint the defendant entered a general demurrer, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained. Plaintiff appeals, assigning as error the ruling and judgment of the court sustaining such demurrer.
The question here presented involves the construction of sections 2897-2899, Rev. Pol. Code, relating to the adulteration and sale of linseed oil. Although discussed in the briefs, we are of the opinion that chapter 196, Laws 1907, is not involved in this case, as that chapter seems to relate solely to mixed paints, and not to linseed oils. Section 2897 is as follows: "No person, firm or corporation shall manufacture for sale, or offer or expose for sale in the state, any flaxseed or linseed oil, unless the same answers a chemical test for purity recognized in the United States Pharmacopoeia, or any flaxseed or linseed oil as 'boiled linseed oil'; unless the same shall have been put in its manufacture to a temperature of two hundred and twenty-five degrees Fahrenheit." Section 2898 is as follows: "No person, firm or corporation, shall sell, expose or offer for sale any flaxseed or linseed oil unless it is done under its true name, and each tank car, tank, barrel, keg or any vessel of such oil has distinctly and durably painted, stamped, stenciled or labeled thereon the true name of such oil in ordinary bold-faced capital letters, the words 'pure linseed oil raw' or 'pure linseed oil boiled,' and the name and address of the manufacturer thereof." Section 2899 provides that the State Food and Dairy Commissioner shall be charged with the proper enforcement of all the provisions of this statute. The plain English purport of these sections of the statute is that it is unlawful to sell or offer for sale any form of linseed oils unless the same are up to the standard of purity prescribed by section 2897, and which must be labeled pure linseed oil under section 2898. The sale of any lower grade would be deemed adulterated and within the statutory prohibition. The statute fixes a standard of purity and a method of labeling the same.
The appellant contends that this statute is invalid and unconstitutional because not within the proper police power of the state. We are of the view that this position is not well taken. Statutes prohibiting the sale of commodities in common use are frequent. Tiedeman's Limitations of Police Power, p. 207, said: Laws prescribing weights and measures, regulating bank deposits and inspection thereof, regulating the sale of fertilizer, sale of linseed oil, and many others, are illustrative of this exercise of police power, where the public health, safety, morals, and the like are not involved, and are held to be within proper police power, and not in contravention of any constitutional right.
In People v. Wagner, 86 Mich. 594, 49 N.W. 609, 13 L R. A. 286, 24 Am. St. Rep. 141, the court, in construing a statutory regulation fixing the weight of bread loaves, said: ...
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