Capital City Dairy Company v. State of Ohio Attorney General

• Citation: 183 U.S. 238,22 S.Ct. 120,46 L.Ed. 171
• Decision Date: 06 January 1902
• Docket Number: No. 45,45
• Parties: CAPITAL CITY DAIRY COMPANY, Plff. in Err. , v. STATE OF OHIO ex rel. ATTORNEY GENERAL
• Court: United States Supreme Court

183 U.S. 238

22 S.Ct. 120

46 L.Ed. 171

CAPITAL CITY DAIRY COMPANY, Plff. in Err.,

v STATE OF OHIO ex rel. ATTORNEY GENERAL.

No. 45.

Argued April 19, 22, 1901.

Decided January 6, 1902.

Mr. Thomas Ewing Steele for plaintiff in error.

Messrs. Edmond B. Dillon and John M. Sheets for defendant in error.

Mr. Justice White delivered the opinion of the court:

By a law of the state of Ohio, enacted in 1884, it was made the duty of every one manufacturing or exposing for sale any drug or article of food included in the provisions of the act to furnish, on demand, to the person who should apply for and tender the value of the same, a sufficient sample to enable an analysis to be made. This law is compiled in Bates's Annotated (Ohio) Statutes, § 4200-7.

By the provisions of another statute enacted in 1886, and amended in 1887, it was made unlawful to sell or offer for sale or exchange any substance purporting, appearing, or represented to be butter or cheese, or having either the semblance of butter or cheese, not wholly made of pure milk or cream, salt, and harmless coloring matter, unless done under its true name; and it was exacted that each package should have distinctly marked upon it, in the manner pointed out in the statute, the true name of the article and its constituent ingredients. And it was further forbidden, in the marking, to use any words or combination of words indicating that the article was either butter, cream, or dairy product. This statute is compiled in Bates's Annotated Statutes of Ohio, § 4200-30.

In 1890 it was further provided that no person should manufacture within the state, or should offer for sale therein, whether manufactured therein or not, any substance made out of any animal or vegetable oil, not produced from unadulterated milk or cream from the same, in imitation or semblance of natural butter or cheese produced from butter, unadulterated milk or cream. The terms butter and cheese, as defined in the statutes, were declared to be articles manufactured exclusively from pure milk or cream, or both, with salt, and with or without any harmless coloring matter.

It was provided, however, in this act, that nothing therein contained 'shall be construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form and in such manner as will advise the consumer of its real character, free from any coloring matter or other ingredient causing it to look like or appear to be butter, as above defined.' This statute is compiled in Bates's Annotated Statutes of Ohio, § 4200-13-14.

On May 16, 1894, it was further enacted that 'no person shall manufacture, offer, or expose for sale, sell, or deliver, or have in his possession with intent to sell or deliver, any oleomargarine which contains any methly (methyl), orange, butter yellow, annotto aniline dye, or any other coloring matter. Bates's Anno. Stat. § 4200-16.

On January 27, 1893, the plaintiff in error was incorporated under the general laws of the state of Ohio 'for the purpose of manufacturing, selling, and dealing in oleomargarine and the materials and utensils employed in the manufacture, storage, and transportation thereof, and all things incident thereto.'

Under this charter the corporation thereafter carried on its business in the state of Ohio.

On April 12, 1898, proceedings in quo warranto were begun in the supreme court of the state of Ohio by the attorney general of that state to forfeit the franchise of said corporation, and for the appointment of trustees to wind up its affairs. The relief demanded was based on the charge: That the corporation had 'continuously, since about the time of its creation, up to the present day, within this state, . . . offended against the laws of this state, misused its corporate authority, franchise, and privileges, and assumed franchises and privileges not granted to it, and has assumed and exercised rights, privileges, and franchises specially inhibited by law,' in enumerated particulars. The specifications of the petition are reproduced in the margin.

The defendant answered, its defenses being reiterated under seven different headings. It suffices for the purposes of the issues now before us to summarize the answer as follows:

It traversed all the facts alleged in the petition except as admitted in the answer. It expressly denied that the corporation had abused or misused its corporate powers. It admitted that the corporation had been engaged under its charter in the manufacture and sale of oleomargarine. It denied that any such product had been offered for sale as an imitation of butter, and without being plainly marked in conformity with the laws of the state of Ohio and the laws of the United States. It denied that the corporation had refused to deliver samples of its products to the duly qualified inspector and agent of the state, as alleged in the fourth charge of the petition, and averred that the entire matter alleged in the fourth charge was based upon a personal difficulty which happened on one isolated occasion between an officer of the corporation and one of the agents of the dairy and food commissioners 'who was not an assistant commissioner.'

The answer admitted that for a brief period between January 1, 1898, and March 1, 1898, the corporation had manufactured oleomargarine and colored it with a coloring matter known as annotto, which was entirely harmless; that this was done in midwinter; that the effect of such use was to give the oleomargarine a yellow color; that the butter made at that period of the year was not naturally yellow, and that therefore the use of the coloring matter did not cause the oleomargarine to look like natural butter; on the contrary, it was averred that oleomargarine cannot be made so as to look unlike butter unless the manufacturer is allowed to color it; that all the oleomargarine thus manufactured during the period stated was made, not for sale in the state of Ohio, but for sale in other states, and was wholly sent out of the state of Ohio to such other states; that the statutes of the state of Ohio enacted in 1890 and 1894, above referred to, did not forbid the use in the manufacture of oleomargarine of a harmless coloring matter, but that if they did they were repugnant to the Constitution of the state of Ohio and to § 8 of article 1 of the Constitution of the United States and § 1 of the 14th Amendment of that Constitution.

The answer additionally alleged that as the statutes which it was alleged had been violated imposed criminal penalties, the proceeding in quo warranto to forfeit the charter was unauthorized, at least until a previous criminal conviction for the acts complained of had been obtained. The portion of the answer setting up this defense concluded as follows: 'And that this proceeding is in contravention of the Constitution of the United States.'

A demurrer was filed to the defenses, which asserted the repugnancy to the Constitution of the state and of the United States of certain of the statutes charged to have been violated, but no action seems to have been taken upon such demurrer.

A reply was filed in which the state substantially reiterated the allegations of the petition, taking issue with the claim that the company had used only a harmless coloring matter for a short period, and in oleomargarine intended solely for sale outside of the state of Ohio. The reply also took issue with the claim that the natural color of oleomargarine was a light yellow, and it was also denied that oleomargarine 'cannot be made to look 'unlike' butter, unless the manufacturer is allowed to color it.'

The case was heard 'upon the petition and answer, testimony, and arguments of counsel.' The supreme court of Ohio found the averments of the petition to be true, and entered a decree ousting the corporation from its corporate rights, privileges, and franchise, adjudging that it be dissolved, and appointing two trustees for the creditors and stockholders of the corporation, to wind up its affairs. 62 Ohio St. 350, 57 N. E. 62. The court, on the day this opinion was announced, entered an order, which it declared was made a 'part of the record of this case,' in which it was stated that at the request of the defendant it was certified that in deciding the case the court had found it necessary to consider whether the Ohio act of 1884 providing for the furnishing of samples, that of 1886, as amended in 1887, requiring all oleomargarine to be marked in a specific manner, the act of 1890 forbidding the manufacture and sale of any oleomargarine colored to look like butter, as well as the act of 1894 forbidding the use of coloring matter in oleomargarine,—were not repugnant to the 3d clause of § 8 of article 1 of the Constitution of the United States conferring upon Congress the power to regulate commerce, and to the 5th and 14th Amendments of that instrument; and that the court had sustained the validity of the statutes, although their unconsitutionality had been asserted by the defendant. A writ of error was allowed by the Chief Justice of the supreme court of Ohio.

Before disposing of the controversies presented by the assignment of errors, it is necessary to notice a motion of the defendant in error to dismiss. It is predicated upon the ground that as the court below found the defendant had violated the statute in refusing to furnish samples as required by the law of 1884, this affords adequate support for the judgment of ouster, irrespective of any substantial Federal question. It is true, in the pleadings it was not asserted that the provision of the Ohio law requiring the delivery of samples was repugnant to the Constitution of the United States, but in the certificate made by the supreme court of Ohio on the day its opinion was announced, it is certified that for the purposes of the decision of the case it became necessary to determine whether the act of 1884, providing for the delivery of such samples, was repugnant...