Com. v. Haseotes

• Decision Date: 23 June 1969
• Citation: 356 Mass. 230,249 N.E.2d 639
• Parties: COMMONWEALTH v. Byron HASEOTES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 639

249 N.E.2d 639

356 Mass. 230

COMMONWEALTH v. Byron HASEOTES.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 5, 1969.

Decided June 23, 1969.

Allan van Gestel, Boston (Molly G. Teicholz, Cambridge, with him), for defendant.

James M. Kickham, Asst. Dist. Atty., for Commonwealth.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, SPIEGEL and REARDON, JJ.

WHITTEMORE, Justice.

The defendant was convicted in the Superior Court by a judge sitting without a jury for violation of G.L. c. 98, § 56B ¹, and was fined $100. His exceptions are to the denial of his motion for the entry of a finding of not guilty and to the finding of guilty. The defendant's motion and his brief raise only the constitutional issues discussed below.

The evidence showed that the defendant was the secretary and treasurer of a corporation, Commonwealth Dairy Stores, Inc. (the company) that operated in the Suffolk County area about twenty retail stores carrying a line of grocery products 'much the same as a miniature super market'; that these stores had no scales or computing scales in compliance with § 56B; that they stocked and offered for sale prepackaged meat and fish products packed by others than the company such as cold cuts, hot dogs, hamburgers, bacon, canned hams, fish items in cans and some frozen food items packed in air tight sealed packages or cans; and that the frozen food products are in cardboard containers inside cellophane wrappers. ² A computing scale 'of a less expensive type' would cost around $500. The weight shown on the scale of a packaged item (and hence the shown computed price) would of course reflect the weight of the container. To remove the contents of a canned item would cause the contents to deteriorate and become unsaleable. The absence of scales in two stores in the Brighton district of Boston and the refusal of the manager of one store to weigh a half pound package of bologna because there was 'not a scale in the store' was shown by testimony of the Sealer of Weights and Measures.

1. Section 56B is a vaild exercise of the police power. Its patent purpose is to give the purchaser, if he wishes it, some check on the weight and value, at the offered price, of the product purchased. It reflects the change in marketing practices from the time when the butcher responding to a request for a pound of steak as a matter of course put what he had cut on a scale with a reading window on the customer's side of the counter as well as on the vendor's side. ³ The statute operates to give the customer for all practical purposes an accurate check on the weight and price of many cellophane wrapped items where the weight of the packaging is negligible. It gives a rought check on other items. As the Commonwealth points out, if a customer is purchasing a can of ham carrying a stated net weight of ten pounds, he will expect to see on the scale a weight of ten pounds and a few additional ounces. That the computing part of the scale, in the case of canned products, will not give a precise price reading does not make it unreasonable to require that the scale have a computing mechanism.

One 'assailing a statute on constitutional grounds has the burden of proving the absence of any conceivable grounds upon which the statute may be supported.' Merit Oil Co. v. Director of the Div. on the Necessaries of Life, 319 Mass. 301, 305, 65 N.E.2d 529. See Mile Road Corp. v. Boston, 345 Mass. 379, 382, 187 N.E.2d 826, and cases cited, for a recent summary statement of the applicable rules.

It was not beyond legislative competence to decide that the statute will reasonably protect retail purchasers against fraud, accident, carelessness, or mistake. The statute cannot be ruled to bear no 'real and substantial relation to * * * some * * * phase of the general welfare' or to be 'an arbitrary interference with business and an irrational and unnecessary restriction' as was the trading stamps and price statute considered in Sperry & Hutchinson Co. v. Director of the Div. on the Necessaries of Life, 307 Mass. 408, 418, 421, 30 N.E.2d 269, 274, 276, 131 A.L.R. 1254. See Commonwealth v. S. S. Kresge Co., 267 Mass. 145, 151, 166 N.E. 558; Slome v. Chief of Police of Fitchburg, 304 Mass. 187, 191--192, 23 N.E.2d 133; Druzik v. Board of Health of Haverhill, 324 Mass. 129, 138--139, 85 N.E.2d 232; Commonwealth v. Finnigan, 326 Mass. 378, 379, 96 N.E.2d 715; Compare Mansfield Beauty Academy, Inc. v. Board of Registration of Hairdressers, 326 Mass. 624, 627, 96 N.E.2d 145; Coffee-Rich, Inc. v. Commissioner of Pub. Health, 348 Mass. 414, 422--423, 204 N.E.2d 281, and cases cited.

Much of the defendant's argument stems from the assumption that the statute requires that the container be opened and the contents removed and weighed. This is we think not a common sense construction. See Atlas Distrib. Co. v. Alcoholic Beverages Control Comm., 354 Mass. 408, 414, ^a 237 N.E.2d 669.

2. We assume with the defendant that the statute applies to retail stores ('each outlet where said products are sold') and does not apply to the delivery trucks of home delivery milkmen or home delivery marketmen. We see in this, however, no denial of equal protection of the laws. The customer who for his own convenience orders food sent to him effectively waives the opportunity for personal selection available at the retail store and equally the opportunity for verification on a computing scale. The distinction between the retail store and the delivery truck is rational. See McQuade v. New York Cent. R.R., 320 Mass. 35, 38--39, 68 N.E.2d 185; Russell v. Treasurer and Recr. Gen., 331 Mass. 501, 508--509, 120 N.E.2d 388; Maher v. Brookline, 339 Mass. 209, 213, 158 N.E.2d 320; Sisters of the Holy Cross of Massachusetts v. Brookline, 347 Mass. 486, 495--496, 198 N.E.2d 624. See also McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393; Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., 366 U.S. 617, 623--624, 81 S.Ct. 1122, 6 L.Ed.2d 536. Compare Hall-Omar Baking Co. v. Commissioner of Labor & Indus., 344 Mass. 695, 700--701, 707--708, 184 N.E.2d 344.

3. There is no basis for concluding that this statute or its enforcement against the defendant unduly burdens interstate commerce. The extent to which the prepackaged products to which it applies are produced and packaged out of the State is not shown. ⁴

The operation of a retail store is a wholly intrastate activity. The statute imposes no sanctions on interstate activities or in respect of the stocking or sale of any item. Whether the item is packaged in Boston or Chicago the only sanction of the statute is that the particular customer has the option of refusing to buy it. 'The interstate commerce clause did not withdraw from the states the power to legislate with respect to their local concerns, even though such legislation may indirectly and incidentally affect interstate commerce and persons engaged in it.' Boston & Maine R.R. v. Armburg, 285 U.S. 234, 52 S.Ct. 336, 76 L.Ed. 729, quoted in Commonwealth v. New York Cent. R.R., 350 Mass. 724, 728, 216 N.E.2d 870, 872. As in the New York Central case there is presented a local problem without effect on national or interstate uniformity (350 Mass. 729, 216 N.E.2d 870). Compare Southern Pac. Co. v. Arizona, 325 U.S. 761, 775--776, 781--782, 65 S.Ct. 1515, 89 L.Ed. 1915. It is speculative whether this statute will have any effect on the selection by Massachusetts retailers of the products they handle. It can have no tendency to make less likely the selection for purchase in a particular store of items that came to the retailer in the course of interstate commerce or to diminish the purchase generally by consumers of such items. Compare Opinion of the Justices, 211 Mass. 605, 606--608, 98 N.E. 334 (prison-made goods may not be required to be so marked). In our judgment the indirect burden on the interstate movement of goods of the cost of scales to weigh them when sold is minimal.

The defendant argues that even if the local interest is served, there are less restrictive adequate alternatives. See Dean Milk Co. v. City of Madison, 340 U.S. 349, 354, 71 S.Ct. 295, 95 L.Ed. 329. We disagree. The Federal and Massachusetts statutes to which the defendant refers (see part 4 of this opinion) do not do what this statute does in enabling the purchaser to verify his purchase immediately prior to buying it. Nor would the aim of the statute be met by placing Massachusetts inspectors to examine the packaging (see and compare G.L. c. 112, § 87AAA, as amended by St.1966, c. 422), in packing plants throughout the country even if such procedure could be deemed feasible and reasonable.

4. The field for operation of § 56B has not been pree mpted by Federal law.

Federal regulation of the processing, packing, marking and labeling of meat, poultry and fish is extensive and detailed. Meat Inspection Act, 21 U.S.C. §§ 601--691 (Supp. III, 1967). 9 C.F.R. Parts 301--340 (1968). Similar regulation for poultry exists in the Poultry and Poultry Products Inspection Act, 21 U.S.C. §§ 451--470, Pub.L. 90--492, August 18, 1968, 82 Stat. 792--807; and for fish products in the Food, Drug and Cosmetic Act, 21 U.S.C. § 372a (1964), in the Fair Packaging and Labeling Program, 15 U.S.C. §§ 1451--1461 (Supp. III, 1967), and in 21 C.F.R. Parts 1, 5, 36--37, 85 (1969). ⁵

We assume, without deciding, that any State statute would be void which purported to impose for the products to which the Federal statutes and regulations apply, stricter or conflicting standards. See McDermott v. Wisconsin, 228 U.S. 115, 131--134, 33 S.Ct. 431, 57 L.Ed. 754; Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 154--167, 62 S.Ct. 491, 86 L.Ed. 754. General Laws c. 98, § 56B, does not present any such express conflict.

The issue is whether there has been such total preemption of the control of prepackaged meats, poultry and fish that § 56B is void, even if it is only 'complementary state...