Commonwealth v. Goldburg

• Decision Date: 30 November 1915
• Citation: 167 Ky. 96,180 S.W. 68
• Parties: COMMONWEALTH v. GOLDBURG.
• Court: Kentucky Court of Appeals

180 S.W. 68

167 Ky. 96

COMMONWEALTH v. GOLDBURG.

Court of Appeals of Kentucky.

November 30, 1915

Appeal from Circuit Court, Jefferson County, Criminal Division.

I Goldburg was indicted for the unlawful sale of milk in bottles bearing the stamp of another owner, and from the sustaining of a demurrer to the indictment the Commonwealth appeals.Reversed, with directions to overrule the demurrer.

James Garnett, Atty. Gen., Joseph M. Huffaker, Loraine Mix, and Barret, Allen & Attkisson, all of Louisville, for the Commonwealth.

Arthur H. Mann and Kohn, Bingham, Sloss & Spindle, all of Louisville, for appellee.

CARROLL J.

The appellee, Goldburg, was indicted by the grand jury of Jefferson county for the offense of--

"unlawfully and willfully buying, taking, trafficking in and filling with milk or cream bottles marked and distinguished with and by a name, mark, and device of another, of which a description had been filed and published, as provided by law, without the consent of the corporation whose mark and device was upon said bottles so used and trafficked in and filled by said defendant, and without said defendant having purchased from said corporation said bottles exclusive of contents."

The indictment set out that the Gray-Avon Allmen Sanitary Milk Company, a corporation organized under the laws of Kentucky engaged in bottling and selling milk and cream, had, pursuant to the provisions of the Kentucky Statutes, recorded the marks, devices and brands blown and produced on the bottles used by it in the sale of its milk and cream, and that Goldburg, without its consent and without purchasing the bottles, exclusive of their contents, from the corporation--

"did unlawfully and willfully use, buy, take, traffic in and fill with milk or cream a number of pint bottles, all and each of which said bottles were then and there marked and distinguished with and by the name, mark, and device of said corporation, selected, filed, printed, and published, as aforesaid, for pint bottles."

The lower court sustained a general demurrer to the indictment and the Commonwealth appeals.

The indictment was found under sections 1279and1279a of the Kentucky Statutes.Subsection 1 of section 1279 provides that:

"Any and all persons and corporations engaged in manufacturing, bottling or selling soda waters, mineral or aerated waters, porter, ale, beer, cider, ginger ale, milk, cream, small beer, lager beer, weiss beer, white beer or other beverages or medicines, medical preparations, perfumery, oils, compounds, or mixtures in bottles, siphons, tins or kegs, with his, her, its or their name or names, or other marks or devices branded, stamped, engraved, or etched, blown, impressed, or otherwise produced on such bottles, siphons, tins or kegs, or the boxes used by him, her, it or them, may file in the office of the clerk of the county in which his, her, its or their principal place of business is situated, or if such person, or persons, corporation or corporations shall manufacture a bottle out of this state then in any county in this state, and also in the office of the secretary of state, a description of the name or names, marks or devices so used by him, her, it or them, respectively, and cause such description to be printed once in each week, for three weeks successively, in a newspaper published in the county in which said notice may have been filed as aforesaid."

Section 1279a, subsection 2, makes it unlawful for any person or corporation to fill with the liquids or substances described in section 1279 any bottle, box, siphon, tin, or keg marked or distinguished as set out in section 1279, or to deface, erase, obliterate, cover up, or otherwise remove or conceal the mark or device, or to buy, sell, or traffic in the same--

"without the written consent of, or unless the same shall have been purchased, by such person or corporation, exclusive of the contents thereof, from the person or persons, corporation or corporations, whose mark or device shall be or shall have been in or upon the bottle, box, siphon, tin or keg so filled, trafficked in, used or handled as aforesaid."

It also provides that:

"Any person or persons, or corporation or corporations offending against the provisions of this section shall be deemed guilty of a misdemeanor, and shall be punished for the first offense by imprisonment, not less than ten days nor more than one year, or by a fine of fifty cents for each and every such bottle, box, siphon, tin or keg so filled, sold, used, disposed of, given, taken, bought or trafficked in, or by both such fine and imprisonment, and for each subsequent offense by imprisonment, not less than twenty days nor more than one year, or by fine of not less than one dollar, nor more than five dollars, for each and every bottle, box, siphon, tin or keg so filled, sold, used, disposed of, given, taken, bought or trafficked in, or by both such fine and imprisonment, in the discretion of the magistrate before whom the offense shall be tried."

Subsection 3 provides that:

"The use by any person other than the person or persons, corporation or corporations, whose device, name or mark shall be, or shall have been, upon the same without such written consent or purchase as aforesaid, of any such marked or distinguished bottle, box, siphon, tin or keg, * * * is hereby declared to be presumptive evidence of the said unlawful use, purchase and traffic in of such bottles, boxes, siphons, tins or kegs."

Subsection 4 provides that:

"Whenever any person, persons or corporation, who shall have so filed and published as aforesaid, or his, her, its or their agent shall make oath before any magistrate that he, she or it has reason to believe, and does believe, that any of his, her, its or their bottles, boxes, siphons, tins or kegs, a description of the names, marks or devices whereon has been filed and published as aforesaid, are being unlawfully used or filled, * * * the said magistrate must thereupon issue a search warrant to discover and obtain the same, and may also cause to be brought before him the person in whose possession the bottles, boxes, siphons, tins or kegs may be found, and shall then inquire into the circumstances of such possession, and if such magistrate finds that such person has been guilty of a violation of"this section, "he must impose the punishment herein prescribed, and he shall also award possession of the property taken upon such warrant to the owner thereof."

On behalf of the appellee it is sought to sustain the judgment appealed from upon several grounds: (1) Because the act has no relation whatever to the public health and safety or welfare, does not come within the police power of the state, and the Legislature was without power to pass it: (2) because it is unconstitutional on account of its arbitrary and unreasonable classification, and constitutes a denial of equal protection of the laws by giving to owners of a certain class of personal property rights and remedies denied to the owners of other classes of personal property; (3) because the provisions in respect to search warrants violate the state and federal Constitutions; (4) because it violates the Constitution of Kentucky, as well as the statutes thereof, in conferring upon magistrates' courts jurisdiction of a final trial, for the reason that the punishment exceeds the jurisdiction conferred upon magistrates' courts.The argument for the commonwealth challenges the correctness of each of these assigned reasons why the judgment appealed from should be sustained, and is an insistence that the statute in all of its parts is constitutional.

But before coming to an expression of our views upon the questions presented, it might be here noticed that the Supreme Court of Illinois, in the cases of Lippman v. People,175 Ill. 101, 51 N.E. 872, Horwich v. Walker, Gordon Laboratory Co.,205 Ill. 497, 68 N.E. 938, 98 Am.St.Rep. 254, and the Supreme Court of Ohio in State v. Schmuck,77 Ohio St. 438, 83 N.E. 797, 14 L.R.A. (N. S.) 1128, 122 Am.St.Rep. 527, held acts substantially like the one here in question to be unconstitutional upon the grounds relied on by counsel for appellee.On the other hand, the Massachusetts court in Com. v. Anselvich,186 Mass. 376, 71 N.E. 790, 104 Am.St.Rep. 590, and the New York court in People v. Cannon,139 N.Y. 32, 34 N.E. 759, 36 Am.St.Rep. 668, upheld the validity of legislation of this character.

In view of this conflict of opinion by courts of such high authority, it may well be said at the outset that the questions at issue are ones about which there are good grounds for reasonable difference of opinion; but, having reached the conclusion that the legislation is not open to the objections urged against it, we will now proceed to state the reasons that have influenced us in coming to this decision.

It will be observed that the statute provides that any person offending against its provisions shall be guilty of a misdemeanor and punished in the manner set out in the statute, and that, following the words of the statute making the offense a misdemeanor and prescribing the penalty, it is provided that the measure of punishment imposed within the limitations of the statute shall be "in the discretion of the magistrate before whom the offense shall be tried."We do not, however, regard the use of the word "magistrate" in this connection, or at other places in the statute, as denying jurisdiction of offenses against this statute to the circuit courts of the state, or as interfering with the general course of the criminal law that offenses, where punishment of this character is imposed, may be prosecuted by indictment in the circuit court.We do not think the Legislature in the use of the word "magistrate"...