Commonwealth v. Johnson Wholesale Perfume Co.

• Decision Date: 01 December 1939
• Citation: 304 Mass. 452,24 N.E.2d 8
• Parties: COMMONWEALTH v. JOHNSON WHOLESALE PERFUME CO., Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 452

24 N.E.2d 8

COMMONWEALTH

v.JOHNSON WHOLESALE PERFUME CO., Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 1, 1939.

Exceptions from Superior Court, Suffolk County; Morley, Judge.

The Johnson Wholesale Perfume Company, Incorporated, was convicted of delivering for pay a certain drug which was adulterated, in that its strength and purity fell below the professed standard and quality under which it was sold, and it excepts.

Exceptions sustained.T. J. Murphy, Asst. Dist. Atty., of Boston, for the commonwealth.

J. D. Kenney, of New Bedford, for defendant.

DONAHUE, Justice.

The defendant corporation was charged in two complaints under G.L.(Ter.Ed.) c. 94, § 191, with delivering for pay ‘a certain drug, to wit, Mercurochrome’ which was adulterated in that its strength and purity fell below the professed standard and quality under which it was sold. The cases were tried in the Superior Court before a judge sitting without a jury on a ‘Statement of Agreed Facts.’ The judge found the defendant guilty on both complaints. A consolidated bill of exceptions brings before this court exceptions of the defendant to the refusal of the judge to give two requested rulings.

The ‘Statement of Agreed Facts' here follows: ‘The defendant sold to an inspector of the State Department of Public Health a bottle of mercurochrome bearing the label, ‘mercurochrome-2% solution’ on two different occasions. Upon analysis it was found that the article contained less than two per cent of mercurochrome in each instance. The defendant is a corporation engaged as a retail dealer in the sale of various commodities including mercurochrome. The defendant sold the mercurochrome in each instance to the inspector in the original unbroken package, in which it had received the same. The defendant, at the time of the purchase, had obtained a guaranty from the wholesaler, from which it purchased such mercurochrome, to the effect, that said mercurochrome was not adulterated or misbranded within the meaning of the laws of this Commonwealth. The wholesaler was a resident of New York and the guaranty contained the name and address of the wholesaler. This guaranty was not signed by the wholesaler. There is no evidence or claim that the defendant is guilty under Section 194 of General Laws (Ter.Ed.) Chapter 94. The Commonwealth introduced in evidence the following regulation of the State Department of Health: ‘Guaranty Each guaranty given under the provisions of Section 193 of Chapter 94 in order to afford protection to the person receiving the same shall be signed by and shall contain the name and address of the wholesaler, manufacturer, jobber or dealer or other party residing in the United States, making the sale of an article or articles covered by it to the dealer and shall be to the effect that such article or articles are not adulterated or misbranded within the meaning of the law.’ The only question to be presented to the court is whether the Department of public health has the power, by the above regulation, to impose upon a dealer the additional requirement of having a guaranty under Section 193 of said Chapter 94 signed by his vendor in order to entitle him to the protection described in said Section 193, Chapter 94.'

It is provided by statute that ‘whoever for pay or otherwise delivers or offers to deliver to any person any article of food or drug adulterated or misbranded, or which does not comply with the rules, regulations and standards provided for in sections one hundred and eighty-six to one hundred and ninety-five, inclusive, shall in the case of misbranding or non-compliance with said rules, regulations and standards be punished by a fine * * *.’ G.L.(Ter.Ed.) c. 94, § 191. This section in terms applies ‘Except as otherwise provided in sections one hundred and eighty-six to one hundred and ninety-six, inclusive,’ which are sections of G.L.(Ter.Ed.) c. 94, dealing with the adulteration and misbranding of food and drugs.

It is not here in dispute that the defendant for pay delivered a drug which was ‘adulterated or misbranded’ within the meaning to be given to those words of the statute. The defendant relies on section 193 of the statute which, with an exception not here material, provides: ‘no dealer shall be prosecuted under sections' of the statute, which deal with adulteration or misbranding of food and drugs, ‘for selling or offering for sale any article of food or drug in the original unbroken package in which it was received by him, if he can establish a guaranty by the wholesaler, jobber, manufacturer or other person residing in the United States, from whom he purchased the article, to the effect that the same is not adulterated or misbranded within the meaning of the laws of this commonwealth. Such guaranty, to afford protection, shall contain the name and address of the person making the sale of this article to the dealer * * *.’

The mercurochrome when sold by the defendant in this case was in the original unbroken packages in which it had been received, and the defendant had the guaranty of the wholesaler from whom the defendant had purchased it, to the effect that it was not adulterated or misbranded within the meaning of the laws of the Commonwealth. The guaranty contained the name and address of the wholesaler but it was not signed by him. The question here to be decided is whether the lack of a signature of the wholesaler to the guaranty deprived the defendant of the immunity from prosecution given by section 193.

The language of section 193 does not in terms require that the guaranty of the wholesaler or other person from whom articles of food or drugs are purchased by a dealer must be signed by such person in order to entitle the dealer from immunity from prosecution which the section provides. The section in substantially its present form first appeared in a statute entitled ‘An Act to codify and amend the laws relative to the manufacture and sale of foods and drugs.’ St.1917, c. 208. Earlier statutes had provided immunity to a dealer in selling patent or proprietary medicines or food preparations required to bear labels as to their ingredients, St.1907, c. 259, § 2, or in selling any article of food or any drug or medicine adulterated or misbranded contrary to the laws of the Commonwealth. St.1911, c. 289, § 1, if the dealer could establish a guaranty, signed by the manufacturer, wholesaler or jobber, within this Commonwealth, from whom such articles were purchased, to the effect that the articles were...