Commonwealth v. Miller

• Citation: 131 Pa. 118,18 A. 938
• Decision Date: 06 January 1890
• Docket Number: 165
• Parties: COMMONWEALTH, FOR USE, v. JEREMIAH MILLER
• Court: United States State Supreme Court of Pennsylvania

18 A. 938

131 Pa. 118

COMMONWEALTH, FOR USE, v. JEREMIAH MILLER

No. 165

Supreme Court of Pennsylvania

January 6, 1890

Argued November 1, 1889

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY.

No. 165 October Term 1889, Sup. Ct.; court below, No. 108 June Term 1889, C.P. No. 1.

On March 19, 1889, Jeremiah Miller presented his petition in the court below, praying for the allowance of an appeal from the judgment of Alderman Carlisle, in an action brought before said alderman by the commonwealth, for the use of Allegheny county and A. L. Best, against the petitioner, to recover the penalty of $100 prescribed for the sale of "oleomargarine," by § 3, act of May 21, 1885 P.L. 22. Upon consideration of the petition the appeal was duly allowed, and the alderman directed to file a transcript of his proceedings upon payment of costs, and the entry of bail for future costs, within five days. The transcript was accordingly filed on March 23, 1889.

The parties subsequently agreed upon a case stated, setting out the facts as follows:

The defendant is the owner and proprietor of a restaurant and eating house at No. 123 Fifth avenue, Pittsburgh, Allegheny county, Pa., and personally conducts and manages said business, which consists of furnishing meals to transient and regular patrons, who pay for the same daily and upon the completion of each meal.

On January 31, 1889, William McRay and George Spence called at said restaurant and asked for a meal, which was at once furnished them by the waiters and employees of the defendant in the usual manner. Among other articles of food furnished them, said defendant by his employees set before them, as a part of their meal, a small dish containing what appeared to be butter, but which in fact was an article known as oleomargarine, and manufactured out of an oleaginous substance, or a compound of the same, other than that produced from unadulterated milk or of cream from the same and designed to take the place of butter produced from unadulterated milk or cream from the same.

The article so furnished to said McRay and Spence, as a part of their respective meals, was so furnished as an article of food and as an imitation of butter, and designed to take the place of butter, and was the same article the manufacture and sale of which is prohibited by § 1 of "An Act for the protection of the public health, and to prevent the adulteration of dairy products and fraud in the sale thereof," approved May 21, 1885, P.L. 22.

Upon finishing their meals, said George Spence paid defendant the sum of fifty cents for said meals, including said small dish of oleomargarine, but they did not eat said oleomargarine carrying the same away with them.

This suit was brought by A. L. Best to recover the penalty of $100 prescribed by § 3 of said act. If the court be of opinion that upon the facts above stated, the defendant has forfeited the penalty of $100 prescribed by the third section of said act, then judgment to be entered for the plaintiff for the sum of $100, but if not, the judgment to be entered for the defendant. The costs to follow the judgment and either party reserving the right to sue out a writ of error therein.

The case stated having been argued, the court, SLAGLE, J., filed the following opinion:

Briefly stated, the facts as agreed upon are, that the defendant is proprietor of a restaurant in the city of Pittsburgh in which he furnishes meals to transient and regular patrons in the manner in which said business is ordinarily conducted.

On January 31, 1889, he furnished to one George Spence a meal for which he received pay, and as a part of said meal a small dish containing what appeared to be butter, but which was in fact an article known as oleomargarine, and the same article the manufacture and sale of which is prohibited by the act of May 21, 1885. The only question is whether this was a sale within that act. It was not given away, and the fact that it was not sold separately, but with other articles, for a gross sum, would not make it less a sale. It therefore comes within the letter of the law. But it is also clearly within its spirit. The title of the act is "An Act for the protection of the public health, and to prevent the adulteration of dairy products and fraud in the sale thereof." The Supreme Court of the state, in Powell v. Commonwealth, 114 Pa. 265, held that the legislature had the power to enact laws for this purpose. If the use of such articles is injurious, it would seem to be especially within the spirit of the act to prohibit public caterers from selling it to their guests as part of an ordinary meal.

Judgment will therefore be entered for plaintiff.

Judgment having been entered, the defendant took this appeal specifying that the court erred:

1. In entering judgment on the case stated for the plaintiff.

2. In not entering judgment thereon for the defendant.

Judgment affirmed.

Mr. John. S. Ferguson, for the appellant:

1. We deny that the putting of oleomargarine on a restaurant table, as a part of a meal, is a sale of the oleomargarine. The guest may eat it or let it alone, and if he does not eat it, it is not his to take away. He therefore does not acquire by paying for the meal an absolute or entire title to it. A transfer of the entire title is essential to constitute a sale, especially under a penal statute: Story on Sales, § 1; Creveling v. Wood, 95 Pa. 152; Garbracht v. Commonwealth, 96 Pa. 449. The act in question is a penal statute and to be strictly construed: Gallagher v. Neal, 3 P. & W. 183; Bucher v. Commonwealth, 103 Pa. 528. And this action is a penal action: Hubbell v. Gale, 3 Vt. 266. The court will not strain the construction of the law to aid a recovery: Irish v. Elliott, Add. 238; Masser v. State, 74 Ind. 368.

2. We do not overlook the proposition laid down in Bartolett v. Achey, 38 Pa. 273, that such a statute should not be construed so strictly as to entirely defeat its object; the construction here invoked is not in conflict therewith. The legislature never meant to follow the article into the hands of the consumer and inflict penalties on the boarding house mistress or restaurant keeper who may have bought it from a dealer. Certainly this court, in view of the strict adherence to the letter of the law, which compelled it in Powell v. Commonwealth, 114 Pa. 265, to sustain its constitutionality, will not be disposed to depart from the strict adherence in this case, for the benefit of a public informer who sues for his private gain.

Mr. William Yost (with him Mr. John Rebman, Jr.), for the appellee:

1. The act of 1885 should not be so construed as wholly to defeat its operation, but so as to suppress the mischief at which it was aimed. The small dish of oleomargarine mentioned in the case stated was the customary one, about two inches in diameter, with barely enough oleomargarine to supply one person. Certainly the purchaser of a meal or lunch was entitled to the whole quantity thus furnished, whether he ate it all, or carried part of it away to have it analyzed, as in this case. The transfer of a general property in the thing sold is sufficient to constitute a valid sale: Benjamin on Sales, § 1.

2. If a restaurant keeper furnished intoxicating liquor to his patrons with their meals, would there be any doubt of his violation of the statute prohibiting the sale of liquor without license? The courts have not manifested any desire to override the oleomargarine law, or to nullify its provisions by judicial interpretation: Commonwealth v. Powell, 1 Pa. C.C.R. 94; Powell v. Commonwealth, 114 Pa. 265; Powell v. Commonwealth, 127 U.S. 678; State v. Addington, 77 Mo. 110. Two sessions of the legislature have passed since its enactment, and time has so demonstrated its value that all efforts to secure its repeal have been abandoned.

Before PAXSON, C.J., STERRETT, GREEN, CLARK, WILLIAMS, McCOLLUM and MITCHELL,...