Commonwealth v. Plumley
| Citation | 30 N.E. 1127,156 Mass. 236 |
| Parties | COMMONWEALTH v. HUNTLEY et al. In re PLUMLEY. |
| Decision Date | 07 May 1892 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
COMMONWEALTH
v.
HUNTLEY et al.
In re PLUMLEY.
Supreme Judicial Court of Massachusetts, Suffolk.
May 7, 1892.
Report from superior court, Suffolk county. Report from supreme judicial court, Suffolk county.
One Huntley, and others having been convicted in the superior court of illegally selling oleomargarine, the case was reported to this court. Affirmed.
Benjamin A. Plumley, having been convicted of making an illegal sale of oleomargarine, and committed until he should pay the fine imposed, applies for a writ of habeas corpus. Petitioner remanded.
A.E. Pillsbury, Atty. Gen., for the Commonwealth.
ALLEN, J.
These cases arise under St.1891, c. 58, entitled “An act to prevent deception in the manufacture and sale of imitation butter.” In the first case the
[30 N.E. 1128
defendants were convicted in the superior court of making a sale of oleomargarine at retail, not in the original unbroken package in which it was brought into this state; and the justice who presided at the trial reported the case to this court. In the second case the petitioner was convicted in the municipal court of Boston of making a sale of oleomargarine, and was sentenced to pay a fine and to stand committed until the sentence should be performed, and he was imprisoned accordingly, and upon his petition a writ of habeas corpus was issued, which was heard by a justice of this court, and, it being desired on both sides to present the question of the constitutionality of the statute in this mode, an agreed statement of facts was filed, by which it appeared that the sale by the petitioner was of oleomargarine in the original package. In both cases the constitutionality of the statute has now been argued, and in the second case there is the further question whether a writ of habeas corpus is a proper remedy for the petitioner, or whether he should be left to his appeal to the superior court, and to exceptions or writ of error, according to the regular course of procedure in criminal cases. At the argument the attorney general, while suggesting that the questions arising in the second case ought regularly to be raised in some other way than upon a writ of habeas corpus, nevertheless, for certain special reasons, finally united with the counsel for the petitioner in the request that the questions presented should be considered and determined. With the assent of the court, the case was accordingly argued in full upon the merits; and, although this mode of raising questions in criminal cases is open to some objections, the power of the court to hear and determine questions involving the constitutionality of a statute is established. Sennott's Case, 146 Mass. 489, 16 N.E.Rep. 448; Herrick v. Smith, 1 Gray, 1, 49; Ex parte Siebold, 100 U.S. 371;In re Coy, 127 U.S. 731,8 Sup.Ct.Rep. 1263;Nielsen's Petitioner, 131 U.S. 176,9 Sup.Ct.Rep. 672;[156 Mass. 238]People v. Liscomb, 60 N.Y. 559. See, also, Feeley's Case, 12 Cush. 598; Conlon's Case, 148 Mass. 168, 172, 19 N.E.Rep. 164. If St.1891, c. 58, is not repealed, and if it is constitutional in regard to oleomargarine of domestic manufacture, and oleomargarine brought here from other states, not sold in the original packages, some of the justices who concur in the view here taken are of opinion that the constitutionality of the statute, so far as oleomargarine brought here from other states and sold in original packages is concerned, cannot be decided in these cases; but a majority of all the justices think the question may properly be considered. We have accordingly considered the case upon the merits of the question, but wish to say that, with reference to the mode of procedure, it is not to be deemed a precedent for future cases.
The first question raised on the merits is whether the prohibition against selling articles in imitation of yellow butter, contained in St.1891, c. 58, is repealed by St.1891, c. 412, which, among other things, punishes fraudulent sales of oleomargarine and other similar substances, and, as is contended, impliedly permits such sales if made without fraud; repeals by implication are not favored, and both statutes must stand unless it plainly appears that the later was intended to be a complete substitute for the earlier one. By various statutes passed before the year 1891, provisions were made for marks upon oleomargarine and the packages in which it might be contained, with a view to inform purchasers of the character of the article offered for sale. Pub.St. c. 56, §§ 17, 19; St.1884, c. 310; St.1886, c. 317. If these various requirements were observed, oleomargarine might be sold. Then came St.1891, c. 58, wholly prohibiting under a penalty the manufacture or sale, or offering or exposing for sale, or having in possession with intent to sell, any article of that description “which shall be in imitation of yellow butter, produced from pure, unadulterated milk or cream of the same;” with a distinct proviso that “nothing in this act 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 coloration or ingredient that causes it to look like butter.” This act was [156 Mass. 239]directed solely to products made in imitation of yellow butter. All oleomargarine not made in imitation of yellow butter stood as before. Then came St.1891, c. 412, which is the act relied on as repealing the former. By section 1, “whoever sells or offers for sale, to any person who asks, sends, or inquires for butter, any oleomargarine, butterine, or any substance made in imitation of or semblance of pure butter, not made entirely from the milk of cows, with or without coloring matter, shall be declared guilty of fraud, and punished by fine,” etc.; that is to say, if any oleomargarine or butterine whatever, whether made in imitation of yellow butter or not, is sold or offered for sale to any person who calls for butter, the act is punishable. By chapter 58, a distinction between oleomargarine which is an imitation of yellow butter and that which is not is clearly indicated, and that statute is directed only towards oleomargarine of the former class. By chapter 412, § 1, the act of selling or offering for sale oleomargarine of either class to those who call for butter is made punishable. The act of selling or offering for sale oleomargarine made in imitation of yellow butter to one calling for butter would be punishable under chapter 58, and it was unnecessary to make the later statute broad enough to include that offense. But chapter 412, § 1, had a different scope and purpose, and was directed to the distinct fraud of selling or offering to persons calling for butter something else besides butter. Subsequent sections in chapter 412 contain new enactments concerning the marks by which oleomargarine and other similar products are to be distinguished, and these may all well stand with the provisions of chapter 58. It is, moreover, to be borne in mind that these two statutes were both passed at the
[30 N.E. 1129]
same session of the legislature, and took effect on the same day. This is strong evidence that they were intended to stand together. We are of opinion that chapter 58 was not repealed by chapter 412.
It is not contended that St.1891, c. 58, is in violation of the constitution of Massachusetts, but it is urged that it is in violation of the constitution of the United States. It was agreed that the petitioner sold an article the sale of which was forbidden by this statute; that oleomargarine has naturally a light yellowish color; and that the article sold by the petitioner was artificially colored in imitation of yellow butter. We are to assume that the [156 Mass. 240]oleomargarine sold by the petitioner was wholesome, palatable, and nutritious. In respect to intoxicating liquors, it was held in Peirce v. New Hampshire, 5 How. 504, that a law of New Hampshire, the effect of which was to prohibit the sale, without license, of a barrel of gin, purchased by the defendant in Massachusetts, and by him imported into New Hampshire, was not repugnant to the constitution or laws of the United States. In this commonwealth, until the recent case of Leisy v. Hardin, 135 U.S. 100,10 Sup.Ct.Rep. 681, this decision has been considered as still in force, (Carleton v. Rugg, 149 Mass. 150, 22 N.E.Rep. 55; Blair v. Forehand, 100 Mass. 136, 140;Com. v. Holbrook, 10 Allen, 200;) and only liquors imported from foreign countries have been considered to be outside of the scope of state legislation...
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