Commonwealth v. Titcomb

• Decision Date: 02 January 1918
• Citation: 118 N.E. 328,229 Mass. 14
• Parties: COMMONWEALTH v. TITCOMB.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 14

118 N.E. 328

COMMONWEALTH

v.TITCOMB.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 2, 1918.

Exceptions from Superior Court, Suffolk County.

Complaint by the Commonwealth against Charles W. Titcomb for having in possession with intent to sell milk not of good standard quality, or milk from which the cream had been removed. There was verdict of guilty, and defendant excepts. Exceptions overruled.

A. C. Webber, Asst. Dist. Atty., of Boston, for the Commonwealth.

Cornelius A. Parker, of Boston, for defendant.

RUGG, C. J.

The issue presented in this case is the constitutionality of R. L. c. 56, §§ 57 and 62, as amended by St. 1910, c. 641, §§ 1 and 2. Section 57 in substance imposes a penalty upon every person who, by himself, his servant or agent, or as the servant or agent of another, sells, exchanges or delivers, or has in his possession with intent to sell or deliver milk ‘which is not of good standard quality,’ a standard established by sections 55 and 56 of the same chapter as amended by St. 1908, c. 643 (see now St. 1917, c. 189), and not now questioned. Com. v. Wheeler, 205 Mass. 384, 91 N. E. 415,137 Am. St. Rep. 456,18 Ann. Cas. 319. Section 62, as amended, is in these words:

‘A producer of milk shall not be liable to prosecution for the reason that the milk produced by him is not of good standard quality unless such milk was taken upon his premises or while in his possession or under his control by an inspector of milk, by a collector of samples of milk, or by an agent of the dairy bureau or of the state board of health, and a sealed sample thereof was given to him, nor unless he shall fail to bring the milk produced by him to the legal standard for milk solids and milk fat within twenty days after written notice has been sent from the officer taking said sample that it is below said standard. At any time after the said period of twenty days allowed the producer to bring his milk to the legal standard has elapsed the officer taking the first sample may take a second sample, and it shall be found to be below the legal standard for milk solids and milk fat prosecution may follow.’

[1] This statute is assailed as being arbitrarily discriminatory in favor of the producer of milk and against the seller who is not a producer, and as making an unfair and unreasonable classification, and as being violative of rights secured by the Constitution of the United States. So far as the federal Constitution is concerned, these contentions of the defendant seem to us to be disposed of adversely by the decision of St. John v. New York, 201 U. S. 633, 26 Sup. Ct. 554, 50 L. Ed. 896, 5 Ann. Cas. 909. The statute of New York there under consideration prohibited under penalty the sale of ‘adulterated milk,’ a term so defined as to include not only milk to which foreign matter had been added or from which cream had been removed, but also milk in its natural and pure state deficient in certain percentages of milk solids and fat, but altogether exempted from its operation producers of milk whose herd of cows naturally produced milk when mixed falling below the percentages of solids and fat required by the statute. In substance and effect that statute provided that a producer of milk might freely sell milk in its natural state, while all others were subject to a penalty for selling the same milk provided it did not conform to the statute standard. That statute was held not to violate any rights secured by the federal Constitution. It there was said:

‘If we could look no farther than the mere act of selling, the injustice of the law might be demonstrated, but something more must be considered. Not only the final purpose of the law must be considered, but the means of its administration-the ways it may be defeated. Legislation to be practical and efficient must regard this special purpose as well as the ultimate purpose. The ultimate purpose is that wholesome milk shall reach the consumer, and it is the conception of the law that milk below a certain strength is not wholesome, but a difference is made between milk naturally deficient and milk made so by dilution. It is not for us to say that this is not a proper difference, and regarding it the law fixes its standard by milk in the condition that it comes from the herd. It is certain that if milk starts pure from the producer it will reach the consumer pure, if not tampered with on the way. To prevent such tampering the law is framed and its penalties adjusted. As the standard established can be proved in the hands of a producing vendor, he is exempt from the penalty; as it cannot certainly be proved in the hands of other vendors so as to prevent evasions of the law, such vendors are not exempt. In the one case the source of milk can be known and the tests of the statute applied; in the other case this would be impossible, except in few instances.’

In that opinion the court did not even refer to Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 565, 22 Sup. Ct. 431, 46 L. Ed. 679, relied on by the defendant. In numerous other decisions that case has been distinguished and various classifications have been upheld against attack on the ground of inequality or discrimination. Adams v. Milwaukee, 228 U. S. 572, 33 Sup. Ct. 610, 57 L. Ed. 971;District of Columbia v. Brooke, 214 U. S. 138, 29 Sup. Ct. 560, 53 L. Ed. 941;International Harvester Co. v. Mo., 234 U. S. 199, 34 Sup. Ct. 859, 58 L. Ed. 1276,52 L. R. A. (N. S.) 525;Chicago, Terre Haute & Southeastern Ry. v. Anderson, 242 U. S. 283, 37 Sup. Ct. 124, 61 L. Ed. 302;Ozan Lumber Co. v. Union County Bank, 207 U. S. 251, 256, 28 Sup. Ct. 89, 52 L. Ed. 195;McLean v. Arkansas, 211 U. S. 539, 29 Sup. Ct. 206, 53 L. Ed. 315;Keokee Coke Co. v. Taylor, 234 U. S. 224, 34 Sup. Ct. 856, 58 L. Ed. 1288;Hall v. Geiger-Jones Co., 242 U. S. 539, 555-557, 37 Sup. Ct. 217, 61 L. Ed. 480, Ann. Cas. 1917C, 643;Booth v. Indiana, 237 U. S. 391, 397, 35 Sup. Ct. 617, 59 L. Ed. 1011;Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78, 31 Sup. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160;Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 35 Sup. Ct. 167, 59 L. Ed. 364;Metropolis Theatre Co. v. Chicago, 228 U. S. 61, 33 Sup. Ct. 441, 57 L. Ed. 730. See Tanner v. Little, 240 U. S. 369, 380-384, 36 Sup. Ct. 379, 60 L. Ed. 691.

[2] The statute is not in contravention of any provision of the Constitution of this Commonwealth. The statute is designed to protect and promote the public health. Under present conditions of life milk is an essential article of food in almost universal use. Any statute rationally adopted to the end of securing its purity, preserving unimpaired its natural qualities, and securing it from adulteration, plainly is within the power of the Legislature. It was said in Commonwealth v. Graustein & Co., 209 Mass. 38, 42, 95 N. E. 97, 98, that:

‘The history of the milk legislation in this commonwealth shows conclusively the determination of the law making power to protect the community from adulterated or impure milk.’

The intent of the vendor has been made immaterial. The main object being to shield the public from an imposition in guise of a fluid which may look like pure milk and yet be either adulterated or skimmed, an imposition difficult of detection, necessarily there must exist a wide discretion in the selection of appropriate means. It would be comparatively simple to ascertain whether the quality of milk offered for sale by the farmer, either at his door or at wholesale or retail delivery, was produced naturally by his herd. It would be difficult commonly to find out whether the milk offered for sale, especially in cities, by dealers who were not producers, was of the natural quality given by the cows from which it had come. This and perhaps other conditions may have been within the knowledge of the Legislature in deciding that, in order to protect the public from imposition and the consequent possibility of sickness, a classification of vendors of milk into those who were producers and those who simply were dealers was necessary, or at least wise. When the statute is considered in its application to two vendors of milk selling in competition side...