Fox v. State

• Decision Date: 20 June 1899
• Citation: 43 A. 775,89 Md. 381
• Parties: FOX v. STATE.
• Court: Maryland Court of Appeals

43 A. 775

89 Md. 381

FOX v. STATE.

Court of Appeals of Maryland

June 20, 1899

Appeal from criminal court of Baltimore city; Henry Stockbridge Judge.

Michael J. Fox was convicted for selling oleomargarine, and brings error. Reversed.

Argued before MCSHERRY, C.J., and PAGE, BOYD, FOWLER, and SCHMUCKER JJ.

Gans & Haman and Thos. C. Ruddell, for appellant. Atty. Gen Clabaugh, Henry Duffy, and Atty. Gen. Gaither, for the State.

FOWLER J.

The traverser was indicted in the criminal court of Baltimore city for selling oleomargarine contrary to law. There are three counts in the indictment. The first charges the sale of "a certain article in imitation and semblance of natural butter, produced from unadulterated milk, and cream of the same, the said article then and there being rendered and manufactured out of animal fats and animal and vegetable oils not produced from unadulterated milk, or cream from the same." The second count alleges that the traverser kept for sale, and offered for sale, the article or substance described in the first count. And the third is based upon the allegation of unlawfully keeping and offering for sale 10 pounds of a certain compound in imitation of natural butter, produced by compounding with and adding to milk, cream, and butter "certain acids and other deleterious substances, animal fats, and animal oils not produced from milk or cream." To this indictment the traverser pleaded a special plea. It was pleaded to each of the three counts, and therefore to the whole of the indictment. The state demurred, and its demurrer was sustained. The traverser pleaded the general issue, and, having been tried before a jury on all three counts of the indictment, a general verdict of guilty was found, and the traverser was adjudged to pay a fine of $100 and costs. After introducing evidence in support of the allegations of the indictment, the state rested, and the traverser offered to prove the facts which he pleaded in his special plea. These facts, so far as it is necessary to rehearse them for the purposes of the present discussion, are as follows: That the oleomargarine, the subject of the sale charged in the indictment, was shipped from Chicago by William J. Moxley, a citizen of Illinois, to his agent, the traverser, in Baltimore, in a package separate and apart from all other packages, being a 10-pound package, packed, sealed, marked, stamped, and branded according to the act of congress of August 2, 1886 (24 Stat. 210); that this package was an original package, which was sold by the traverser, at his place of business in the city of Baltimore, to the purchaser; that said package was not broken or opened on said premises of the traverser; that the said oleomargarine was an article in imitation and semblance of natural butter, the said article having been manufactured out of animal fats and animal and vegetable oils, but the fact that the article was not butter was made known by the traverser to the purchaser, and there was no attempt or purpose of the traverser to sell the article as butter, and that said oleomargarine is recognized by said act of congress of August 2, 1886, as an article of commerce. Upon the objection of the state, this evidence was ruled out, and the traverser excepted, and has appealed.

Upon this appeal, both the ruling upon the demurrer and on the evidence are open for review. Act 1892, c. 506; Avirett v. State, 76 Md. 510, 25 A. 676, 987; State v. Floto, 81 Md. 600, 32 A. 315.

The same question, however, is presented by both branches of the case, and that is, so far as the first and second counts of the indictment are concerned, whether the prohibition contained in section 89 of article 27 of the Code against the sale of any article made "in imitation or semblance of natural butter" is a valid exercise of legislative power, when applied to the sale here of oleomargarine in the original package, manufactured in another state. We will presently consider the third count of the indictment.

1. First, then, the question as it is presented by the ruling upon the testimony. It is conceded by the state, and it is apparent from the counts of the indictment we are now considering, that they are based upon the first part of section 89 of article 27, known as the "Oleomargarine Law" of this state. This and other sections of our Code prohibiting the sale and manufacture of oleomargarine, have been several times before this court for construction, and their validity has been again and again upheld, so far as they prohibit the manufacture of oleomargarine within this state, and the sale within this state of oleomargarine manufactured herein. Wright v. State (Nov. Term, 1898) 41 A. 795; McAllister v. State, 72 Md. 390, 20 A. 143; Pierce v. State, 63 Md. 592. But now for the first time we are required to decide whether these provisions of our statute, prohibiting the sale of an article made in imitation and semblance of natural butter, are valid, as applied to such an article made in another state, and offered for sale here in the original package. On the part of the state it is contended that these provisions of our statute are valid, as prohibitions of the sale of oleomargarine made in imitation and semblance of natural butter, whether such article be made in or outside of this state; and the cases of Plumley v. Massachusetts, 155 U.S. 462, 15 S.Ct. 154, and Powell's Case, 127 U.S. 685, 8 S.Ct. 992, 1257, are relied upon to sustain this position. On the other hand, the traverser contends that the decision of the case now before us is controlled by the more recent case of Schollenberger v. Pennsylvania, 171 U.S. 1, 18 S.Ct. 757; and that our statute is void, under the commerce clause of the constitution of the United States, so far as it attempts to prevent the introduction and prohibit the sale within this state of oleomargarine in the original package. It will therefore be necessary to examine the cases relied on by the state and the traverser, respectively, to ascertain how far they are applicable to the questions here presented; for, whatever our own views may be, we must, when, as we are here, confronted with a federal question, be governed by the decisions of that tribunal which by the constitution of the United States is made the court of last resort in the determination of questions arising under its provisions. It is sufficient to say in regard to Plumley's Case, as well as Powell's Case, that in neither of them did the question here presented arise. "The Powell Case," says Justice Peckham in delivering the opinion of the court in Schollenberger's Case, supra, "did not and could not involve the rights of an importer under the commerce clause. The right of a state to enact laws in relation to the administration of its internal affairs is one thing, and the right of a state to prevent the introduction within its limits of an article of commerce is another and a totally different thing. Legislation which has its effect wholly within the state, and upon products manufactured and sold therein, might be held valid, as not in violation of any provision of the federal constitution, when at the same time legislation directed towards prohibiting the importation within ...