Hathaway v. McDonald

• Decision Date: 15 March 1902
• Citation: 27 Wash. 659,68 P. 376
• Parties: HATHAWAY et al. v. McDONALD et al.
• Court: Washington Supreme Court

68 P. 376

27 Wash. 659

HATHAWAY et al. v. McDONALD et al.

Supreme Court of Washington

March 15, 1902

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Replevin by E. J. Hathaway and another against E. A. McDonald and others to recover process butter seized by defendant as state dairy commissioner. From a judgment in favor of plaintiffs defendants appeal. Reversed.

Horace Kimball and Miles Poindexter, for appellants.

W. J Thayer, for respondents.

DUNBAR J.

Respondents sued in replevin to recover a quantity of process or renovated butter which had been seized by the appellant E. A McDonald in his capacity as state dairy commissioner. Appellants demurred to the complaint, which demurrer was overruled. Appellants then answered, respondents demurred to the answer, which demurrer was sustained, and thereupon, after the taking of evidence and a trial by the court, a jury being waived, final judgment was rendered against the appellants for said process butter, for $181.75, with interest, as damages, and for costs and disbursements. Appellants have appealed from said final judgment, and assign as error the order overruling the demurrer to the complaint, and also the order sustaining the demurrer to the answer.

The respondents move to dismiss the appellants' appeal herein on the ground that judgment was rendered in favor of respondents upon findings of fact and conclusions of law made by the court, and that no exceptions were ever taken by the appellants, or any of them, to said findings and conclusions. But the errors assigned by appellants arise upon the pleadings, and, it is alleged, consist in overruling the demurrer to the complaint, and in sustaining the demurrer to te answer. The appellants have a right to assign any error which they see fit, for the consideration of this court; and if they desire to waive any exceptions to the findings of fact, and to bring their case here upon errors arising upon the pleadings, they certainly have a right to do so. The motion will be overruled.

Chapter 43 of the Laws of Washington of 1899, in an act entitled 'An act regulating the manufacture of dairy products, to prevent deception or fraud in the sale of the same or imitation thereof, providing for the appointment of a dairy commissioner and defining his duties,' etc., among other things, provides, in section 28, as follows: 'Possession by any person or firm of an article or substance the sale of which is prohibited by this act shall be considered prima facie evidence that the same is kept by such person or firm in violation of the provisions of this act, and the commissioner shall be authorized to seize upon and take possession of such articles or substances, and upon the order of any court which has jurisdiction thereof, he shall sell the same for any purpose other than to be used for food, the proceeds to be paid to the state treasurer and placed to the credit of the general fund.' Section 30 is as follows 'No person, firm or corporation shall manufacture, sell or offer for sale or have in his possession with intent to sell butter known as process butter, unless the package in which the butter is sold has marked on the side of it the words 'Renovated Butter's in capital letters one inch high and one-half inch wide with ink which is not easily removed: provided, that it shall be unlawful for any retailer to sell said butter and unless a card is displayed on the package from which he is selling butter with the following words printed thereon so that it may be easily read by the purchaser 'Renovated Butter,' or if it is sold in packages on which a wrapper is used the words 'Renovated Butter' shall be plainly printed on each and every wrapper: provided further, that all process butter shipped from other states shall be subject to the same regulations as provided in this section. Whoever violates the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction shall be fined for each and every offense not less than twenty-five dollars ($25) nor more than one hundred dollars ($100) or by imprisonment for not less than one month or more than six months, or by both such fine and imprisonment.' The complaint alleges, among other things, that the plaintiffs were copartners doing business under the firm name of Hathaway & Co., were residents of the state of Iowa, and were engaged in said state in the manufacture of butter, and the selling and shipping thereof into various states of the Union from said state of Iowa; that on the 1st day of October, 1900, they were the owners and in possession of about 300 pounds of butter at their place of business in the state of Iowa, which said butter was shipped in original packages to the city of Spokane, Wash., consigned to one Brown, a resident of the city of Spokane; that said McDonald is dairy commissioner of the state of Washington, and the said dairy commissioner, assuming to act under the provisions of chapter 43 of the Session Laws of the State of Washington for the Year 1899, took possession of all said butter, without notice to, or the knowledge and consent of, said plaintiffs, and delivered said butter to said defendant Edgar H. Stanton to keep and hold the same for said dairy commissioner, and that said Stanton now holds said butter, and that plaintiffs demanded possession of the same from each of the defendants, and they have failed and refused the possession thereof to plaintiffs; that on October 15th said dairy commissioner instituted an alleged proceeding in said court, and obtained from one of the judges thereof a pretended order authorizing the sale of said butter by said dairy commissioner on November 9, 1900; that said order was made without due process of law, without notice to plaintiffs, without giving them an opportunity to be heard, and in violation of the rights granted them by the constitution of the United States; that all of said butter is now in the original packages, and is pure, unadulterated butter, and was shipped to Spokane by plaintiffs by virtue of their rights under the interstate commerce law of the United States of America; alleging that said chapter 43, as applied to butter, and to plaintiffs' right to ship same, was unconstitutional and void; alleging the value of the butter, and the damages sustained; and praying judgment for the return of the same, or for $1,000, the value thereof. The answer alleged that the order of the court referred to in the complaint was duly made on the 15th day of October, 1900, and directed the sale of said butter by the said E. A. McDonald, as said dairy commissioner, on the 9th day of November, 1900, to the highest bidder, and directed the said dairy commissioner to immediately deposit in the United States post office in the city of Spokane a copy of the said order, and the petition upon which the same was based, duly certified, etc., directed to the said Hathaway & Co., at their post-office address in Sioux City, Iowa; that the order was made upon a written petition of said E. A. McDonald, and that, in accordance with the directions of said order, said McDonald on the 15th day of October, 1900, notified said E. J. Hathaway & Co., by mail, in the manner directed as aforesaid; alleges that the so-called butter seized by said defendant was not pure, unadulterated butter, but was what is and then was known as 'process' butter, also known as 'renovated' butter, and consisted of old, rancid, and putrid cow butter, which had been treated by a certain process, with heat and chemicals, by which the rancid taste and smell were removed therefrom, and the same was artificially colored so as to exactly resemble pure and fresh creamery butter, so closely as to escape detection, except upon an expert chemical analysis of the same; that at the time of the seizure aforesaid the said Hathaway & Co. were offering the said process butter for sale, and intended to sell the same to one R. Brown, at wholesale, in the packages in which the same was...