In re McAllister

• Decision Date: 11 June 1892
• Citation: 51 F. 282
• Parties: In re McALLISTER.
• Court: U.S. Court of Appeals — Fourth Circuit

51 F. 282

In re McALLISTER.

United States Circuit Court, D. Maryland.

June 11, 1892

Thomas G. Hayes, for petitioner.

John P Poe, Atty. Gen., and James Hews, for the State.

BOND Circuit Judge.

The petitioner has been arrested and indicted by the proper authorities of the city of Baltimore, and is now in jail, his bail having surrendered him. The indictment is for a violation of Code Pub. Gen. Laws Md. art. 27, §§ 88-91 inclusive, relating to the sale of oleomargarine. ^[1] It contains three counts. The first charges that petitioner did sell to one Simon N. Miller, as an article of food, 10 pounds of an article manufactured out of an oleaginous substance designed to take the place of butter. The second count charges that petitioner offered to sell to Simon N Miller 10 pounds of the manufactured article, and the third count charges that he had in his possession, with intent to sell the same, a certain compound, so manufactured, out of an oleaginous substance other than pure milk or cream. There is little dispute about the facts material to the decision of this question, which resolves itself into this: Whether or not a party living in the state can order from another state a package of oleomargarine, and sell it in the original package to a citizen of Baltimore. The proof shows that there was but one sale by petitioner,-- that of 10 pounds to Miller. The package in question was manufactured in Chicago by Braun & Fitts. It had all the internal revenue stamps and brands on it to show that the act of congress had by them been complied with. There is some dispute as to whether McAllister was acting as the agent of some one else or on his own responsibility. It seems to us this makes but little, if any, difference. The proof is that he received the package from Braun & Fitts, of Chicago, had it in his possession, and sold it to Miller. It appears from the evidence that Pope &amp Janney, dealers in butter in Baltimore, procured Miller and another to go to McAllister's place of business, and seek to purchase butter, apparently thinking that he would sell them oleomargarine for butter. When asked by Miller if he had butter for sale, he replied he had not, but he had oleomargarine, which he was asked to show. This he did. Miller then asked to have 2 pounds of the article sold to him, but McAllister replied that he could not sell less than 10 pounds in the original package. The two emissaries of Pope & Janney...