In re Worthen

• Decision Date: 10 January 1891
• Citation: 58 F. 467
• Parties: In re WORTHEN.
• Court: U.S. District Court — Southern District of Ohio

58 F. 467

In re WORTHEN.

United States Circuit Court, S.D. Ohio, Western Division.

January 10, 1891

John W. Herron, for relator.

Matthews & Cleveland, for the sheriff of Hamilton county.

SAGE District Judge, (orally.)

The respondent was convicted under an act of the legislature entitled 'An act to prevent deception in the sale of dairy products, and to preserve the public health,' passed March 7, 1890.

That act prohibits the manufacture or sale of oleomargarine unless it be manufactured and sold in separate and distinct form and in such manner as will at once advise the consumer of its real character,--free from any coloring matter, or other ingredients which would cause it to look like butter, etc.

It appears from the testimony that the respondent, as the agent of Friedman & Swift, oleomargarine manufacturers at Chicago is engaged, at the corner of Front and Main streets, in the city of Cincinnati, in disposing of original packages of oleomargarine, shipped from Chicago by his principals, and disposed of by him in the original packages.

The oleomargarine so shipped is composed of neutral lard, 50 per centum; oleo oil, 35 per centum; natural butter, 10 per centum; and cream and milk, 5 per centum; to which is added a sufficient quantity of salt and coloring matter, (an article called 'annotto,') which, according to the testimony is precisely what is used in coloring creamery butter.

This oleomargarine is a compound having the appearance, and almost exactly the taste, of butter; so nearly so that they cannot be distinguished, or that they can be distinguished only upon a careful inspection; and it is an article not deleterious as food.

Now, as I look at the decision of the supreme court in the case of Bowman v. Railway Co., 125 U.S. 465, 8 S.Ct. 689 1062, there is scarcely a question left open for the consideration of this court.

The Ohio statute does not merely regulate or throw a guard about the sale of the product shipped by the manufacturers to the respondent, and sold by him; but it positively prohibits the sale.

Counsel for respondent rely upon the following passage from the decision in Leisy v. Hardin, 135 U.S. at page 122, 10 S.Ct. 681:

'These decisions [with reference to the police power of the states] rest upon the undoubted right of the states of the Union to control their purely internal affairs, in doing which they exercise powers not surrendered to the national government; but whenever the law of the state amounts essentially to a regulation of commerce with foreign nations or among the states, as it does when it prohibits, directly or indirectly, the receipt of an imported commodity, or its disposition, before it has ceased to become an article of trade between one state and another, or another country and this, it comes in conflict with a power which, in this particular, has been exclusively vested in the general government, and is, therefore, void.'

Near the close of the opinion in this case, near the foot of page 124, 135 U.S. and page 689, 10 S.Ct. Rep., the chief justice says:

'Up to that point of time [when the property would become mingled with the common property within the state] we hold that, in the

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