Meyer v. State

• Decision Date: 08 January 1908
• Citation: 114 N.W. 501,134 Wis. 156
• Parties: MEYER v. STATE.
• Court: Wisconsin Supreme Court

134 Wis. 156

114 N.W. 501

MEYER

v.STATE.

Supreme Court of Wisconsin.

Jan. 8, 1908.

Error to Circuit Court, Jefferson County; George Grimm, Judge.

F. H. Meyer and another were convicted of selling an article in imitation of yellow butter contrary to St. 1898, § 4607c, as amended by Laws 1901, p. 185, c. 151, and they bring error. Reversed.

Error to the circuit court for Jefferson county to review the conviction of the plaintiffs in error. The information charged that the plaintiffs in error (hereinafter called defendants) at the county of Jefferson did unlawfully, by themselves, their agents and servants, have in their possession with intent to sell, and did offer and expose for sale, and did sell, a certain article, product, and compound which was made partly out of fat oil and oleaginous substance, and partly out of a compound thereof, and neither the said article, product, or compound, nor the said fat oil and oleaginous substance, nor the said compound thereof, was produced from unadulterated milk, or from cream and unadulterated milk, and said article, product and compound and said substance of said compound contained the admixture and addition of fat foreign to unadulterated milk, and foreign to unadulterated cream, and said article, product, or compound was then and there in imitation of yellow butter, with or without coloring matter, such butter being produced from said unadulterated milk, or cream from the same, etc.; that said article was in fact oleomargarine and in imitation of yellow butter, etc. There was a verdict of guilty, and certain specific errors hereinafter noted are assigned in the reception and rejection of evidence in refusing to direct a verdict of not guilty, and in instructing the jury. Among other references plaintiffs in error cited the following cases: State v. Commonwealth, 34 Wis. 162; Minis v. United States, 15 Pet. (U. S.) 423, 10 L. Ed. 791; 4 Rose's Notes, 121; Cliff v. United States, 195 U. S. 159, 25 Sup. Ct. 1, 49 L. Ed. 139;Brown v. C. & N. W. Ry. Co., 102 Wis. 137, 77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579;Plumley v. Massachusetts, 155 U. S. 461, 15 Sup. Ct. 154, 39 L. Ed. 223; Section 4607d, St. 1898; Louisville & N. R. Co. v. Commonwealth, 99 Ky. 132, 35 S. W. 129, 33 L. R. A. 209, 59 Am. St. Rep. 457; L. & N. R. Co. v. Railroad Co. (C. C.) 19 Fed. 679; Railroad Commissioners' Case, 116 U. S. 336, 6 Sup. Ct. 334, 388, 1191, 29 L. Ed. 636;Tozer v. United States (C. C.) 52 Fed. 917;Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220;State ex rel. v. Chittenden, 127 Wis. 468, 107 N. W. 500;Wis. Keeley Inst. v. Milwaukee County, 95 Wis. 153, 70 N. W. 68, 36 L. R. A. 55, 60 Am. St. Rep. 105; C., B. & Q. Ry. Co. v. People of State of Illinois, 200 U. S. 561, 26 Sup. Ct. 341, 50 L. Ed. 596;McCray v. United States, 195 U. S. 27, 24 Sup. Ct. 769, 49 L. Ed. 78;Schollenberger v. Pennsylvania, 171 U. S. 1, 18 Sup. Ct. 757, 43 L. Ed. 49;Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 32 L. Ed. 253;Lochner v. N. Y., 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937;Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205;Collins v. New Hampshire, 171 U. S. 30, 18 Sup. Ct. 768, 43 L. Ed. 60; Tiedeman on Police Power, 510; Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385;Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780; Section 4607e, St. 1898. Among other references defendant in error cited the following cases: Section 4607c, St. 1898; Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128;Capital City D. Co. v. Ohio, 183 U. S. 238, 22 Sup. Ct. 120, 46 L. Ed. 171;In re Rahrer, Petitioner, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572; Act May 9, 1902, c. 784, 32 Stat. 194 [U. S. Comp. St. Supp. 1907, p. 636]; Harrington v. Smith, 28 Wis. 43;State v. Shove, 96 Wis. 1, 70 N. W. 312, 37 L. R. A. 142, 65 Am. St. Rep. 17;Chippewa B. Co. v. Durand, 122 Wis. 85, 99 N. W. 603, 106 Am. St. Rep. 931;Canterbury v. N. W. Mut. L. I. Co., 124 Wis. 169, 102 N. W. 1096;Lehmann v. Farwell, 95 Wis. 185, 70 N. W. 170, 37 L. R. A. 333, 60 Am. St. Rep. 111;Von Rueden v. State, 96 Wis. 671, 71 N. W. 1048;Brown v. C. & N. W. Ry. Co., 102 Wis. 137, 77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579;State v. Hartfiel, 24 Wis. 60; Clark, Cr. Law, pp. 68, 70; United States v. Susan B. Anthony, 11 Blatchf. (U. S.) 200, Fed. Cas. No. 14,459; Douglas v. State, 4 Wis. 387;Hannon v. State, 70 Wis. 448, 36 N. W. 1;Barnard v. State, 88 Wis. 656, 60 N. W. 1058;Spear v. Sweeney, 88 Wis. 545, 60 N. W. 1060.Quarles, Spence & Quarles (Charles Quarles, of counsel), for plaintiff in error.

Frank L. Gilbert, Atty. Gen. (Olin & Butler and L. E. Gettle, of counsel), for the State.

TIMLIN, J. (after stating the facts as above).

Section 4607c, St. 1898, as amended by chapter 151, p. 185, Laws 1901, under which the defendants were convicted, and so far as material here, provides that any person who “shall by himself, his agent or servant, render or manufacture, sell or solicit or accept orders for, ship, consign, offer or expose for sale, or have in possession with intent to sell, any article, product or compound made wholly or partly out of any fat oil or oleaginous substance or compound thereof, not produced from unadulterated milk or cream from the same, and without the admixture or addition of any fat foreign to said milk or cream, which shall be in imitation of yellow butter produced from such milk or cream with or without coloring matter,” shall be punished, etc. “Nothing in this section shall be construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form and in such manner as will advise the consumer of its real character and free from coloration or ingredient that causes it to look like butter.” We cannot consider the last-quoted sentence as enlarging in any degree the preceding prohibitory or descriptive words of the statute. Manufacturing, selling, or having in possession with intent to sell a described product is prohibited. Following this by a provision that the preceding words shall not be construed to prohibit the manufacture, or sale, etc., of oleomargarine in a certain manner, and of a certain kind, merely indicates that in the exercise of abundant caution the Legislature forbade the extension of the prohibitive mandate of the statute so as to take in or include that which it described as excluded. There is a common form of expression often found in statutes and other writings where a general word or words followed by an excepted thing or instance is somewhat broadened by such exception because of the inference that the exception noted is the only exception. But the form of expression under consideration is not within that rule. This last sentence may, however, in connection with other statutes relating to the same subject-matter, such as section 4607d, St. 1898, perform some office as an aid in construction; that is to say, in determining upon what particular ground of police regulation these statutes are founded, and whether or not the Legislature intended to recognize as lawful in this state the manufacture, possession, and sale of oleomargarine as a commodity subject to the regulations found in the statutes.

It is established by the evidence, and conceded upon the argument, that the oleomargarine in question is a healthful food product compounded of oleo oil extracted from beef tallow, neutral lard, cotton seed oil, and salt. The statutes referred to recognize the right to manufacture, sell, and deal in this product. The question whether the Legislature possesses the power to forbid its manufacture, sale, or use in this state is not before us. It being conceded that the product contains no ingredient injurious or dangerous to health, and the statutes containing provisions recognizing the right to sell, but requiring the seller to disclose the nature of the article sold, and forbidding the product to be in imitation of yellow butter, it must follow that this police regulation respecting the manufacture and sale relates, not to the public health, but to the public safety, that is, to the prevention of frauds or imposition. The statute must be construed accordingly. It was known to the Legislature when this law was enacted that butter varies in color from nearly white to yellow. The compound prohibited is only that kind of oleomargarine which shall be in imitation of yellow butter. The statute apparently recognizes the right of a producer of whitish or light-colored butter to escape from the competition of oleomargarine by dyeing his butter yellow. This has some bearing upon the construction of the statute. But the same statute authorizes the sale of oleomargarine unless it shall be in imitation of yellow butter. The words “yellow butter” require no definition to explain their meaning. They are used in this statute in the popular, rather than in any trade, or technical, sense. They define themselves. And first of all it must be obvious that yellow butter does not mean all kinds of butter. Yet the trial court instructed the jury as follows: “Butter, that is, natural butter, as is shown by the undisputed testimony in this case, and as is a matter of common knowledge, varies in the degree of yellow from light straw color in winter to a rich light orange yellow in the summer. Colored butter varies from a shade of yellow somewhat more pronounced than the natural color of winter butter to shades higher than the highest natural color of summer butter, and all these shades of...