Powell v. Commonwealth of Pennsylvania

• Decision Date: 09 April 1888
• Citation: 32 L.Ed. 253,127 U.S. 678,8 S.Ct. 992
• Parties: POWELL v. COMMONWEALTH OF PENNSYLVANIA. 1
• Court: U.S. Supreme Court

8 S.Ct. 992

127 U.S. 678

32 L.Ed. 253

POWELL v. COMMONWEALTH OF PENNSYLVANIA.¹

April 9, 1888.

D. T. Watson, for plaintiff in error.

Wayne MacVeagh and W. S. Kirkpatrick, Atty. Gen., for defendant in error.

*HARLAN, J.

This writ of error brings up for review a judgment of the supreme court of Pennsylvania, sustaining the validity of a statute of that common wealth relating to the manufacture and sale of what is commonly called 'oleomargarine butter.' That judgment, the plaintiff in error contends, denies to him certain rights and privileges specially claimed under the fourteenth amendment to the constitution of the United States. By acts of the general assembly of Pennsylvania, one approved May 22, 1878, and entitled 'An act to prevent deception in the sale of butter and cheese,' and the other approved May 24, 1883, and entitled 'An act for the protection of dairymen, and to prevent deception in sales of butter and cheese,' provision was made for the stamping, branding, or marking, in a prescribed mode, manufactured articles or substances in semblance or imitation of butter or cheese, not the legitimate product of the dairy, and not made exclusively of milk or cream, but into which oil, lard, or fat, not produced from milk or cream, entered as a component part, or into which melted butter, or any oil thereof, had been introduced to take the place of cream. Laws Pa. 1878, p. 87; 1883, p. 43. But this legislation, we presume, failed to accomplish the objects intended by the legislature. For, by a subsequent act approved May 21, 1885, and which took effect July 1, 1885, entitled 'An act for the protection of the public health, and to prevent adulteration of dairy products, and fraud in the sale thereof,' it was provided, among other things, as follows:

'Section 1. That no person, firm, or corporate body shall manufacture out of any oleaginous substance, or any compound of the same, other than that produced from unadulterated milk, or of cream from the same, any article designed to take the place of butter or cheese produced from pure, unadulterated milk, or cream from the same, or of any imitation or adulterated butter or cheese, nor shall sell, or offer for sale, or have in his, her, or their possession, with intent to sell, the same as an article of food.

'Sec. 2. Every sale of such article or substance which is prohibited by the first section of this act, made after this act shall take effect, is hereby declared to be unlawful and void, and no action shall be maintained in any of the courts in this state to recover upon any contract for the sale of any such article or substance.

'Sec. 3. Every person, company, firm, or corporate body who shall manufacture, sell, or offer or expose for sale, or have in his, her, or their possession with intent to sell, any substance the manufacture and sale of which is prohibited by the first section of this act, shall, for every such offense, forfeit and pay the sum of one hundred dollars, which shall be recoverable, with costs, by any person suing in the name of the commonwealth, as debts of like amount are by law recoverable; one-half of which sum, when so recovered, shall be paid to the proper county treasurer for the use of the county in which suit is brought, and the other half to the person or persons at whose instance such a suit shall or may be commenced and prosecuted to recovery.

'Sec. 4. Every person who violates the provision of the first seci on of this act shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than one hundred dollars, nor more than three hundred, or by imprisonment in the county jail for not less than ten nor more than thirty days, or both such fine and imprisonment, for the first offense, and imprisonment for one year for every subsequent offense.'

The plaintiff in error was indicted, under the last statute, in the court of quarter sessions of the peace in Dauphin county, Pa. The charge in the first count of the indictment is that he unlawfully sold, 'as an article of food, two cases, containing five pounds each, of an article designed to take the place of butter produced from pure, unadulterated milk, or cream from milk, the said article so sold, as aforesaid, being an article manufactured out of certain oleaginous substances, and compounds of the same, other than that produced from unadulterated milk, or cream from milk, and said article so sold, as aforesaid, being an imitation butter.' In the second count the charge is that he unlawfully had in his possession, 'with intent to sell the same, as an article of food, a quantity, viz., one hundred pounds, of imitation butter, designed to take the place of butter produced from pure, unadulterated milk, or cream from the same, manufactured out of certain oleaginous substances, or compounds of the same, other than that produced from milk, or cream from the same.' It was agreed, for the purposes of the trial, that the defendant on July 10, 1885, in the city of Harrisburg, sold to the prosecuting witness, as an article of food, two original packages of the kind described in the first count; that such packages were sold and bought as 'butterine,' and not as butter produced from pure, unadulterated milk, or cream from unadulterated milk; and that each of said packages was, at the time of sale, marked with the words, 'Oleomargarine Butter,' upon the lid and side in a straight line, in Roman letters half an inch long. It was also agreed that the defendant had in his possession 100 pounds of the same article, with intent to sell it as an article of food. This was the case made by the commonwealth. The defendant then offered to prove by Prof. Hugo Blanck that he saw manufactured the article sold to the prosecuting witness; that it was made from pure animal fats; that the process of manufacture was clean and wholesome, the article containing the same elements as dairy butter, the only difference between them being that the manufactured article contained a smaller proportion of the fatty substance known as 'butterine'; that this butterine existed in dairy butter in the proportion of from 3 to 7 per cent., and in the manufactured article in a smaller proportion, and was increased in the latter by the introduction of milk and cream; that, this having been done, the article contained all the elements of butter produced from pure, unadulterated milk, or cream from the same, except that the percentage of butterine was slightly smaller; that the only effect of butterine was to give flavor to the butter, and that it had nothing to do with its wholesomeness; that the oleaginous substances in the manufactured article were substantially identical with those produced from milk or cream; and that the article sold to the prosecuting witness was a wholesome and nutritious article of food, in all respects as wholesome as butter produced from pure, unadulterated milk, or cream from unadulterated milk. The defendant also offered to prove that he was engaged in the grocery and provision business in the city of Harrisburg, and that the article sold by him was part of a large and valuable quantity manufactured prior to the 21st of May, 1885, in accordance with the laws of this commonwealth relating to the manufacture and sale of said article, and so sold by him; that for the purpose of prosecuting that business large investments were made by him in the purchase of suitable real estate, in the erection of r oper buildings, and in the purchase of the necessary machinery and ingredients; that in his traffic in said article he made large profits; and, if prevented from continuing it, the value of his property employed therein would be entirely lost, and he be deprived of the means of livelihood. To each offer the commonwealth objected upon the ground that the evidence proposed to be introduced was immaterial and irrelevant. The purpose of these offers of proof was avowed to be (1) to show that the article sold was a new invention, not an adulteration of dairy products, nor injurious to the public health, but wholesome and nutritious as an article of food, and that its manufacture and sale were in conformity to the acts of May 22, 1878, and May 24, 1883; (2) to show that the statute upon which the prosecution was founded was unconstitutional, as not a lawful exercise of police power, and also because it deprived the defendant of the lawful use 'of his property, liberty, and faculties, and destroys his property without making compensation.' The court sustained the objection to each offer, and excluded the evidence. An exception to that ruling was duly taken by the defendant. A verdict of guilty having been returned, and motions in arrest of judgment and for a new trial having been overruled the defendant was adjudged to pay a fine of $100 and costs of prosecution, or give bail to pay the same in 10 days, and be in custody until the judgment was performed. That judgment was affirmed by the supreme court of the state. 114 Pa. St. 265, 7 Atl. Rep. 913.

This case, in its important aspects, is governed by the principles announced in Mugler v. Kansas, 123 U. S. 623, ante, 273. It is immaterial to inquire whether the acts with which the defendant is charged were authorized by the statute of May 22, 1878, or by that of May 24, 1883. The present prosecution is founded upon the statute of May 21, 1885; and, if that statute be not in conflict with the constitution of the United States, the judgment of the supreme court of Pennsylvania must be affirmed. It is contended that the last statute is void in that it deprives all coming within its provisions of rights of liberty and property without due process of law, and denies to them the equal protection of the laws,—rights which are secured by the fourteenth amendment of the constitution of the United States. It is scarcely necessary to say that if this statute is a legitimate exercise of the police power of the state for the...