Rasch v. State
| Decision Date | 22 June 1899 |
| Citation | 43 A. 931,89 Md. 755 |
| Parties | RASCH v. STATE. |
| Court | Maryland Court of Appeals |
Appeal from criminal court of Baltimore city; George M. Sharpe Judge.
John Rasch was convicted on an indictment charging a sale of oleomargarine, and appeals. Affirmed.
Argued before MCSHERRY, C.J., and PEARCE, FOWLER, BOYD, BRISCOE, and SCHMUCKER, JJ.
Edgar H. Gans and Thos. C. Ruddell, for appellant. Atty. Gen Gaither and James Hewes, for the State.
This appeal brings before us again the constitutionality of section 89 of article 27 of the Code of Public General Laws which prohibits the sale of any article manufactured from animal fat or animal or vegetable oils in imitation or semblance of natural butter, and not produced from pure unadulterated milk, or cream from the same, being the article commonly known as "oleomargarine." The first legislation in this state upon the subject was in 1884, and the law then enacted required that every package known as "oleomargarine," sold or offered for sale, should be stamped in plain Roman letters, "OLEOMARGARINE," and prescribed penalties for violation of the act. Its constitutionality was at once attacked, and it was upheld by this court in Pierce v. State, 63 Md. 592, as too plain to be questioned. In 1888 a new law was enacted, entitled "An act to prevent deception in the sale of butter and cheese, and to preserve the public health," which now constitutes sections 88, 89, 90, and 91 of the Code of Public General Laws. In McAllister v. State, 72 Md. 390, 20 A. 143, the appellant had been convicted, under section 90, of having in his possession, with intent to sell, a compound of animal fat, or animal or vegetable oils, colored with annotto, and so made to resemble butter, and, on appeal, this law was also held valid and constitutional, in accordance with the decision in Powell v. Pennsylvania, 127 U.S. 680, 8 S.Ct. 992, 1257, in which a statute practically identical with section 90 of our Code was held by the supreme court of the United States to be within the police power of the state, and to be free from constitutional objection. That case was decided in 1888, and it might have been supposed that it would have set at rest for a long period the litigation of the question decided, but as was said by Justice Williams in Com. v. Schollenberger, 156 Pa. St. 206, 27 A. 30: "The profits to be derived from an unlawful traffic are much larger than those that flow from legitimate trade, provided the unlawful traffic may be pursued without serious interference from the officers of the law; and when men deliberately determine to put money in their pockets by engaging in a business which the state has declared to be injurious to the public morals, the public health, or the public peace, and has therefore forbidden altogether, or placed under strict police regulations, they are morally certain to seek immunity for themselves and their unlawful business by immediate flight to the sanctuary of the national constitution, and there lay hold on the altar of interstate commerce." Nor are these violators of state law content with repeated adverse decisions of these questions. If defeated in their contentions to-day and to-morrow, with a tenacity and ingenuity which extorts admiration and is worthy of a better cause they return the following day, with a new presentation of the question and with a never-failing confidence in the efficacy of agitation. Thus in 1894 the oleomargarine law was again brought before the supreme court of the United States, in Plumley v. Massachusetts, 155 U.S. 461, 15 S.Ct. 154, one of the contentions then being that the Massachusetts statute was repugnant to the clause of the constitution providing that congress shall have power to regulate commerce among the several states. The court, however, still held to its former line of decisions, and the statute was held to be not repugnant to that clause, nor obnoxious to any of the other objections urged thereto, and both Powell's Case and McAllister's Case were cited and approved by the court. Not daunted, however, by this series of adverse decisions, a reconsideration of the same question was held in the supreme court, in 1898, in Schollenberger v. Pennsylvania, 171 U.S. 1, 18 S.Ct. 757, in which the same statute of Pennsylvania which in Powell's Case had been declared valid was held invalid to the extent that it prohibits the introduction of oleomargarine from another state, and its sale in the original package, and thus the perseverance and determination of the oleomargarine dealers has been at last rewarded with at least a certain measure of success. In the opinion of the court, delivered by Mr. Justice Peckham, it is said that neither Powell's Case nor Plumley's Case is thereby overruled. though we should otherwise have thought that such was the necessary consequence of that decision, and, as we understand the dissenting opinion of Mr. Justice Gray, concurred in by Mr. Justice Harlan, they regard the cases mentioned as overruled. We cannot agree with the opinion of the court in 171 U.S. 1, 18 S.Ct. 757, and, if the law of Powell's Case and Plumley's Case is not overruled, we are unable to perceive how the constitutional exercise of the police power of the states, which was there conceded to be effective to prohibit the sale of oleomargarine, can be nullified, as it is under the decision in the Schollenberger Case, by the provisions of the constitution and laws of the United States concerning interstate commerce. But it is our duty to follow that court, and we shall do so whenever the case before us shall fall within its rulings. In the case which we have now to decide, there were four counts in the indictment,--the first under section 89, charging a sale of two pounds of oleomargarine; the second and third under the same section, charging the keeping for sale, and offering for sale, of the same article; and the fourth under section 90, charging the sale of two pounds of oleomargarine colored with annotto, whereby it was made to resemble butter. To this indictment the appellant interposed a demurrer, which was overruled; whereupon the state elected to go to trial on the first count. The appellant then renewed his demurrer to the first count, which was also overruled, upon which he filed a special plea to the first count, alleging (1) that he sold the article as oleomargarine, the purchaser knowing it to be such; (2) that the article so sold is...
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