State ex rel. Waters-Pierce Oil Co. v. Baggot
| Decision Date | 18 June 1888 |
| Parties | The State ex rel. Waters-Pierce Oil Company v. Baggott, Coal Oil Inspector |
| Court | Missouri Supreme Court |
Writ awarded.
C. P. & J. D. Johnson for relator.
(1) If inspections are only to be made of oils contained in wooden barrels, or packages of similar construction, and only such barrels and packages are to be gauged and branded, then under the law, it is illegal to sell the oils in or from other kinds of packages. There is nothing in the statute to indicate such intention. So far as the inspections are concerned, section 5842 expressly provides that inspections may be made of oils in large tanks or reservoirs, thus negativing the claim that they were only to be made in "wooden packages or packages of similar construction." That it was not the intention of the lawmakers to limit inspections or sales of oils in or to any particular kind of package, is evident from sections 5849, 5842, 5845, and 5852 of the statute. (2) Inasmuch as sales of the oils in question cannot be legally made unless they have been inspected and branded in the manner provided for without the seller incurring a penalty, the statute is in restraint of trade, as well as penal in its operation, and being so must be strictly construed. So that nothing short of clear prohibition against sales of the oils in or from certain kinds of receptacles would make such sales illegal. Sewell v. Jones, 9 Pick. 414; People v Reilly, 50 Mich. 384; Green v. Holway, 101 Mass. 243; Comm. v. Railroad, 124 Mass. 561; People v. Peacock, 93 Ill. 172; State v Lovell, 23 Iowa 304; Cearfoss v. State, 42 Md 403; Bishop on Stat. Crimes [2 Ed.] sec. 194. (3) If any doubt exists about the proper construction of the statute under consideration, then the interpretation which has been given it by the respondent and his predecessors in office, for years past, may be taken into consideration by the court in resolving that doubt. The rule upon this point has been clearly stated as follows: "Long and uninterrupted practice under a statute, especially by officers whose duty it was to execute it, is good evidence of its construction, and such practical construction will be adhered to, even though, were it res integra, it might be difficult to maintain it." Harrington v. Smith, 28 Wis. 68; Cooley's Const. Lim. 83, 84; Scanlan v. Childs, 33 Wis. 666; Bruce v. Schuyler, 4 Gilm. [Ill.] 221; Boyden v. Brookline, 8 Vt. 286; Schoff v. Bloomfield, 8 Vt. 478; Rogers v. Goodwin, 2 Mass. 476; Board v. Bunting, 12 N.E. 151. (4) Inspected oils, it follows from what has already been said, can be sold out of a branded wagon-tank direct to consumers in open measures. (5) The statute (R. S. secs. 5837 and 5842) requires the inspector, who has made an inspection of oils in a large tank or reservoir, which is intended to be sold for illuminating purposes, and which is found to be "approved standard oil," to see such oil filled into small metal store-tanks of retail dealers, by seeing them transferred from the large reservoir to wagon-tanks, the latter driven to the places of business of the retail dealers, within the territorial jurisdiction of the inspector, and the oils transferred in open measures to the small store-tanks, and to properly brand the latter so that sales may be made therefrom in small quantities to dealers.
A. & J. F. Lee for respondent.
(1) Neither a tank-wagon nor a stationary oil-tank is a barrel or package within the meaning of those words, as used by the legislature before either the tank-wagon or stationary tank was known; and therefore respondent is not obliged to brand either of them as such. (2) The oil inspected in bulk must be drawn into a package in which it is intended to be sold, that section contemplating a sale by package in the first instance, at least, of such inspected oil. (3) The sales, as stated by the record made by the relator, from its tankwagons, are not sales of oils in those wagons. (4) After oil is inspected in bulk and filled into a storage tank by some person unknown to the respondent, the inspector cannot, on the day succeeding, be required to gauge and brand such storage tank. The great inconvenience and loss which the relator fears would result to the community from the continuance of the system by which eighty per cent. of the oil business has been always heretofore carried on in the larger cities and towns of the country, and, it will be conceded, universally adopted in the smaller towns and villages, must be purely imaginary. The respondent conceives his duty is complied with when the dealer and the purchaser for consumption and the branded package containing the inspected oil are present together, when the sale is made. Such a sale of oil gives the purchaser all the means of information which the law intended he should have; no subsequent sale being intended, the purpose of the whole law has been accomplished and further inspection would be useless. (5) The writ of mandamus cannot be invoked against a public officer except where the relator has a clear legal right of which he is deprived and no adequate remedy. The court must believe that under all the circumstances, with a proper regard for the public interest, the writ should be issued. People v. Railroad, 62 Ill. 510; Mansfield v. Fuller, 50 Mo. 338; People v. Ketchum, 72 Ill. 212; State ex rel. v. Railroad, 77 Mo. 147.
OPINION
Mandamus.
-- The respondent, in compliance with the stipulation of the parties to this suit, pleaded to the petition, treating it as an alternative writ of mandamus. The relator demurred to the return and the case stands on this state of the pleadings. The relator is a corporation engaged in refining petroleum oils in the city of St. Louis, and William Baggott, the respondent, is the state inspector of such oils for that city.
The facts, as admitted by the pleadings, are these: The relator has a large tank or reservoir, in which oils for illuminating purposes are stored. A practice had grown up by which the oil was inspected in the reservoir and then, under the eye of the inspector, transferred to wagon-tanks, holding from two hundred and eighty-five to five hundred and eighty-five gallons; and these wagon-tanks were then gauged and branded by the inspector. The oil was then hauled to the retail dealers and sold to them from the wagon-tanks and placed in small metal store receptacles which were not branded by the inspector. On the ninth of April, 1888, Baggott inspected a sufficient quantity of oil in the reservoir to fill the relator's wagon-tanks, to the number of twenty or more, and found it to be of the statutory standard for illuminating purposes; but he declined to see the same placed in the wagon-tanks, which were then produced and at hand, and he also declined to gauge and brand the same. It is conceded that the relator intended, in good faith, to haul the oil to the retail dealers and there sell it to them from the wagon-tanks. The respondent admits it to be his duty to inspect the oil in the reservoir in bulk; but he contends that he is only required to gauge and brand it when in barrels "composed of wooden staves and heads, bound with hoops, or in packages of similar construction." His claim, put in a practical shape, is, that the retail dealer can only sell from a branded barrel or branded package, and that it is this package from which the retail dealer must sell, and this only, which he is required to brand.
The material portions of the Revised Statutes of 1879, the subsequent amendments not affecting these questions, are as follows:
Sec 5839: ...
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