State v. Addington

• Decision Date: 31 October 1882
• Citation: 77 Mo. 110
• Parties: THE STATE v. ADDINGTON, Appellant.
• Court: Missouri Supreme Court

77 Mo. 110

THE STATE

v.ADDINGTON, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Defendant was prosecuted for selling oleaginous substances known as ““oleomargarine” or “suine,” in violation of the act of March 24th, 1881. The act is entitled “An act to prevent the manufacture and sale of oleaginous substances, or compounds of the same, in imitation of the pure dairy products,” and provides that “whoever manufactures, out of any oleaginous substances, or any compounds of the same, other than that produced from unadulterated milk or cream from the same, any article designed to take the place of butter or cheese, produced from pure, unadulterated milk or cream of the same; or whoever shall sell or offer for sale, the same as an article of food, shall, on conviction thereof, be confined in the county jail not exceeding one year, or fined not exceeding $1,000. or both.” Acts 1881, p. 120.

On the trial it was agreed that defendant sold to the prosecuting witness in the city of St. Louis, on the 1st day of November, 1881, one original package of an oleaginous substance or compound other than that produced from unadulterated milk or cream from the same, bearing a general resemblance to butter, and sold as an article of food; that said package was sold as “suine” or “oleomargarine,” and was branded as such; that there was no pretense that the same was butter; that “suine” is known to the trade to be substantially the same thing as “oleomargarine,” and is produced by the same process; that said article was manufactured in the state of Illinois and shipped to defendant in this city.

The defendant offered the testimony of a chemical expert to the effect that he had made a comparative analysis of the article sold with pure dairy butter; that the product sold is in all respects as healthful and nutritious as pure butter, and is not more liable to adulteration or deception; that it will keep as well as pure butter, and, from a sanitary point of view, is in all respects as harmless and desirable a commodity as pure butter. This testimony was excluded by the court on the ground that it was incompetent and immaterial, and defendant excepted. Defendant was convicted and appealed.

Lyne S. Metcalfe, Jr., and Franklin Ferriss for appellant.

The title of the act does not purport to be a police regulation. The legislature makes no such claim. Laws of this character are generally entitled acts to protect public health, morals, etc. It is for the court to say whether the legislature has exceeded its police power. To hold that the legislature may determine what is the limit of its police power is to remove all limit to legislation and all protection from the citizen, and in this respect a police regulation ostensibly for the protection of the public, stands on no better footing than an unqualified arbitrary enactment. The specious pretense of a police regulation may be used to cover an arbitrary system of legislation utterly destructive to private rights, and the plainest limitations of the constitution thereby removed; because there is no private right, even that to life and liberty, but must be surrendered if the public good demands it. The constitution must be inoperative, unless some power resides outside the legislature to hold it in obedience to the constitution, and this must be as true of police regulations as of other laws. The courts have not failed to recognize this doctrine. The court will not sanction an unreasonable exercise of the power to make police regulations. State v. Fisher, 52 Mo. 174; County Ct. of St. Louis Co. v. Griswold, 58 Mo. 193. If the legislature prohibits that which is harmless in itself, it would be an unauthorized exercise of power, and it would be the duty of the court to declare such legislation void. T. W. & W. R. R. Co. v. Jacksonville, 67 Ill. 37; People v. P. R. Co., 9 Mich. 309; Lakeview v. Rose Hill Cem. Co., 70 Ill. 191; Munn v. People, 69 Ill. 80; Yeazel v. Alexander, 58 Ill. 254; Railroad Co. v. Husen, 95 U. S. 473. Neither can the legislature assume a police power by declaring the thing sought to be prohibited a nuisance. Beebe v. State, 6 Ind. 514.

We do not question the power of the legislature to prevent the adulteration of food, or deception of any kind in its preparation. Any law which compels those who deal in artificial butter to brand it as such, or which makes it a misdemeanor to sell it as the genuine article, will be proper, and, we assert, effective; but we do object to a law which positively forbids the manufacture and sale of an article which from its description in the statute does not appear to be injurious, and which we offer to prove is a positive benefit to the State.

This is not a question of regulation but of prohibition, and such prohibition can be justified if at all on one of two grounds. First, that the article is of such a nature that deception and fraud must inevitably result from its use to the injury of the health or morals of the community. Or secondly, that there exists in the community a prejudice against the use of this article, which prejudice the legislature and courts are bound to respect.

The first argument assumes that the article is injurious and that its use even knowingly would be injurious. This we deny, and offer to prove the contrary, and it is practically conceded both by the respondent and court below that such is not the fact. The tendency to deception is no greater than it is in numerous articles of daily consumption. Who will claim that the legislature can guard against every species of deception? The constitutional grant of life, liberty and fruits of industry must necessarily result in some danger to other members of the social body. No power on earth can secure the fullest measure of individual liberty and at the same time perfect immunity from danger.

If this artificial article is in its use injurious to public health, it must be far different from the genuine article in its constituents and effects, and can be detected by experts and guarded against by inspection laws. If it is so similar in appearance, taste, smell and constituent elements that the difference cannot be detected, the deception cannot be a very dangerous one.

The second argument seems to be the one on which the court below rests its opinion. In the first place there is no proof of the fact that a prejudice exists, and we contend that the court cannot assume judicial knowledge of such fact even if it does exist. Further, we say that an act of the legislature prohibiting the manufacture and sale of an article cannot be justified upon the sole ground that a prejudice exists against it, especially in view of the fact that the article is healthful and uninjurious, and such a prejudice is, therefore, unreasonable, and results from ignorance. Artificial butter, which by this act is prohibited, is as wholesome and uninjurious as dairy butter. Both are composed of the same elements in slightly varying proportions, and both mainly composed of pure animal fat. The artificial butter is as healthy and nutritious as dairy butter, is no more liable to adulteration or deception, and is in all respects as harmless and desirable an article. There is no question but that this process of making butter from pure animal fat is one of the greatest discoveries of the age. By the application of science the cost of producing an article of food is greatly lessened, and this article is one of universal use and necessity. The secret is simply this: both dairy butter and artificial butter are composed in the main of pure fat, which undergoes no chemical change in the butter process. In the one case the fat from the animal passes into the milk at the natural temperature of the body in small globules which afterwards rise to the surface...