State v. Addington

• Decision Date: 16 May 1882
• Citation: 12 Mo.App. 214
• Parties: STATE OF MISSOURI, Respondent, v. D. T. ADDINGTON, Appellant.
• Court: Missouri Court of Appeals

12 Mo.App. 214

STATE OF MISSOURI, Respondent,

v.D. T. ADDINGTON, Appellant.

St. Louis Court of Appeals, Missouri.

May 16, 1882.

1. The statute of March 24, 1881, concerning the manufacture and sale of oleaginous substances for food, prohibits the manufacture and sale of the articles mentioned therein, irrespective of any question of an intention to deceive.

2. The act is not in conflict with the constitutional provision relating to the right of all persons to the enjoyment of the gains of their industry.

3. It is not in conflict with the constitutional provision, that no person shall be deprived of property without due process of law, so far as its provisions are prospective.

4. The passage of the act was not an unreasonable exercise of the police power of the state.

5. That the article is wholesome, does not prevent the legislature from prohibiting its manufacture and sale, if it is a not easily detected counterfeit of a well-known article of food.

6. If the manufactured article is likely to deceive, and is difficult to detect, that the manufacturer practices no fraud on the retailer is of no consequence.

7. The act is not in violation of the provisions of the constitution of the United States concerning the exclusive right of congress to regulate commerce between the states.

8. The provisions of the constitution of the United States, concerning the regulation of commerce between the states, imposes no restriction upon the reasonable exercise of the police power of the state.

APPEAL from the St. Louis Court of Criminal Correction, CADY, J.

Affirmed.

LYNE S. METCALFE, JR., for the appellant; FRANKLIN FERRISS, of counsel.

JOHNSON, LODGE & JOHNSON, for the respondent.

THOMPSON, J., delivered the opinion of the court.

The defendant, a wholesale grocery broker in the city of St. Louis, was tried in the court of Criminal Correction, on information charging him with the misdemeanor of selling an article of food known as “oleomargerine,” or ““suine,” contrary to the following statute:--

“An act to prevent the Manufacture and Sale of Oleaginous Substances, or Compounds of the same, in Imitation of the Pure Dairy products. Sect. 1. Whoever manufactures, out of any oleaginous substances, or any compounds of the same, other than that produced from unadulterated milk or cream from 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 one thousand dollars, or both.

Approved March 24, 1881.”

The defendant pleaded not guilty.

At the trial the following facts were agreed to:--

“It is agreed, for the purposes of this trial, that defendant sold to the prosecuting witness, in the city of St. Louis, on the first 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 ‘oleomargerine,’ and was branded as such; that there was no pretence that the same was butter; that suine is known to the trade to be substantially the same thing as oleomargerine, and is produced by the same process; that said article was manufactured in the state of Illinois and shipped to defendant in this city.”

A witness was then called to the stand and sworn on behalf of the defendant, who stated that he was a chemist by profession; that he had made a chemical analysis of the article sold by the defendant in this case, both quantitive and qualitative. He was then asked to state the chemical composition of the article sold by the defendant, and give the comparison of the same with pure butter, and to state whether or not it was a wholesome article of food. The counsel for the state objected, on the ground that the evidence called for was incompetent and immaterial. The objection was sustained by the court, and the defendant excepted.

The defendant then offered to prove by this witness that he had made a comparative analysis of the article sold by the defendant, with pure dairy butter; that the article or compound sold by the defendant was composed substantially of the same elements as pure butter, in slightly varying proportions; that both are mainly composed of pure animal fat, which undergoes no chemical change, either in the process of making butter or in making the said article sold by the defendant, the change in both cases being mechanical; that the said compound sold by the defendant is, in all respects, as healthful and nutritious as pure butter, and is no more liable to adulteration or deception than pure butter; that the said compound, when fresh, is more wholesome than any butter not in a perfectly pure state, and when not fresh is no more injurious than butter equally stale; that the said article 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 dairy butter. To all of which offer of proof the counsel for the state objected. The objections were sustained by the court, and the defendant excepted.

The defendant was then found guilty by the court, and a nominal fine of $25 imposed.

1. The first point relied on to reverse this judgment, is that the statute must be taken in connection with the previous statute on the same subject (1 Rev. Stats., sect. 1599), and that, taking the two statutes together, the word “designed,” in this statute, is to be read “with intent to deceive.” We shall not discuss at length a proposition so obviously untenable. The previous statute read as follows: “If any person shall sell or offer for sale any compound resembling butter in appearance, manufactured from cattle fat or beef suet, or other article, known to the trade as oleomargerine, unless the same shall be clearly and indelibly marked on every package, with some name or brand by which it may be clearly and easily distinguished from butter, he shall be deemed guilty of a misdemeanor.” The present statute goes further, and prohibits the manufacture and sale of such articles altogether in this state. It was obviously passed in the form of a sweeping prohibition, because the legislature were of opinion, after two years' experience with the previous statute, that it was ineffective to prevent our people from being defrauded by having an artificial compound sold to them as real butter. The design of the manufacturer and seller may be perfectly honest; but the person to whom they may sell the article may be dishonest; and, therefore, the legislature thought it best to lay the axe at the root of the tree, by prohibiting entirely the manufacture and sale of such compounds within this state.

2. It is next claimed that if this statute is not to have this meaning--that is, if we are to hold as we do, that it means what it says--it is unconstitutional. Its constitutionality is assailed on the following grounds: 1. It is claimed to be an infringement of section 4, Article II., of the constitution of this state, which declares that “all persons have a natural right to life, liberty, and the enjoyment of the gains of their own industry.” This is, perhaps, the most general declaration of right in that instrument. Clearly it does not mean that all persons have an absolute right to life, liberty, and the enjoyment of the gains of their own industry. On the contrary, each of these enumerated rights is held in subordination to the rights of society. A person has a natural right to life; but yet that life may be taken by law as a punishment for crime. He has a natural right to liberty, but yet his liberty may be restrained either to punish or to prevent crime; in cases of infants, for purposes of correction; in cases of persons infected with contagious diseases, for the benefit of the public health; and in cases of insane persons, for the good of the person himself, his relatives, or the public. A person has a natural right to the gains of his own industry; and yet it is well understood and universally conceded, that in a state of civil society, there is no such thing as an absolute right of property. On the contrary, all property is held in subordination to certain paramount rights of the state and of the people. The State v. Allmond, 2 Houst. (Del.) 612; Oviatt v. Pond, 29 Conn. 479, 487. It may be taken by the state for its revenue for governmental purposes; it may be destroyed in time of war to impede the operations of the public enemy, or even in time of peace to prevent the spread of a conflagration; and in all these cases the government is not obliged to make restitution or award compensation to the owner. This being so, it is too plain for discussion that such a general declaration of right cannot be strained into a prohibition against the legislature from suppressing the manufacture and sale of a particular article of food. We must obviously look further than this for some constitutional inhibition against the statute in question.

2. Such an inhibition is supposed, by the learned counsel for the defendant, to be found in the provision of the constitution which declares that “no person shall be deprived of life, liberty, or property, without due process of law.” It is suggested that the statute violates this provision, because it is retroactive in its terms--because it prohibits the sale of all manufactured compounds of the kind designated, including such as were in existence at the time of its passage. There is nothing in this point. A statute may be bad in part and good in part; and if so, that part only which is repugnant to the constitution will be held void. Fisher v. McGive, 1 Gray, 1. It may be invalid in so far as it intends to operate retrospectively, and good in so far as it operates prospectively. If this statute operates ...