State v. Peet

• Decision Date: 16 January 1908
• Citation: 68 A. 661,80 Vt. 449
• Parties: STATE v. PEET.
• Court: Vermont Supreme Court

68 A. 661

80 Vt. 449

STATE

v. PEET.

Supreme Court of Vermont. Chittenden.

Jan. 16, 1908.

Exceptions from Chittenden County Court; Alfred A. Hall, Judge.

G. Fred Peet was charged with violating Laws 1906, p. 197, No. 182, § 1, punishing the selling or keeping with intent to sell for food purposes, etc., the flesh of calves less than four weeks old when killed, etc. There was a pro forma judgment overruling a demurrer to the information, and respondent excepted. Reversed in part, and affirmed in part.

By Act Cong. June 30, 1906, c. 3913, 34 Stat. 674, and in force at the alleged times of the committal of the offenses charged in the various counts of the information, it was provided: "That for the purpose of preventing the use in interstate or foreign commerce, as hereinafter provided, of meat and meat food products which are unsound, unhealthful, unwholesome, or otherwise unfit for human food, the Secretary of Agriculture, at his discretion, may cause to be made, by inspectors appointed for that purpose, an examination and inspection of all cattle, sheep, swine, and goats before they shall be allowed to enter into any slaughtering, packing, meat-canning, rendering, or similar establishment, in which they are to be slaughtered, and the meat and meat food products thereof are to be used in interstate or foreign commerce," and that all diseased animals found on such inspection shall be set apart and slaughtered separately, etc. "And said Secretary of Agriculture shall, from time to time, make such rules and regulations as are necessary for the efficient execution of the provisions of this act, and all inspections and examinations made under this act shall be such, and made in such manner, as described in the rules and regulations prescribed by said Secretary of Agriculture not inconsistent with the provisions of this act. * * * That the provisions of this act requiring inspection to be made by the Secretary of Agriculture shall not apply to animals slaughtered by any farmer on the farm and sold and transported as interstate or foreign commerce, nor to retail butchers and retail dealers in meat and meat food products, supplying their customers: Provided, that if any person shall sell or offer for sale or transportation for interstate or foreign commerce any meat or meat food products which are diseased, unsound, unhealthful, unwholesome, or otherwise unfit for human food, knowing that such meat food products are intended for human consumption, he shall be guilty of a misdemeanor: * * * Provided, also, that the Secretary of Agriculture is authorized to maintain the inspection in this act provided for at any slaughtering, meat-canning, salting, packing, rendering, or similar establishment notwithstanding this exception, and that the persons operating the same may be retail butchers and retail dealers or farmers; and, where the Secretary of Agriculture shall establish such inspection, then the provisions of this act shall apply notwithstanding this exception."

Argued before POWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

Alfred L. Sherman, State's Atty. V. A. Bullard and Cowles & Moulton, for respondent.

WATSON, J. The information as amended contains 14 counts, in Nos. 1, 3, 4, 7, 8, 9, 10, and additional counts 1 and 2 of which the respondent is charged with keeping with intent to ship out of this state for food purposes, the flesh of calves which were less than four weeks old, and in Nos. 2, 5, and 6, of which he is charged with keeping with intent to ship out of this state, for food purposes, the flesh of calves which weighed less than 50 pounds each, dressed weight, when killed, and in Nos. 11, and 12 of which he is charged with keeping with intent to sell, for food purposes, the flesh of calves which were less than four weeks old. The demurrers are general—one to the second, fifth, and sixth counts by enumeration, and one to all the other original counts by enumeration—and by agreement the latter demurrer is treated as in like manner covering the first and second additional counts. This, in effect, is the same as a separate demurrer to every count. Darling v. Clement, 09 Vt. 292, 37 Atl. 779. The law upon which the information is based reads: "A person who sells or offers to sell or keeps with intent to sell for food purposes, or ships out of the state, or keeps with intent to ship out of this state, for food purposes, the flesh of any animal or fowl which died or was killed when diseased, or the flesh of a calf which was less than four weeks old or weighed less than fifty pounds, dressed weight, when killed, shall be imprisoned," etc. Laws 1906, p. 197, No. 182, § 1. This statute is challenged as in conflict with article 1, § 8, of the federal Constitution, which provides: "The Congress shall have power * * * to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." On the other hand, it is contended on the part of the state that the act, in purpose and result, is to prevent the dealing in meats, for food purposes, which are unwholesome and unfit for human consumption—hence to protect the health and morals of the community, which is within the police power of the state. It will be observed that the validity of the statute as applied to the flesh of animals and fowls which died or were killed when diseased is not here involved. We are called upon to distinguish between the power of Congress to regulate commerce between the states and the so-called police power of the state, only with reference to those features of the statute a violation of which is charged in the information. Although sometimes difficult of application to the case in hand, the law is well settled that, when the subjects upon which the power is to be exerted are local, and limited in their nature or sphere of operation, the states may prescribe regulations until Congress intervenes and assumes control of them; yet, when they are national in character, and require uniformity of regulation affecting all the states alike, the power of Congress is exclusive. And the nonaction of Congress is tantamount to a declaration that all commerce within its exclusive control shall remain free from burdens imposed by state legislation. Cooley v. Board of Wardens, 12 How. (U. S.) 299, 13 L. Ed. 996; Gloucester Perry Co. v. Pennsylvania, 114 U. S. 196, 5 Sup. Ct. 826, 29 L. Ed. 158; Pittsburgh & S. Coal Co. v. Bates, 156 U. S. 577, 15 Sup. Ct. 415, 39 L. Ed. 538; Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128.

It is argued that the state has power to prohibit the exportation to another state of anything which is not an article of commerce, as, in this ease, the flesh of calves which were less than four weeks old, or which weighed less than 50 pounds, dressed weight, when killed, because unwholesome for human food. The question then arises whether such meat, for the purpose named, is an article of interstate commerce, and whether it is within the power of a state Legislature to declare it otherwise. On July 25, 1906, for the purpose of preventing the use in interstate or foreign commerce of meat and meat food products which are unsound, unhealthful, unwholesome, or otherwise unfit for human food, under the authority conferred upon him by Act Cong. June 30, 1906, c. 3913, 34 Stat. 674, the Secretary of Agriculture issued regulations "for the inspection, reinspection, examination, supervision, disposition, and method and manner of handling of live cattle, sheep, swine, and goats, and the carcasses and meat food products of cattle, sheep, swine, and goats. * * *" Under regulation 15 it is provided: "(X) Carcasses of animals too immature to produce wholesome meat, all unborn and stillborn animals, also carcasses of calves, pigs, kids, and lambs under three weeks of age, shall be condemned." Since these regulations were prescribed by the Secretary of Agriculture under authority of the act of Congress before referred to, and are not inconsistent with the provisions of that act, they have the force of law. Nye v. Daniels, 75 Vt. 81, 53 Atl. 150.

Under the general rule here applicable, that the exclusion of one subject or thing is the inclusion of all other things, when the federal regulations excluded from use an interstate commerce, as too immature to produce wholesome meat, the carcasses of calves under three weeks of age, they by implication authorized such use to be made of the carcasses of calves above the age of exclusion, thereby recognizing them as articles of commerce; and, since dressed weight is not there mentioned, it is not made a controlling element. Articles recognized by Congress as subjects of interstate commerce cannot be held to be otherwise. In Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128, the court, speaking through Mr. Chief Justice Fuller, said: "Whatever our individual views may be as to the deleterious or dangerous qualities of particular articles, we cannot hold that any articles which Congress recognizes as subjects of interstate commerce are not such, or that whatever are thus recognized can be controlled by state laws amounting to regulations, while they retain that character. Although, at the same time if directly dangerous in themselves, the state may take appropriate measures to guard against injury before it obtains complete jurisdiction over them. To concede to a state the power to exclude, directly or indirectly, articles so situated, without congressional permission, is to concede to a majority of the people of a state, represented in the state Legislature, the power to regulate commercial intercourse between the states, by determining what shall be its subjects, when that power was distinctly granted to be exercised by the people of the United States, represented in Congress, and its possession by the latter was considered essential to that more perfect union which the Constitution was adopted to create." See, also, License Cases, 5 How. (U....