State v. The Belle Springs Creamery Company

• Decision Date: 05 November 1910
• Docket Number: 17,036
• Citation: 83 Kan. 389,111 P. 474
• Parties: THE STATE OF KANSAS, Appellant, v. THE BELLE SPRINGS CREAMERY COMPANY, Appellee
• Court: Kansas Supreme Court

111 P. 474

83 Kan. 389

THE STATE OF KANSAS, Appellant, v. THE BELLE SPRINGS CREAMERY COMPANY, Appellee

No. 17,036

Supreme Court of Kansas

November 5, 1910

Decided July, 1910.

Appeal from Saline district court.

STATEMENT.

THIS is a prosecution commenced before D. R. Wagstaff, a justice of the peace of the city of Salina, in Saline county, Kansas against P. F. Edquist and the Belle Springs Creamery Company a corporation. Defendant Edquist filed his motion to quash the amended complaint on February 9, 1910, which motion was by Justice Wagstaff denied. Thereafter trial was had, Edquist was acquitted, and the creamery company was convicted. The corporation appealed its case to the district court, and there refiled the motion to quash. The district court sustained the motion, and the state appeals.

The prosecution was commenced under sections 14 and 15 of chapter 264 of the Laws of 1909 (Gen. Stat. 1909, §§ 9751, 9752), which provide:

"SEC 14. A print or package of butter shall contain sixteen ounces avoirdupois, and when a print or package of butter containing less than sixteen ounces avoirdupois shall be sold its net weight shall be disclosed by the seller to the buyer, or a statement of the net weight be made upon a label attached thereto.

"SEC 15. A person who, by himself or by his servant or agent, or as the servant or the agent of another, uses a weight, measure, balance or measuring device that is false and does not conform to the authorized standard for determining the quantity of any commodity or article of merchandise, or sells or exposes for sale less than the quantity which he represents, or sells or offers for sale commodities in a manner contrary to law, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof, be fined in a sum of not less than five dollars nor more than one hundred dollars, or by imprisonment in the county jail for not more than ninety days, or by both such fine and imprisonment. He shall also be liable to the injured party in double the amount of the property wrongfully taken or not given, and ten dollars in addition thereto, to be recovered in any court of competent jurisdiction. The selling and delivery of any commodity or article of merchandise shall be prima facie evidence of representations on the part of the vendor that the quantity sold and delivered was the quantity bought by the vendee. There shall be taken into consideration the usual and ordinary leakage, evaporation or waste that there may be from the time the package is filled by the vendor until the selling of the same; a slight variation from the stated weight, measure or quantity for individual packages is permissible, provided this variation is as often above as below the weight, measure or quantity stated."

The first count of the amended complaint reads:

"A. E. Ice, being duly sworn according to law, on oath, says: That the said defendant, on or about the 3d day of September, 1909, in the said county of Saline and state of Kansas, then and there did unlawfully expose for sale and sell and deliver to D. W. Witwer and J. C. Stevens, partners doing business under the firm name and style of Witwer & Stevens, one certain print and package of butter, which said print and package of butter, after taking into consideration the usual and ordinary leakage, evaporation and waste from the time the same was filled until it was sold and exposed for sale as aforesaid, did not then and there weigh sixteen ounces avoirdupois, and which said print and package of butter did not then and there have a label attached thereto with the net weight thereon, and the said defendant did not then and there disclose the net weight of said print and package of butter so sold and exposed for sale as aforesaid to the buyer thereof, and that the said defendant, the Belle Springs Creamery Company, is a corporation duly organized and doing business under the laws of the state of Kansas, contrary to the statutes in such cases made and provided and against the peace and dignity of the state of Kansas."

Each of the other counts of the complaint is similar to the first count, except that other and different sales are alleged in each count from that specified in the first count.

Judgment reversed and case remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORDS AND PHRASES--"Person"--Corporations. The word "person," being the second word in section 9752 of the General Statutes of 1909, includes a corporation as well as a natural person.

2. INFORMATION--Statutory Language--Negativing Statutory Exceptions. The complaint set forth in this case charges the offense substantially in the language of section 9752 of the General Statutes of 1909, except as to the proviso at the end of such section, and is not defective by reason of the failure to negative such proviso.

3. WEIGHTS AND MEASURES--Penalty--Uniform Operation--Due Process of Law--Police Regulation. Paragraphs 9751 and 9752 of the General Statutes of 1909 are not unconstitutional and void as being repugnant to either section 17 of article 2 of the constitution of the state of Kansas or to the fourteenth amendment to the constitution of the United States.

Fred S. Jackson, attorney-general, John Marshall, assistant attorney-general, Charles D. Shukers, special assistant attorney-general, and Frank T. Knittle, county attorney, for the appellant.

G. W. Hurd, Arthur Hurd, and Ferry, Doran & Magaw, for the appellee.

OPINION

SMITH, J.:

A number of objections made to the complaint are argued in the briefs together, and are, in substance, that the complaint is not sufficiently definite and certain as to the facts constituting the alleged offense therein charged. It is especially urged that the statute establishes a certain weight for a print or package of butter, and that the complaint does not inform the accused whether it was a print or a package which is alleged to have been sold short of such weight. It is a matter of common knowledge that formerly butter was retailed in prints of about one pound weight each; that more recently, for cleanliness and attractiveness, butter has been put up and sold in packages of about the same weight; and that at and before the passage of the act both print and package were generally understood as a measure of the same amount in weight--one pound. The legislature, in passing the act of which the quoted sections are a part, is presumed to have used the terms in accordance with common usage. In fact in the latter part of section 15 the word "package" is used in lieu of "print or package," and the word "packages" in lieu of "prints or packages."

The act is entitled "An act concerning weights and measures and the regulation thereof." (Laws 1909, ch. 264.) Section 14 establishes the size of a measure of butter, whether the measure be called a print or a package. The words are used synonymously as to the quantity designated thereby. One measure was established under two well-recognized names. As in the sale of potatoes by measure, an abuse had arisen by the use of a measure of smaller content than was indicated to the public by the name of the measure used. To correct this abuse the statute in question was enacted. The objection is based upon the assumption that two different measures are designated by the act. The objection therefore is not tenable.

Several objections are urged which appear to be criticisms of the language of the complaint, even where it follows the exact language of the statute in defining the crime. These objections we will not discuss seriatim. Suffice it to say that the statute is not susceptible of some of the constructions attemped to be placed upon it, and while probably the crime is not defined therein as clearly as it might be, yet the definition seems to be intelligible, and the complaint follows closely the language thereof. It does not negative the proviso, or exception, in the last sentence of the section, of which we will speak later.

The objection that the complaint is bad for duplicity is completely answered in the case of The State v. Sherman, 81 Kan. 874, 107 P. 33. The exposing for sale and selling, as charged, appears to have been simultaneous and each as a part of one act.

Again, it is contended that even if the statute recites facts which constitute the offense, and if, as has been repeatedly held by this court, the complaint is sufficient so far as it follows the language of the statute in describing the offense, still this complaint is bad in that it does not negative the exception or provision contained in the last sentence of section 15, which reads:

"A slight variation from the stated weight, measure or quantity for individual packages is permissible, provided this variation is as often above as below the weight, measure or quantity stated." (Laws 1909, ch. 264, Gen. Stat. 1909, § 9752.)

This is in fact an independent sentence, although as punctuated in the statute it is separated only by a semicolon from the preceding sentence. It forms no part of the definition of the offense charged, but is a proviso, or, at most, an exception thereto. The provision simply excepts sales where the variation in weight is slight and is as frequently above as below the weight expressly stated or the weight implied in the absence of the required label. In such case it is not necessary to negative the exception. (See The State of Kansas v. Thompson, 2 Kan. 432; City of Kansas City v. Garnier, 57 Kan. 412, 46 P. 707; The State v. Thurman, 65 Kan. 90, 68 P. 1081; The State v. Buis, ante, p. 273.)

The more serious contentions in this case are: (1) That the statute in question is not in terms made applicable to corporations; (2) If intended to apply to corporations it is in violation of section 17 of article 2 of...