The State v. Weller

• Decision Date: 13 October 1908
• Docket Number: 21,252
• Parties: The State of Indiana v. Weller
• Court: Indiana Supreme Court

85 N.E. 761

171 Ind. 53

The State of Indiana v. Weller

No. 21,252

Supreme Court of Indiana

October 13, 1908

From Elkhart Circuit Court; James S. Dodge, Judge.

Prosecution by The State of Indiana against Henry Weller. From a judgment quashing the affidavit, the State appeals.

Reversed.

James Bingham, Attorney-General, A. G. Cavins, E. M. White and William H. Thompson, for the State.

Forrest E. Hughes and Ethan L. Arnold, for appellee.

OPINION

Montgomery, J.

Appellee was charged by affidavit, in two counts, with violating the tag and label provisions of the concentrated commercial feeding-stuff law of 1907 (Acts 1907, p. 354, §§ 7939-7949 Burns 1908). The body of the first count was as follows: "That on or about the 4th day of January, 1908 at the county of Elkhart and State of Indiana, one Henry Weller did then and there unlawfully offer and expose for sale to one Herbert Judson a certain quantity of concentrated commercial feeding stuff, to wit, two sacks, containing about seventy pounds each, of wheat middlings, the exact weight of which sacks of wheat middlings, or either of them, is unknown to this affiant; that said Henry Weller did not then and there affix or cause to be affixed, and there not being then affixed, to said sacks of wheat middlings, or either of them any tag, label or stamp, as provided by chapter 206 of the acts of 1907 [supra], of the General Assembly of Indiana; that said wheat middlings were not then and there being offered by said Henry Weller for sale or shipment in bulk to importers, manufacturers or manipulators engaged in mixing concentrated commercial feeding stuffs for sale; he the said Henry Weller, not being then and there the Indiana state chemist, or authorized or deputized thereby, or by the Indiana agricultural experiment station, or engaged in experimenting with concentrated commercial feeding stuffs for the advancement of the science of agriculture."

The second count charged a sale to Herbert Judson for the price of $ 1.96.

Each count of the affidavit was quashed on appellee's motion, and these rulings are assigned as error upon this appeal.

Section two of the act upon which this prosecution is founded (§ 7940, supra), provides that any person who shall sell, or offer, or expose for sale, any concentrated commercial feeding stuff in this State shall affix or cause to be affixed to every package thereof a tag or label containing certain specified facts.

Section six of the act (§ 7944, supra) declares that any person, who shall offer for sale, sell or expose for sale, any package, sample or quantity of concentrated commercial feeding stuff which does not have affixed to it the tag and stamp required by section two of the act, shall be deemed guilty of a misdemeanor, and on conviction thereof be fined in a specified sum; provided, "that nothing in this act shall be construed to restrict or prohibit the sale of concentrated commercial feeding stuff in bulk to each other by importers, manufacturers or manipulators who mix concentrated commercial feeding stuff for sale, or as preventing the free, unrestricted shipment of these articles in bulk to manufacturers or manipulators who mix concentrated commercial feeding stuff for sale, or to prevent the state chemist, or the Indiana agricultural experiment station, or any person or persons deputized by said state chemist, making experiments with concentrated commercial feeding stuffs for the advancement of the science of agriculture."

Section eleven (§ 7949, supra) provides that the term "concentrated commercial feeding stuff," as used in the act, shall include, among other things, "wheat bran, wheat middlings, wheat shorts and other mill by-products not included in this section," and concludes: "But it shall not include straw, whole seeds, unmixed meals made directly from the entire grains of wheat, rye, barley, oats, Indian corn, buckwheat and broom-corn, nor wheat flours or other flours."

The decision of the lower court is defended by appellee's counsel upon the ground (1) that wheat middlings are products of the whole grain, and are expressly excluded from the definition, given in section eleven, of "concentrated commercial feeding stuff;" (2) that the affidavit should have alleged that the products mentioned, wheat middlings, were not "straw, whole seeds, or unmixed meals made directly from the entire grains of wheat," etc.

We have already seen that § 7949, supra, expressly declares that "wheat middlings" are included in the term "concentrated commercial feeding stuff," but "unmixed meals, made directly from the entire grains of wheat," are not included. The contention of appellee's counsel is that the latter clause covers "wheat middlings," and takes that product out of the class of feeding stuffs required to be tagged, notwithstanding the fact that it is specifically named as within the class covered by the act.

The cardinal rule in the interpretation of a statute is to ascertain and give effect to the general intent of the...