Vermont v. United States
| Decision Date | 04 December 1909 |
| Docket Number | 2,854. |
| Parties | VERMONT et al. v. UNITED STATES. [1] |
| Court | U.S. Court of Appeals — Eighth Circuit |
Walter N. Davis (Horace L. Dyer, on the brief), for plaintiffs in error.
Henry W. Blodgett (Charles H. Daues, on the brief), for defendant in error.
Before HOOK and ADAMS, Circuit Judges, and CARLAND, District Judge.
ADAMS Circuit Judge (after stating the facts as above).
The government undertook to prove under the first count that the defendants were manufacturers of oleomargarine, not by testimony showing that they manufactured it out of the raw material, but that they mixed artificial coloration with the white oleomargarine to make it look like yellow butter.
These two questions of law are relied upon by defendants to secure a reversal of their conviction on this count: (1) That it should have been averred in the indictment and proved at the trial that the defendants were wholesale or retail dealers in oleomargarine; and (2) that it should have been averred and proved that the defendants actually sold, vended, or furnished the particular oleomargarine which they manufactured. The court overruled a demurrer to the count based on these grounds, and that action is assigned for error.
The argument is that the words 'any person,' which form the subject of the second definition of a manufacturer in the amended act relate exclusively to licensed wholesale or retail dealers in oleomargarine, because such are the only persons who can lawfully sell, vend, or furnish oleomargarine for the use and consumption of others.
If such dealers were the only persons who could sell, vend, or furnish colored oleomargarine, there would be force in this argument, but most obviously such is not the case. The temptation to make the additional profit which would result by evading the payment of the tax of 10 cents a pound imposed by law upon colored oleomargarine naturally appeals more strongly to the dishonest and irresponsible than to the legitimate dealer; and the former would likely be the class Congress was most solicitous to regulate. It must be admitted that it is possible and well within the power of any and all persons to resort to the business of coloring oleomargarine to make it look like butter; and, in view of this possibility, the words 'any person' under consideration were doubtless employed by Congress. They are broad and comprehensive and easily embrace any and all persons whether licensed wholesale or retail dealers or otherwise; and by a familiar rule of construction they should be given full force and effect, to the end that the legislative purpose may be subserved. We think there is no merit in this first objection to the indictment.
It is next argued that the language employed in the amended act necessarily requires, not only the adding or mixing of artificial coloration with oleomargarine, but the actual selling, vending, or furnishing of some of the colored product to constitute one 'a manufacturer,' and that inasmuch as there was no proof that defendants actually sold vended, or furnished any of the oleomargarine, which they colored, the conviction cannot stand on the first count. But we cannot give our assent to this proposition. The actual selling, vending, or furnishing of oleomargarine for the use and consumption of others is not one of the substantive and necessary components of a 'manufacturer' as there contemplated. The words, 'that sells, vends or furnishes oleomargarine,' etc., rather qualify or limit the subject of the sentence in which they are found. It is not 'any person' merely, but 'any person that sells, vends or furnishes,' etc., that may become a manufacturer by adding or mixing coloring matter. It is not an uncommon use of language to say that one sells or vends fruit, for instance, and to mean thereby not that he has actually made a sale, but that he is engaged in the business of selling or vending fruit.
We think such is the sense in which Congress employed the words in question, and that the true meaning of the sentence is that any person engaged in the business of selling, vending or furnishing oleomargarine for the use and consumption of others who shall add or mix with oleomargarine any artificial coloring matter shall be held to be a manufacturer and subject to the provisions of the act.
An interpretation of the act which requires proof that one who confessedly manufactured as a part of his regular business large quantities of oleomargarine to supply the trade has actually sold or disposed of some part of that manufactured product before the process of manufacturing can be considered complete and he be held to the duties and obligations of 'a manufacturer' would not only do violence to the common understanding, but would result in the anomalous situation that one could not be a manufacturer without being, by the same token, either a wholesale or retail dealer.
From this it would follow that a mere manufacturer, who is required by section 3 of the oleomargarine act to pay a special tax of $600 as such, would also be required to pay the additional tax imposed by the same section upon either a wholesale or retail dealer, as the case might be, in the manufactured product. We cannot believe that Congress intended by the amendment in question to bring about such incongruous and ill fitting condition of things.
The defendants' next contention is that there was no evidence that they actually added to or mixed any artificial coloration with oleomargarine, and that the court erred in overruling their demurrer to the evidence offered at the close of the case. This contention in our opinion is also without merit.
The defendants were caught in flagrante delicto. They were found operating a well-equipped oleomargarine factory. In it were tubs filled with colored oleomargarine, cans of coloring matter, aprons and jackets soiled with grease and butter color, and a large number of empty tubs and caddies. Finger marks were discovered upon warm and mushy oleomargarine indicating recent manipulation and mixing, and, while there was no direct proof of the physical mixing of...
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