Alcorn Cotton Oil Co. v. State

Whitfield,' C.

Section 1317 of the Code of 1906 is in the following words: “It shall be unlawful for any person or corporation to adulterate any cotton seed meal with hulls, *304 sawdust or anything else, without noting such adulteration,; in plain and legible characters on each sack, and it shall be unlawful for any person to sell in this state any cotton seed meal adulterated with hulls, sawdust or anything else, without such adulteration being noted in plain and legible characters on each sack or receptacle thereof. Any person or corporation violating the foregoing provisions of this section shall be guilty of a misdemeanor, and, on conviction, shall be filed in a sum of not less than one hundred nor more than one thousand dollars. ’ ’

The appellant was indicted under this statute, the indictment charging that “the Alcorn Cotton Oil Company, being engaged in the business of manufacturing, sacking, and selling cotton seed meal, did then and there willfully and unlawfully adulterate cotton seed meal by mixing hulls therewith, without noting such adulteration in plain and legible characters on each sack.” The evidence in the case shows that the appellant sold cotton seed meal to one W. S. Berry, the said sacks of cotton seed meal being composed of fifty per cent, cotton seed meal, and fifty per cent, hulls, without noting such adulteration in plain and legible characters on the sacks. Manifestly, on the facts of the case, the appellant’s conduct falls strictly within the condemnation of section 1317.

It is said, first, that this section is repealed by section 14 of the act of 1908 (Laws 1908, chapter 107). We do not think- so. The act of 1908 was dealing with a wholly different subject-matter. The Law of 1908 fixes the penalty for the adulteration or sale of certain commercial foodstuffs falling below a certain standard, and provides for inspection, analysis, etc. It has nothing to do with the sale of cotton seed meal. That article is especially excepted from the Law of 1908.

It is next said that section 1317 is unconstitutional, because it does not inform the defendant of the nature and cause of the accusation against him, in this: That the said section does not prescribe any standard of adul *305 teration. The first thing’ to he observed in the discussion of this proposition is that section 1317 does not declare the mere sale of adulterated cotton seed meal a crime.. That section, and sections 2260, 2261, and 2263 of chapter 51 of the Code of 1906, plainly shows that the appellant could have sold, so far as a mere sale was concerned, any grade of cotton seed meal." The offense denounced by section 1317 is not the mere sale of adulterated cotton seed meal, but its failure to note on the sacks which contained adulterated cotton seed meal the fact of such adulteration. That precisely is the purpose and object of the section, and this object must be kept in mind in discussing the constitutionality of the statute. The plain object of this statute is to require those who adulterate cotton seed meal with hulls to note such adulteration on the sacks or receptacles, so that the purchaser may know exactly what he is getting and paying for. If the vendor wishes to sell adulterated cotton seed meal, he may do so; but he must note the adulteration on the sacks, so that he who buys may know that he is not being defrauded by getting something different from what he offers to buy.

The learned counsel for appellants cite a number of cases from other states, every one of which we have critically examined. We do not think any of those cases is strictly in point, where the offense charged, as here, is the failure to note adulteration on the receptacles of the adulterated material. Nearly all these cases are cases in which a statute first prescribed a standard of purity, and then afterwards made it a crime to sell the particular thing, as milk, etc., unless the article so sold came up to the standard prescribed in the statute. Those cases are not at all in point in a consideration of the constitutionality of this statute, which permits the sale, ■and does not prohibit the sale, of adulterated cotton seed meal, but makes it an offense to so sell without noting the adulteration on the receptacles.

*306 In the case of Commonwealth v. Kevin, 202 Pa. 23 , 51 Atl. 594 , 90 Am. St. Rep. 613 , the statute provided that an article of food should be deemed adulterated if it contained any added substance which is poisonous or injurious to health, and the court held that that statute made it an adulteration to add a substance which was poisonous or injurious in any quantity, even though the quantity added was not enough to make the compound poisonous or injurious to health. For the very same reason this section 1317 was. a proper exercise of legislative power, even if it declared cotton seed meal to be adulterated by the addition of any quantity of hulls unintentionally mixed with the cotton seed meal, no matter how small the quantity. In the course of the opinion the court said: “The purpose of the legislature in the passage of the act is most commendable, and the statute should receive a construction by the courts that will fully and effectually accomplish the object of its enactment.” And again the court said: “As said above, the purpose of the act was two-fold: To protect the public health, •and to prevent fraud and deception in the manufacture and sale of adulterated food. It is within the province of the general assembly to determine whether the addition of a poisonous or injurious substance to a food article endangers the health of the citizens of the state who used the compound; and, if it does, then it is clearly within the police power of the state to prohibit the manufacture and sale of the adulterated article, as well as to protect the public from imposition or fraud in the sale ■of it. The exercise of such authority by the legislative department of the government does not transcend the •constitutional limits of its power. In Powell v. Commissioners, 114 Pa. 294 , 7 Atl. 913 , 60 Am. Rep. 350 , Sterrett, J., after reviewing the cases holding legislation to be constitutional on the ground that it was the lawful •exercise of the police power of the state, says: ‘The manufacture, sale, and keeping with intent to sell may *307 alike he prohibited by the legislature, if in their judgment the protection of the public from injury or fraud requires it. To deny the authority of the legislature to do so is to attack all that is vital in the police power. To refuse recognition of the power in a given case because in the judgment of some the legislature, though acting within its proper sphere, may have mistaken the public necessity for a law prohibitory in its character, is to make the individual judgment superior to that of the legislature, to which the people in their sovereign capacity have delegated the lawmaking power.’ ”

In City of St. Louis v. Liessing, 1 L. R. A. (N. S.), in the note at page 918, it is said: ‘ ‘ The regulations most frequently tested in the courts are those establishing an arbitrary standard of quality, without regard to the question of adulteration or extraction, and prohibiting under penalty the sale of milk falling below the required standard. St. Louis v. Liessing is typical of the decisions upon this question. The authorities are there very thoroughly gathered; but see, especially, also, as sustaining regulations of similar character, State v. Smyth, 14 R. I. 100, 51 Am. Rep. 344 ; State v. Campbell, 64 N. H. 402, 13 Atl. 585 , 10 Am. St. Rep. 419 ; State v. Stone, 46 La. Ann. 147 , 15 South. 11 ; Commissioners v. Hough, 1 Pa. Dist. R. 51; Kansas City v. Cook, 38 Mo. App. 660 ; State v. Crescent Creamery Co., 83 Minn. 284 , 86 N. W. 107 , 54 L. R. A. 466, 85 Am. St. Rep. 464 ; People v. West, 106 N. Y. 293 , 12 N. E. 610 , 60 Am. Rep. 452 ; People v. Kibler, 106 N. Y. 323 , 12 N. E. 795 ; People v. Cipperly, 101 N. Y. 634 , 4 N. E. 107 (reversing 37 Hun [N. Y.] 319); State v. Groves, 15 R. I. 208, 2 Atl. 384 . The intent to evade the regulation is no part of the offense, and a dealer is guilty though he sells the milk exactly as drawn from the cows, when it falls below the required standard. State v. Campbell, supra; Pain v. Boughtwood, L. R. 24 Q. B. Div. 353; People v. Kibler, supra; People v. Schaeffer, 41 Hun [N. Y.] 23; Com *308 missioners v. Farren, 9 Allen [Mass.] 489; Commissioners v. Warren, 160 Mass. 533 , 36 N. E. 308 .”

In Dorsey v. State, 38 Tex. Cr. Rep., at page 533, 44 S. W. at page 515, 40 L. R. A. 201, 70 Am. St. Rep. 762 , the court expressly held that: “It would he entirely competent for the legislature by an act to prohibit the sale of flour mixed with meal, or any other wholesome article, without properly labeling the product of such combination.” That is a square decision that our statute prohibiting the sale without noting the adulteration of cotton seed meal mixed with hulls in any quantity is a constitutional statute.

In the case of State v. Campbell, 64 N. H. 402, 13 Atl. 585 , 10 Am. St. Rep. 419 , the state prohibited the sale of adulterated milk, or milk to which water or any foreign substance had been added. That act was assailed as unconstitutional, and the court said: “Under what is generally called the ‘police power’ of the state, the legislature may protect the public health, comfort, and safety by prohibiting the adulteration of articles of food, and may legislate for the prevention of imposition or fraud in the sale of such articles. Pierce v. State, 13 N. H. 536; State v. Clark, 28 N. H. 176, 61 Am. Dec. 611 ; State v. Freeman, 38 N. H. 426; Gage v. Censors, 63 N. H. 92, 56 Am. Rep. 492 . The sale of bread, the inspection of flour, beef, pork, and other provisions, the practice of medicine, surgery, and dentistry, the licensing of druggists, and the sale of drugs and medicines, are regulated, and the sale of spirituous or intoxicating liquor prohibited by statute. Gen. Laws, chapters 109, 122, 125, 129, 132, 133. Such legislation is not open to the objection that it transcends the limits' of legislative authority, the purpose and object of such legislation being the protection of the lives, health, comfort, and safety of all persons, and for securing this purpose persons and property are subjected to many restraints and burdens. They are presumed to be rewarded by the common benefits *309 secured. The statute of 1883 regulating the sale of milk was designed to insure the purity of an article of food of universal consumption, and very largely an article of trade and commerce; many families being dependent upon the dealer for their daily supply. Of the necessity for the statute the legislature is the sole judge. It clearly belongs to the class of police regulations designed to prevent frauds and to protect the health of the people. Similar statutes in other jurisdictions have been held constitutional. Commissioners v. Farren, 9 Allen [Mass.] 489; Commissioners v. Waite, 11 Allen [Mass.] 264, 87 Am. Dec. 711 ; Commissioners v. Luscomb, 130 Mass. 42 ; Commissioners v. Evans, 132 Mass. 11 ; State v. Smyth, 14 R. I. 100, 51 Am. Rep. 344 ; People v. Cipperly, 10 1 N. Y. 634 , 4 N. E. 107 ; People v. West, 106 N. Y. 293 , 12 N. E. 610 , 60 Am. Rep. 452 ; Shivers v. Newton, 45 N. J. Law, 469.”

It is curious to note in this last case that the statute was assailed as unconstitutional for directly the opposite reason from that assigned here. The complaint here is that section 1317 prescribes no standard. The complaint in State v. Campbell was that the statute was unconstitutional because it did prescribe an arbitrary standard, and on that point the court makes the following very pertinent observations: “The fixing of an arbitrary standard, in section 9, for pure or unadulterated milk, does not render the statute unconstitutional. In People v. Cipperly , 37 Hun (N. Y.) 324, a similar statute of New York was pronounced unconstitutional upon the ground that it deprived the defendant of his liberty and property without due process of law, in that it deprived him of the right upon the trial to have the issue determined according to the evidence of the fact, and compelled him to submit to the statutory declaration of the fact without having the truth ascertained. This decision was reversed in the court of appeals ( 101 N. Y. 634 , 4 N. E. 107 ), and the constitutionality of the statute *310 sustained on grounds stated in the dissenting opinion of the court below, where the object of the statute was declared to be to regulate and control the quality of an article of food in the interest of the health of the people. Learned, P. J., said: “But the defendant takes the broader ground that the legislature cannot, under the constitution, prohibit the sale of milk drawn from healthy cows which in its nature state falls below the standard fixed by the acts, unless such milk, or the articles made from it, is in fact unwholesome, or dangerous to public health. How is that question of fact to be determined? The court cannot take judicial notice whether milk below the standard is, or is not, unwholesome or dangerous to the public health. Is that to be a question for the jury? If so, the court must charge a jury in each case .that, i'f they find milk below that standard to be unwholesome, then the statute is constitutional; if they find it to be wholesome, then the statute is unconstitutional. Evidently a constitutional question cannot be settled, or rather unsettled, in that way. The constitutionality would vary with .the varying judgment of juries. Either, then, the legislature can, under the Constitution, forbid the sale of milk below a certain standard, whether such milk be in fact wholesome or not. If they may fix a standard, they must judge whether or not milk below that standard is wholesome.”

We think it is perfectly clear that the legislature had the power to declare that cotton seed meal adulterated to any extent with hulls should not be sold, without noting-such adulteration as held in the two cases just above referred to by the learned counsel for appellant. We are therefore clearly of the opinion that the .statute on its face is constitutional; and since on the merits of this case, the cotton seed meal sold and unlabeled consisted of fifty per cent, hulls, it must be manifest that under any standard this appellant was properly convicted.

Nothing in this opinion is intended to state that any testimony, other than expert testimony, would be com *311 petent to show whether cotton seed meal was adulterated. That point is not before us. Affirmed.

Per Curiam. The above opinion is adopted as the opinion of the court, and for the reasons therein indicated, the judgment is affirmed.