McAllister v. State

50 A. 1046, 94 Md. 290, 1902 Md. LEXIS 5

• Court: Court of Appeals of Maryland
• Decided: January 16, 1902
• Status: Published

Opinion

Fowler, J.,

delivered the opinion of the Court.

The traverser, Charles E. McAllister, was indicted in the Criminal Court of Baltimore City for the violation of sec. 88 of Art. 27 of the Code as amended by the Act of 1900, ch. 496 (See Supplement Code 1900, Art. 27, sec. 88, pg. 33.) The indictment alleges that the traverser had in his possession with intent to sell within this State and did unlawfully sell to the person therein named, thirty pounds “ of a certain article, product and compound made partly out of certain fats, oils and oleaginous substances and compounds thereof not produced directly and wholly from unadulterated milk or cream from the same, which said article, &c., was-then and there in imitation and semblance of yellow butter produced from pure and unadulterated milk and cream from the same.” To this indictment the traverser pleaded two special pleas, but we were informed at the hearing by his counsel that they would rely only upon the second. These two pleas are identical with the exception that the seventh paragraph of the second plea in addition to the facts set forth in the seventh paragraph of the first plea alleges that the oleomargarine in this case was not only a pure article of commerce of that name defined in the Act of Congress of Aug. 2, 1886 ***** but that “the said article was in imitation and semblance of yellow butter produced from pure unadultered milk and cream of the same.”

To both of these pleas the State demurred. Following the decision of this Court in the case of Fox v. State, 89 Md. 381, the learned Judge below sustained the demurrer.

I. In the case just cited there were several counts in the indictment and the special plea there held bad, although substantially like the one we are now considering, was pleaded to the whole indictment and to each count thereof, and we held that it was bad because it did not, as it professed to do, answer the whole indictment, p. 389. We further said that “ in addition to this objection the plea amounts to the general issue, and is bad for this reason also.” Upon a more careful examination we are satisfied that while the plea in the Fox case, 89 Md., was clearly liable to the first objection, and the demurrer to it was properly sustained, yet it is not open to the objection that it amounts to the general issue, for the reason that it did not deny, but admitted, the facts alleged in the indictment and avoided their legal effect by further alleging that the oleomargarine there in question was offered for sale in the original package and that it was an article of commerce recognized by the Act of Congress of Aug. 2, 1886. Thus the plea gives color to, and admits the facts alleged. It does not follow that the plea is bad because the facts thus set up in avoidance maybe proved under the general issue. Poe's Pl., sec. 641; Keedy v. Long, 71 Md. 388. In delivering the opinion of the Court in the case just cited the present Chief Judge said : “ The general issue is a denial of the whole substance of the declaration and puts upon the plaintiff the necessity of establishing all the essential allegations in the narr. But a plea which gives express or implied color to the plaintiff’s statement, admits that statement to be true—but makes defense by setting up new matter in avoidance, can never be said to amount to the general issue, for the obvious reason that the element of denial is absent." The special plea in the case at bar is the same as that considered in Fox v. State, and it follows from what we have said that it is not liable to the objection, viz., that it amounts to the general issue—and hence the demurrer should have been overruled. While the question thus presented by the demurrer to the plea is not important in this case, because the facts set forth therein are contained in the traverser’s offer of proof which is included in the bill of exceptions by which it appears the same question was presented as if he had been allowed to plead, yet counsel on both sides united in the request that we should pass upon the validity of the plea because, as a matter of practice, it is more convenient and consumes less time to set up defenses by special plea than to call witnesses or to try the case upon an agreed statement of facts.

II. We will now briefly consider the main question presented by the record.

The special pleas having been held bad by the learned Judge below, the traverser offered to prove under the general issue, the facts embodied in his special pleas but the State objected and its objection having been sustained, the verdict and judgment were against him. From this judgment the traverser has appealed.

The facts, or those which are material to be here stated, which were embodied in the special pleas, and set forth in the traverser’s offer are as follows : The oleomargarine which was in the possession of the traverser was not manufactured in this State, but in Chicago, and was sent to the traverser in an original package, conforming in -every respect to the Act of Congress of August 2nd, 1886, and was retained by him in said original package, unbroken, until it was seized and carried away from his premises by an agent of the Butter Dealers’ Association of Baltimore. It further appears that the oleomargarine was a,-pure article of commerce as defined-by the Act of Congress above mentioned, and that it was the product of certain fats, oils, &c., not produced wholly from milk or cream, and contained among other things a coloring matter known as “annotto and that it was in imitation and

semblance of yellow butter ; but said article was not kept in the possession of the traverser for sale as butter, or offered to any one for sale as butter, and the fact that said article was not butter was made known by traverser to said agent when he seized it and that said oleomargarine is recognized by said Act of Congress as an article of commerce.

The question therefore we have to decide is whether these facts constitute a good defense to the indictment which, as we have seen, charges the traverser with having in his possession for sale, and that he sold oleomargarine made “in imitation and semblance of yellow butter produced from pure and unadulterated milk or cream from the same.”

The solution of this question must be found in the construction of the Act of 1900, ch. 496, (Art. 27, sec. 88, Supplement to Code 1900,)—which prohibits the sale or the having in possession with intent to sell within this State oleomar garine made in imitation or semblance of yellow butter produced from milk or cream and provided that the violation thereof shall be a misdemeanor punishable by fine for the first offense and by fine or by fine and imprisonment for the second offense.

It is contended on the part of the traverser that under the recent decision of the Supreme Court of the United States in the case of Schollenberger, 171 U. S. 1, the section of the Code here relied on by the State even as amended by the Act of 1900, ch. 496, (sec. 89, Art. 27, Supplement Code), is void in so far as it is construed to prohibit the having in possession and sale in this State of oleomargarine in the original package made in another State. While it was urged with much vigor and ability by Mr. John Phelps on the part of the State that this case must be governed not by the Schollenberger case which was applied by this Court in the case of Fox v. State, supra, but by the case of Plumley v. Mass., 155 U. S. 461.

We do not consider it necessary to repeat what we have heretofore said in reference to the supposed conflict between the decisions of the United States Supreme Court just referred to, but it is proper to say that in the case of Fox in 89 Md. we held that we were forced to declare that sec. 88 of Art. 27, before it was amended by the Act of 1900, ch. 496, was void as applied to oleomargarine made in another State and sold in original packages in this State. And we so held because in our opinion the recent views of the Supreme Court of the United States as expressed in the Schollenberger case, had declared in emphatic terms “that no State Legislature can validly prohibit the importation and sale within this State of a pure article of commerce so long as it remains in the original package.” We also held in the same case that oleomargarine is “an article of commerce” and that therefore “it is not within the power of the State to prohibit the importation and sale here of oleomargarine made in imitation and semblance of butter.” But the contention is that inasmuch as the section which was thus construed in 89 Md. has been amended by the Act of 1900, ch. 496, the views expressed in that case (Fox’s case), have no application to the case now before us. Let us compare the two sections, then, to ascertain what, if any, difference there is between them. The original section (sec. 88, Art. 27, Code Public General Laws, p. 489), prohibits the sale of oleomargarine made “in imitation or semblance of natural butter,” * * *. The amended section here relied on (sec. 88 of Art. 27, p. 33, Supplement of Code 1900), provides that no one shall have in possession for sale or sell oleomargarine “which shall be in imitation or semblance of yellow butter, &c. * * * In our opinion there is no substantial difference between these two provisions. Natural butter, that is to say, butter made from cream taken from the milk of the cow may or may not be yellow, and hence yellow is not a necessary characteristic of natural butter any more than it is of oleomargarine. If we held in Fox’s case, supra, that an Act prohibiting the sale in original packages of oleomargarine made in imitation of natural butter, is void, it would seem like giving some magical or undue effect to the word “yellow” to hold the amended section valid. It is sufficient, however, to say that there is no allegation that the article the traverser here is charged with selling is injurious to health or that it is impure, but simply that it is colored yellow to resemble yellow butter. But the Act of Congress itself which defines oleomargarine as an article of commerce describes it as an article made partly out of certain fats, oils, &c., not produced from milk or cream and “containing among other things a certain coloring matter known as ‘annotto.’ ” To hold, therefore, that the oleomargarine sold in the original package by the traverser is colored yellow, that is to say colored by annotto he is guilty of a misdemeanor would be to hold directly the reverse of what we decided in Fox case, 89 Md., namely, that a pure article of commerce may be excluded by State legislation. In regard to Plumley's case, supra, relied on by the State to sustain the view that the purity of the article is not material when it is “in imitation of yellow butter” we need only say that the same Court which rendered that decision said that it was based entirely upon the theory of the right of the State to prevent deception and fraud in the sale of any article, and that it was fraud and deception contained in selling the article for what it was not, and in selling it so that it should appear to be another and a different article “that the right of the State was upheld.” As we have seen, however, there is not only no charge in this case that the article sold was impure or deleterious or that it was represented or attempted to be sold for butter, but on the contrary, the special plea alleged and the traverser offered to prove that it was a pure article of commerce as defined by the Act of Congress and made in imitation of yellow butter and that he did not offer it for sale as butter or for any thing other than it was. Under the Schollenberger case and our own decision in Fox case, 89 Md., no State law can be held validly to prohibit the sale in original packages of oleomargarine colored yellow in imitation of yellow butter unless it is alleged and proved that the coloring matter is impure and injurious to health—for otherwise it would follow that a pure article of commerce manufactured in another State could be excluded from sale in this State even 'in original packages. “We think,” say the Supreme Court of the United States in Schollenberger case “that what Congress thus taxes and recognizes as a proper subject of commerce cannot be totally excluded from any particular State simply because the State may choose to decide that for the purpose of preventing the importation of an impure or adulterated article it will not permit the introduction of the pure and unadulterated article within its borders upon any terms whatever. ” It is apparent, that the section of our Code' (sec. 88, Art. 27), we are considering as amended by the Act of 1900, ch. 496, by its very terms prohibits altogether the sale of the very article described in the Act of Congress, and therefore so far as it applies to sales in original packages of oleomargarine made in other States, it is void not only under Schollenberger’s case, but also under our own decision in Fox v. State, 89 Md.

It must be admitted that the recognition of the right to sell in original packages oleomargarine colored in imitation of yel low butter, renders it easy for unscrupulous and fraudulent dealers to cheat their customers by selling them oleomargarine when they ask for and pay for yellow butter. But ample provision is made for the punishment of such frauds, and the Courts will not hesitate in proper cases to impose the penalty provided by our law.

(Decided January 16th, 1902.)

It follows that there was error in sustaining the demurrer to traverser’s second special plea, and also, in excluding the evidence set forth in his offer—and the judgment must be reversed.

Judgment reversed without a new trial.