McDermott v. State

126 N.W. 888, 143 Wis. 18, 1910 Wisc. LEXIS 282

• Court: Wisconsin Supreme Court
• Decided: May 24, 1910
• Status: Published

Opinions

Siebeckeb, J.

The defendants in these two actions admit that in the conduct of their retail trade at their respective places of business they sold the article as a table syrup, as ■charged in the complaint. It is also admitted that the purchaser received from each defendant a can of goods of what is called “Karo,” “Corn Syrup with (Cane) Flavor,” which is a mixture of glucose and refiners’ syrup.

Oh. 557, Laws of 1907, provides that no person shall sell, offer or expose for sale, or have- in his possession with intent to sell, any of the syrups specified in the act or any molasses •or glucose, unless the same be true to the name under which it is sold and as defined in the standards of purity for food products as latest promulgated by the United States secretary •of agriculture, and unless the barrel, cask, keg, can, pail, or •other original container containing the same be distinctly branded or labeled with the true name of its contents, as defined in the above-named standards; and no person shall sell, •offer or expose for sale, or have in his possession with intent to sell, any syrup or molasses mixed with glucose, unless the barrel, cask, keg, can, pail, or other original container containing the same be distinctly branded or labeled so as to-plainly show the true name of each and all of the ingredients, composing such mixture. The law then prescribes how syrup and glucose mixtures shall be labeled and branded, and separates the same into three classes: First. If the proportion of glucose does not exceed 50 per cent, by weight, it shall be labeled and sold by prefixing the name of syrup used as “Maple Syrup and Glucose.” Second. If such proportion of glucose exceeds 50 per cent, and not more than 75 per cent., it shall be labeled and sold by adding the name of syrup as “Glucose and Maple Syrup.” Third. If the proportion of glucose exceeds 75 per cent., it shall be labeled and sold by adding the name of syrup used for flavoring as-“Glucose Flavored with Maple Syrup.” It also prescribes-the type and color of the label and that the ingredients used must be free from substances injurious to health or prohibited for use as articles of food. Any person violating the-provisions of the act is deemed guilty of a misdemeanor and subject to fine and imprisonment.

The defendants assail the validity of this legislation upon several grounds. It is asserted that the act is invalid because the provisions are violative .of the commerce clause of the federal constitution, in that it attempts to regulate interstate commerce in an article of food, and that Congress has heretofore exercised its power by enacting specific regulations on the subject. The legislation, so far as it may be said to affect interstate commerce, falls within what has been termed the field of “concurrent jurisdiction” .of the state and federal governments, and wherein the state may enact appropriate regulations provided they do not conflict with Congressional legislation on the subject. Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. 1091; State v. C., M. & St. P. R. Co. 136 Wis. 407, 117 N. W. 686.

Tbe contention, however, is earnestly pressed upon us that the provisions of this state statute which have been applied to these defendants are in conflict with the rights secured under the federal constitution granting the federal government authority to regulate interstate commerce. To support this claim it is asserted that defendants’ sales of the article in the cans as imported by them were sales in unbroken ■original packages; that to make such sales is a right secured to them as importers; and that the state regulations impose restrictions on them as importers and thus violate their rights ■secured to them by the federal constitution. In Greek Am. S. Co. v. Richardson D. Co. 124 Wis. 469, 102 N. W. 888, the right of an importer to sell the articles imported into a state was considered, and the original case of Brown v. Maryland, 12 Wheat. 419, was relied on to the proposition that “sale is the object of importation and is an essential ingredient of that intercourse of which importation constitutes a part.” This right of sale is therefore under the federal authority assured to the importer because it is an act which, if inhibited, would in effect be a prohibition of the importation. In Schollenberger v. Pennsylvania, 171 U. S. 1, 13, 18 Sup. Ct. 762, the court, speaking on this subject, says:

“Reasonable and appropriate laws for the inspection of articles including food products were admitted to be valid, but absolute prohibition of an unadulterated, healthy, and pure article has never been permitted as a remedy against the importation of that which was adulterated and therefore unhealthy or impure.”

The provisions of this statute in no way prohibit the sale ■of the articles embraced within the regulation. Its object is to so regulate the traffic therein as to protect the people against imposition and false pretenses. The context of the law evinces the purpose that the regulations should apply to the traffic in the designated articles of food from the time they become at rest and mingled with the property of the state. That goods and merchandise transported from one state to another may thus become commingled with property •of the state upon arrival at its destination by treating it as •other property for sale to customers in a retail business was recognized in Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. 1091. Under such circumstances, the fact that the articles •are being sold in the original packages as transported cannot •operate to prevent the state from subjecting them to proper police regulation for the protection of the people. Under ■such conditions the articles are no longer in the channels of interstate commerce at the point of destination and before sale. Their status at this point is like that of other property held by dealers for sale to consumers in the retail trade. As was stated by Chief Justice Maeshaxl in Brown v. Maryland, 12 Wheat. 419, the original case concerning sales by importers:

“It is sufficient for the present to say generally that when the importer has so acted upon the thing imported that it has become incorporated and mixed up with more of the property of the country, it has perhaps lost its distinctive •character as an import. . .

Applying this principle for distinguishing between articles that are within and without the channel of interstate commerce to the facts of the instant case, it seems clear that, when the defendants received the articles at their places of business, removed the cans from the container in which they were shipped, and put the goods up for sale in the cans as they received them, they had so dealt with the articles as to mingle them with the general property of the state before they were sold by them in their retail trade. May v. New Orleans, 178 U. S. 496, 20 Sup. Ct. 976; Plumley v. Massachusetts, 155 U. S. 461, 15 Sup. Ct. 154; Austin v. Tennessee, 179 U. S. 343, 21 Sup. Ct. 132.

It is, however, argued that these articles were in the channels of interstate commerce at the time of the sale because Congress, under tbe food and drugs act of June 30, 190(} (cb. 3915, 34 U. S. Stats, at Large, 168, U. S. Comp. Stats. Supp. 1909, p. 1187), regulated tbe traffic therein, and tbat, sucb regulation extends to and covers tbe regulation provided by tbe state law. Tbe contention is tbat tbe federal act by specific regulation provides for tbe branding and labeling of’ articles of food, and tbat tbis regulation covers and embraces' tbe acts of sale for wbicb tbe defendants are being prosecuted and punished under tbis state law. ,Tbe title of this-federal act declares its purpose is to prevent “tbe manufacture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods,” and for regulating traffic therein. By sec. 1 of tbe act it is made unlawful for any person to manufacture food in any territory and tbe District of Columbia wbicb is adulterated or misbranded. Sec. 2‘ provides:

“Tbat tbe introduction into any state or territory or the-District of Columbia from any other state or territory or the-District of Columbia, or from any foreign country, or shipment to any foreign country of any article of food or drugs-wbicb is adulterated or misbranded, within tbe meaning of tbis act, is hereby prohibited; and any person who shall ship or deliver for shipment from any state or territory or tbe District of Columbia to any other state or territory or tbe District of Columbia, or to a foreign country, or who shall receive in any state or territory or tbe District of Columbia from any other state or territory or tbe District of Columbia, or foreign country, and having so received, shall deliver, in original unbroken packages, for pay or otherwise, or offer to deliver to any other person, any sucb article so adulterated or misbranded within tbe meaning of tbis act, or any person who shall sell or offer for sale in the District of Columbia or tbe territories of tbe United States any sucb adulterated or misbranded foods or drugs, or export or offer to export the-same to any foreign country, shall be guilty of a misdemeanor,” etc.

In so far as this act regulates interstate commerce in articles of food it is a prohibition of tbe introduction of adulterated and misbranded articles of food from one state into another, and provides a punishment if any person shall ship or deliver for shipment such an article from one state to another, or who shall deliver it in the original unbroken packages for pay or otherwise, or offer to deliver it to any person, or any person selling it or offering it for sale in the District of Columbia or the territories of the United States. The first paragraph of this section forbids any person shipping and delivering for shipment the prohibited article from one state to another and receiving such an article into a state, and, after having so received it, delivering it in the original unbroken packages for pay or otherwise or offering to so deliver it. It will be observed that this part of the act does attempt to regulate the traffic in these articles in the course of their importation from one state into another without reference to a sale thereof after arrival at their destination. But in the nest clause the sale thereof is also regulated in the District of Columbia and territories of the United States. The terms of the act plainly indicate that Congress extended its regulation expressly to the acts of sales in the District of Columbia and the territories, and the provisions of that regulation did not extend to the act of sale of an importation from one state to another. It is evident from these provisions of the act that Congress intended to extend its regulation of this traffic in the District of Columbia and the territories beyond the traffic within the channels of interstate commerce, obviously for the reason that the legislative function to prescribe all police regulations within these jurisdictions devolves on it, while in' the several states of the Union this function devolves on the legislatures. Sherlock v. Alling, 93 U. S. 99; Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564; Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231; In re Rahrer, 140 U. S. 545, 11 Sup. Ct. 865.

It will be observed that the statute of this state does not prohibit the sale or traffic in the article sold by the defendants, but seeks to regulate tbe traffic therein to the extent of prescribing how the packages shall be labeled and branded to afford persons information as to the kinds and proportions of the ingredients composing the mixture. Its evident purpose is to prevent deception and to promote fair dealing in the sale of an article of food. If the regulation provided by the state tends to correct an actual evil in the traffic by which purchasers of an article of food are being deceived into buying something which it in fact is not, then the state acted within its appropriate field under the police power, and the law cannot be said to be invalid for want of power in the state to deal with the subject. The right of the state to legislate on this subject under such circumstances is well recognized and established.

The law is also assailed on the ground of indefiniteness in its provisions, and that it attempts to delegate legislative power to the secretary of agriculture of the United States. These alleged objectionable features are embodied in the first clause of sec. 4601- — la, Stats. (Laws of 1907, ch. 557), which prohibits selling, offering, or exposing for sale, or having possession with intent of selling, any unmixed syrup, molasses, or glucose “unless the same be true to the name under which it is sold and as defined in the standards of purity for food products latest promulgated by the United States secretary of agriculture,” and requires the packages or containers to be branded or labeled accordingly. The section in a separate and independent clause next provides that no person shall sell any such syrup or molasses mixed with glucose, unless the original containers be branded or labeled as therein provided. The lower court held that the first part of the act relating to the mixtures of syrups, molasses, and glucose is a separate and independent clause, and wholly distinct from the clause preceding it, which deals with articles in their unmixed state as defined in the prescribed standard of purity. We are of the opinion that this ruling is correct. The provision pertaining to the mixed articles is as distinct from those in the preceding clause as if separated into independent sections; nor are the provisions of the former essential to give the latter meaning or completion. The two parts deal with •distinct topics in an independent manner. Under these conditions we think that these two parts of the act were so treated hy the legislature and that the one may be made operative and enforced without the other. The legislature might well have considered that the simple unmixed articles for which ■standards were prescribed were much less liable to have been made the subject of imposition on the public than the mixed articles involved in the second clause, and thereby were induced to legislate as to the latter regardless of the considerations involved in prescribing regulations for the former. Under such conditions there is no apparent ground for holding that the adoption of the one part of the act was conditioned upon the adoption of the other. This renders unnecessary consideration of the validity of the first part which is assailed by the defendants, and we do not pass on the question. Loeb v. Columbia Tp. Trustees, 179 U. S. 472, 21 Sup. Ct. 174; Quiggle v. Herman, 131 Wis. 379, 111 N. W. 479; State ex rel. Williams v. Sawyer Co. 140 Wis. 634, 123 N. W. 248.

The defendants assert that they are deprived of their liberty and property under the provisions of this state statute without due process of law, in that the act violates secs. 1, 8, 9, and 13 of art. I of the state constitution and the XIVth amendment of the constitution of the United States. The propositions involved in this claim of the defendants, as we •comprehend them, are that as a matter of fact the article sold is a wholesome article of food for table use; that it is in fact ■a syrup as this term is commonly used and understood; that the terms “glucose” and “corn syrup” are synonymous and are in commerce interchangeably applied to the product obtained from the starch-containing part of com; that the article sold is known to consumers as “com syrup” and is by them understood to be a compound of the product obtained from the starch of corn, mixed and flavored with table syrup. The1 record sustains the contention that commercial glucose is extensively used as an ingredient in articles of food, and in its. pure state is a nutritious and wholesome product. The claim, that it is in fact a syrup, as this term is commonly used and understood, is not sustained. The term “syrup” has an accepted meaning as commonly and pi’operly understood and applied to articles of food for table use. It is in this sense that the term must be applied in dealing with this subject,, and in this sense the term “syrup” is employed in this and kindred legislation regulating traffic in foods. The term “syrup” thus employed designates articles of food which are in common use as table syrups, such as maple, sugar cane, and refiners’ syrup. These articles in their pure and unmixed state are known by their inherent and peculiar colors, flavors,, and viscidity which make them acceptable as to quality and impart to them an agreeable taste, and hence they are desirable as articles of table food. The evidence shows that such table syrups are the products of sugar-producing plants and possess these natural characteristics of flavors, colors, and consistency, and that they are commonly distinguished and known in the trade as syrups. It is not disputed but that glucose, whether made from corn or other starch-containing, substance, is not such a syrup, and that it has none of the flavors or colors of these table syrups, though it has viscidity. The court was therefore fully justified in finding that glucose in the pure and unmixed state is not a syrup in the sense the term is commonly used and applied to these articles of table foods, and that the terms “glucose” and “com syrup” are not synonymous in their trade meaning and use as applied to articles of table food. The fact that the term “com syrup” may have been applied to glucose to some extent by manufacturers and dealers and was thus employed in legislation in this state and in the decisions of courts does not sbow that glucose is commonly known by the designation of “corn syrup.” The characteristics and qualities of glucose in its pure state are admittedly not those of the articles known in the trade as table syrups; nor is it used as a table syrup in its unmixed state. The term “com syrup,” as applied generally to an article for table use, conveys a meaning and designates an article wholly different in character and quality from that of glucose. It does not appear that “com syrup” designates a mixture having a fixed proportion of glucose or syrup constituents. It seems that such constituents are of variant proportions in the article sold as “com syrup.” Nor can it be said that the great mass of persons understand that “corn syrup” is a mixture of glucose and syrup. The natural result of such use of the term “com syrup” is to mislead the consumers into the belief that they are obtaining a table syrup of the variety and kind commonly known as syrup, the product of sugar-producing plants, and the consequences of such practice are that the consumers are misled and deceived in respect to the actual nature, the constituents, and the value of the article as a food product. Such a state and condition of affairs respecting the traffic in an article of food, though the article and its constituents are wholesome, is a well-recognized ground for the exercise of legislative authority under the police power to prescribe regulations to protect the people from imposition and deception in trafficking therein. Gibbons v. Ogden, 9 Wheat. 1; Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357; Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 1257; Crossman v. Lurman, 192 U. S. 189, 24 Sup. Ct. 234.

In reviewing the cases on this subject, the court in Plumley v. Massachusetts, 155 U. S. 461, 472, 15 Sup. Ct. 158, said:

“If there be any subject over which it would seem the state ought to have plenary control, and the power to legislate in respect to which it ought not to be supposed was intended to be surrendered to the general government, it is the protection of the people against fraud and deception in the sale of food products. Such legislation may indeed indirectly or incidentally affect trade in such products transported from one state to another state, but the circumstance does not show that laws of the character alluded to are inconsistent with the power of Congress to regulate commerce among the states.”

Sherlock v. Alling, 93 U. S. 99; Austin v. Tennessee, 179 U. S. 343, 21 Sup. Ct. 132; Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 1257; Meyer v. State, 134 Wis. 156, 114 N. W. 501.

The provisions of ch.'557, Laws of 1907, under which these defendants were prosecuted and fined, clearly forbid sales without labeling or branding the articles as prescribed. That this legislation was a proper exercise of the legislative authority within the police power of the state we think is established by the authorities heretofore cited. Under these circumstances, the defendants’ liberty and property rights secured to them by the state and federal constitutions have not been invaded, and their conviction of the charges preferred against them must be approved.

By the Court. — The judgment in each of the cases separately appealed from is affirmed.