State v. Armour & Co.

145 N.W. 1033, 27 N.D. 177, 1913 N.D. LEXIS 31

• Court: North Dakota Supreme Court
• Decided: December 17, 1913
• Status: Published

Opinions

Burke, J.

As early as chapter 72, Session Laws of 1899, the legislature of the state of North Dakota enacted laws relative to pure foods and honest weights. This legislation covers almost every article of food, — beverages, Paris green, paints, formaldehyde, and other articles too numerous to mention. The weight of a bushel of every kind of grain is specified, as well as the size of a gallon, quart, pint, etc., in liquids. The sheriffs of the various counties are given authority to examine and test scales and measures, and confiscate those found to be false. Among other subjects regulated is lard. In 1905 an act was passed providing that all articles of food should be considered misbranded if the package, bottle, or container did not bear the true net weight, name of the real manufacturer or jobber, and the true grade or class of the product, the same to be expressed in clear and distinct English words in black type on a white background. In 1907 this act was re-enacted with a few changes, to read as follows: “If every package, bottle, or container does not bear the true net weight, the name of the real manufacturer or jobbers, and the true grade or class of the product, the same to be expressed on the face of the principal label in clear and distinct English words, in black type on a white background, said type to be in size uniform with that used to name the brand or producer” [chap. 195], the same is to be considered misbranded, etc. This article applied to all food products as well as lard.

Chapter 236, Sess. Laws 1911, reads as follows: [Section 1. Food sold by weight, measure or count.] “Every article of food or beverage as defined in the statutes of this state shall be sold by weight, measure, or numerical count, and as now generally recognized by trade custom, and shall be labeled in accordance with the provisions of the food and beverage laws of this state.- Only those products shall be sold by numerical count which cannot well be sold by weight or measure. All weights shall be net, excluding the wrapper or container, and shall be stated in terms of pounds, ounces and grains avoirdupois weight, and all measures shall be in terms of gallons of two hundred and thirty one (231) cubic inches or fractions thereof, as quarts, pints, and ounces. Seasonable variations shall be permitted and tolerations therefore shall be established and promulgated by the food commissioner. Section 2, weight of lard. Every lot of lard or of lard compound or of lard substitute, unless sold in bulk, shall he put up in pails or other containers holding one (1), three (3), or five (5) founds net weight, or some whole multiple of these numbers, and not any fractions thereof. If the container be found deficient in weight additional lard, compound or substitute shall be furnished to the purchaser to make up the legal weight. The face label shall show the true name and grade of the product, the true net weight together with the true name and address of the producer or jobber. If other than leaf lard is used then the label'shall show the kind as ‘back lard’ or ‘intestinal lard.’ Every lard substitute or lard compound shall also show, in a manner to be prescribed by the food commissioner, the ingredients of which it is composed, and each and every article shall be in conformity with, and further labeled in accordance with the requirements under the food laws of this state. [Section 3. AVeight of Bread.] A loaf of bread for sale shall be two pounds in weight. Bread, unless composed in chief part of rye or maize, shall be sold only in whole, half, and quarter loaves and not otherwise. Bread, when sold, shall, upon the request of the buyer, be weighed in his presence and if found deficient in weight additional bread shall be delivered to make up the legal weight, except that this section shall not apply to rolls or to fancy bread weighing less than one quarter of a pound. Provided, every loaf, half loaf, quarter loaf or other loaf of bread which does not weigh the full legal weight required by this section when plainly labeled with the exact weight thereof, shall not be deemed in violation of the provisions of this act.”

The defendant is a corporation, with packing houses in Chicago, Kansas City, Omaha, and other larger cities, doing a large business in the various lines incident to the packing trade. They maintain a branch establishment in the city of Eargo, in this state, in charge of a general manager. In October, 1911, Professor Ladd, state food commissioner, went to this establishment and asked to purchase 3 pounds of Armour’s Shield Lard. He was sold a pail which is one of the exhibits in this case, and which admittedly contained 2 pounds, 6 ounces of lard. Hpon complaint of the food commissioner, arrest was made under the provisions of the 1911 law. The purchase was made and the complaint filed with the direct object of testing the constitutionality of the law. The defendant admits the sale within the state of a single pail of lard, but urges that the law is unconstitutional and void in so far as it attempts to regulate the size of the pail, for six reasons given in the appellant’s brief in the following language: “Our contentions still are, and we urge them with all confidence: (1) That this law is arbitrary and unreasonable, and cannot be justified under the police power of the state. (2) That it interferes with the guaranties of the right of freedom of contract and of the equal protection of the law afforded by the Constitution. (3) That it constitutes the taking of property without due process of law. (4) That it is class legislation. (5) That it is in violation of the commerce clause of the Federal Constitution; and (6) that in no event under proper construction of the statute can a conviction be sustained.” We will discuss these objections in the order named.

(1) The first contention is that the law is arbitrary, unreasonable, and not justified under the police power of the state. Thereunder appellant has advanced six arguments, and we will therefore subdivide this first subject, and discuss each of the reasons given under the designation of a letter of the alphabet. Before taking up those matters in detail a few general remarks may be useful. The lard sold in this instance was not adulterated, but misbranded under said statute, but the principles governing are identical. The questions of pure food and honest weights are inseparably allied, and any argument advanced upon one applies equally to the other. That the subject is well within the police power of the state is so well settled that it seems a waste of time to cite authorities at length, and we will therefore content ourselves with a few citations upon this general proposition. In the excellent work of Thornton on Pure Food & Drugs, § 3, we find: “At this day and age it seems scarcely necessary to state the ground upon which pure food legislation rests, nor to cite cases in support of it. The right . . . rests upon the police power of the state, which remains unimpaired by the Federal Constitution. ... It has not only the right, but it is a duty and obligation which the sovereign power owes to the public, and as no one can foresee the emergency or necessity which may call for its exercise, it is not an easy matter to prescribe the precise limits within which it may be exercised.” (§4) “For it is the settled doctrine of this -court that as government is organized for the purpose, among others, of preserving the public health and the public morals, it cannot devest itself of the power to provide for those objects, and that the 14th Amendment was not designed to interfere with the exercise of that power by the states.” The same author, speaking of the power of the legislature and tbe courts at § 4, says: “It is not a part of their [the courts] function to conduct investigations of fact entering into questions of public policy merely, and to sustain or frustrate the legislative will, embodied in statutes, as they may happen to approve or disapprove the determination of such questions. The power which the legislature has to promote the general welfare is very great, and the discretion which that department of the government has, in the employment of means to that end, is very large. While both the power and its discretion must be so exercised as not to impair the fundamental rights of life, liberty, and property, . . . yet in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of public opinion or by means of the suffrage,” quoting from Yick Wo v. Hopkins, 118 U. S. 370, 30 L. ed. 226, 6 Sup. Ct. Rep. 1064. In Powell v. Pennsylvania, 127 U. S. 678, 32 L. ed. 253, 8 Sup. Ct. Rep. 992, 1257 (affirming 114 Pa. 265, 60 Am. Rep. 350, 7 Atl. 913, 7 Am. Crim. Rep. 32), it is said: “If all that can be said of this legislation is that it is unwise or unnecessarily oppressive to those manufacturing ... an article of food, their appeal must be to the legislature or to the ballot box, not to the judiciary. The latter cannot interfere without usurping powers committed to another department of government.” See also: McCrary v. United States, 195 U. S. 27, 49 L. ed. 78, 24 Sup. Ct. Rep. 769, 1 Ann. Cas. 561; Walker v. Pennsylvania, 127 U. S. 699, 32 L. ed. 261, 8 Sup. Ct. Rep. 1204; State v. Schlenker, 112 Iowa, 645, 51 L.R.A. 347, 84 Am. St. Rep. 360, 84 N. W. 699; St. Louis v. Schuler, 190 Mo. 524, 1 L.R.A. (N.S.) 928, 89 S. W. 621; State v. Layton, 160 Mo. 474, 62 L.R.A. 163, 83 Am. St. Rep. 487, 61 S. W. 171; State v. Sherod, 80 Minn. 446, 50 L.R.A. 660, 81 Am. St. Rep. 268, 83 N. W. 417; Com. v. Evans, 132 Mass. 11; State v. Smith, 58 Minn. 35, 25 L.R.A. 759, 59 N. W. 545; Com. v. Waite, 11 Allen, 264, 87 Am. Dec. 711; Stolz v. Thompson, 44 Minn. 271, 46 N. W. 410. From State v. Smith, 58 Minn. 35, 25 L.R.A. 759, 59 N. W. 545, we quote: “When a subject is within that [the police] power, the extent to which it shall be exercised, and the regulations to effect the desired end, are generally wholly in the dis cretion of the legislature.” State v. Mrozinski, 59 Minn. 465, 27 L.R.A. 76, 61 N. W. 560; Helena v. Dwyer, 64 Ark. 424, 39 L.R.A. , 62 Am. St. Rep. 206, 42 S. W. 1071; State, Borden’s Condensed Milk Co., Prosecutor, v. Board of Health, 81 N. J. L. 218, 80 Atl. 30; Jacobson v. Massachusetts, 197 U. S. 11, 49 L. ed. 643, 25 Sup. Ct. Rep. 358, 3 Ann. Cas. 765; Valentine v. Englewood, 76 N. J. L. 509, 19 L.R.A.(N.S.) 262, 71 Atl. 344, 16 Ann. Cas. 731; California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306, 50 L. ed. 204, 26 Sup. Ct. Rep. 100; Gardner v. Michigan, 199 U. S. 325, 50 L. ed. 212, 26 Sup. Ct. Rep. 106; Laurel Hill Cemetery v. San Francisco, 216 U. S. 358, 59 L. ed. 515, 30 Sup. Ct. Rep. 301; Atlantic City v. Abbott, 73 N. J. L. 281, 62 Atl. 999. The rights of the courts are thus set forth by the supreme court of Missouri, in St. Louis v. Liessing, 190 Mo. 464, 1 L.R.A.(N.S.) 918, 109 Am. St. Rep. 774, 89 S. W. 611, 4 Ann. Cas. 112. “If the article is universally conceded to be so wholesome and innocuous that the court may take judicial notice of it, the legislature under the Constitution has no right to absolutely prohibit it; but if there is a dispute as to the fact of its unwholesomeness for food or drink, then the legislature can either regulate or prohibit it. The constitutionality of the law is not to be determined upon a question of fact in each case, but the courts determine for themselves upon the fundamental principles of. our Constitution that the act of the legislature or municipal assembly is not to be declared void unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt.” See also State v. Layton, 160 Mo. 478, 62 L.R.A. 163, 83 Am. St. Rep. 487, 61 S. W. 171; also Adams v. Milwaukee, 144 Wis. 371, 43 L.R.A.(N.S.) 1066, 129 N. W. 518. Thornton on Pure Food & Drugs, p. 18: “If there be a doubt upon the question, then the court cannot substitute its opinion for that of the legislature. In such an instance the opinion of the legislature must be considered as right and binding.” See also Rigbers v. Atlanta, 7 Ga. App. 411, 66 S. E. 991; State, Borden’s Condensed Milk Co., Prosecutor, v. Board of Health, 81 N. J. L. 218, 80 Atl. 30.

Keeping in mind, then, the extraordinary burdens of proof placed upon the defendant in this case in its attack upon this statute, we approach the facts in this case. As early as 1899 the legislature of this state provided for a food commissioner, and enacted pure food laws. Every session of the legislature since that time has contributed further legislation upon the subject. For nearly fifteen years complaining witness Ladd has been such pure food commissioner, and the Agricultural College of this state has maintained a department for the testing of foods and weights,' and often has had men traveling over the state, making purchases, and studying the subject of pure foods and honest weights and measures in a scientific and painstaking manner. It is not unreasonable to assume that the 1911 law was drafted by such department, after twelve years of observation and study. The expert who drafted the law, the legislature who passed it, and the governor who approved it, all thought necessity existed for such a measure. If we did not agree with all of those, we might well hesitate to say that there was absolutely no doubt upon the question, but in fact a majority of this court believes the law reasonable, and this belief is founded upon the evidence in this case. We will now discuss in order the subdivisions of appellant’s first objection to the law.

(a) Appellant contends that chapter 195, Sess. Laws 1907, was amply sufficient to protect the commerce of the state against fraud, and that there was no necessity for the 1911 legislation, and the same is therefore void. We cannot agree with this proposition. The 1907 law was a re-enactment of the 1905 law, with a few amendments, and its text will be found earlier in this opinion. It provided that the net weight should be placed upon each package of food. The legislature was not confined to this remedy. They might repeal it and provide further regulations if they so chose. They had as much right under the police power to require even weights as they had to require the net weight to be printed upon the outside of the pail. This court has no right to interfere with legislation and say that one measure is superior to the other. During the last dozen years there has been a decided tendency of manufacturers to pack foods in cans and packages. Improved machinery and improved sanitary conditions have enabled foods to be packed cheaply and safely, therefore conditions have been changing year by year and legislation necessarily must change to meet them. The object of all net weight and measure laws is to prevent the opportunity for fraud. See Freund, Pol. Powers, § 274; Tiedeman, Pol. Power, § 89; People v. Wagner, 86 Mich. 594, 13 L.R.A. 286, 24 Am. St. Rep. 141, 49 N. W. 609; McLean v. Arkansas, 211 U. S. 539, 53 L. ed. 315, 29 Sup. Ct. Rep. 206. It is not material whether the defendant in this case was guilty of fraud in the sale of this particular pail of lard, but was tbe manner of the preparation of the pail such that the people generally might be defrauded ? The consumers do not have to depend upon the honesty of the manufacturer in every case.. They are entitled to laws allowing them to ascertain the facts themselves. The honest manufacturers, as well as the consumers, are entitled to protection from competition with dishonest weights. There-was therefore a necessity for some sort of legislation upon this subject in this state. Taking up in particular the lard industry, we find from the evidence in this case that the packers as a whole supply but 40-per cent of the lard used in this state, while 60 per cent is supplied by local butchers and the consumers themselves. Defendant has one of the largest of the packing houses, but does not of course supply more-than its fair share of the trade, dividing with such houses as Swift & Company, Cudahy & Company, and Morris & Company, at least. It is apparent, therefore, that they represent something less than 10 peícent of the lard industry, and if they have obeyed the law of 1907 (which we do not concede) it would not be proof that the other 90’ per cent of the industry had likewise obeyed the law. Besides, the defendant sells only to the middlemen, and there is no proof that the middlemen who purchased from defendant were obeying the 1907 law. It is thus apparent that the behavior of the defendant has but a remote-bearing upon the necessity for the 1911 regulation. Nor would the fact that the defendant was obeying the 1907 law at the time of the arrest be any proof that it was obeying it at the time of the passage of the 1911 law. In other words, the law was enacted for the protection of the consumer, and the conduct of defendant in one sale is only slightly material on the general condition. Approaching still closer to the case in hand, we inquire whether or not the defendant was obeying the 1907 law. We discuss this with reluctance, because the defendant is undoubtedly following the trend of the trade of the geiieral packers, and it is not in justice to be singled out from the others. Unquestionably, defendant makes a fine grade of lard, and much may be said in - its favor from a trade standpoint. However, it has forced this argument upon us and we would be remiss in our duty did we not answer it with candor. When Professor Ladd purchased the pail of lard in evidence; ’t bore upon its side a lithographed label in five colors, bearing the advertisement of the lard. The words “Armour’s Pure Lard” are printed upon this label in letters over a quarter of an inch in height and covering six and three quarters of an inch in length, while the name “Shield” covers four running inches, and the small letters stand three eighths of an inch in height and the capitals larger, but upon this label there is no net weight, as required by the 1907 law (which see), but upon the left and rear of the pail completely out of sight as it would stand upon a shelf, we find a paper tag about the size of a silver half dollar, and placed thereon in aniline ink, evidently with a rubber stamp, the words, “net weight 2 lbs., 6 oz.,” in letters about one eighth of an inch in height and covering three quarters of an inch in length.. The wording upon the paper label is scarcely 10 per cent in size of that used in giving the name of the kind of lard. It is hard to avoid the conclusion that the defendant company prepared those tags to give the least notice possible to the consumer and yet make a showing of complying with the 1907 law. In the face of this showing alone, the legislature was amply justified in passing the 1911 act. If it be claimed that this paper tag was a temporary affair to be used until pails could be manufactured showing the net weight'upon the principal label in a permanent form, we have merely to turn to the evidence of Mr. Howe, general manager of the Chicago House, where he testifies that those tags had been in use for about six years at the time of the trial, and that they were in use ever since the first pure food laws were enacted. It evidently was not the intention of this defendant to use any other designation upon their pails, or they would have done so, as they were making thousands of pails every day.

With this conduct of the packers well known to the food commissioner and legislature of this state, it was only natural that an effort be made to secure better laws upon the subject. People had been educated to call those 1, 3, 5, and 10 pound pails, as appears from the testimony of the defendant. Indeed, exhibit B in this case is a bill from Armour & Company to the Aneta Mercantile Company of Aneta, North Dakota, in which those pails were so designated by the defendant company itself. The purchaser was not able readily to extract the lard from the pail and weigh it. The lard was used from the pail itself in small portions, and the fact that the pail was included in the gross weight might not ordinarily occur to the housewife. The contention of the defendant that it had complied with the 1907 law, and that said law was sufficient to protect the consumers, is unsupported by the evidence.

(b) Defendant further claims the law to be unreasonable, because it had been its custom and the custom of the other packers for over twenty years to use gross-weight pails, and that it had therefore become a settled right of the trade. We do not believe this argument sound. The pails have been in use less than thirty years, while the lard industry has existed for many hundreds of years. Questions like this are not settled in a day, nor in thirty years. No reason is given why gross-weight pails were used in the beginning. Gross weight is unfair, always has been unfair, and always will be unfair. Net weight is fair and just, and should eventually predominate. It is hard to believe that the selection of gross-weight pails thirty years ago was not an attempt to deceive somebody. Gan it be possible that a thirty years’ tolerance of an evil forever thereafter forecloses mankind from seeking a remedy ? It may be that North Dakota now stands alone in this particular law; twelve years ago it stood alone, or almost alone, upon the entire subject of pure-food regulations. To-day there is scarcely a state in the Union that has not such legislation. Public opinion has forced this legislation, and it will force the net-weight legislation. Net-weight pails may be the rule, and not the exception in a very few years. While it is just that the consumer pay for the container, it is equally just that he should know how much container he was purchasing and how much lard.

(c) Defendant next contends that the law is unreasonable because it imposes an additional expense upon the packers in that they must furnish a different sized paid for North Dakota than is supplied to the rest of the states. Much evidence was introduced upon this point, but it does not appeal to us for two reasons: (1) There is no reason for furnishing other states with gross-weight pails, and (2) the evidence in this case shows that the defendant could comply with the North Dakota law with little extra expense. Mr. Nichols, superintendent of the defendant’s tin shops, was one of the witnesses, and upon cross-examination admitted that the firm of Park & Tilford, of New York city, had insisted upon receiving net-weight pails, and was being supplied with the same by Armour & Company during all the time of this litigation. He says: “Q. And you make net-weight pails for them now? A. Yes, sir. We make and fill them. . . . Q. For how long? A. I don’t know, I am sure. A few years.” It further appears that those pails were made in the shops of the defendant, and that they had full machinery for making the net-weight pails and could have made a few more for the North Dakota trade. To be true, the pails made for Park & Tilford are of a slightly different shape than those used under the Armour name, and contain Park & Tilford’s name upon the label. Put we see no reason why the Armour label could not have been placed upon some of those pails for use in North Dakota. A supply of empty pails could be kept at each packing establishment and filled for the North Dakota trade as the orders were received. At any event it would be no more expensive to furnish the sovereign state of North Dakota with those pails than it was to supply a private firm. There is no argument advanced showing extra expense in one case that would not occur in the other. That mail-order houses may supply North Dakota patrons with gross-weight pails is immaterial. The mail-order houses are protected under the provisions of the interstate commerce clause. Our law only applies to sales made within the state of North Dakota.

(d) It is next urged that the law is unreasonable because in any event the consumers are not prejudiced. That they are paying merely the price of tierce lard plus the extra expense of the tin pails, the handling of the lard in such small quantities, and packing the same. We think this argument fails, and again for two reasons. (1) The defendant does not sell to the consumer, but to middlemen. Conceding that defendant charges the middlemen merely for the actual cost of pails, we know that the middlemen would expect to profit upon his entire investment, and therefore the consumer would have to pay not the net cost of the container, but the middlemen’s profit thereon as well. In exhibit B defendant sold to the Aneta Mercantile Company 1 case of 3-pound pails. The case contained 20 pails, and the Mercantile Company was charged for 60 pounds of lard at 16 J cents a pound, or $10.13. When the Mercantile Company placed these pails upon the counter for sale they naturally added a profit upon the whole amount invested. They had purchased 47-J pounds of lard and 12-|* pounds of tin and had paid 16| cents a pound for the whole. When they sold the same the purchaser would be obliged to pay for the lard, with the profit thereon, to the Mercantile Company, and for the pail with the same profit to the Mercantile Company; and, while Armour & Company might have made nothing upon the pail, yet the customer paid a profit. (2) An analysis of the evidence shows that the defendant company gets something besides the net cost of his pail. The plain pail costs little, but the defendant, seeing an opportunity of a lasting advertisement, has taken advantage of the consumer to advertise his goods at the housewife’s expense. Mr. Nichols, explaining the manner of the preparation of the pails, says: “They are electro-type plates made of compound, compound filled with electrotype material. . . . There are four operations before it is discharged from the machine. First, the machine changes the tin, puts on one color; revolves, puts on another color, and so on till it gets five colors on, then it discharges it. . . . We have a lithographing press to do the lithographing and lacquering of the bodies, and we have a coating machine. Now, each of those machines has an oven. After it is lithographed and the lacquer, that is, the front of the lard can, there — the label is put on and lacquer around the label, it has to go into an oven with 318 degrees to 330 degrees heat, stay in four or five hours according to the atmosphere, sometimes six.” The manager of the company testifies that the company gets the benefit of the lasting advertisement free. Analysis of the testimony therefore shows that Armour & Company is charging an expense of the advertising of their general business up to the lard industry. When a 20-pound pail of lard is sold it contains 18 pounds of lard and 2 pounds of pail. If the consumer pays 25 cents a pound he has paid 50 cents for the pail and $4.50 for the lard. This pail has cost the defendant around 4 cents for tin and a few cents for the making of the pail, which is done by machinery and very cheaply, and the rest of the charge must be for incidental expenses, including the lithographing, and nobody knows the items thereof. The consumer is entitled to this information, and the 1911 law helps to supply it. The policy of all such laws is to make it easy for the purchaser to calculate the price-that he is paying for the lard, and to detect fraud. As we have said before, it is not a question so much of the intention of one particular-packer, hut a question of opportunity for fraud. It is hard to conceive of any system offering more opportunities for fraud than the gross-weight system. If some dishonest packer should decide that the present pail was too light to stand the strain of commerce, and should double the weight of his pail, the housewife would pay lard prices for tin, and. honest packers would find themselves competing with the rascal who was making a 25 per cent profit to which he was not entitled.

(e) It is next urged that the law is unreasonable in that other traders have been using gross-weight methods also. For instance, they claim that butchers weigh the paper along with the meat, and charge meat prices for the paper. To this we have only to say that if the statement is true, the butcher is dishonest in charging 25 cents a pound for paper that cost him less than a cent a pound. However, this would not help the defendant. The fact that the butcher may be dishonest in his business does not excuse dishonest methods in other lines, nor render unreasonable laws to regulate them.

(f) The defendant urges that the enforcement of this law will drive the packers to use bulk lard only, and that this is unsanitary. This is not in point. The packers have never supplied more than 40 per cent of the trade of this state. During the past two years the packers have withdrawn from this state with their pails, and there is no sign of any great damage to the state. We do not believe the packers will abandon North Dakota nor that it would ruin the state if they did.

Thus, upon complete analysis we find that the 1911 law is not unreasonable, arbitrary, or capricious: that it has supplied a necessary piece of legislation and that it has worked no hardship upon the defendant in this case.

We think that we have given' reasons enough to sustain our position without reference to the decisions of other states, but upon an examination of all the authorities upon statutes in any way similar we find our position sustained by a large majority of the decisions. True, no state has a law exactly like our net-weight lard law, but other states have regulated similar articles, bread, corn meal, tobacco, molasses, etc., generally. We review a few of those cases. The state of Tennessee enacted a law requiring corn meal to be' put up in sacks containing 2 bushels, 1 bushel, -1 bushel, ¿ bushel, or % bushel respectively, and made it unlawful to pack for sale, or sell, or offer .for sale any corn meal in bags of other weights. This is almost identical in principle with the case at bar. This is a well-considered case collecting almost all of the authorities. Therefrom we quote: “Legislation for the prevention of fraud in weights and measures, especially in the sale of food and other essentials of life, was early enacted in England and is common in all the state. ... It simply provides that when a certain staple article of food, of universal consumption in this country, is sold in packages, the packages shall contain certain quantities of the article, and that the quality and quantity.... shall be printed and marked thereon. It is well known that corn meal is generally sold by the bushel, or the fraction of a bushel, and is put in packages purporting to contain such quantities, and the object of the statute is to prevent the giving of short weights in these packages, and the consumers from thus being deceived and defrauded, it is true of small sums, but which on account of the numerous sales, in the opinion of the legislative department, is a public evil which should be suppressed. It in no sense deprives the owner of his property, or the power to sell and dispose of it in a fair and honest manner. Nor is the act when properly construed discriminatory. It does not prohibit the manufacturer, the wholesaler, or any person from selling meal in any bag or other receptacle, or quantity, desired by the seller or consumer when priced and delivered by actual weight or measure. All persons, whether retailers or not, may sell it in that way. The statute only applied where it is put in bags or packages for sale, and sold or offered for sale without being weighed or measured.” For the benefit of persons who have not access to this (Tennessee) case we repeat the authority. State v. Co-operative Store Co. 123 Tenn. 399, 131 S. W. 867, Ann. Cas. 1912C, 248; People v. Luhrs, 195 N. Y. 377, 25 L.R.A. (N.S.) 473, 89 N. E. 171; People v. Girard, 145 N. Y. 105, 45 Am. St. Rep. 595, 39 N. E. 823; People v. Wagner, 86 Mich. 594, 13 L.R.A. 286, 24 Am. St. Rep. 141, 49 N. W. 609; John P. Squire & Co v. Tellier, 185 Mass. 18, 102 Am. St. Rep. 323, 69 N. E. 312; State v. Campbell, 64 N. H. 402, 10 Am. St. Rep. 419, 13 Atl. 585; Neas v. Borches, 109 Tenn. 398, 97 Am. St. Rep. 851, 71 S. W. 50; Lemieux v. Young, 211 U. S. 489, 53 L. ed. 295, 29 Sup. Ct. Rep. 174; State v. Fourcade, 45 La. Ann. 717, 40 Am. St. Rep. 249, 13 So. 187; Butler v. Chambers, 36 Minn. 69, 1 Am. St. Rep. 638, 30 N. W. 308; State, Waterbury, Prosecutor, v. Newton, 50 N. J. L. 534, 2 Inters. Com. Rep. 63, 14 Atl. 604; Freund, Pol. Power, § 275. We also believe the bread cases, as they are called, are an authority, upon this proposition. We will not lengthen this opinion by extracts from those cases, but it is sufficient to say that there is not much difference in principle between regulating the weight of a loaf of bread and the contents of a pail of lard. Below is a list of those cases: Com. v. McArthur, 152 Mass. 522, 25 N. E. 836; Mobile v. Yuille, 3 Ala. 137, 36 Am. Dec. 441; People v. Wagner, 86 Mich. 594, 13 L.R.A. 286, 24 Am. St. Rep. 141, 49 N. W. 609; Chicago v. Schmidinger, 243 Ill. 468, 44 L.R.A.(N.S.) 632, 90 N. E. 369, 17 Ann. Cas. 614, 226 U. S. 578, 57 L. ed. 364, 33 Sup. Ct. Rep. 182; State v. McCool, 83 Kan. 428, 111 Pac. 477; State v. Belle Springs Creamery Co. 83 Kan. 389, — L.R.A.(N.S.) —, 111 Pac. 474. Also in point, as we think, are the coal cases and particularly McLean v. State, 81 Ark. 304, 126 Am. St. Rep. 1037, 98 S. W. 729, 11 Ann. Cas. 72, in which the supreme court of Arkansas sustained a law haying many features similar to our statute. Upon appeal to the Supreme Court of the United States this case was in all things affirmed. See 211 U. S. 539, 53 L. ed. 315, 29 Sup. Ct. Rep. 206. We find an excellent discourse upon this subject by the highest court of this land, from which we give a short quotation, as it is a very recent case and practically overrules Millett v. People, 117 Ill. 294, 57 Am. Rep. 869, 7 N. E. 631, which is practically the only case relied upon by the appellants: “Liberty of contract which is protected against hostile state legislation is not universal, but is subject to legislative restrictions in the exercise of the police power of the state. . . . The legislature of the state is primarily the judge of the necessity of exercising the police power, and courts will only interfere in case the act exceeds legislative authority; the fact that the court doubts its wisdom or propriety affords no ground for declaring a state law unconstitutional or invalid.” Also more or less in point, we think, are the shingle cases, oleomargarine cases, tobacco cases, and others too numerous to mention, but which may be found in a note to the Tennessee cases, where the same is reported in Ann. Cas. 1912C, at page 251, and running to page 259. The text writer gives a list of the statutes which, as he said, “intended to prevent fraud by prohibiting arbitrary deductions by buyers from the gross weight of particular commodities, has been held to be within the police power of the state, and not to interfere unlawfully with the freedom of contract.” Further authorities might be given, but space forbids.

(2) Taking up the second objection, the defendant claims the law unconstitutional because it interferes with the guaranties of the right of freedom of contract and of the equal protection of the law afforded by the Constitution. This contention has been made so often and been so often overruled, that we will give it but the merest mention. We quote from Deems v. Baltimore, 80 Md. 164, 26 L.R.A. 541, 45 Am. St. Rep. 339, 30 Atl. 648, as follows: “To justify such interference with private rights, its exercise must have for its immediate object the promotion of the public good, and so far as may be practicable, every effort should be made to adjust the conflicting rights of the public and the private rights of individuals, at the same time the emergency may be so great and the danger to be averted so eminent, that private rights must yield to the paramount safety of the public. And to await in such cases the delay necessarily incident to ordinary judicial inquiry in the determination of private rights would defeat altogether the object and purposes for which the exercise of this salutary power was invoked. Whatever injury or inconvenience one may suffer in such cases, he is, in the eye of the law, compensated by sharing the common benefit resulting from the summary exercise of this power, and which, under the circumstances, was absolutely necessary for the protection of the public.” See also Powell v. Com. 114 Pa. 265, 60 Am. Rep. 350, 7 Atl. 913, 7 Am. Crim. Rep. 32, supra. It thus follows that where the law is a reasonable exercise of the police power, that it does not interfere with the guaranties of the right of freedom of contract.

(3) The third contention of the appellant is that the statute constitutes the taking of property without due process of law. Much the same answer can be made to this that has been made in article 2. In the case at bar no property has been taken without due process of law.

(4) The fourth claim of appellant is that the 1911 statute is void as class legislation; that lard is singled out from all the articles of food and subjected to restrictions while being prepared for market. To this it need only be said that the law of 1911 as well as many preceding laws regulated fhe manner of selling every article of food and beverage. Lard, lard comporinds, and lard substitutes being sold largely in pails, required a particular regulation not necessary for the regulation of such articles as butter, eggs, milk, and cream. The regulation of the size of the pail is but an incident of the law. The fact that all foods are subject to regulation to prevent the opportunity for deceit is the main idea of the law. In appellant’s brief the argument is made that the 1911 law is discriminatory in that it prescribes no regulations for such articles as erisco, cottolene, vegetóle, it being the contention of defendant that those articles which contain no animal fat are not “substitutes of lard.” The witness Fox was placed upon the stand evidently to testify as an expert to this effect, but upon cross-examination he admitted that those vegetable compounds are intended to and do take the place of lard and serve as a substitute for lard. The statute in express terms covers lard, lard compounds, and lard substitutes, and in our opinion applies as well to erisco and the other vegetable compounds as to lard itself, as those articles are used instead of and as a substitute for lard. There is therefore no discrimination against the lard industry. To the effect that those compounds are lard substitutes, see: State v. Hanson, 84 Minn. 42, 54 L.R.A. 468, 86 N. W. 768; State v. Aslesen, 50 Minn. 5, 36 Am. St. Rep. 620, 52 N. W. 220; State v. Snow, 81 Iowa, 642, 11 L.R.A. 355, 47 N. W. 777. Upon the question of class legislation, also see Powell v. Pennsylvania, 127 U. S. 678, 32 L. ed. 253, 8 Sup. Ct. Rep. 992, supra, from which we quote: “The statute places under the same restrictions and subjects to like penalties and burdens, all who manufacture, or sell, or offer for sale, or keep in possession to sell, the articles embraced by its prohibition; thus recognizing and preserving the principle of equality among those engaged in the same business.”

(5) The fifth claim of the defendant is that the law is in violation of the commerce clause of the Federal Constitution. In this we believe that appellant is again mistaken. The power of Congress and the power of the state are two distinct and separate things. Thornton, in his excellent word on Pure Food and Drugs, says in his preface: “In the last few years great interest has been taken in the subject of pure food.....The Federal pure food and drugs act of June 30, 1906, has acted as an incentive for state legislation on the subject of foods and drugs. . . . Owing to the complex systems of government under which we live, the states were not able to protect their inhabitants as effectually as was necessary or desirable. They had no power over food that entered into interstate commerce, until it was too late adequately to protect the consumer. The Federal pure food and drug act of June 30, 1906, is intended to cover the point which the states were not able to reach, and it has been far more efficacious in its provisions than perhaps the law of any state has been for its own citizens. But the Federal statute does not by any means reach all instances of adulterated foods and drugs. By far the greatest quantity of food never passes beyond, and it is never intended that it shall pass beyond, the boundaries of the state. Congress cannot regulate the sale of this food. II remains for the state to do so. There have been many statutes enacted by the states to cover this subject, especially since the adoption of the Federal statute of 1906. There is no state in the Union but what has enacted statutes on the subject of pure food and drugs, and quite a number of them are modeled — at least in part — after this one of 1906.”

Whether or not the sale in this instance was an interstate or an intrastate sale becomes important in detenninng whether the prosecution should be under the Federal or the state laws, and for this purpose we refer to the testimony in this case. Mr. Howe, general manager of the Omaha plant, testified that they had a branch office in Fargo, North Dakota, to which point carload lots were shipped, to be later broken up and distributed to the smaller towns of the state. Sales were not made to their customers in carload lots, owing to the small size of the local sales. Some of the state of North Dakota was covered from Aberdeen, South Dakota, in a like manner. Professor Ladd testifies that on the 8th day of September, 1911, in the city of Fargo, North Dakota, he went to the person in charge of the Armour & Company establishment at Fargo, and called for 3 pounds of Armour’s Shield Lard. This was given to him, and he paid therefor, and took the same away. At that time the pail was one of a crate of 20 pails which had been crated for convenience in shipping. The manager of the defendant company broke open this crate, and took therefrom the single 3-pound pail of lard, and then and there sold it to Professor Ladd. Under these undisputed facts we are asked to say that the single pail of lard was an interstate shipment, and as such coming under the inhibitions of the Federal pure food law of 1906, and thereby not a violation of the state law. We find the law upon this point pretty well settled in the courts of the various states and of the United States under the heading of original packages. The cases under this subject are collected in Thornton on Pure Food & Drugs, § 88, and we will but briefly refer to some of the leading cases mentioned by him. Thus, in Austin v. Tennessee, 179 U. S. 343, 45 L. ed. 244, 21 Sup. Ct. Rep. 132, affirming 101 Tenn. 563, 50 L.R.A. 478, 70 Am. St. Rep. 703, 48 S. W. 305, it is said: “Original packages are such as are used in bona fide transactions carried on between the manufacturer and wholesale dealers residing in different states,” and in Guckenheimer v. Sellers, 81 Fed. 997, it is stated: “An original package -within the meaning of the law of interstate commerce is a package delivered by the importer to the carrier at the initial point of shipment, in the exact condition in which it was shipped.” In He Harmon, 43 Fed. 372, it was held that where several bottles of whisky were wrapped in paper, and sealed and packed in an uncovered wooden box, and shipped from one state to another, that the wooden box was the original package' and that the bottles were not. In one instance a merchant from Tennessee purchased from a factory in North Carolina a number of cigarettes in boxes, which were shipped to him in small packages containing ten cigarettes each. Those packages were piled together upon the floor of the factory in North Carolina, and the express company notified to come for them. An employee of the company took a large basket belonging to the company, and gathered therein the small individual boxes, put them upon the train, and shipped them into Tennessee. In the latter state there was a law prohibiting the sale of cigarettes. When the packages reached Tennessee, the agent of the express company took the basket to the store of the defendant, emptied the packages upon the counter, and took away with him the basket. The store keeper sold some of the cigarettes, and was arrested and convicted; he appealed to the supreme court of that state, claiming that each small package of cigarettes was an original package and an interstate transaction, making practically the same claim that is made in the case at bar. His conviction being affirmed in the Tennessee court, he then sued out a writ of error to the Supreme Court of the United States, where the conviction was again affirmed, and the Supreme Court of the United States said: “Original packages are such as are used in bona fide transactions carried on between the manufacturer and wholesale dealers residing in different states. Where the size of the package is such as to indicate that it was prepared for the purpose of evading the law of the state to which it is sent, it will not be protected as an original package against the police laws of that state.” Austin v. Tennessee, supra, also Cook v. Marshall County, 196 U. S. 261, 49 L. ed. 471, 25 Sup. Ct. Rep. 233, 119 Iowa, 384, 104 Am. St. Rep. 283, 93 N. W. 372, where some boxes of cigarettes were shoveled into a car in Missouri and delivered in Iowa in that condition, and where a conviction was sustained not only in the state courts, but upon appeal to the United States Court. See also Plumley v. Massachusetts, 155 U. S. 461, 39 L. ed. 223, 5 Inters. Com. Rep. 590, 15 Sup. Ct. Rep. 154, affirming 156 Mass. 236, 15 L.R.A. 839, 30 N. E. 1127; and Crossman v. Lurman, 192 U. S. 189, 48 L. ed. 401, 24 Sup. Ct. Rep. 234, affirming 171 N. Y. 329, 98 Am. St. Rep. 599, 63 N. E. 1097, which latter cases were decisions upon the law as it existed prior to the enactment of the 1906 United States Law. Thornton says: “From a consideration of all the decisions and upon the basis of common understanding of the words, it seems that an original package within the meaning of the. food and drugs act is a unit complete in itself delivered by the shipper to the carrier, addressed to the consignee, and received by him in the identical condition in which it was sent, without separation of the contents in any manner. This unit may be hogshead containing 500 bottles of wine, or a single can of tomatoes, or it is a small ounce phial of some drug if shipped to the consignee in that form; and if the consignee sells or gives away any one of the three in the unaltered condition in which he received it, if the contents be adulterated or misbranded, he has violated the act.” C§88] Thornton referring, of course, to the United States act. It follows as a natural conclusion that if he broke the packages and sold one of them, and it was misbranded, it would be a violation of the state act.

The breaking of the original package once, if not twice (car and case), before the sale was made, added the goods to the general property of the state of North Dakota, and the subsequent sale was an intrastate transaction and subject alone to the laws of the state of North Dakota. It naturally follows that the defendant is not protected under the commerce clause of the United States Constitution.

(6) We reach now the sixth heading, that in no event under a proper construction of the statute can a conviction be sustained. At the oral argument of this case counsel stated that they had no intention of raising any minor objection to the information, nor did they desire a decision which would evade the question of the constitutionality of the law in question, and that under this objection they meant to be considered the following proposition: that the courts should give a reasonable construction to the law, and in this instance hold that, notwithstanding the wording of the law, that it should be so construed as to permit the sale of any sized pail providing that the net weight were stated thereon. In answer to this we have to say that the wording of the statute is too plain to admit of any such construction. The object of the law was to .prevent the opportunity for fraud presented when the pail did not contain an even number of pounds, net weight. Any other construction would effectually wipe out the statute itself. This construction cannot be supported by reason or authority, and it will not be adopted by this court.

(7) At the time of the oral argument the objection was made to the statute that the pure food and drug act of June 30, 1906, was an assumption of the entire field by Congress, and that therefore the laws of North Dakota upon that subject were in effect repealed or rendered inoperative. Under § 5 we have outlined fully the field of congressional control and the field of state control. Congress can only regulate interstate commerce. The states have exclusive control of intrastate commerce, and, in the absence of legislation of Congress, have certain nights of control over interstate commerce within the boundaries of the state, while Congress is limited to control of “commerce with foreign nations, among the several state, and with the Indian tribes.” The assumption by Congress of its authority to regulate the interstate commerce effects nothing excepting the right of the state to control interstate commerce within its borders, and does not in any manner curtail the right of the state to control its own commerce, provided such state control does not incidentally interfere with interstate commerce. It is thus seen that none of the objections raised by the defendant to the validity of chapter 236, S. L. 1911, has any merit, and as no other points have been presented to us, we must hold that the law is constitutional, and the conviction thereunder is accordingly affirmed.