State v. Hanson

136 N.W. 412, 118 Minn. 85, 1912 Minn. LEXIS 545

• Court: Supreme Court of Minnesota
• Decided: May 31, 1912
• Docket: Nos. 17,717—(12)
• Status: Published

Opinions

Bunn, J.

Defendant was convicted, of selling oleomargarine made in imitation of butter of a shade or tint of yellow, in violation of the provisions of chapter 183, p. 226, Laws of 1911. Lie appealed from an order denying his motion for a new trial.

The questions here are (1) as to the sufficiency of .the evidence to sustain a decision that there was an intent to make oleomargarine of a shade or tint of yellow, (2) as to the proper construction of the law, and (3) as to its constitutionality when so construed. The material provisions of the law in question are as follows:

The title is: “An act to regulate the manufacture and sale of oleomargarine and to prescribe penalties and punishments for violation of the provisions of this act.”

Section 1 provides, in substance, that no person, firm, or corporation shall manufacture or sell oleomargarine which shall be in imitation of butter of any shade or tint of yellow, unless such oleomargarine shall be made and kept free from all coloration or ingredients causing it to look like butter of any shade or tint of yellow, nor unless the same shall be kept and presented in a separate and distinct form, and in such manner as will advise the purchaser and consumer of its real character.

Section 2 makes it unlawful to sell or offer for sale oleomargarine which is not conspicuously labeled as such on each tub, package, or parcel thereof, and requires the wrapping in which it is sold to purchasers to be plainly stamped with the word “oleomargarine.” Descriptive matter on the label is required to be free from misleading information, or any matter that would indicate that the product was butter. At the end of this section is this proviso: “Provided, that nothing in this section shall be construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form and in such manner as will advise the purchaser and consumer of its real character, when free from coloration or ingredients that cause it to look like or resemble butter of any shade or tint of yellow.”

Section 3 makes it unlawful for the proprietor of any hotel, dining-room, café, bakery, boat, lumber, mining, or railroad camp, boardinghouse, or hospital, where guests, boarders or patients are served with food, to serve oleomargarine as or for butter, or as a substitute for butter, unless the bill of fare, if there be one, or a placard conspicuously posted, if there he no bill of fare, shall announce “Oleomargarine used in place of butter.”

There is no claim by the state that the oleomargarine sold by defendant was artificially colored by the addition of any dye or coloring matter. The sole charge is that the essential ingredients were so selected and mixed as to produce an article that resembled or imitated butter of a shade or tint of yellow. It is not denied that the article sold possessed this shade or tint of yellow, and in that respect, as well as others, resembled butter. That the maker intended to produce this result, and deliberately endeavored to make an article that would look like butter of a yellow shade or tint, is, we think, established by the evidence. But it is freely admitted that this color is the result of judicious selection and combination of fats, oils, and other necessary ingredients; that no coloring matter is used; and that the result is a thoroughly healthful product that resembles yellow butter in appearance and texture, tastes like butter, and sells at a lower price. That it was possible for the manufacturer, the real defendant here, to make oleomargarine that was equally wholesome and palatable, but of a shade or tint of yellow that was much lighter than the article on the sale of which the conviction was based, is clear, because oleomargarine of such lighter shade or tint was also manufactured and sold. But it is fully established and conceded that it is impossible to make oleomargarine that is pure white, or that does not have a slight yellow shade or tint. And such light-tinted article does imitate or resemble light-tinted butter in the same sense and to the same extent that the deeper-tinted article imitates or resembles butter of a deeper yellow. In short, the manufacturer can produce oleomargarine of several shades or tints of yellow, all of which imitate butter of like shades or tints. The article that defendant was convicted of selling was intentionally made of a deeper yellow. The motive is plain; the consumer will not buy the lighter colored article. The sales of this are but ten per cent of the sales of the yellow article, while the price is the same. There can be, however, no intent to deceive the purchaser or consumer, as the provisions of the law concerning labels on packages and wrappers are fully complied with. It is utterly impossible for the purchaser to be deceived.

1. The first of the questions involved on this appeal we answer in the affirmative. That is, as we have above pointed out, the evidence was sufficient to justify the jury in finding that the oleomargarine in question was purposely made of a shade or tint of yellow.

2. We are asked to construe the law as only prohibiting the use of artificial coloring matter, and not the coloration that comes from the ingredients themselves, selected with reference to producing a. yellow color. It is insisted by defendant that this was the construction given to the 1905 law¹ in State v. Hammond Packing Co. 105 Minn. 359, 117 N. W. 606, and that the present law is not to be distinguished from the 1905 law. While it seems clear that on the question of an intention to produce oleomargarine of a yellow color by selection of the natural ingredients, the evidence in the Hammond case was sufficient for the same reasons that the evidence in this cases sufficient to show such intention, yet the opinion itself does not state that intentional coloration by artificial means was essential to-a conviction. The decision apparently holds merely that there was. no evidence of an intent to imitate yellow butter; but the stipulated facts in the case, the reasoning of the opinion, and the authorities, relied on give ground for defendant’s confident claim that it was held that the 1905 law prohibited only coloration by artificial means.

But whether this be correct or not, we think the present law cannot, be so construed. Language in the 1905 law which gave color to the-construction contended for was changed in the present law, probably to prevent this construction. The words “made or colored to imitate yellow butter” were changed to “shall be in imitation of butter of any shade or tint of yellow.” Where the 1905 law permits the sale of oleomargarine, “if not in semblance of yellow butter, and if free from prohibited ingredients,” the present law forbids its sale “with or without coloring matter unless * * * made and kept free from all coloration or ingredients causing it to look like butter of any shade or tint of yellow.” We would be willing to adopt any construction to which the language used is fairly susceptible, in order to uphold the law; but we feel that the intent of the legislature is clearly manifest that oleomargarine shall be kept out of the field of yellow of the various shades and tints now occupied by butter, and this whether the yellow shade is produced by extraneous coloring matter or by intentional selection of the natural ingredients.

We cannot, however, agree with the state’s contention that “butter of any shade or tint of yellow” means simply “of the color of yellow butter.” The words “any shade or tint of yellow” are used three times in the -law; and it was so clearly the intention to make a distinction between “yellow butter” and butter of a “shade or tint of yellow” that we are unable to say that the words are to be given no meaning. The state advances the ingenious argument that the law was intended to prohibit only oleomargarine that was in imitation of butter of those shades of yellow usually found in yellow butter, and not to forbid its manufacture so as to resemble butter of the shades of yellow more closely approaching the white. This is a difficult position to sustain. Butter varies in color from the golden color of June butter to the light-colored butter of winter, and to the nearly white butter often sold. There is nearly, if not quite, as much difference in the shades or tints of yellow found in butter as there is in the shades and tints of the various samples of oleomargarine received as exhibits in this case. In other words, the light-colored oleomargarine made by Swift & Company, the manufacturers, resembles butter of a light shade or tint of yellow, while the darker product resembles butter of a dark shade or tint of yellow. We are not unmindful that the intention of the legislature to prohibit, under the guise of regulation, should not be presumed, or of the fact that the lawmakers must have known that it was impossible to make a pure white oleomargarine. They undoubtedly knew this, and also that butter is of all shades of yellow. But to say that they intended to prohibit the sale of oleomargarine which should resemble or imitate June butter, or butter of a deep yellow color, or of any particular shade of yellow, is to disregard entirely the words “of any shade or tint.”

We construe the law, therefore, as making criminal the sale or manufacture of oleomargarine purposely made of any shade or tint of yellow,'whether the tint or shade be dark yellow, golden, or light yellow. Even as so construed, section 1 of the law might be sustained as a valid exercise of the police power, if it made proof of an intent to deceive or defraud the purchaser or consumer, essential to a conviction. And it would be immaterial that no artificial coloring was used, or that the product was entirely wholesome, was exactly like butter in taste, or was in fact butter. The purchaser is entitled to know what he is buying; and any law enacted to prevent fraud or deceit, and having any fair tendency in that direction, would be valid.

But this law does not make the intent to deceive or defraud essential to a conviction of a violation of section 1. Intentionally making oleomargarine of a shade or tint of yellow is made criminal, without proof of an intent to deceive. This being so, the law cannot be sustained, unless there is a reasonable probability that the purchaser or consumer will be deceived by the yellow shade or tint into buying or eating oleomargarine, mistaking it for butter. Oleomargarine should be sold for what it really is. Plumley v. Massachusetts, 155 U. S. 461, 15 Sup. Ct. 154, 39 L. ed. 223. The power of the legislature to regulate its manufacture and sale rests, not upon the right to legislate in the interest of the public health, but upon the undoubted right to enact laws to protect the public against fraud and deception, to suppress false pretenses and promote fair dealing in an article of food. But we are quite unable to perceive how there is any but a remote possibility of deceiving the purchaser or consumer by making oleomargarine imitate butter in color, whether it be a conscious or accidental imitation. The intent to, make oleomargarine of a shade or tint of yellow by the selection of ingredients is no evidence of an intent to deceive either purchaser or consumer. Oleomargarine is made to resemble butter of a yellow color, not to deceive anybody, but because the public buys the substitute if it has the yellow shade, but refuses to buy it if it has a light shade. The intent is not to deceive the public, but to make an article which will find a market.

It seems clear, not only that there was no intent to defraud or deceive, but that the color of the product has, in view of the stringent provisions of the law that clearly tend to prevent deception, no fair tendency to make either purchaser or consumer mistake oleomargarine for butter. The provisions of the law relating to placards upon the tubs or packages in which it is exposed for sale or sold, to the wrappers, stamped with the word “oleomargarine,” in which the retail dealer is required to deliver it to the purchaser, the provisions forbidding misleading statements on labels, and those requiring the proprietors of hotels, restaurants, hoarding houses, and other eating places to print on their bills of fare, or upon large placards, that oleomargarine is used in place of butter, are well designed to protect both the purchaser and the consumer from buying or spreading on his bread the butter substitute, if he does not wish to do so. It adds nothing to this protection of the purchaser or consumer to have the article colored white, red, or blue. It may be suggested that the guests of a private housekeeper have not this protection, or that store, hotel, or restaurant proprietors may not obey the law as to placards, or that a purchaser who cannot read may be -deceived. But, granting that there may be a few instances where, by mistake, the consumer may take into his system oleomargarine, when he thinks he is eating butter, does this furnish a ground upon which the legislature can prohibit the manufacture and sale of a perfectly wholesome and healthful article of food ? On the record before us, such a deception would be wholly without damage. In its last analysis, it is a mere matter of sentiment.

Let us look for a moment on the other side. The high price of butter is notorious. The poor man must often go without, or buy the inferior grades, while people of moderate means find good butter a luxury they can ill afford. There is a large and growing demand for a butter substitute that will taste and look like butter, and that can be purchased at a less price. Apparently, judging from the fact that sales of the light-colored oleomargarine are but ten per cent of the sales of the darker yellow, the people want their butter substitute to resemble butter in color, as well as in texture and taste. The legislature says to them by this act: “You cannot have what you want; you must either buy butter made from cream, or you must buy oleomargarine that is white.” Unless the prejudice of the people against the white color is removed, this is a command that they buy butter, and pay higher prices. It is impossible to appreciate why the public should not have a free choice, why butter should not be sold on its merits to those who want it, and why those who want oleomargarine of a yellow shade should not be permitted to have it. A law that tends to secure this result, and to enable the public to buy whichever article it wants, without danger of being deceived as to what it buys, is commendable. But a law that destroys competition between two products of equal merit, that precludes the public from purchasing what it wants, is surely meretricious, unless there is some question of public health or some danger of fraud or deception that makes such a law beneficial. Clearly no question of public health is involved; and there seems no danger of deception that at all compares with the advantages that come to the people by having their choice between the more expensive butter and the cheaper substitute.

Butter from cream may be made and sold in any shade or tint of yellow. Butter is given a monopoly of the entire yellow field, and oleomargarine must keep out. The inevitable results will be maintaining or increasing the price of butter, and striking down a great industry. All this under the power that the legislature has to pass laws that make for the public health, promote the public welfare, or prevent fraud and deceit in the sale of food products. But there are limits to the exercise of the police power. Where the legislature destroys private property or private rights under the guise of promoting the public health or preventing deception, there must be some basis for the decision that the public health will be benefited, or deception prevented. This is a question upon which the decision of the legislature is final, except where it is clear that no basis existed, when it becomes the right and duty of the court to interfere.

We are unable to escape the conclusion that the law in question not only seriously injures, instead of benefits, the public, but deprives the manufacturer of his property without due process of law, and without a sufficient basis upon which the act can be upheld as a valid exercise of the police power. That this makes the law, in so far as it prohibits the manufacture or sale of oleomargarine made of a shade or tint of yellow, repugnant to both national and state Constitutions, is a conclusion that follows inevitably. The decision in the Hammond Packing Co. case directly recognizes this, and practically holds that the law involved in that case would be unconstitutional, if construed as we have felt obliged to construe the law involved here. It is in fact conceded that the legislature had no right to prohibit the manufacture of oleomargarine. It being a wholesome article of food, a statute prohibiting its manufacture or sale cannot be upheld. State v. Hammond Packing Co. supra; State v. Hanson, 84 Minn. 42, 86 N. W. 768, 54 L.R.A. 468.

Decisions, rendered when it was not established that oleomargarine contained no ingredients injurious to health, are clearly not in point. Butler v. Chambers, 36 Minn. 69, 30 N. W. 308, 1 Am. St. 638, was decided on the theory that it was a deleterious substance. The law of 1891,¹ requiring all oleomargarine to be colored bright pink, was sustained in State v. Horgan, 55 Minn. 183, 56 N. W. 688, upon the theory that laws prohibiting entirely the manufacture and sale of oleomargarine were valid, as had been held in Butler v. Chambers, supra, and in Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 1257, 32 L. ed. 253. But when it was proved that oleomargarine contained no substance injurious to health, it was held in Schollenberger v. Pennsylvania, 171 U. S. 1, 18 Sup. Ct. 757, 43 L. ed. 49, that it was a lawful article of interstate commerce, and in Collins v. New Hampshire, 171 U. S. 30, 18 Sup. Ct. 768, 43 L. ed. 60, that a state statute prohibiting the sale of oleomargarine as a substitute for butter, unless it was of a pink color, was invalid as being in necessary effect-prohibitory. Since these decisions, there has been no case denying the right of oleomargarine to be classed as a wholesome food product, or upholding any prohibitory law.

The following language from the opinion of Justice Peckham, in the Collins case, is pertinent here. “To color the substance as provided for in the statute naturally excites a prejudice and strengthens a repugnance up to the point of a positive and absolute refusal to purchase the article at any price. The direct and necessary result of a statute must be taken into consideration when deciding as to its validity, even if that result is not, in so many words, either enacted or distinctly provided for. In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect. * * * Although, under the wording of this statute, the importer is permitted to sell oleomargarine freely and to any extent, provided he colors it pink, yet the permission to sell, when accompanied by the imposition of a condition which, if complied with, will effectually prevent any sale, amounts in law to a prohibition.”

There can be no.sound distinction between a statute requiring oleomargarine to be pink, blue, red, or black and one forbidding it to have the natural color given by its ingredients. In effect, this law says that oleomargarine must be white; for it is absurd to suppose that there would be any market whatever for a blue or pink product. But the evidence clearly shows, as we have before said, that the sales of the light-shaded oleomargarine are but ten per cent as against ninety per cent for the darker shade, and then the light-shaded article is not white, but has a “shade or tint of yellow.” Considering that the direct and necessary result of the statute is to prohibit at least ninety per cent of the manufacture and sale of a wholesome article of food, it cannot save the law that it was enacted under the pretense of regulation. State v. Sperry & Hutchinson Co. 110 Minn. 378, 126 N. W. 120, 30 L.R.A.(N.S.) 966.

The statutes construed in Wisconsin and Iowa prohibit the manufacture and sale of oleomargarine made to imitate “yellow butter.”

The court, in its opinion in the Wisconsin case, intimates strongly, if it does not distinctly hold, that, had the law prohibited oleomargarine in imitation of butter of any shade or tint of yellow, it could not be sustained. One of the grounds for reversing the conviction in that case was the instruction of the trial court that “yellow butter” meant butter of any shade of yellow. Justice Timlin says, in speaking of the instruction [page 162] : “It laid down a rule which, if followed by this court, would go far to convict the lawmakers of having, under pretense of making a police regulation to prevent fraud, enacted a law to exclude all competition of oleomargarine with all kinds of butter.” Meyer v. State, 134 Wis. 156, 114 N. W. 501, 14 L.R.A.(N.S.) 1061. The validity of the Wisconsin statute was not directly passed upon; the ease involving its construction rather than its constitutionality.

The Iowa case (State v. Armour, 124 Iowa, 323, 100 N. W. 59, 2 An. Cas. 448) holds the statute of that state constitutional; but the force of the decision is weakened by the assumption that statutes absolutely prohibiting the sale of oleomargarine are constitutional, and by the fact that the law only prohibited oleomargarine made in semblance of yellow butter, and that no claim was made -that it could not be manufactured without having “this yellow hue.”

Our conclusion is that, if construed as we think it must be, section 1 of the law in question is invalid, because it amounts to a prohibition of the manufacture and sale of a wholesome article of food. This decision in no way affects the other provisions of the act, but is only that oleomargarine may be manufactured and sold, though, it be of a shade or tint of yellow, providing such shade or tint is produced by natural and essential ingredients which are not deleterious» or injurious to health.

Order reversed, and new trial granted.

1 [R. L. 1905, §§ 1753-1756.]

1 [Laws 1891, p. 83, c. 11.]