Thompson v. District of Columbia

21 App. D.C. 395, 1903 U.S. App. LEXIS 5490

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 4, 1903
• Docket: No. 1260
• Status: Published

Opinion

Mr. Justice Shepard

delivered the opinion of the Court:

1. The first contention on behalf of the plaintiff in error, under the errors that have been assigned, is that the Congress has not itself fixed the standard of weights and measures, and has not the power to delegate that authority to the municipal government of the District of Columbia. (1) The •second point of this contention will be first considered. The act of 1895, under which the prosecution has been maintained, gives to the designated officer “ the custody and control of such standard weights and measures as now are, or ■as shall hereafter be, provided by the District of Columbia.”

We see no intent expressed in these words to confer upon the District authorities the power to fix a standard of their •own, according to a system which may or may not, in their discretion, conform to the common standard of the United •States, if such there be. The standard weights and measures to be provided by them evidently mean a set of instruments, each of which is commonly called a standard, devised and constructed in exact conformity with the requirements of the legally established common standard of the-United States, to serve as the certain test of the accuracy of the weights and measures adopted and used by private individuals in the course of daily trade.

If an inference could possibly be indulged, from the concluding words before quoted, that Congress intended anything more, it would be precluded by the preceding words giving such standard into the custody and control of the sealer of weights and measures. He could have custody and control of nothing else. (3) It is true that Congress, other than by the act of May 19, 1828, adopting a brass troy pound weight procured in London by the Minister of the United States for the use of the mint at Philadelphia, and an act of 1866 legalizing a metric system, appears never to have directly exercised the power conferred by clause 5, section 8, of Article I, of the Constitution to fix the standard of weights and measures.

It does not follow, however, that there is not a lawful standard capable of enforcement. ■ The power conferred in. connection with that to coin money, regulate the value thereof, and of foreign coin, was in pursuance of the general policy that dictated the delegation of the power to regulate commerce with foreign nations, among the several States, and with the Indian tribes. It effectually prevented the several States from fixing standards that might vary and hence prove a hindrance to trade and interchange of commodities. The standard weights and measures of England were brought to-the colonies and governed therein as a part of the common law. And this has been recognized in legislation from time-to time. Pursuant to a resolution of the Senate, adopted May 29, 1830, the Secretary of the Treasury reported to-that body the result of his inquiries into discrepancies in the weights and measures as actually used in the various-custom-houses. He further repoi’ted that he had adopted a uniform practice in conformity with details given which indicate conformity to the old English standard. Eor example, the liquid measure was the wine gallon of 231 cubic inches, according to the measure of the English yard. June, 1836, Congress enacted a joint resolution as follows: “ That the Secretary of the Treasury be and hereby is directed to cause a complete set of all the weights and measures adopted as standards, and now either made or in the progress of manufacture, for the use of the several custom-houses and for other purposes, to be delivered to the governor of each State in the Union, or such person as he may appoint, for the use of the States respectively, to the end that a uniform-standard of weights and measures may be established throughout the Union.” March 3, 1881, the Secretary was required to deliver to the governor of -each State, for the use of agricultural colleges, and to the Smithsonian Institute, “ a complete set of all the weights and measures adopted as standards,” 21 Stat. 521. July 11, 1890, an appropriation was made for the further construction, and the adjustment of standard weights and measures to be supplied to the customhouses, other offices of the United States, and for the several States. 26 Stat. 242. There seems to have been no other legislation relating to or affecting the liquid measure which is alone involved in this case. That standard, which prevailed under the common law and has been recognized by the legislation of Congress, is the one with which the Commissioners have been given the power to enforce conformity.

(3) The regulation of the Commissioners giving certain latitude of variation in the contents of the vessels in which milk may be delivered is in strict accord with what is called the “tolerance” in the amendment of 1896 to the act of 1896, which is set out in the preliminary statement. That act is not a delegation of power to fix a standard, but is a mere regulation for the just and reasonable enforcement of the law to prevent imposition and fraud. The standard remains fixed and Unchangeable, but recognizing the practical difficulty of perfect measurement under it, the same is not required. The law to remedy the mischief of false measures is freed from the danger of harshness and oppression in its enforcement by the “ tolerance ” which affords a reasonable margin for the honest mistakes of dealers.

2. The schedule of fees prescribed under the authority of the law does not appear excessive or unreasonable on its face, and there is no evidence concerning the labor or cost incurred in the duties of inspection, sealing and stamping, or to show in what respect the fees may constitute an intolerable burden on the business of selling milk.

3. Nor the same reason, we cannot say that to require glass bottles to be stamped is an unreasonable exercise of power. All that the evidence shows is the opinion of the plaintiff in error, as recorded in the bill of exceptions, that they would be subjected to “ great risk of breakage.” No facts are stated from which such risk can be inferred, and it ought to be presumed, in the absence of proof, that the framers of the law and the regulations knew of some process by which the stamping could be safely done. To stamp a name or a mark upon an object does not necessarily imply an impression with force. A small glass milk bottle plainly marked “ condemned,” through the use of some chemical, was in fact exhibited,-without objection, on the argument as showing the customary way in which the sealer performs the duty of stamping the necessary words upon the glass measures.

4. The regulation cannot be declared unreasonable and void upon the testimony of the plaintiff in error “ that the said bottles are respectively of uniform size on the outside, but because of various incidents to their manufacture are of irregular size on the inside, and that it is impossible to make all such bottles of a given supposed size uniform in capacity.” This incidental variation, the average margin of which is not shown, is probably the reason for the tolerance provision of the statute and the regulation pursuant thereto.

5. The evidence is likewise insufficient to show that the glass bottles used by the plaintiff in error are not measures within the meaning of the law. The fact that he first measures his milk in cans of 40 gallons capacity, at his dairy or distributing center, and then decants it into the small bottles which he claims to use, not as measures, but as means of distribution, is not the controlling fact. What the law seeks to regulate is, not the measures which he used for his own information, but those which indicate to his customers the respective quantities of milk which they order, and for which they are required to pay. What the dealer’s general measure may indicate to him is of no consequence to them. What they want to know is the real capacity of the bottles which measure the milk to them, in order that they might not be deceived or imposed upon; and to accomplish this is the object of the law.

The court committed no error on the trial, and the judgment must, therefore, be affirmed with costs. It is so ordered. 'Affirmed.