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Subject Area: Law
Topic: The American Revolution and Constitution

§ 89.: Regulation of sale of certain articles of merchandise.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 89.

Regulation of sale of certain articles of merchandise.—

The regulations, which would fall under this heading, are very numerous, and most of them are free from all doubt in respect to their validity under our constitutional limitations. They are instituted for the purpose, either of preventing injury to the public, or of thwarting all attempts of the vendor to defraud the vendee.

A regulation, whatever may be its character, which is instituted for the purpose of preventing injury to the public, and which does tend to furnish the desired protection, is clearly constitutional. A good example of this class of regulations, would be the Kentucky statute, which is also found in other States, providing for the inspection of kerosene and other oils, with a view to prohibit the sale of such as ignite below a certain degree of heat. Such a law is a plain and reasonable exercise of the police power of the State.1 So would be any law, providing for the inspection of fresh meat,2 and other reasonable provisions, which are intended to protect the public from the danger, arising from the consumption of unwholesome food. For example, laws are to be found in almost every State for the inspection of milk, and the condemnation and punishment of the sale of adulterated milk. Such laws are undoubtedly constitutional when they go no further than to prohibit and prevent the adulteration of milk.1 So, also, the State may, it has been held, require vendors of fertilizers to have them inspected to protect citizens against fraud in the adulteration of the goods, and impose upon such vendors the cost of inspection even where the tax appears to be in excess of the cost of inspection, if it is not prohibitive in character.2

Another common regulation for the purpose of preventing adulterations of foods is that of preventing the introduction into vinegar of foreign substances which are designed to color it. Such statutes are to be found in a number of the States, including New York, Indiana and Illinois. If the coloring matter is harmless, i. e., not injurious to health, it is very difficult to find a justification for such a regulation. But these laws, in relation to vinegar, have been sustained as constitutional, as a means of preventing the deception of the public by concealing its true or natural appearance.3

Similar and dissimilar legislation have been enacted in the various States, regulating the sale and manufacture of oleomargarine, a well-known substitute for butter, which is manufactured out of the fatty deposits of the cow, and cotton-seed oil, and so prepared that it is a wholesome food, and resembles butter in appearance and taste. In a subsequent section, the attempt, sometimes successful and sometimes unsuccessful, to prohibit altogether the manufacture and sale of oleomargarine, is explained and the objections to such prohibitive legislation are fully set forth.1 Here, reference is made only to legislation which has for its object the regulation of the manufacture and sale of the article in question. In the face of the almost universal concession that oleomargarine, as manufactured, is not an unwholesome food, regulations which fall short of a total prohibition of its manufacture and sale, can be justified only on the ground, that, as manufactured, the product is so prepared as to enable the dealer to sell it as genuine butter, and thus practice successfully a fraud upon the public. And all the regulations, varied as they are in character and effect, seem to have as their object the prevention of this fraud. In some of the States, oleomargarine is required to be colored pink so that it cannot be mistaken for butter, and the regulation has been held to be constitutional, although the manifest mercantile effect of the regulation is the material discouragement of the trade in the product.1 On the other hand, in other States, manufacturers are simply prohibited from coloring oleomargarine so as to resemble butter; recognizing the fact that dairymen almost invariably employ annotto in coloring pure butter, in order to give it that well-known brilliant and pleasing color. In these States, the manufacturers are prohibited from using the same coloring matter, or from producing by any means in the oleomargarine the same color which is so commonly produced by annotto in pure butter. And the courts have pronounced this legislation to be a constitutional exercise of police power.2 A more moderate, and hence more reasonable, regulation of the sale of oleomargarine, is to be found in some of the States, which requires the purchaser to be notified in some way of the fact that he is buying oleomargarine. A very common regulation is to require the package to be wrapped up in paper, with the name, olemargarine, stamped or printed thereon in large letters.1 It has also been held to be constitutional for a State law to require, in the sale of substitutes for lard, that the substitute character of the compound should be indicated by a printed label or card.2 These decisions, relating to compound foods, may be accepted as proof positive that the judicial mind of this country is unalterably opposed to the proposed substitution for natural foods of chemically prepared pellets, containing in proper proportions the quantities of protein, fats and carbo-hydrates, which chemical analysis has declared to be required to sustain life in health and vigor.

Probably, it may be accepted as a constitutional limitation of the police power of the State in this connection, which will be generally recognized and enforced, that no State law of the kind just explained, regulating the sale of articles of food, will be enforcible against the original packages1 of interstate commerce, unless it can be shown that the object of the regulation is to prevent injury to the health of the public by the purchase of unwholesome food. At least, that was the conclusion of the Federal court in a case, involving the inquiry into the constitutionality of a State law, which made it a misdemeanor to sell baking powder, containing alum, unless the package have a label stating that the powder contained alum.2 Probably, the Legislature of New York had in view the protection of the public against the purchase of unwholesome, adulterated or inferior food, when it made it a misdemeanor for any person, who sells food, to give away therewith, as a part of the transaction of sale, any other thing of value as a premium or gift. But the New York Court of Appeals pronounced the law to be an unconstitutional interference with the liberty of contract, which was not justified by any legislative intention to protect the public from fraud or deception.3

It has been held to be a constitutional exercise of police power for the legislature to prohibit the sale, offer for sale, or having possession for the purpose of sale, of articles marked “sterling,” which do not contain 925/1000 parts of silver. The deception is so patent in that case, that it is difficult to see why the constitutionality of the law should be questioned.4 So, likewise, has it been held to be constitutional for a State law to make it a misdemeanor to sell second-hand bottles, which have been stamped with the name of the original purchaser for his use in his business, without the consent of the owner of the stamp. And it is reasonable and constitutional for such law to make the possession of such bottles, by a dealer in second-hand bottles, prima facie evidence of his intention to sell them.1

In order to promote the interests and welfare of trade-unions and other associations of workmen, those whose members are employed in the manufacture of commercial commodities have adopted labels and trade-marks, which they attach to the goods which they manufacture, believing that, by enabling the public to distinguish union-made goods: i. e., goods made by the members of a trade-union, they thereby promote the interests of workingmen, and the development of trade-unions. Laws have been passed in a number of the States providing for the registration with the Secretary of State of these labels and trade-marks; and authorizing the union, when its label has been so registered, to enjoin its unauthorized use or counterfeiting by others, and recover damages; and, in some States, providing that the counterfeiting and misuse of the label shall be punishable as a criminal misdemeanor. Laws of this kind are to be found in New York, New Jersey, Illinois, and Missouri. The fact that some people, in each of these States, have considered it necessary or advisable to resist the enforcement of these laws, would indicate that these labels did exert some influence in trade in favor of union-made goods, sufficient to induce others to make an unauthorized use of them. The laws in question have been claimed to be unconstitutional, in that they enable a successful discrimination against workmen who are not members of a union. This principle has induced the New Jersey court to pronounce the law unconstitutional;1 but in the other cases, in which the constitutionality of the law has been questioned, the law has been sustained.2 The labor organizations have also secured legislation which is hostile to goods made by convicts, and requires that all such goods shall be labeled as convict-made. Inasmuch as the labor of the convict is a commodity which is owned by the State, there is probably no ground upon which the constitutionality of the law can be contested, so far as its provisions relate to the goods made in the penitentiaries of the State which enacts the laws; and do not have any retroactive effect, either upon goods already manufactured by convicts, or upon contracts already made by the State with manufacturers for the employment of the convicts. Any retroactive effect of that kind would undoubtedly be an unconstitutional interference with vested rights.3 To enforce such a law against goods made by convicts in other States, would be an unconstitutional interference with interstate commerce.4

A curious bit of legislation, evidently designed and so declared, to prevent fraud in the sale of goods, is a statute of Ohio, which provides that no vendor shall advertise, represent, hold forth, any sale as bankrupt, insolvent, etc., or closing out sale, or as a sale of goods damaged by smoke, fire, water, or otherwise, unless these facts are stated under oath in a communication to the Secretary of State, accompanied by a deposit of $500, and a license procured from the State and town in which he proposes to sell the goods so described and advertised. Its constitutionality has been sustained.1 But it would seem that the evil effects of the frauds aimed at are too insignificant to justify such severe regulations, which amount to a practical prohibition of such sales by any one but large dealers, and except when the goods are of considerable value.

A fruitful occasion for the practice of fraud and oppression is afforded in conditional sales, where provision is made for payment of goods purchased in installments, the vendor retaining title until the purchase price has been paid in full, and reserving the right to retake the property if there is a default in payment of any installment, without a repayment to the purchaser of any part of the money which has been paid on account. Statutes have been passed, requiring a return of the purchase-money in such a case, permitting the vendor to retain only a reasonable sum as compensation for the use of the goods. The constitutionality of this law has been sustained,2 and many of the courts, which have the equity powers of the English Court of Chancery, have, in the exercise of those powers, compelled a similar restitution of the purchase money, when the vendor exercised his contractual right to retake the goods.3

But where there is no danger of injury to the public, it is difficult to determine how far the State may by its police regulations attempt to protect private individuals against each other’s frauds. A fraud is, of course, a trespass upon another’s private rights, and can always be punished, when committed. It is therefore but rational to suppose that the State may institute any reasonable preventive remedy, when the frequency of the frauds, or the difficulty experienced in circumventing them, is so great that no other means will prove efficacious. Where, therefore, police regulations are established, which give to private parties increased facilities for detecting and preventing fraud, as a general proposition, these laws are free from all constitutional objections. Laws, which provide for the inspection and grading of flour,1 the inspection of tobacco,2 the inspection and regulation of weights and measures,3 the regulation of weight of bread,4 requiring all lumber to be surveyed, by a public surveyor,5 providing for the weighing of coal and other articles of heavy bulk on the public scales,6 are constitutional exercises of police power, so far as they permit one party to compel the other to comply with the regulation, in the absence of their agreement to the contrary. For example, it is permissible for a statutory regulation to provide for standard weights and measures, and to compel their use, when the parties have not agreed upon the use of others. But it cannot be reasonable to prohibit the use of any other mode of measurement.7 It is an excessive exercise of police power, when the law compels one to make use of the means provided for his own protection against fraud. The same distinction would apply to regulations, requiring the inspection and weighing of articles of merchandise by the inspector and weigher, and charging a certain fee for the same, even when the parties have agreed in good faith to waive the compliance with the regulation. There is only one ground, upon which this feature of such laws may be justified; and that is, to insure the State against the expense of maintaining a public inspection, and the provision will fall under the head of exceptional burdens or special taxation, which in some of the States is prohibited. But the authorities do not support this view of such regulations. The regulation is in most cases made absolute, and the observance of it is obligatory upon all. Thus it has been held that a city ordinance may require hay or coal to be weighed by city weighers.1 Of the same character, is the New York law, which provides that the sale of oleomargarine, or other product resembling butter, shall be prohibited, unless the box or other receptacle, in which it is kept, shall have the true name of the article plainly stamped upon it.2 The object of the law is the prevention of fraud and is a reasonable police regulation. Of a similar character is the law, which provides that druggists must, in the sale of all poisons, have upon the label of each package the word “Poison” printed in clear type, the name of the poison and a statement of the ordinary antidotes. The regulation is a reasonable and justifiable one, and works no peculiar hardship upon the pharmacist. But the regulation of the sale of poison assumes an interesting and peculiar form, when it is extended, as it is in some of the States, to a requirement, that the druggist must keep a register of the poisons sold and the names of purchasers. Probably a double purpose is intended in the enforcement of this regulation, viz.: the prevention of suicide by checking the purchase of poison for such a purpose, and the prevention of homicide by poison, by facilitating the conviction in furnishing evidence of the purchase of poison. It is probable that the law is easily sustainable on either ground.3 While the common-law rule making suicide a crime and providing a certain punishment, may be open to serious constitutional objections,1 it is reasonable to suppose a man, who commits suicide, to be sufficiently insane to justify State interference, in order to prevent his infliction of bodily injury upon himself.2

[1]Patterson v. Kentucky, 97 U. S. 501. To the same effect, see Willis v. Standard Oil Co., 50 Minn. 290.

[2]But while statutory provisions for the inspection of fresh meat, for the purpose of preventing the sale of unwholesome and tainted meats, are constitutional, and do not violate any provision of the national or State constitutions, if they are reasonable, and have only the effect of condemning the sale of unwholesome meats; yet they must be of such a nature that they will not be an unconstitutional restraint upon interstate commerce. Thus, in Brimmer v. Rebman, 138 U. S. 78, the Virginia inspection law was held to be an unconstitutional interference with inter-State commerce, in that it required all fresh meats, which have been slaughtered 100 miles away from the place of sale, to be inspected by the local inspector, and the owner to pay a fee of one cent per pound for inspection. The Supreme Court held the fee to be excessive, and to make the act tantamount to the prohibition of wholesome meat, which had not been slaughtered within a radius of 100 miles of the place of sale. The same conclusion was reached in State v. Klein, 126 Ind. 68, and Hoffman v. Harvey, 128 Ind. 600, as to the unconstitutionality of the Indiana inspection law, so far as it required the examination of the animal before slaughtering and within the State. It was held to be a prohibition of the sale of meats dressed outside of the State. See, also, to the same effect, as to the unconstitutionality of similar provisions of the Minnesota law: Minnesota v. Barber, 136 U. S. 313; In re Barber, 39 Fed. 641; Swift v. Sutphin, 39 Fed. 630. But reasonable inspection laws are constitutional. State v. People’s Slaughterhouse, etc., Co., 46 La. Ann. 1031. Thus, it has been held to be constitutional for a State to provide by statute regulations for the control, supervision and inspection of stockyards, for the preservation of the public health, not only of the vicinity, but, likewise, of the consumers of meat in general. Cotting v. Kansas City Stockyards Co., 79 Fed. 679; Higginson v. Kansas City Stockyards Co., 79 Fed. 679.

[1]State v. Campbell, 64 N. H. 402. The New York statute was held to be unobjectionable, although it provided that the chemical analysis of the milk shall be taken as conclusive evidence that the milk has been adulterated, which can be contradicted only by an opposing chemical analysis of the same stock of milk. People v. Cipperly, 101 N. Y. 634; People v. Eddy, 59 Hun, 615. And the general requirement that milk vendors shall, upon the demand of a health inspector, furnish him with a sample of the milk offered for sale without the receipt of payment therefor, has been sustained as a constitutional exercise of police power. State v. Dupaquier, 46 La. Ann. 577. In this case the amount which might be demanded by the inspector for inspection and analysis was limited to a one-half pint.

[2]Patapsco Guano Co. v. Bd. of Agriculture of N. C., 52 Fed. 690; Steiner v. Ray, 84 Ala. 93; Vanmeter v. Spurrier, 94 Ky. 22.

[3]In People v. Girard, 145 N. Y. 105, Judge Finch says, in reply to the argument that the law in question was an interference with a vested right: “Sometimes it (this argument) is pertinent and weighty, but in this case it is neither. It becomes the assertion of a vested right to color a food product so as to conceal or disguise its true or natural appearance; in plain words, a vested right to deceive the public.” In the same case it was expressly declared that proof of the innocuous character of the coloring matter was not sufficient to establish the claim that the law was an unconstitutional exercise of police power. People v. Girard, 73 Hun, 457. The same position has been taken in the case of Weller v. State, 53 Ohio St. 77, in respect to the constitutionality of a similar statute. The court say, inter alia: “Much is claimed from the fact that it was admitted on the trial that the vinegar of the defendant was wholesome, and that it did not intend to deceive any one by using the roasted malt (as coloring matter) and labeling and selling his product as ‘malt vinegar.’ But this is wholly immaterial. It matters not what his intentions may have been. The tendency of such devices is to deceive the public, and the statute was enacted to afford it protection therefrom. Such a statute is clearly within the proper exercise of the police power of the State.” In the Ohio case it was claimed that the only purpose of the coloring matter, in itself harmless, was to give the product a pleasing color and aroma. And in the New York case it was stated that the coloring need not have been used for the purpose of making it resemble some other kind of vinegar or other product, in order that the act may be held to be constitutional. See, also, to the same effect, Williams v. McNeal, 7 Ohio C. C. 280.

[1]See post, § 122.

[1]Armour Packing Co. v. Snyder, 84 Fed. 136; State v. Marshall, 64 N. H. 549; State ex rel. Weideman v. Horgan, 55 Minn. 183.

[2]People v. Arensberg, 105 N. Y. 123; People v. Briggs, 114 N. Y. 56; State v. Newton (N. J.), 14 Atl. 664; State v. Bockstruck, 136 Mo. 335. In the light of the cases on the prohibition of the use of coloring matter in the manufacture of vinegar, supra, it would be reasonable to affirm that a law would be constitutional, which prohibited the use of coloring matter in the manufacture of butter, so that all butter shall have the pale color of so-called country butter. In a recent case in New Jersey, Ammon v. Newton, 50 N. J. L. 543, it was held that a statute, which made it an offense for any one to have in his possession for the purpose of sale “oleomargarine that is colored, stained or mixed with annotto or any other coloring matter or substance,” did not prohibit the use of cotton seed oil in the manufacture of olemargarine, as that was a nutritious vegetable compound, and it was used not only for the purpuse of giving color to the product, but it likewise constituted one of its substantial ingredients. In the application of the rule noscitur a sociis, the court held the language of the New Jersey statute, “or any other coloring matter or substance,” to apply to and include only those things which may be employed in the manufacture of oleomargarine for the purpose of so coloring the product as to resemble butter, and to enable it to be fraudulently sold as butter. The court say: “The language cannot, with propriety, be interpreted so as to include (within its prohibition) materials employed chiefly to make up the substance of the compound, and which imparts some color only as a necessary incident of their use.”

[1]In New Jersey, the State law was sustained as constitutional, which required the dealers in the product, to furnish each purchaser of oleomargarine with a card or printed notice, with letters of a prescribed size, on which it is stated that it is oleomargarine which the purchaser is buying, and the name and address of the dealer are given. Bayles v. Newton, 50 N. J. L. 549. And in Massachusetts, a law was sustained, which required the vendors of oleomargarine to deliver the package in a wagon, containing on both sides a large sign, announcing: “Licensed to sell oleomargarine.” Commonwealth v. Crane, 158 Mass. 218. In Maryland the packages of oleomargine are required to be stamped with the name. Pierce v. State, 68 Md. 592.

[2]State v. Aslesen, 50 Minn. 5; State v. Bassett, 50 Minn. 5; State v. Snow, 81 Iowa, 642.

[1]As to the meaning of “original packages” see post, § 220.

[2]In re Ware, 53 Fed. 783.

[3]People v. Gillson, 109 N. Y. 389.

[4]People v. Webster, 17 Misc. Rep. (N. Y.) 410; 40 N. Y. S. 1135.

[1]People v. Cannon, 63 Hun, 306; s. c. 139 N. Y. 32; People v. Quinn, 139 N. Y. 32; People v. Bartholf, 139 N. Y. 32. A similar regulation has been sustained in regard to the sale by another of milk or cream cans, which are stamped with the name or initials of a dealer in those dairy products. Bell v. Gaynor, 14 Misc. Rep. (N. Y.) 334; 36 N. Y. S. 122.

[1]Schmalz v. Woolley, 56 N. J. Eq. 649.

[2]Perkins v. Heert, 5 App. Div. (N. Y.) 335; Cohn v. People, 149 III. 486; State v. Bishop, 128 Mo. 373.

[3]People v. Hawkins, 10 Misc. Rep. (N. Y.) 65; 31 N. Y. S. 115, where the law was attempted to be enforced against goods already manufactured by convicts.

[4]People v. Hawkins, 47 N. Y. S. 56; 20 App. Div. 494.

[1]In re Mosler 8 Ohio C. C. 324.

[2]Weil v. State, 3 Ohio, C. C. 657.

[3]Hine v. Roberts, 48 Conn. 267; Mott v. Havana Nat. Bank, 22 Hun, 354; Guilford v. McKinley, 61 Ga. 230; Ketchum v. Brennan, 53 Miss. 596; Preston v. Whitney, 23 Mich. 260; Johnson v. Whiteemore, 27 Mich. 463; Third Nat. Bank v. Armstrong, 25 Minn. 530; Minneapolis &c. Co. v. Hally, 27 Minn. 495.

[1]Glover v. Board of Flour Inspectors, 48 Fed. 348.

[2]Turner v. Maryland, 107 U. S. 38 (22 Am. Law Reg. (n. s.) 198, note).

[3]Ritchie v. Boynton, 114 Mass. 431; Eaton v. Keegan, 114 Mass. 433; Durgin v. Dyer, 68 Me. 143; Woods v. Armstrong, 34 Ala. 150.

[4]Mobile v. Tuille, 3 Ala. (n. s.) 140.

[5]Pierce v. Kimball, 9 Me. 54 (23 Am. Dec. 537).

[6]City Council v. Rogers, 2 McCord, 495; State v. Pittsburgh & S. Coal Co., 41 La. Ann. 465; Pittsburgh & S. Coal Co. v. Louisiana, 156 U. S. 590.

[7]See Eaton v. Keegan, 114 Mass. 433.

[1]Stokes v. New York, 14 Wend. 87; Yates v. Milwaukee, 12 Wis. 673.

[2]See supra, same section, for a fuller discussion of these laws.

[3]Missouri regulation of the sale of opium; held, to be constitutional. State v. Lee, 137 Mo. 143.

[1]See ante, § 10.

[2]On the other hand it has been held to be unconstitutional to require druggists to furnish the names of parties to whom he sells liquor. Clinton v. Phillips, 58 Ill. 102 (11 Am. Rep. 52).