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Subject Area: Law
Topic: The American Revolution and Constitution

§ 122.: Prohibition of trades for the prevention of fraud—Adulterations of goods—Harmful or dangerous goods—Prohibition of sale of oleomargarine.— - 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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§ 122.

Prohibition of trades for the prevention of fraud—Adulterations of goods—Harmful or dangerous goods—Prohibition of sale of oleomargarine.—

Fraud is a trespass upon the rights of others, and may, therefore, always be punished. When, therefore, a business consists necessarily in the perpetration of a fraud, the business may be prohibited; although fraud furnishes no justification for the prohibition of a business, which is not necessarily fraudulent, but which only affords abundant facilities for its commission. Thus it has been held within the constitutional limitation of the power of a State legislature to prohibit the sale of adulterated milk, even though the adulteration is made with harmless materials, such as pure water.1 It may be said that a perfectly bona fide sale may be made of adulterated milk, but the position is hardly sustainable. Adulteration is essentially fraudulent, and serves no good purpose; and the sale of the adulterated article of food may be rightfully prohibited, although it produces no unwholesome effect. Sugars are now very commonly adulterated by the use of a harmless substance called glucose. There can be no doubt of the power of the State to make the sale and manufacture of adulterated sugar a misdemeanor; but the great difficulty, that is experienced in detecting and suppressing this mode of adulteration, would not justify the absolute prohibition of the sale and manufacture of sugars.

A still stronger ground for the total prohibition of a trade or business is when the thing offered for sale is in some way injurious or unwholesome. It is not enough that the thing may become harmful, when put to a wrong use. It must be in itself harmful, and incapable of a harmless use. Poisonous drugs are valuable, when properly used, but they may work serious injuries, by being improperly used, even to the extent of destroying life. But it would hardly be claimed that, on that account, their sale could be prohibited altogether. Safeguards of every kind can be thrown around the sale of them, so that damage will not be sustained from an improper use of them, but that is the limit of the police control of the trade. Thus, for example, opium is a very harmful drug, when improperly used, and it is all the more dangerous because the power of resistance diminishes rapidly in proportion to the growth of the habit of taking it as a stimulant; and a miserable, degraded death is the usual end. An opium eater or smoker not only brings down ruin upon himself, but inflicts misery upon all who stand in more or less intimate relation with him. The habit is a most dangerous vice. But, on the other hand, opium is a very useful, and an indispensable drug. Many a poor sufferer has had his descent to the grave made easy and painless by the judicious use of this drug. Shall the sale of opium be prohibited altogether, simply because some men are apt to misuse it to their own injury? The law can prohibit the keeping of houses where those who are addicted to the opium habit are entertained with the opium pipe; the law may subject the sale of opium to such regulations as may be calculated to diminish the temptation to acquire this evil habit; but the sale of the drug for proper purposes cannot be prohibited.1 It is possible that the sale of opium or other poisonous drugs may be prohibited to all except those who, like physicians and druggists, furnish in their professional character a safe guaranty, that no improper use shall be made of them, and to others upon the prescription of a physician. But that is questionable. The sale of it can, of course, be prohibited to minors and to all who may be suffering from some form of dementia, and to confirmed opium eaters. But it would seem to be taking away the free will of those, who are under the law confessedly capable of taking care of themselves, if the law were to prohibit the sale of opium to adults in general.

Where a thing may be put to a wrongful and injurious use, and yet may serve in some other way a useful purpose, the law may prohibit the sale of such things, in any case where the vendor represents them as fit for a use that is injurious, or merely knows that the purchaser expects to apply them to the injurious purpose. Thus the sale of diseased or spoiled meats or other food, as food, intending or expecting that the purchaser is to make use of them as food, may be prohibited. So, also, the sale of milk which comes from cows fed in whole or in part upon still slops, may be prohibited if it is true that such milk is unwholesome as human food.1 In the same manner a law was held to be constitutional, which prohibited the sale of illuminating oil which ignited below a certain heat.2 But it would be unconstitutional to prohibit altogether the sale of either of these things, if they could be employed in some other harmless and useful way. For example, the oil which was prohibited for illuminating purposes, may be very valuable and more or less harmless when used for lubricating purposes.

But the courts do not always make these distinctions. It has thus been held to be constitutional for the law to prohibit the manufacture or sale of vinegar which contains any artificial coloring matter, it matters not how harmless the matter; and even when there is no apparent intent to thereby commit fraud.3 In the New York vinegar case,1 referring to the argument that the law in question was an unwarranted interference with vested right, Judge Finch said: “Sometimes it (the 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 Ohio case,2 sustaining a similar statute, prohibiting the manufacture and sale of vinegar, when artificial coloring matter is used in its preparation, the court say:—

“It is claimed that the primary object of using roasted malt is to give aroma and flavor to the vinegar, and that color is simply an incident to the process adopted in attaining the primary end, and hence that the giving of color in this way cannot be said to come within the meaning of the statute. But the evidence tends to show that the primary object was to give color. His (the defendant’s) purpose in using the roasted malt was a question of fact, to be determined by the court trying the case. His statement as to his purpose cannot control the court, if, in view of all the evidence, the court is satisfied that his real and principal purpose was to give color to the vinegar. Again, if the primary object was to give aroma and flavor, still the process adopted for this purpose was an artificial one. Distilled vinegar, as is that of the defendant, has no such aroma. It is given, if at all, by the artificial method of running the distillation through roasted malt, before its acetification, and artificial coloring is one of the principal results; and in such case it is not material whether color or aroma was the primary object both being attained by artificial means. The process adds no substantial ingredients to the vinegar, for neither aroma, flavor nor color can be said to be substantial ingredients of any product. They are not susceptible of analysis, and are merely perceived by the aid of the senses. * * * The construction asked to be given this statute would permit a manufacturer to run distilled vinegar through roasted apples, and, by thereby imparting to it the color and aroma of cider vinegar, sell it in the market as such. And this, we understand, was claimed in the court below. But the purpose of this statute was, we think, to protect the public against such deceptions. Much is claimed from the fact that it was admitted on the trial that the vinegar of the defendant was wholesome, and that he did not intend to deceive any one by using the roasted malt, 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 excercise of the police power of the State. Every one has the right to distinguish for himself what an article of food is, and have the means of judging for himself its quality and value.”

So far as these cases merely undertake to prevent the use of artificial coloring matter in the manufacture of vinegar from low wines, formed from fermented grain, in order to give to such vinegar the color of vinegar formed by the natural process of fermentation of cider, they are easily justified on the principle, set forth in another place in the present section, that adulterations are essentially fraudulent. But the ruling in these cases cannot be extended, so as to include in the scope of their constitutional justification, laws which prohibit the use of artificial coloring matter, even though there is no opportunity to thereby palm off the product for another article, and the motive is simply to give it a more pleasing appearance. Many articles of foods are artificially colored, for example, butter, and whisky; but there is no intention to deceive, unless it is deception merely to give an article of manufacture a more agreeable color than what it naturally possesses. These cases must not be taken as authorities for justifying prohibition of the innocent coloring of products, when it is not done to make them resemble something else.1

These principles have lately been presented for consideration and review in connection with laws prohibiting the manufacture and sale of a substance, called oleomargarine, which resembles butter, and is intended to be used instead, and to supply the place in trade, of the dairy product. It is manufactured out of certain fatty deposits of the cow, which contain the same chemical properties as butter, varying only in degree. In New York and Missouri, and perhaps in other States, laws have been enacted, prohibiting absolutely the sale and manufacture of the oleomargarine. Although some attempt has been made to show that this butter substitute is unwholesome as food, it seems now to be established by the most thorough chemical analyses, that there is no unwholesome ingredient in unadulterated oleomargarine. If it were shown to be unwholesome as food, its sale for the purpose of human consumption could without doubt be prohibited. But the only valid objection to its sale is the close resemblance to genuine butter, and the consequent opportunity for the perpetration of fraud. And this was the sole ground upon which the constitutionality of the law was sustained by the Supreme Court of Missouri.2

But it is plain from the foregoing principles, that a total prohibition of the sale of a thing cannot be justified on any such grounds. The sale must be necessarily fraudulent, in order to admit of its absolute prohibition. The law, therefore, which prohibits the sale of oleomargarine, granting that it is a wholesome article of food, is unconstitutional, and so it is decided by the New York Court of Appeals, in considering the validity of the New York statute.1 In the United States Circuit Court, the constitutionality of the Missouri statute was disputed in a petition by the party to the cause, who prayed for the intervention of the United States courts to prevent the enforcement of the law. The petition was denied, on the ground that the United States court has no jurisdiction; but in delivering the opinion of the court, Justice Miller expressed the opinion that the law was in violation of the constitution of Missouri.2

The practice of deception in the sale of the oleomargarine may be made punishable as a misdemeanor, and the law may require, as in Ohio, the oleomargarine to be put up for sale in packages on which shall be distinctly and durably painted, stamped, or marked, the name of each article used or entering into the composition of such substance.3 A law has lately been proposed in New York, by which every one dealing in oleomargarine, is required to put up a sign to that effect, and in the manufacture of the substance it is required to be so colored that it may be readily distinguished from pure butter. There can be no doubt as to the constitutionality of such laws, for their only effect is the prevention of fraud. They do not interfere with the honest sale of a wholesome article of food.

The later authorities, however, all tend to support the Missouri view of the constitutionality of laws, which prohibit altogether the sale of oleomargarine. In most of the States, the regulations in accordance with the text, go no farther than to prevent fraud and deception in the sale of the product for genuine butter, either by requiring the oleomargarine to be artificially colored, so as to be distinguishable from butter, or by requiring the packages to be stamped with the name of oleomargarine, or posting up some notification that the grocer sells the tabooed article.1 But so far as I know, except in New York, laws prohibiting the total prohibition of the manufacture and sale of oleomargarine have been generally sustained, in some cases with a statement of the unlimited power of the legislatures in dealing with the matter that is in startling contrast with the freedom with which the courts have in other cases assumed to veto legislation, because it was unreasonable and for that reason in violation of the constitution. Thus the Pennsylvania statute, prohibiting the manufacture and sale of oleomargarine, was sustained2 with this remarkable statement of the omnipotence of the legislature in the regulation of the matter:—

“The mere fact that experts may pronounce a manufactured article intended for food to be wholesome or harmless does not render it incompetent for the legislature to prohibit the manufacture and sale of the article. The test of the reasonableness of a police regulation prohibiting the making and vending of a particular article of food is not alone whether it is in part unwholesome and injurious. If an article of food is of such a character that few persons will eat it, knowing its real character; if, at the same time, it is of such a nature that it can be imposed upon the public as an article of food which is in common use, and against which there is no prejudice; and, if, in addition to this, there is probable ground for believing that the only way to protect the public from being defrauded into the purchasing of the counterfeit article for the genuine is to prohibit altogether the manufacture and sale of the former—then we think such a prohibition may stand as a reasonable police regulation, although the article prohibited is in fact innocuous, and although its production might be found beneficial to the public, if in buying it they could distinguish it from the production of which it is an imitation.”

The decision of the Pennsylvania court was sustained on appeal by the United States Supreme Court.1 In the trial court, evidence was offered to show that eleomargarine was an absolutely wholesome product; but it was refused admission. The opinion of the Supreme Court of the United States, was in part:—

“Whether the manufacture of eleomargarine, or imitation butter, of the kind described in the statute, is or may be conducted in such a way, or with such skill and secrecy, as to baffle ordinary inspection, or whether it involves such danger to the public health as to require, for the protection of the people, the entire suppression of the business, rather than its regulation in such manner as to permit the manufacture and sale of articles of that class that do not contain noxious ingredients, are questions of fact and of public policy which belong to the legislative department to determine. And as it does not appear upon the face of the statute, or from any facts of which the court may take judicial cognizance, that it infringes rights secured by the fundamental law, the legislative determination of those questions is conclusive upon the courts. It is not a part of their functions to conduct investigations of facts 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 its determination of such questions.” * * * “The legislature of Pennsylvania, upon the fullest investigation, as we must conclusively presume, and upon reasonable grounds, as must be assumed from the records, has determined that the prohibition of the sale, or offering for sale, or having in possession to sell, for purposes of food, of any article manufactured out of oleaginous substances or compounds, other than those produced from unadulterated milk or cream from unadulterated milk, to take the place of butter produced from unadulterated milk or cream from unadulterated milk will promote the public health and prevent frauds in the sale of such articles. If all that can be said of this legislation is that it is unwise, or unnecessarily oppressive to those manufacturing or selling wholesome oleomargarine, as 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.”

Other cases to the same effect are cited in the note below.1

On a line with the utterances of the Supreme Courts of the United States and Pennsylvania, just quoted, it has been maintained in one case,1 that the judgment of a town board of aldermen that a certain article of food is unwholesome, and that therefore the sale of it can be prohibited, is not open to inquiry in the ordinary courts. Notwithstanding the high authority to the contrary, it would seem to appear from the general trend of judicial opinion in other and analogous cases, that the scientific correctness of the judgment of the legislative body in such a case is a judicial question, and therefore subject to review by the courts; for in no other way can the legislatures be kept within the limitations of the constitution. If it is only necessary for the legislature to pronounce a calling injurious to the public, in order to justify its prohibition, there is no limit to the police power of the government. Constitutional restrictions would exert no greater influence than disorganized public opinion; and absolutism, monarchical, aristocratic or democratic, according to the circumstances, would be the corner stone of such a government, at least in theory. The recognition of the rights of the minority would be only a matter of special grace and favor.

An important question, in this phase of police power, which will soon demand an explicit answer, is how far and in what manner the government may regulate and prohibit the manufacture and sale of dynamite and other compounds of nitro-glycerine. The deadly character of the composition; the ready opportunity which its portability and easy manufacture afford for its application to base and criminal uses; the ability of a few miscreants with a few pounds of it to endanger and perhaps destroy the lives of many people, demolish public and other buildings, and bring about a state of anarchy in general, all of which can be done with very little danger of detection; these considerations, if any, would most certainly justify the prohibition of the manufacture and sale of so dangerous an article. And yet a law would be unconstitutional which prohibited absolutely the manufacture and sale of dynamite and nitro-glycerine. For these powerful agencies are of great value and service in many legitimate trades and occupations. The business may be placed under the strictest police supervision; heavy penalties may be imposed upon those who knowingly sell these articles to persons to be used for criminal purposes; a heavy bond of indemnity may be required of each dealer, and only men of reputable character, under license, may be permitted to carry on the business: these regulations are all reasonable and constitutional, for they do not extend beyond the prevention of the evil which threatens the public. A total prohibition of the trade in dynamite would not only prevent the evil, but also prohibit the lawful use of a most valuable agency, and would therefore be unconstitutional.

[1]Legislature has the power in an act forbidding the sale of impure or adulterated milk, to fix a standard by which it shall be judged. People v. Cipperly, 101 N. Y. 634; State v. Smythe, 14 R. I. 100 (51 Am. Rep. 344); Commonwealth v. Waite, 9 Allen, 264; Commonwealth v. Farren, 9 Allen, 489; Polenskie v. People, 73 N. Y. 65; Powell v. Com. (Pa.), 7 A. 913.

[1]State v. Ah Sam, 15 Nev. 27 (Am Rep. 454); State v. Ah Chew, 16 Nev. 50 (40 Am. Rep. 488). See State v. Lee, 137 Mo. 143. In re Ah Jow, 29 Fed. Rep. 181, it was held that it was unconstitutional to make it a misdemeanor for any one to frequent, resort to or visit any room where opium is sold or given away, unless the prohibition is confined to visits for criminal purposes.

[1]Johnson v. Simonton, 43 Cal. 542.

[2]Patterson v. Kentucky, 97 U. S. 501.

[3]People v. Girard, 73 Hun, 457; s. c. 145 N. Y. 105; Weller v. State, 53 Ohio St. 77. A more rational law is that which was sustained in Stolz v. Thompson, 44 Minn. 271, as a legitimate exercise of the police power, whereby the sale of baking powders, containing alum, was prohibited, unless a label was affixed to the box or package, announcing that “this baking-powder contains alum.” The fact, however, that alum in baking-powders makes the compound unwholesome, would undoubtedly have justified a total prohibition of its use in the manufacture of baking powder.

[1]People v. Girard, 145 N. Y. 105.

[2]Weller v. State, 53 Ohio St. 77.

[1]See ante, § 89.

[2]“The central idea of the statute before us seems very manifest; it was, in our opinion, the prevention of facilities for selling or manufacturing a spurious article of butter, resembling the genuine article so closely in its external appearance, as to render it easy to deceive purchasers into buying that which they would not buy but for the deception. The history of legislation on this subject, as well as the phraseology of the act itself, very strongly tend to confirm this view. If this was the purpose of the enactment now under discussion, we discover nothing in its provisions which enables us, in the light of the authorities, to say that the legislature, when passing the act, exceeded the power confided to that department of the government; and, unless we can say this, we cannot hold the act as being anything less than valid.” State v. Addington, 77 Mo. 118.

[1]People v. Marx, 99 N. Y. 307 (52 Am. Rep. 314).

[2]In re John Brosnahan, Jr., 4 McCrary, 1.

[3]Palmer v. State, 39 Ohio St. 236. See ante, § 89.

[1]See ante, 89.

[2]Powell v. Commonwealth, 114 Pa. St. 265. See, also, in support of the law, Commonwealth v. Schollenberger, 156 Pa. St. 201.

[1]Powell v. Pennsylvania, 127 U. S. 678.

[1]Walker v. Commonwealth, 127 Pa. St. 692; State v. Newell, 140 Mo. 282; 41 S. W. 751; Butler v. Chambers, 36 Minn. 69. But see Ex parte Scott, 66 Fed. 45, which held such a law to be void, because, not being required as a protection to health, it was an unlawful interference with interstate commerce. This case, of course, has been overruled by the United States Supreme Court in the cases cited above, except as to sale of original packages which are manufactured in another State and shipped to a prohibitory State. See Commonwealth v. Schollenberger, 156 Pa. St. 201.

[1]Johnson v. Simonton, 43 Cal. 242.