Dorsey v. State , 38 Tex. Crim. 527 ( 1898 )

Appellant was convicted of knowingly and fraudulently adulterating an article of food, and his punishment assessed at a fine of $100; hence this appeal.

As appellant made a motion to quash the information, and assigns the refusal of the court to quash the same as error, we will set out the charging part of the information, to wit: "That H.B. Dorsey did then and there knowingly and fraudulently manufacture, offer for sale, and sell a certain article of food, to wit, flour, which was then and there known by him, the said H.B. Dorsey, to be adulterated, contrary," etc. There are two statutes pertaining to this subject, under either of which the indictment may have been drawn. The first is article 427, Penal Code 1895, which provides, "If any person shall fraudulently adulterate, for the purpose of sale, any substance intended for food, * * * with any substance injurious to health, he shall be punished by fine not less than $50 nor more, than $500." Article 430 provides, "No person shall within this State manufacture, offer for sale, or sell any article of food, which is by him known to be adulterated within the meaning of this law;" and the punishment assessed is a fine not exceeding $100. Article 432 of the Penal Code undertakes to more specifically define the meaning of the term "adulteration," and in what it consists. As to foods or drinks, the following are the provisions necessary to be quoted, so far as applicable to this case: "(1) If any substance or substances has or have been mixed with it so as to reduce or lower or injuriously affect its quality or strength. (2) If any inferior or cheaper substance or substances have been substituted wholly or in part for the article." "(6) If it be colored or coated or polished or powdered, whereby damage is concealed, or it is made to appear better than it really is, or of greater value." Appended to this article is the following: "Provided, that the State health officer may, with the approval of the Governor, from time to time declare certain articles or preparations to be exempt from the provisions of this law; and provided further, that the provision of this act shall not apply to mixtures or compounds recognized as ordinary articles of food, provided the same are not injurious to health, that the articles are distinctly labeled as a mixture, stating the components of the mixture." The proof in this case shows (which was admitted by appellant) that the adulteration was of flour; that is, flour and meal were mixed or mingled together by a bolting process which was in operation in defendant's flouring mill. The mixture or compound contained 90 per cent of flour and 10 per cent of corn meal.

The contention of the defendant as to the indictment is that it should have stated how the adulteration was made; that is, the contention is that it was necessary to prove an admixture or adulteration of the flour, and to show how the same was adulterated, by evidence, and that the indictment should have contained the allegations, so as to put appellant on notice of what he was charged to answer. For instance, in this case it is insisted that the indictment should have alleged that the flour was adulterated with a certain portion of corn meal, and that said meal was a substance such as to reduce or lower or injuriously affect the quality of the flour, or that said flour was adulterated with meal, which was an inferior or cheaper substance than the flour with which it was mixed. It occurs to us that this contention is sound. There are a number of articles or substances which might be intermingled with flour so as to reduce or lower or injuriously affect its quality or strength, or which are of an inferior or cheaper character; and under our system of criminal pleading the appellant should have been charged with the particular substance with which the article in question was adulterated, so that he might be prepared to meet the State's case.

We take it that the indictment in question was brought under article 430, and not under article 427, inasmuch as there is no allegation, nor does the proof indicate that the meal shown to have been mixed with the flour was injurious to health. In fact, the contrary appears. It further appears from the evidence in the case that "both compounds which are claimed to constitute the adulteration are recognized as ordinary articles of food, and are not injurious to health. In such case, under the provisions of the law, if such articles are mixed together, and are distinctly labeled as a mixture, the person manufacturing such article is not indictable. It would therefore seem to follow that the indictment, to be good under this article, should negative the fact that such substances or articles of food, when combined so as to produce a wholesome article of food, were properly labeled. Of course, it is competent, under the police power of the State, for the Legislature to pass an act stating in distinct terms, as to any article of food or drink, that if any person, etc., shall adulterate such article (naming it) with any other substance, without labeling same, such person shall be guilty of an offense. We understand this to be the rule laid down by the authorities. Some of the legislation is based on the adulteration of articles of food or drink which are unwholesome or injurious, and this appears to be provided against in article 427 of our statute. Other legislation is aimed at the prevention of frauds on the public, to prevent palming off on them an article of food other or different from that which they are led to believe they are purchasing; and as to the latter, the authorities appear to hold that it is competent for the Legislature to prohibit the mixture or compound altogether, though it may not be injurious or unwholesome. See Powell v. Com., 114 Pa. St., 265, 7 Atl. Rep., 913, and authorities there cited; Waterbury v. Newton, 50 N.J. Law, 534, 14 Atl. Rep., 604; Palmer v. State, 39 Ohio St. 236. We would not be understood as indorsing the doctrine laid down in the above authorities. The courts have gone to great length in upholding legislation under the police power. In some decisions it has been so magnified as to be regarded as almost omnipotent. We do not agree to the doctrine that under this power, or any other, the Legislature can make criminal the mixture or mingling of articles of food which are wholesome and nutritious, and prohibit the sale thereof. We can add nothing to the dissenting opinion of Judge Gordon in the case of Powell v. Commonwealth, supra. We do agree to this proposition, that the Legislature, when such articles (namely, articles of wholesome and nutritious food) are mixed and intermingled, can require that the product be labeled, showing the component elements thereof, and punish a failure to so label. We further hold that the present act of the Legislature on the subject is too general in its terms. It simply embraces all articles of food or drink, without naming any, and makes the mixture of any articles of food, however nutritious, without labeling the product, an offense. A great many articles of food are mixed and combined together, and such combinations are not only harmless, but are healthy, as articles of food; and to require all such articles to be labeled, so as to show the constituent elements composing the same, it occurs to us, is extremely onerous legislation. We hold that an act on this subject, to be enforced, should name the particular article of food, the adulteration of which is prohibited by the Legislature, and which is required to be labeled. In all the cases on this subject which have come to our notice, the Legislature appears to have directed the law to some particular article of food or drink. For instance, in the Powell Case, supra, the act was for the purpose of prohibiting the manufacture of oleomargarine. Now, as bearing on the subject before us, we hold that it would be entirely competent for the Legislature, by an act, to prohibit the sale, etc., of flour mixed with meal, or any other wholesome article, without properly labeling the product of such combination. They have not done this. The prosecution is attempted to be maintained under the general act to prohibit the intermixing of all foods. We do not believe that it was competent for the Legislature to do this.

The judgment is reversed, and the prosecution ordered dismissed.

Reversed and ordered dismissed.