Nicholls v. Johnston , 14 Pa. 279 ( 1850 )

The opinion of the court was delivered by

Coulter, J.

— The different laws on the subject of the inspection of flour are somewhat confused, and the penalties ill-defined in their application. By the 2d section of the act of 31st March, 1836, being a supplement to the act of 1835, it is provided, that nothing in the act to which this is a supplement, shall be so construed as to require the inspection or branding of flour or meal of any kind, shipped or laden on the waters of the Susquehanna and Delaware and their branches, and intended to be transported by their waters to a market out of the State, but within the limits of the United States. By the act of 6th April, 1841, entitled “An Act to incorporate a company to erect a bridge over Lackawaxen, near Paupack Eddy,” it is provided, that a painted device may be substituted by bolters or millers, for the brand in the act of 1835, and that a description of the device shall be filed by every bolter or miller of flour for exportation, with the clerk of the Court of Quarter Sessions of the county, in the same manner as description of the brands are required to be filed. In various sections, throughout the act of 1835, flour intended for exportation, and the branding of it, is spoken of as contradistinguished from other' sections, where the flour is intended to be used, as well as inspected, in the State. The mark of No. 1, and 2, is required to be put on barrels, according to the weight, without specifying whether that is intended to be exported or not. The section under which the penalty in this case is claimed, expressly states that the flour must be intended for exportation. This, taken in connection with the phraseology of the first section of this act, of the 5th section, and the 20th section, and also of the 2d section of the act of 3Í March, 1836, satisfies me fully that the penalty in the 38th section of the act of 1835, for which this suit is brought, attaches only where the flour, barrelled and put up, was intended for exportation out of the State. Taking the whole act together, the clear intent of the legislature was to establish the reputation of Pennsylvania brands in foreign markets ; because the act of 1836, removing the penalty from flour shipped on the Delaware and Susquehanna and their branches, to places within the United States, virtually, and almost entirely obliterated the penalty, except as to foreign shipments; there being little flour shipped down the Ohio since 1836. But, although the flour barrelled and put up by bolters and millers must be intended for exportation to draw and attach the penalty for not filing a description of the brand or device with the clerk of the Quarter Sessions to such omission, yet, still the question is, What is evidence of that intention? And that is the real question in this cause. The court here withdrew that question from the jury, and decided it on the evidence peremptorily against the plaintiff. Now, undoubtedly, there was some evidence proper to be submitted to the jury on that head. I say not that it was sufficient or conclusive; that is for a jury. Although it was a small mill, and ran only three months in the year, yet flour was barrelled at it every year, and branded with the name of the defendant’s father, and marked No. 1, and 2, as the case might be, and superfine or fine. This was sent abroad, into the markets of the country. It might be exported, or it might not. It appears that the miller knew the flour was inspected somewhere ; for he speaks of the inspectors finding fault with the mode in which it was branded, which was afterwards corrected. We think the evidence ought to have been submitted to the jury. The defendant will be at liberty to give any evidence on the subject; and, from the whole, the jury will determine the fact, whether the flour, manufactured and put up, was intended to he exported, so as to bring the defendant within the penalty, or not. It would seem, that if it was a neighborhood mill, used and conducted for neighborhood purposes, and the flour put up in barrels was intended to be used within the State, or to be transported out of the State, to parts within the United States, by means of the Delaware * or Susquehanna, or their waters, that the penalty ought not to attach. The action being for a penalty, the rule of evidence, in such cases, is, that the proof ought to be plain, and satisfactory, in order to inflict it.

Judgment reversed and a venire de novo awarded.