Commonwealth v. Paul , 148 Pa. 559 ( 1892 )

Per Curiam,

This was a suit to recover the penalty imposed by the act of May 21, 1885, for the sale of oleomargarine in this commonwealth. It was contended by the defendants that the act in question is unconstitutional and void, as an interference with the rights of citizens to conduct interstate commerce guaranteed by the federal constitution, so far as it applies to sales of oleomargarine manufactured outside of the state. It appears that the defendants are dealers in provisions in the of Philadelphia, and have paid to the collector of internal revenue of the first district of Pennsylvania the sum of $36.00, as and for a special tax upon the business, as retail dealers in oleomargarine. A copy of the license is attached to the case stated, and upon the margin thereof appears the following: “ This stamp is simply a receipt for a tax due the government, and does not exempt the holder from any penalty or punishment provided for by the law of any state for carrying on the said business within such state, and does not authorize the commencement nor the continuance of such business contrary to the laws of such state or in places prohibited by municipal law. See § 3243, Revised Statutes U. S.”

The contention that this was a sale of oleomargarine by an original package, does not require, discussion. It is sufficient to state that it was a sale of two pounds of that article out of a package of ten pounds originally brought into this state. As was accurately said by the learned judge below: “There was a breaking of the original package, and thereby the contents of it became part of the common mass of property within the state.”

It was further contended that the act of March 21,1885, entitled “ An Act for the protection of public health, and to prevent an adulteration of dairy products, and fraud in the sale thereof,” does not apply to a sale in Pennsylvania of oleomargarine, manufactured outside of the state. See first specification of error. In support of this proposition, we were referred to Commonwealth v. Wilkinson, 139 Pa. 298, where we held that the provisions of § 9 of the act of June 3, 1878, P. L. 161, amended by act of April 25, 1889, P. L. 353, which forbid any person to “ kill or expose for sale, or have in his or her possession, after the same has been killed, any quail,” etc., between certain dates in each year, under a penalty of $10 for each bird so killed, exposed for sale, etc., do not prohibit the sale or having in possession, during said period, of quail killed in and imported from another state. We held that the purpose of the act was to prevent the destruction of game in this state out of season ; that it was not intended to preserve game in other states, nor to prevent game being brought here which was lawfully killed outside of our own territory. There was no reason in public policy why quail killed outside of the state should not be used as an article of food by our own citizens. The act of 1885, relating to oleomargarine, is entirely different, both in its purpose and phraseology. It was, as its title clearly indicates, an act to protect the public health, and to prevent adulteration of certain articles of food. It was for this reason that its constitutionality was sustained by this court in Powell v. The Commonwealth, 114 Pa. 265. It is difficult to see how it could be sustained as a police regulation for any other reason.

The first section of the act of 1885 prohibits the manufacture or sale of oleomargarine. The third section enacts that “ every person, company, firm or corporate body, who shall manufacture, sell, or offer or expose for sale, or have in his, her or their possession with intent to sell, any substance, the manufacture or sale of which is prohibited by the first section of this act, shall, for every such offence, forfeit or pay the sum of $100,” etc. It will thus be seen that the first section of the act prohibits the manufacture of the article, and the third section prohibits its sale without regard to the place of its manufacture.

Judgment affirmed.