Commonwealth v. Spencer , 1905 Pa. Super. LEXIS 187 ( 1905 )

Opinion by

Orlady, J.,

The defendant was indicted for selling Hamburg steak containing additional substances and ingredients, the use of whiclf is prohibited by several of our acts of assembly, known as the pure food laws. The sale was admitted, and the use of a preparation known as “III Preservaline,” composed of ten per cent boracic acid, two per cent bicarbonate of soda, and eighty-eight per cent of sulphite of soda was clearly proven. He was convicted and sentenced to pay a fine of $50.00 and costs of prosecution. An- application to make the appeal to this court operate as a supersedeas was refused, and the sentence was complied with by the payment of the fine and costs to the sheriff of the county.

The statement submitted by the appellant of the question involved and the three assignments of error, present but one proposition for our consideration. The motion to quash the bill of indictment, the request to charge the jury, and the motion in'arrest of the judgment, are each founded upon the contention that, inasmuch as article III., sectiop 27, of the Constitution of Pennsylvania, provides as follows: “ No state office shall be continued or created for the inspecting or measuring of any merchandise, manufacture or commodity; but any county or municipality may appoint such officer, when authorized by law; ” and the information upon which the indictment was founded being made, by a special agent of the dairy and food commissioner of the department of agriculture of the state; and the proof necessary to secure the conviction being, furnished by representatives of the dairy and food commissioner through the inspection of the Hamburg steak by the agents of said commissioner the defendant was convicted without due process of law ; that the state office of dairy and food commissioner is in violation of the constitutional provision quoted and all proceedings instituted under the direction of his officers and all penalties imposed by the courts to be paid to and disbursed by such officer are without warrant of law. In support of his contention the counsel for appellant presents a very comprehensive and ingenious argument touching on the constitutionality of the office of dairy and food commissioner of the state: the Act of May 26, 1893, P. L. 152; the Act 'of March 13, 1895, P. L. 17; and the Act of June 26,1895, P. L. 317. However interesting this subject may be it is not relevant to the record as presented. The conviction of the defendant did not depend upon the character of the person who instituted the proceeding, but upon the testimony adduced on his trial in the quarter sessions for the violations of sections of the acts, the constitutionality of which has been sustained by this court and the Supreme Court: Commonwealth v. Curry, 4 Pa. Superior Ct. 356; Commonwealth v. Kevin, 202 Pa. 23. And in support of these decisions it is not necessary to adduce further argument.,

The sentence imposed was strictly within the terms provided by the statute which creates the offense and provides the penalty for its violation. To what officers or through what avenues the fine imposed by law may be ultimately distributed is not a matter of any concern to this defendant in this issue, and the question raised by him is not a material one as affecting his liability for his violation of that part of the act which has been held to be constitutional. It would be a waste of labor either to sustain or answer the very elaborate argument presented by his counsel:

Moreover, the record does not disclose that this prosecution was instituted by the dairy and food commissioner of the state. It being a criminal proceeding and not a civil suit for penalty, the sections of the act which define the crime, and fix his punishment, are clearly severable and distinguished from any reference to the creation of the office of dairy and food commissioner. And further his designation as a special agent of a state department might well be treated as surplusage. The prosecutor was no more than a witness for the commonwealth, and his testimony was to be treated as that of any other witness : Commonwealth v. Barr, 25 Pa. Superior Ct. 609. The assignments of error do not present any material or relevant question in regard to which the defendant may be considered as a party aggrieved.

The judgment is affirmed.