State v. Myers , 42 W. Va. 822 ( 1896 )

ON REHEARING.

The plaintiff* in error, in his brief filed upon the rehearing of this case, seeks to show that the part of the act of our legislature which has reference to and affects importers into the state as to unbroken bulks or “original packages” is clearly unconstitutional, and, if unconstitutional as to these, it is unconstitutional as to all the parties to whom it applies; in other words, that the sections of the act are not severable; if a part is unconstitutional, tbe whole is unconstitutional, for the reason that no one could know that the legislature would have given their sanction to the part of the act that affects the citizen of the state without the clause or part of the act that denounces the penalty against importers of “original packages,” and seeks to show that the case of Plumley v. Massachusetts, 155 U. S. 461 (15 Sup. Ct. 154) does not affect the case. In that case, however, this question is exhaustively considered by Justice Harlan, and the authorities fully collated. The first section of the syllabus in that case reads as follows: “The act of August 2, 1886, c. 840 (24 Stat. 209) does not give authority to those who pay the taxes prescribed by it to engage in the manufacture or sale of oleomargarine in any state which lawfully forbids such manufacture or sale, or to disregard any regulations which a state may lawfully prescribe in reference to that article; and that act was not intended to be, and is not, a regulation of commerce among the states;” and that the statute of Massachusetts of March 10, 1891 (chapter 58) to prevent deception in the manufacture and sale of imitation butter,’ in its application to the sales of oleomargarine artificially colored so as to cause it to look like yellow butter, and brought into Massachusetts, is not in conflict with the clause of the Constitution of the United States investing congress with power to regulate commerce among the several states; also restraining the case of Leisy v. Hardin, 135 U. S. 100, 124 (10 Sup. Ct. 681) in its application to the case there actually presented for determination, and held not to justify the broad contention that a state is powerless to prevent the sale of articles of food manufactured in or brought from another state, and subjects of traffic or commerce, if their sale may cheat the people into purchasing something they do not intend to buy, and which is wholly different from what its condition and appearance import. The judiciary of the United States should not strike down a legislative enactment of a state, especially if it has direct connection with the social order, the health, and the morals of its people, unless such legislation plainly and palpably violates some right granted or secured by the national constitution, or encroaches upon the authority delegated to the United States for the attainment of objects of national concern. On page 474, 155 U. S., and page 159, 15 Sup. Ct. Justice Harlan, in delivering the opinion of the court, says: “The language we have quoted from Leisy v. Hardin must be restrained in its application to the case actually presented for determination, and does not justify the broad contention that a state is powerless to prevent the sale of articles manufactured in or brought from another state, and subjects of traffic and commerce, if their sale may cheat the people into purchasing something they do not intend to buy, and which is wholly different from what its condition and appearance import.”

In the case of Plumley v. Massachusetts, Plumley was arrested for selling in the original package oleomargerine in Illinois, and brought to the state of Massachusetts colored so as to resemble butter manufactured from milk, in violation of the Massachusetts statute. The attempt was made to show that this statute was unconstitutional, but the court sustained the statute, and held it to be constitutional. So, also, in the Case of Rahrer, Petitioner, 140 U. S. 545 (11 Sup. Ct. 865) it was held that the act of August 8, 1890 (26 Stat. 313, c. 728) enacting that “all fermented, distilled or other intoxicating liquors or liquids transported into any state or territory or remaining therein for use, consumption, sale or storage therein shall upon arrival in such state or territory be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers to the same extent and in the same manner as though such liquids or liquors had been produced in such state or territory and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise,” is a valid and constitutional exercise of legislative power conferred upon congress; and, after that act took effect, such liquors or liquids introduced into a state or territory from another state, whether in original packages or otherwise, became subject to the operation of such of its then-existing laws as had been properly enacted in the exercise of its police powers.

Having held in the opinion that the legislature had the right, under its police powers, to require parties offering for sale oleomargarine to color tbe same pink in order to identify it and distinguish it from ordinary butter, and the above quoted cases holding, that the fact that the same is offered for sale in original packages does not prevent it from being subject to the effect of our statute requiring the same to be colored pink, which is a police regulation, we see no cause to change our opinion expressed in the oi'iginal opinion, and must therefore hold the statute to be constitutional, and affirm the judgment, with costs.