CLARENCE E. COLLINS, Plff. in Err., v.
STATE OF NEW HAMPSHIRE.
(See S. C. Reporter’s ed. 30-34.)
Tower of a state — purpose of a statute — re¬ striction of commerce — sale of oleomargar¬ ine — statute of New Hampshire.
1. Where the state has not the power to abso
lately prohibit the sale of an article of com merce, like oleomargarine In its pure state, ii has no power to provide that such article shall be colored, or rather discolored, by add ing a foreign substance to it, in the manner described In the New Hampshire statute.
60
2. A state law which necessitates and provides
for adulteration of an article of commerce, and enforces upon the importer the necessity of adding a foreign substance to his article, which is thereby rendered unsalable, in order that he may be permitted lawfully to import and sell it, is an unlawful restriction of com¬ merce.
3. In whatever language a statute may be
framed, its purpose must be determined by its natural and reasonable effect.
4. Although under the wording of such statute
the importer is permitted to sell oleomarga¬ rine freely and to any extent, provided he colors it pink, yet the permission to sell, when accompanied by the imposition of a condition which, if complied with, will effectually pre¬ vent any sale, amounts in law to a prohibi¬ tion.
The statute of New Hampshire making it unlawful to sell or keep in possession, with intent to sell in said state, any oleomarga¬ rine unless it is of a pink color, when applied to oleomargarine imported into that state from another state for sale, is invalid.
[No. 17.] v
Argued March 23, 21/, 1898. Decided May 23, 1898.
IN ERROR to the Supreme Court of the State of New Hampshire to review the judg¬ ment of that court sustaining a conviction of Clarence E. Collins of a violation of the statute of that state prohibiting the sale of oleomargarine unless it is of a pink color. Reversed, and case remanded for further pro¬ ceedings.
The facts are stated in the opinion.
Messrs. William D. Guthrie, Richard C. Dale, Henry R. Edmunds, and Albert H. Yeeder for plaintiff in error.
No brief filed for defendant in error but Mr. John G. Johnson was for the defend¬ ant in error in tichollenberger v. Pennsylva¬ nia, 171 U. S. 1 (ante, 49), which was argued with this case.
Mr. Justice Peckham delivered the opin¬ ion of the court:
This case comes here by virtue of a writ of error to the supreme court of the state of New Hampshire, by which we are called upon to review the judgment of that court sus¬ taining a conviction of the plaintiff' in error in the court of first instance of a violation of the public statutes of the state, prohibit¬ ing the sale of oleomargarine as a substitute for butter unless it is of a pink color. The law is to be found in §§ 19 and 20, chap. 127, Public Statutes 1891. The two sections are *et forth in the margin.t
t Sec. 19. It shall be unlawful to sell, offer for sale, or keep in possession with intent to sell, in this state, any substance or compound made wholly or In part of fats, oils, or grease, not produced from milk or cream, in imitation of, or as a substitute for, butter or cheese, un¬ less the same is contained in tubs, firkins, boxes or other packages, each of which has upon it, to indicate the character of its contents, the words •Adulterated hutter,” “Oleomargarine,” or •Imitation cheese” as the case mav be. in plain Roman letters not less than one ‘half inch in length, and so placed and made or attached
171 U. S.
1897.
Collins v. New Hampshire.
31-34
The plaintiff in error was convicted of sell- 132] ing a package of ‘oleomargarine not of pink color, in violation of the statute, and was sen¬ tenced to pay a fine of $100, and to pay the costs of prosecution, and to stand committed until sentence was performed.
The following are the facts appearing in the record :
“The respondent is agent at Manchester of Swift & Co., an Illinois corporation, having its principal place of business in Chicago. The corporation manufactures oleomargar¬ ine and puts it up in packages in Chicago, and distributes the packages from there to different places — one of which is Manchester — where it maintains stores and sells the arti¬ cle at wholesale in the original packages. It has paid the special United States taxes im¬ posed by the act of Congress of August 2, 1886 (Supp. to R. S. of U. §., v. 1, p. 505) , and has complied with all other requirements of that act in respect to the manufacture and sale at wholesale of oleomargarine. The arti¬ cle has the color of butter, the same coloring matter being used to color it that is fre¬ quently used to color butter, and is made wholly or in part of fats, oils, or grease not pioduced from milk or cream, in imitation of or as a substitute for butter. It is not manu¬ factured in this state. The respondent as such agent sold in Manchester, at wholesale, at the store of the company, a package of said article weighing 10 pounds in the form it was put up in Chicago by his principal. The provisions of § 19, chap. 127, Public Statutes of this state, were complied with, so far as the package was concerned, except the color of its contents was not pink. The oleo¬ margarine sold was the oleomargarine of com¬ merce as the same is known and dealt in as an article of food.
“The respondent claimed that upon these facts he was not guilty, because the statute of this state is in contravention of the Con¬ stitution of the United States and its amend¬ ments and of the laws of Congress; otherwise he admitted his guilt. The court ruled against the respondent as to the above claim, and he excepted.’'"
It was stated on the argument that since the conviction of the plaintiff in error the statute above cited had been repealed, but that such repeal did not affect the conviction, £33] because of the ‘provision made in the New Hampshire statutes that “no suit or prosecu¬ tion, pending at the time of the repeal of an act, for any offense committed or for the re¬ covery of a penalty or forfeiture incurred, under the act so repealed, shall be affected by such repeal.” We are therefore called upon to determine the validity of the conviction.
The plaintiff in error claims that the stat-
that they can he readily seen and read and cannot be easily defaced; and if the substance or compound is a substitute for cheese, unless the cloth surrounding it has a like inscription; and if it is a substitute for butter, unless it is of a pink color. When any such substance or compound is sold in less quantities than the original packages contain, the seller shall de¬ liver to the purchaser with it a label bearing the words indicating its character as above, in like letters.
171 U. S.
ute under which he was indicted and con¬ victed is void, because in contravention of the Constitution of the United States, which gives power to Congress “to regulate com¬ merce with foreign nations and among the several states and with the Indian tribes.”
We think this ease comes within the prin¬ ciple of the cases just decided regarding the statute of the commonwealth of Pennsyl¬ vania prohibiting the introduction of oleo¬ margarine into that commonwealth. This statute is in its practical effect prohibitory.
It is clear that it is not an inspection law in any sense. It provides for no inspection, and it is apparent that none was intended. The act is a mere evasion of the direct prohibition contained in the Pennsylvania statute, and yet, if enforced, the result, within the state, would be quite as positive in the total sup¬ pression of the article as is the case with the Pennsylvania act.
In a case like this it is entirely plain that if the state have not the power to absolutely prohibit the sale of an article of commerce like oleomargarine in its pure state, it has no power to provide that such article shall be colored, or rather discolored, by adding a for¬ eign substance to it, in the manner described in the statute. Pink is not the color of oleo¬ margarine in its natural state. The act ne¬ cessitates and provides for adulteration. It enforces upon the importer the necessity of adding a foreign substance to his article, which is thereby rendered unsalable, in order that he may be permitted lawfully to sell it.
If enforced, the result could be foretold. To color the substance as provided for in the statute naturally excites a prejudice and strengthens a repugnance up to the point of a positive and absolute refusal to purchase the article at any price. The direct and nec¬ essary result of a statute ‘must be taken into