
    Commonwealth, Appellant, v. Schollenberger.
    
      Oleomargarine — Purpose of sale — Act of April 2i, 1885.
    A person cannot be convicted of violating the oleomargarine act of April 21, 1885, P. L. 22, unless it affirmatively appears that he sold oleomargarine as an article of food.
    
      Argued Jan. 16, 1898.
    Appeal, No. 141, July T., 1892, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1891, No. 1111, for defendant, George Schollenberger, on case stated.
    Before Paxson, C. J., Sterrett, Green, Williams, McCollum, Mitchell and Dean, JJ.
    Case stated. (Reported below, 1 Dist. R. 437.)
    From the case stated it appeared that defendant is a wholesale dealer in oleomargarine, licensed by the United States government ; that on Nov. 3d he sold to one Noyes a package containing twenty pounds of oleomargarine, which said package was manufactured in Rhode Island, imported to Pennsylvania, and sold and delivered to Noyes in its original unbroken condition. It did not appear from the case stated that the oleomargarine was sold as an article of food. A reservation of a right of appeal or certiorari was by leave filed at bar.
    Judgment was entered for defendant by the court below in an oral opinion in part as follows, by Biddle, J.:
    ' “ The law is a highly penal one, and therefore to be construed, as all penal laws, strictly. The first section enacts ‘ that no person, firm or corporate body shall manufacture out of any oleaginous substance, or any compound of the same, other than that produced from unadulterated milk, or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk or cream from the same, or of any imitation or adulterated butter or cheese, nor shall sell or offer for sale, or have in his, her or their possession with intent to sell the same as an article of food.’
    “ The offence, therefore, it will be perceived, is confined to the manufacture and sale of oleomargarine ‘ as an article of food,’ the whole purpose of the law being, as appears by its title and this section, to protect the health of the public. If then it was sold and used as wagon grease, to which purpose its enemies consider it eminently fitted, it would clearly not be a violation of the law. Now there is nothing in the case stated to show that it was sold or used as an article of food. As, therefore, no law of the state would seem to have been violated, we give judgment for the defendant on the case stated.
    “ The 3d section, although not reiterating the exact words of the first, must be read in connection with it; the intent to sell or the offer to sell must be as an article of food.”
    January 30, 1893:
    
      Error assigned was entering judgment for defendant.
    
      Charles F. Warwick and Luther S. Kauffman, Wayne MacVeagh with them, for appellant,
    cited, Powell v. Com., 114 Pa. 294; Com. v. Weiss, 189 Pa. 247.
    
      A. B. Roney, for appellee,
    cited: Com. v. Powell, 114 Pa. 269; Com. v. Miller, 131 Pa. 118; Com. v. Weiss, 139 Pa. 248.
   Per Curiam,

Judgment affirmed.  