
    Weller v. The State.
    
      Manufacture of vinegar — Process of artificial coloring — Adultera, tion — Legislative power to prevent — Act of April 14, 1888 (85 Ohio Laws, 259) — Constitutional law.
    
    1. Where, in the manufacture of vinegar, low wine, formed from fermented grain, is, previously to its aeetification, passed through roasted malt, not for the purpose of adding any substantial ingredient to the vinegar, but for the purpose of giving it color as well as aroma and flavor, and without this treatment it would be colorless, the vinegar so produced contains artificial coloring matter within the meaning of section 2 of an act to prevent the adulteration of vinegar, as amended April 14, 1888 (85 Laws, 259); and its possession for the purpose of sale is an offense under the provisions of section 5 of the same act.
    2. Section 2 of the above entitled act, as amended April 14, 1888, does not exceed the police power of the state conferred on the general assembly by the constitution in the general grant of legislative power, and is a valid law.
    (Decided May 14, 1895.)
    
      Error to the Circuit Court of Hamilton county.
    On the sworn complaint of George A. Root, made April 28, 1894, to E. J. Tyrrell, a justice of the peace of Hamilton county, Cincinnati township, Jacob Weller, the plaintiff in error, was arrested on the charge, that on December 11, 1893, at the county of Hamilton, he, the said Jacob Weller, did knowingly have in his possession with intent to sell, a quantity of vinegar, found upon proper test, containing artificial coloring’ matter, contrary to the statute in such case made and provided. The defendant plead not guilty, and having waived a jury the court heard the evidence, and found the defendant guilty. The verdict of guilty was based upon the following special finding of the facts:
    “I find from the evidence that vinegar is the dilute form of acetic acid, having a flavor that varies, according to the source from which it is obtained.
    “That the accused is a vinegar manufacturer, and did, on the eleventh day of December, 1893, in the city of Cincinnati, county of Hamilton and state of Ohio, knowingly have in his possession, with intent to sell, a quantity of vinegar; that the product out of which said vinegar was made, in the process of manufacture, as shown by the testimony, was mixed with roasted or parched malt before being run through the tub of beech shavings; that the alcohol was there converted into acetic acid, and that the roasted malt contained no alcohol to be so converted; that said roasted malt, by so being mixed with the product, imparted a flavor, odor, and a brownish color to the vinegar, and that the defendant knew that said roasted malt did impart color to said vinegar; that said color is imparted to said vinegar by the process, and in the manner proved, was found, upon proper test, as set forth in the evidence, to contain artificial coloring matter, so added in manner and form as proved by the evidence, and that the defendant did know that fact.”
    The defendant made a motion to set aside the findings and verdict, and for a new trial, on the ground that it is contrary to law and the evidence. The motion was overruled, and judgment entered, assessing a fine of fifty dollars and costs, to which the defendant excepted. The defendant took a bill of exceptions embodying all the evidence, which is made a part of the record. On- a petition in error to the common pleas, the judgment was affirmed. Error was then prosecuted in the circuit court, where the judgment was affirmed by a divided court, there being but two judges present. A number of errors are assigned, the material ones being: (1), That the court erred in not granting’ a new trial on the ground that the verdict is not sustained by the evidence, and (2), that the act is unconstitutional.
    
      O. JB. Simrall and Alfred Mach, for plaintiff in error.
    It is scarcely necessary to cite authority in support of the proposition that it is a cardinal rule to construe penal statutes strictly. Shultz v. Cambridge, 38 Ohio St., 659 ; Wert v. Clutter, 37 Ohio St., 347.
    It is the duty of the courts, in the interpretation of statutes, unless restrained by the letter, to adopt that view which will avoid absurd conse- , quences, injustice or great inconvenience, as none of these can be presumed to have been within the legislative intent. Moore v. Given, 39 Ohio St., 661. Likewise, the universally applied rule of public policy, forbidding any act or contract in restraint of trade, calls for such construction of a statute as will not be an unreasonable prohibition against long established and recognized industries. Central Ohio Salt Co. v. Guthrie, 35 Ohio St., 666; Brundred et al. v. Rice, 49 Ohio St., 640.
    Bearing- in mind these principles, the construction of the act of April 14, 1888, in’ accordance with the claims made above, follows as an inevitable consequence. State v. Newton, 50 N. J. L., 534.
    Malt vinegar, made by the fermentation process, would be made of the same ingredients and have the same color, aroma and flavor and would require from seven to nine months. This is a matter of common knowledge of which this court will .take judicial notice. Cross v. Armstrong, 44 Ohio St., 613; Ross v. Boswell, 60 Ind., 235, Garth v. Caldwell, 72 Mo., 622; Downey v. Hendrie, 46 Mich., 498; Terhune v. Phillips, 9 Otto, 592.
    Applying the principles of law stated above to the facts as they appear from the record and admissions, can there be any doubt that Weller did not violate the provisions of the act of April 14, 1888, for the reasons:
    1. No coloring matter was used.
    2. No artificial coloring matter was used.
    3. This statute contemplates artificial coloring matter that is extraneous from the ingredients and does not apply to a case where color is derived incidentally from the ingredients, used admittedly for some other purpose. It does not prohibit the use of the essential ingredients for the purpose of restoring to the partly manufactured article the flavor and aroma of the ingredients from which it is made, even if the use of such ingredients, at the particular stage of the manufacture, also incidentally imparts color. Salt Company v. Guthrie, 35 Ohio St., 672.
    We concede that the police powers vested in the legislature give the fullest right to enact laws in protection of the public morals, health and safety. We concede even more; the police powers give the right to enact any law to prevent fraud or deception, such as laws requiring labels, etc., denoting contents. Budd v. State, 143 U. S., 517; People v. Jackson County, 9 Mich., 285; In re Jacobs, 98 N. Y., 98; People v. Marx, 99 N. Y., 377.
    Of course we admit the radical distinction between acts prohibitive of the avowed and published use of wholesome articles, and acts prohibiting the use of such articles in such manner as to deceive and mislead. Instances of the latter acts, which have been declared constitutional, are, Palmer v. State, 39 Ohio St., 236; Powell v. Pennsylvania, 127 U. S., 678; People v. Arensberg, 105 N. Y., 123.
    We call attention to the legislation seeking to prevent Chinese engaging in laundry business, which was held unconstitutional and void, and not in fact regulations protecting public health. Yich No v. Hopkins, 118 U. S., 356; Re Tie Loy, 26 Fed. Rep., 611; Re Sam Kee, 31 Fed. Rep., 688. It is a well settled principle of law that the facts of the case, and not the act of the legislature, constitutes any property or action a nuisance. Butcher's Co. v. Crescent City Co., 111 U. S., 746; Wyne-Hamer v. People, 13 N. Y., 378; Pumpelly v. Green Bay Co., 13 Wall., 166; Lake View v. Rose Hill Cemetery Co., 70 Ill., 192.
    
      We conclude, therefore, that if the court finds that the act in question is designed not to prevent adulteration or deception, but absolutely to prevent the use of articles, however wholesome, then the act should be pronounced unconstitutional and void.
    
      Dye Dye, for defendant in error.
    To argue that when the statute plainly and positively prohibits the sale of vinegar containing artificial coloring matter that it does not mean to prohibit the sale of vinegar which deceives the eye, is, it seems to us, rather illogical. The sole aim and object of such statute is to prevent deception., Any vinegar which contains a color that does not belong to it of right, is prohibited under this act, no matter how nutritious it is ; no matter what its aroma, if when it appears on the market it contains an artificial coloring matter, then it can not be sold.
    The words coloring matter, in their simplest sense, mean any matter which will produce color. The word artificial means, take it from its Latin derivation, which also gives its true English meaning (ars — art or skill; and fado, facere — to make), means anything which is the product of human art or skill, as distinguished from the products of nature. This would give us three methods of construing the words artificial coloring matter.
    1. The broad meaning, which would be any substance which would produce color and which substance was made by art or skill, as for instance, roast malt, burnt sugar or caramel.
    2. The more restricted meaning, as substances which are classed by scientists as coloring matter. This, the testimony shows, would also include burnt sugar, aniline, and Professor Fennell claims, even roast malt. Under a strict construction of the law against the defendant, if the vinegar, when it appeared in the market, contained either of the above, under the above two constructions it would be a crime if the scienter be present
    3. But, we take it, the proper construction is the one most liberal to the defendant, and that is this, that the words containing artificial coloring matter mean that the vinegar must have simply that color which that. kind of vinegar would have naturally without the addition of any other substance for any purpose whatever.
    The question of the constitutionality of the act,' we think, has been substantially passed upon by this court in the case of Palmer v. State, 39 Ohio St., 236, and we submit it without argument.
    
      First — The verdict of a court sitting- as a jury on a question of fact is entitled to the same consideration as the verdict of a jury. 4 Ohio St., 60.
    
      Second — Before the verdict of a jury will be reversed by a reviewing court, they must find that there is no evidence to sustain the verdict, or that the verdict is palpably against the weight of the evidence. 6 Ohio, 456; 3 Ohio St., 499; 2 Ohio St., 44; 4 Ohio St., 566; 5 Ohio St., 107, 286; 22 Ohio St., 38; 14 Ohio St., 282; 17 Ohio St., 499; 5 Ohio, 509; 12 Ohio St., 146; 6 Ohio St., 497; 7 Ohio St., 75.
    Of course the question of what is artificial coloring matter within the meaning of our statute, is a question of law, but after the court has passed upon the question, the next is, is there any. evidence to show that this vinegar contained such artificial coloring matter, and if there be any such evidence the decision of the lower court will be affirmed.
   Minshall, C. J.

The statute upon which the complaint in this case was made and the conviction had, is section 2, of an act to prevent the adulteration of vinegar, as amended April 14, 1888 (85 Laws, 259), and reads as follows: “No person shall manufacture for sale, or knowingly offer for sale, or have in his possession with intent to sell, any vinegar found upon proper test to contain any preparation of lead, copper, sulphuric acid, or other ingredients injurious to health, or containing artificial coloring matter. ’ ’ A violation of the act is, by the fifth section, made an offense, punishable by fine or imprisonment, or both.

The only question in the ease, aside from the validity of the law, is, whether the finding of the justice is supported by the evidence; and in this court, that question is limited to whether there was any evidence tending to support the material averments of the complainant. Such is the rule in all other cases; and no reason is perceived why this ease should form an exception to it. The charge was that on December 11, 1894, the defendant knowingly had in his possession a quantity of vinegar, found on proper test to contain artificial coloring matter. The possession of the vinegar and the intent to sell, were admitted, but he denied that it contained artificial coloring matter; and this is the only question on which an issue of fact was taken at the trial.

Prof. Fennel, an analytical chemist called by the state, testified that from an analysis made by him, the vinegar in question contained artificial coloring matter; that it was of a “turbid brown color;” that the analysis indicated “burnt sugar,” and could have been introduced for no other purpose than to give color to the vinegar. On cross examination he said, if roasted malt had been used in the manufacture of the vinegar, it could have had no other result than to give color, but admitted that if used in large proportions it might give aroma. He explained that roasted malt is not what is known in commerce as caramel — a coloring-matter, but said that practically it is the same thing. That in roasting, the sugar of the malt is converted into caramel, or burnt sugar, and serves as a coloring matter thus derived from the roasted malt.

The defendant, Weller, was called as a witness in his own behalf, and explained the process by by which he made the vinegar. He said that corn, malt and rye in certain proportions are ground into meal, then put into a mash tub and cooked with steam for an hour and a half. It is then run through cooling pipes, and discharged into fermenting tanks and allowed to ferment for a week; it is then distilled into weak alcohol, or, as it is termed, low-wine; it is then run through a tank filled with roasted malt; and then through generators containing beech shavings. In this way it is acetified or converted into vinegar. The purpose, he said, of adding- the roast malt was to give it an aroma and flavor that nothing else would give it. He also admitted it gave'color to the vinegar; that without the addition of the roast malt, the vinegar would be white, or about the color of alcohol. It was not contended that the roast malt added anything to the vinegar other than aroma, flavor and color. The vinegar so manufactured resembles malt vinegar, and was labeled and sold by the defendant as such, but it is not malt vinegar. The latter is made by the process of fermentation only. It derives its color and flavor from the fermented malt, and not otherwise, no artificial means being used for the purpose, and requires a much longer time in which to make it — being from four to six months. That of the defendant is known as distilled vinegar, does not require more than a week in its manufacture, and but for the introduction of the roasted malt, after the distillation of the fermented malt and before its acetiflcation by passing through the beech shavings, would have neither the aroma, flavor, nor color of malt vinegar. There is no material difference in the testimony on this point. Prof. Hoffman, an analytical chemist, called by the state, substantially corrobated the evidence given by Prof. Fennel as to the effect and purpose of using roasted malt in the manufacture of distilled vinegar. It would give color, and, if used in large proportions might give some aroma and flavor.

Prof. Schmidt, an analytical chemist, called by the defendant, testified from an analysis made by him, that he found no evidence of artificial coloring- matter in the vinegar. He did, however, find evidence of roasted malt having- been used. This he did not regard as a coloring matter; but was driven to admit that it not only added aroma and flavor, but also color; and that if this roasted malt had been added to the product before distillation, it would have added neither flavor, aroma nor color, and the distillation would have been perfectly white. A g-ood deal of criticism was indulged in as to what roasted malt, as used by the defendant in his process of manufacturing vinegar, should be called, whether caramel, burnt sugar or converted sugar. He regarded it more properly as “inverted sugar. ” But it was not a question of terminology, but as to its effect as a coloring matter; and, as to this, there was little or no difference of opinion among the witnesses. It was conceded that there is no alcohol in browned or roasted malt, so that its addition could add nothing to the substantial ingredients of the- vinegar — the vineg’ar being’ a solution of acetic acid, produced by the acetifieation of the alcohol in passing through the beech shavings. On being recalled, Prof. Fennel said, that as there is no alcohol in roasted malt, the object in using it is simply coloring matter; and that every chemist would say so; and, on' being told by the attorney for the defendant, that Prof. Schmidt did not say so, he replied, “Well, he will not deny it. ” And it is worthy of notice that he was not recalled to do so. In view of this testimony it cannot, I think, be said that there is no evidence tending- to support the conviction of the defendant; on the contraiy, it seems fully to support the finding of the justice.

But it is claimed that the primary object of using roasted malt is to give aroma and flavor to the vinegar, and that color is simply an incident to the process adopted in attaining the primary end; and hence that the giving of color in this way, cannot be said to come within the meaning of the statute. But the evidence tends to show that the primary object was to give color. His purpose in using the roasted malt was a question of fact to be determined by the court trying the case. His statement as to his purpose cannot control the court, if, in view of all the evidence, the. court is satisfied that his real and principal purpose was to give color to tlie vinegar. Again, if the primary object was to give aroma and flavor, still the process adopted for this purpose was an artificial one. Distilled vinegar, as is that of the defendant, has no such aroma; it is given, if at all, by the artificial method of running the distillation through roasted malt, before its aeetification, and artificial coloring is one of the principal results; and, in such case, it is not material whether color or aroma was the primary object, both being attained by artificial means. The process adds no substantial ingredients to the vinegar; for neither aroma, flavor nor color can be said to be substantial ingredients of any product. The}^ are not susceptible of analysis, and are merely perceived' by the aid of the senses.

The plaintiff in error in support of his contention, relies largely upon Ammon v. Newton, 50 N. J. L., 543. The case arose upon a conviction of Ammon under a statute of that state, making it an offense for any one to have in his possession for the purpose of sale, “oleomargarine that is colored, stained or mixed with annotto, or any other coloring matter or substance'.” It appeared by the plea of the defendant, and was admitted by the state, that cotton seed oil, a nutritious vegetable substance, formed about one-fifth of the product called oleomargarine, and was used in its manufacture, not simply for the purpose of coloring the product, but as one of its substantial ingredients. The court, applying the rule noseitur a sociis, held that the language “or other coloring-matter” extends . only to coloring substances that resemble “annotto;” substances used merely, or chiefly, for the same purpose, annotto being used only as a coloring matter; and that “the language cannot with propriety, be interpreted so as to include materials employed chiefly to make up the substance of the compound, and which impart some color only as a necessary incident of their use.” The ease is clearly distinguishable from the one before us. Our statute inhibits the possession for the purpose of sale, of any vinegar containing artificial coloring matter; and is therefore broader than the New Jersey statute as to oleomargarine. And, again, as shown, the roasted malt in this case, was used not as a substantial ingredient, but only to give color, flavor or aroma, neither of which are substantial ingredients of the vinegar.

The construction asked to be given this statute would permit a manufacturer to run distilled vinegar through roasted apples, and, by thereby imparting to it the color and aroma of cider vinegar, sell it in the market as such. And this, we understand, was claimed in the court below. But the purpose of this statute was, we think, to protect the public against such deceptions. Much is claimed from the fact that it was admitted on the trial that the vinegar of the defendant was whole-; some, and that he did not intend to deceive anyone by using the roasted malt, and labeling and selling his product as “Malt Vinegar.” But this is wholly immaterial. It matters not what his intentions may have been. The tendency of such devices is to deceive the public; and the statute was enacted to afford it protection therefrom. Such a statute is clearly within the proper exercise of the police power of the state. Every one has the right to distinguish for himself what an article of food is, and have the means of judging for himself its quality and value. Palmer v. The State, 39 Ohio St., 236. Powell v. Commonwealth, 114 Pa. St., 265; Powell v. Pennsylvania, 127 U. S., 678.

In Powell v. Commomwealth, the act of the legislature of Pennsylvania prohibiting the manufacture and sale of oleomargarine or keeping the product with intent to sell, was held to fall within the police power of the state — a power held to include the making of all “wholesome and reasonable” laws, not repugnant to the constitution, that the legislature majr judge to be for the good and welfare of the commonwealth and its people. It was offered on the trial of the case to show by experts that oleomargarine is a wholesome article of food. This was rejected. Error having been assigned as to this, the court said, “The mere fact that experts may pronounce a manufactured article, intended for food, to be wholesome or harmless, does not render it incompetent for the legislature to prohibit the manufacture and sale of the article. The test of the reasonableness of a police regulation, prohibiting the making and vending of a particular article of food, is not alone whether it is in part-unwholesome and injurious. If an article of food is of such a character that few persons will eat it, knowing its real character; if at the same time, it is of such a nature that it can be imposed upon the public as an article of food which is in common use, and against which there is no prejudice; and if, in addition to this, there is probable ground for believing- that the only way to protect the public from being- defrauded into the purchasing of the counterfeit article for the genuine, is to prohibit altogether the manufacture and sale of the former — then we think such a prohibition may stand as a reasonable police regulation, although the article prohibited is in fact innocuous, and although, its production might be found beneficial to the public, if in buying it they could distinguish it from the production of which it is the imitation. ’ ’ Citing State v. Addington, 77 Mo., 110. The case may be regarded as a somewhat extreme one; but it was affirmed on error by the supreme court of the United States in Powell v. Pennsylvania, supra; and is valuable as illustrating the extent of the power possessed by the legislature of a state over such subjects, when exercised to prevent deception and fraud in the manufacture and sale of an article of food. There can, as we think, be no question as to, the validity of our own statute to prevent the adulteration of vinegar. A statute of the state of New York, not only in substance but in language like our own, has recently been sustained by the court of appeals of that state. People v. Girard, 39 N. E. Rep., 823. In replying to the argument that the law is -an interference with a vested right, Pinch, J., in delivering the opinion .said, “Sometimes it — the argument — is pertinent and weighty, but in this case it is neither. It becomes the assertion of a vested right to color a food product so as to conceal or disguise its true or natural appearance; in plain words, a vested right to deceive the public.”

Judgment affimned.  