
    State ex rel. Attorney General v. The Capital City Dairy Company.
    
      Pure food laws — Manufacture of oleomargarine — Police power of the state ■ — •Dairy products— Validity of acts of March 7, 1890, May 16, 1894, May 17, 1886, etc. — Punishment by criminal' law does not bar quo warranto proceedings, when — Violation of law by corporation — Constitutional law.
    
    1. The police power of the state is properly exercised in the prevention of deception in the sale of dairy products, and in the protection of the health of the people, and it is within the scope of this power to regulate the manufacture and sale of articles of food, even though the right to manufacture and sell such articles is a natural right guaranteed by the constitution.
    2. The acts of March 7, 1890 (87 O. L., 51), and of May 16, 1894 (91 O. L., 274), and of May 17, 1886 (83 O. L., 178), as amended March 21, 1887 (84 O. L., 182), and of March 20, 1884 (81 O. L., 67), (the purpose of which acts is to prevent deception in the sale of dairy products and to preserve the public health), are a reasonable exercise of the police power, and do not contravene any section of the constitution.
    3. The mere fact that the criminal laws of the state provide for the punishment, by fine, of those who offend against the above recited sections, is not a bar to a proceeding in quo warranto to oust a corporation engaged in the manufacture of oleomargarine, from the exercise of its right to be a corporation.
    4. Where the manner of conducting a business, which the state’s charter gives power to a company to conduct as a corporation, is in disregard and defiance of the laws of the state relating to that business, an abuse of the power results, and quo warranto may properly be invoked to stop the abuse, and, if the abuse be flagrant, to oust the corporation.
    (Decided April 10, 1900.)
    Quo Warranto.
    
      F. 8. Monnett, Attorney General and B. B. Dillon. for plaintiff.
    One defense to this action advanced by tbe defendant is as follows: “That the charges made against this defendant by said petition, are all of them crimes under the statutes of Ohio.” In defense of this quo warranto action against the defendant it might be sarcastically said that the state of Ohio has no other adequate remedy at law. A corporation as such, cannot be punished for violating the pure food statutes. It is a small tax indeed for them to pay the little fine of its manager from time to time, if a conviction be secured before a jury of twelve men, and has run the usual test by passing through the three higher courts. There is no law in this state providing for the recovery by civil action, of a money penalty for violating the oleomargarine laws. Likewise we have no laws permitting the summary destruction of oleomargarine found upon the markets in violation of the law. The only remedy which the state of Ohio and public has, is to arrest a grocer and call in a jury of twelve men of its citizens, asking them to brand as a criminal a man of otherwise good reputation, for a crime which they claim is not malum in se. The results of these prosecutions and of the thousands of dollars spent by the dairy and food department, endeavoring to enforce this law, has shown that this one defendant corporation has been stronger than the laAV itself,, and that this open defiance of the laws has been aided by unscrupulous jurymen, who, in violation or ignorance of their oaths, have rendered it impossible for the dairy and food department of this state, with the appropriations and force assigned to it, to cope successfully with this one evil. See report of J. E. Blackburn, Dairy and Food Commissioner for the year 1898, page 7.
    “I am aware that this is not a very flattering statement to make about jurymen, but having seen the operation of the law in these cases, I am forced to the conclusion that those who usually serve on juries are sufficiently human to protect their own interests first, and depend upon the future to right the wrong to the public.”
    
      Therefore, as we have remarked before about this claim of the defendant that there are criminal statutes covering the charges contained in the plaintiff’s petition, we might say that we have no “adequate remedy at laAv.”
    We are familiar with injunctions issued, by the Federal courts to prevent interference with or the stoppage of the United States mail, although such act is, of itself, a crime. This doctrine is more fully set forth and discussed in re Debs, 158 U. S., 564; 13 Ency of Pleading and Practice, 502; Ayres v. Board, 42 Mich., 422.
    We apprehend that no one will seriously contend that a corporation created by the laAvs of this state, and empowered with certain rights and privileges, Avill be permitted to violate every laAv it pleases, and do so with impunity upon the theory that the only remedy the state has, is to punish it, or rather to attempt to punish it criminally for such infraction.
    The relief prayed for in this case is two-fold.
    First. That the defendant corporation be ousted from the exercise of the unlawful acts and privileges complained of. And —
    Second. To oust the corporation from its entire charter and wind the same up in accordance with the statutes.
    Section 6761 of the Revised Statutes, section 6780.
    As bearing upon this subject Ave call the court’s attention to the quo warranto case of the State of Ohio v. the Bldg & L. Ass., 35 Ohio St., 258; State ex rel. v. Canal Company, 23 Ohio St., 121.
    The question as to the constitutionality of these laAvs has been raised and settled in this state in the case of Palmer v. State, 39 Ohio St., 236; 17 vol. Am. & Eng. Ency. Law, 180.
    And a similar statute to our own, i. e., forbidding the manufacture of oleomargarine in semblance of butter, is declared valid and constitutional in the case of Butler v. Chambers, 36 Minn., 69. The discussion of this subject in that case is so learned that we invite the court’s attention to the case without excerpting therefrom. McAllister v. State, 72 Md., 390.
    Even so radical legislation as chapter 8 of the West Virginia Acts of 1891, requiring all oleomargarine, whether manufactured within or without the state, to be colored pink, is held to be constitutional. State v. Myers, 42 W. Va., 822. And further holds that such legislation does not violate the U. S. Interstate Commerce Laws. State v. Newton, 50 N. J. L., 534.
    And this pink legislation is also declared valid in the ease of State v. Marshal, 64 N. H., 549; Cook v. State, 110 Ala., 40.
    The Ohio laws do not seek to compel oleomargarine to disgrace itself by taking on a pink color, nor do they seek prohibition of its sale. Their sole object is a reasonable regulation. Cooley Const. Lim. (3rd Ed.), 168; People v. Arensberg, 105 N. Y., 123; Commonwealth v. Huntley, 156 Mass., 236; State v. Horgan, 55 Minn., 183; Powell v. Pennsylvania, 127 U. S., 678; Schollenberger v. Pennsylvania, 171 U. S., 1.
    For these same reasons, “upon the principle recognized in the Pennsylvania cases,” the pink law of New Hampshire as to outside shippers is held invalid in the case of Collins v. New Hampshire, 171 U. S., 30.
    Another authoritative case on the subject of state regulation of oleomargarine, imported into the state, is found in Plumley v. Massachusetts, 155 U. S., 461.
    
      Thomas Ewing Steele, for defendant.
    Reduced to their last analysis, the cases cited to sustain the plaintiff stand for the following propositions :
    
      1. “It is proper for the state to prohibit the manufacture or sale of any substance which may or might be used instead of butter.”
    2. “Assuming that the prohibition of apple sauce, currant jelly or pulverized sugar is not included in the above, then it is. held that the prohibition is still effective against any compound however harmless or nutritious, -which in general appearance resembles butter, whether such resemblance be intended or accidental.”
    3. “Oleomargarine may be lawfully made, but it must not be colored in imitation of yellow butter made from unadulterated milk or cream.”
    The first and second of these propositions is no longer seriously defended. People v. Marx, 99 N. Y., 386 (2 N. E. Rep., 29) ; Schollenberger v. Pennsylvania, 171 U. S., 1.
    The Schollenberger case was followed by the case of Collins v. New Hampshire, 171 U. S., 30. This decision so far as butterine imported into the state goes, completely knocks out the infamous “pink” legislation which had been sustained in State v. Marshall, supra, which decision is relied upon for support in many cases cited by the plaintiff.
    As early as 1895 Judge Hughes, in the circuit court of the United States for the Eastern District of Virginia decided as unconstitutional the Virginia statute, which virtually prohibited the manufacture and sale of oleomargarine. Ex parte Scott, 66 Fed. Rep., 45.
    Slight reflection will convince us that the Ohio statutes under investigation cling to the obsolete propositions once vindicated by State v. Marshall and Powell v. Pennsylvania.
    
    Whether or no the Act of March 7, 1890, be unconstitutional is less important than the determination of the validity of the act of May 16, 1894, which prohibits the manufacture and sale of oleomargarine containing annatto or any other coloring matter. We have no fault to find with this statute in so far as it prohibits the use of analine dyes and other poisonous coloring matter. Such dyes are only found in butter made by the farmer or the Ohio State University. They are not found in oleomargarine as now made in the United States; the only coloring matter the defendant is accused of using is derived from the harmless South American berry, annatto. Annatto, therefore, not being deleterious to public health, and there being of course many other coloring matters, including oleo oil and lactochrome equally so, a statute forbidding the use of annatto or any other harmless coloring matter cannot be upheld as a sanitary regulation. It must rely for support, if support it has, upon the proposition that it is a proper exercise of the police power of the state to so regulate the manufacture and sale of oleomargarine as to effectually safeguard against its being sold or offered for sale, as dairy butter. The safeguards outside of the “color” law are many and effective.
    1. Every dealer must have a retail license from the general government.
    2. Exery box of oleomargarine by him received and offered for sale must contain a revenue stamp and a “caution” similar to that found on a barrel of whiskey or a box of cigars.
    3. He must keep the product in and sell it out of that stamped receptacle.
    4. He must stamp upon every package or parcel sold or delivered to any consumer, the word oleomargarine.
    5. He must have displayed in his place of business a gigantic sign with the legend, “Oleomargarine sold here.”
    6. He must stamp upon every package or parcel sold to the consumer, the statement that it is oleomargarine, together with the ingredients of which it is compounded and the percentage of each.
    It is idle to argue that these regulations may be disregarded by lawless, men; so may be the laws against coloring oleomargarine; so are the obsolete laws of Pennsylvania prohibiting the manufacture and sale thereof.
    We must consider the law as it is, assuming that unless too tyrannical, it will be obeyed by the vast majority of the people, and will be enforced against the rest.
    The statute of 1890 by its very terms is nugatory. It not only forbids coloring oleomargarine, but prohibits the use of any ingredient, which may cause the product to resemble butter. Oleomargarine contains all of the constituents of butter and no other, and there are none of the constituents of oleomargarine absent from butter. It is manifestly impossible to prevent oleomargarine from looking like or appearing to .be butter in its natural state, unless it be purposely disfigured by coloration.
    The maker or vendor of oleomargarine stands not in the position of the maker or vendor of intoxicating liquor, whose business is expressly branded by our state constitution, but on the contrary occupies the same position as the baker of bread or the maker of butter. In supplying food to his fellowmen, he is contributing to the public welfare. The power to regulate his private business except as unmistakably required by the public welfare, is not conferred upon the legislature of Ohio. Fine words butter no parsnips, and merely repeating the phrase, “police power,” will not sanctify or excuse depriving the citizen of an inherent right.
    All political power is inherent in the people; the government is instituted for their equal protection and benefit.
    Private property shall ever be held inviolate. Ohio Const., Art. 1, Secs. 1, 2- and 19.
    This court has been vigilant in guarding the rights of the individual from usurpation by the state.
    In Palmer v. Tingle, 55 Ohio St., 423, the Mechanic Lien Law of 1894, which, had been welcomed as a boon by many citizens of Ohio, was reluctantly declared unconstitutional because it invaded’ the individual's right to contract.
    'In People v. Marx, 99 N. Y., 377, cited with approval by this court, a statute was declared unconstitutional which made it a crime to manufacture any substance from oleagenous substances if designed to take the place of butter.
    
      In re Jacobs, 98 N. Y., 98, involved the constitutionality of an act forbidding the manufacture of cigars and preparations of tobacco in any form in tenement houses, if the maker occupied as his home or residence or for the purpose of living, sleeping, cooking or doing any household work therein, any part of the same floor whereon he worked. ‘ The law was declared unconstitutional and the opinion of Judge Earl has become a legal classic.
    There is no unlimited discretion vested in the legislature. Marbury v. Madison, 1 Cranch., 137.
    In People v. Gillison, 109 N. Y., 383 (17 N. E., 343), a worthy brother of the learned judge who spoke for the supreme court of the United States in reversing its decision against oleomargarine, delivered the opinion of the New York court of appeals, which declared unconstitutional a law declaring it a misdemeanor for a person who sold food to give away therewith as a part of the transaction of sale, any other thing as a premium or gift.
    Among other cases decided by this court wherein the police power of the state was denied as against the liberty of the citizen, we note State v. Lake Erie Iron Co., cited in 55 Ohio St., 442, which held as unconstitutional a law requiring corporations to pay their employes at least twice a month. Also Hocking Coal Co v. Rosser, 43 Ohio St., 12, which decided unconstitutional and void a statute providing that an attorney fee might be taxed where a laboring man was compelled to sue for his wages and recovered the full amount of the claim, which, three days before suing, he had presented to his employer.
    Many other authorities may be cited, all upholding the general principle well stated by Mr. Justice Swayne in his opinion in the Slaughter House Case, 16 Wall., 127.
   Spear, J.

Evidence in support of these charges was introduced on the part of Jim state. No evidence was offered by defendant. J Without going into detail, it is sufficient to say that the evidence compels the conclusion that the acts charged have been committed by defendant, and that their frequency and the conduct of the officers of the department in relation thereto, warrant the further conclusion that the acts were committed wilfully and with the intent to disregard the provisions of statute, and to defy the officers of the state whose specific duty it is to enforce the law in this behalf. So that the natural results of all such acts are presumed to have been intended. Objection is offered to the competency of testimony as to acts of the defendant since the commencement of this proceeding. But, inasmuch as the matter of final judgment depends somewhat upon the discretion of the court, we regard this evidence competent as bearing upon the animus, purpose, knowledge and intent of the defendant, and as calculated to aid the court in the exercise of a proper discretion respecting the character of the judgment to be entered.

The defense offered is two-fold. First, that the acts, a violation of which is charged, are unconstitutional as being an arbitrary and unauthorized attempt to interfere with the natural right to conduct a legitimate business, which is beneficial to the public as well as profitable to its promoters; and, second, that this proceeding cannot be maintained because, if the laws referred to be valid, their violation is punishabíé in a criminal proceeding and a definite, adequate, penal sentence may follow a conviction in such proceeding. And, beside, the right to manufacture and vend oleomargarine is not a franchise, and its abuse, should the same be shown, is not the abuse or misuse of a franchise and not the proper subject of a quo toarranto proceeding. Hence, relator has mistaken his remedy and its petition should be dismissed.

The statutes claimed to have been violated are the act of March 7, 1890, entitled “an act to prevent deception in the sale of dairy products and to preserve the public health,” annotated in Bates’ Statutes as sections 4200-13-14, by which it is provided that:

(4200-13.) “No person by himself or his agent, or his employe, shall render or manufacture for sale out of any animal or vegetable oils, not produced from unadulterated milk or cream from the same, any article in imitation or semblance of natural butter or cheese, produced from pure unadulterated milk or cream from the same, nor compound with or add to milk, cream or butter, any acids or other deleterious substance, or animal fats, or animal or vegetable oils not produced from milk or cream, so as to produce any article or substance or any human food in imitation or semblance of natural butter or cheese, nor shall sell, keep for sale, or offer for sale, any article, substance, or compound made, manufactured or produced in violation of the provisions of this section whether such article, substance or compound shall be made or produced in this state or elsewhere.”

(4200-14.) “For the purpose of this act, the terms ‘natural butter and cheese,’ ‘natural butter or cheese produced from pure' unadulterated milk or cream from the same, butter and cheese, made from unadulterated milk or cream, butter or cheese, the product of the dairy,’ and butter or cheese shall be understood to mean the products usually known by the terms butter and cheese and which butter is manufactured exclusively from pure milk or cream or both, with salt and with or without any harmless coloring matter, and which cheese is manufactured exclusively from pure milk or cream or both, with salt and rennet and with or without any harmless coloring matter or sage. It is further provided that nothing in this act shall be construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form and in such manner as will advise the consumer of its real character, free from any coloring matter, or other ingredient causing it to look like or to appear to be butter, as above defined.”

Also, the act of May 16, 1894, having a like title, now section 4200-16, which reads:

“No person shall manufacture, offer or expose for sale, sell or deliver, or have in his possession with intent to sell or deliver, any oleomargarine which contains any methly (methyl) orange, butter yellow, annatto, analine dye, or any other coloring matter.”

Also, the first section of the act of May 17, 1886, as amended March 21,1887, entitled “an act * * * to prevent adulteration and deception in the sale of dairy products,” now section 4200-30, which provides:

“That no person shall sell, expose or offer for sale or exchange, any substance purporting, appearing, or represented to be butter or cheese, or having the semblance of either butter or cheese, which substance is not made wholly from pure milk or cream, salt and harmless coloring matter, unless it is done under its true name, and each vessel, package, roll or parcel of such substance has distinctly and durably painted, stamped, stenciled or marked thereon, the true name of such substance in ordinary bold-faced capital letters not less than five-line pica in size and also the name of each article or ingredient used or entering into the composition of such substance in ordinary bold-faced letters not (less) than pica in size, or sell or dispose of in any manner to another, any such substance without delivering with each amount sold or disposed of, a label on which is plainly or legibly printed in ordinary bold-faced capital letters not less than five line pica in size, the true name of such substance, and also the name of such articles used and entering into the composition of such substance in ordinary bold-faced letters, not less than pica in Size, if the same be not made wholly from pure milk or cream, salt and harmless coloring matter, and the words ‘Butter/ ‘Creamery’ or ‘Dairy/ or any word or combination of words embracing the same shall not be placed on any vessel, package, roll, or parcel containing any imitation dairy product or substance not made wholly from pure milk or cream, salt and harmless coloring matter.”

Also section 4 of the act of March 20,1884', entitled “an act to provide against the adulteration of food and drugs,” now section 4200-7, which provides that:

“Every person manufacturing, offering or exposing for sale, or delivering to a purchaser any drug or article of food included in the provisions of this act, shall furnish to any person interested or demanding tlie same, who shall apply to him for the purpose, and shall tender him the value of the same, a sample sufficient for the analysis of any such drug or article of food which is in his possession.”

It is not intended here to enter into a general dissertation respecting the origin, or method of manufacture, of oleomargarine, or its usefulness or healthfulness, when manufactured of pure and clean materials and in a cleanly and wholesome manner. It is sufficient to say that it is not, within the meaning of these acts, butter, Avhen made in any manner and of any ingredients; that in its natural state it is nearly Avhite in color, while butter in its natural state is generally (although not always) yelloAV, but oleomargarine when colored can be made and is made to so nearly resemble butter as to be easily, and when not distinctly marked, usually, mistaken for it, and that it may be and often is manufactured from such material and in such manner as to be deleterious to health. With this general statement we proceed to consider seriatim the objections and defenses before stated.

The constitutionality of the several acts. What is their purpose and scope? At the outset it should be understood that the statutes do not undertake to prohibit the manufacture or sale of oleomargarine; on the other hand their expressed purpose, gathered from text and title as well, is to regulate its manufacture and sale. In substance they provide that no one shall manufacture for sale any article in imitation of butter, or any compound or substance or any human food in imitation or semblance of natural butter which is not pure butter; that no one shall manufacture or offer or expose to sale any oleomargarine which contains any coloring matter; that no one shall sell any substance purporting, appearing or represented to be butter or having a semblance of butter, unless it be under its true name and with proper mark designating such name, and that all persons dealing in food shall, upon proper application and tender of price, furnish a sample suitable for analysis. Construed with that part of section 2 of the act of March 7, 1890, which provides that oleomargarine may be manufactured “in a separate and distinct form, and in such manner as will advise the consumer of its real character, free from any coloring matter or other ingredient, causing it to look like, or appear to be butter,” it becomes entirely manifest that this legislation is regulation, not prohibition. So that we may leave out of consideration that portion of the argument which seeks to establish on the one hand, and deny on the other, a right in the state to directly prohibit its sale or legislate so as to reach that result by indirection. The question, therefore, is, do the sections of the statute quoted, or any of them, violate our bill of rights which guarantees the right of acquiring and protecting property; or do they in any way violate the constitution as being subversive of the constitutional right to liberty and the enjoyment of property? In other words, is it within the legislative competency to establish regulation for the prevention of fraud and deceit in the sale of articles of food?

We are of opinion that the question is not an open one in Ohio. This court has held again and again that the police power of the state is properly exercised in the protection of the people in all matters concerning their health, and that it is within the scope of this power to regulate the manufacture and sale of articles of food even though the right to so manufacture and sell is a natural right guaranteed by the constitution. Conceding that where the pursuit rests upon natural right, and the product is not harmful, this power may not be exercised in a way which will result practically in inhibition, though under the guise of regulation, and in fostering the interests of a rival product; yet, where the manufacture is conducted in such way as is calculated to deceive, lead the buyer to suppose lie is purchasing an article of food which is everywhere recognized as wholesome, and especially where the article sought to he regulated may easily be manufactured so as to be harmful, and thus result in fraud upon and injury to the public, the police power is properly exercised in the regulation of the manufacture and sale of such article by such requirements as will tend to insure the public against fraud and injury. Its proper disposition is not forbidden. As stated in Jordan v. Overseers, infra, the owner “has power to mortgage the property, or give direction to his labors at his pleasure, subject only to the paramount claims of society, which require that his enjoyment may be modified by the exigencies of the community to which he belongs and regulated by laws which render it subservient to the general welfare.” These several statutes, framed to accomplish this end, entail no particular hardship, are reasonable in their requirements and do not contravene any section of the constitution. Nor is there any question whatever in regard to the power of the state to compel a sample for analysis of any article of food. It would be a waste of space to argue the matter. We hold that in that particular also the statute is reasonable and just. Jordan v. Overseers, 4 Ohio, 295; The State v. Ruedy, 57 Ohio St., 224. Other authorities covering the question are abundant, but it is not necessary to refer to them here. They will be found cited in the briefs of counsel. However, we call attention to a recent utterance of the supreme court of the United States, in Gundling v. Chicago, which involved the right of the city to forbid the sale of cigarettes without a license, opinion by Mr. Justice Peckham:

‘Regulations respecting the pursuit of a lawful trade or business are of very frequent occurrence in the various cities of the country, and Avhat such regulations shall be and to what particular trade, business or occupation they shall apply, are questions for the state to determine, and their determination comes within the proper exercise of the police power by the state, and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of citizens are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without duo process of law, they do not extend beyond the power of the state to pass, and they form no subject for federal interference.

“It is not a valid objection to the ordinance that it partakes of both the character of a regulation and also that of an excise or privilege tax. * * * So long as the state law authorizes both regulation and taxation it is enough, and the enforcement of the ordinance violates no provision of the federal constitution?”

[/The remedy by criminal prosecution. It is enough to say of this objection that the remedy is not adequate. The object of the statute is to protect the public. In the nature of things, a small fine is not a sufficient deterrent to accomplish the desired end, especially in the case of a company possessed of ample means and conducting a large business. The difference between the price at which butter may be manufactured and sold and that at which oleomargarine may be afforded, is so large that the temptation to impose upon the public is too great to be resisted. . In addition to this there are practical difficulties in obtaining convictions which the experience of the dairy and food commissioner, as shown by his report, a public document, fully attests. Rex. v. Ry. Co., 2 B. & Ald., 646; People ex rel. v. Bd. of State Auditors, 42 Mich., 422.

The right to manufacture and sell oleomargarine is not a franchise, and hence the proceeding of quo warranto not a proper remedy. It would seem a sufficient answer to this proposition to say that if it be true, then the defendant has no franchise whatever. • Its charter, the certificate of the secretary of state, gives it “the right, privilege and franchise of manufacturing, selling and dealing in oleomargarine,” etc., etc. This authority carries the implication that the business must be conducted in conformity to the laws of the state. It could not have been the, intent of the general assembly, in enacting laws permitting the formation of corporations, to give them power to override the state, although the conduct of the officers of the defendant would seem to imply that they have entertained a different opinion. The time has not yet arrived when the created is greater than the creator, and it still remains the duty of the courts to perform their office in the enforcement of the laws, no matter how ingenious the pretexts for their violation may be, nor the power of the violators in the commercial world.

In order to avoid misunderstanding it may be well to here repeat what substantially appears elsewhere, that there is no inhibition, under the laws of Ohio, of the manufacture or sale of oleomargarine. The requisite simply is that it shall purport to be what it really is, and shall not be so manufactured and put up as to deceive the consumer. Section 4200-14 (Bates) distinctly provides “that nothing in this act shall be construed to prohibit the manufacture or sale of oleomargarine, in a separate and distinct form, and in such manner as will advise the consumer of its real character.” * * *

In the present case the acts of the defendant have been persistent, defiant and flagrant, and no other course is left to the court than to enter a judgment of ouster and to appoint trustees to wind up the business of the concern.

Judgment accordingly.  