Rufus Wheeler Peckham

“ It was said that the constitution of the United States did not take from the states the power of preventing deception and fraud in the sale within their respective limits of articles, in whatever state manufactured, and that that instrument did not secure to any one the privilege of committing a wrong against society. ”

“ The court held that under the statute the party was only forbidden to practice in such matters a fraud upon the general public; that the statute seeks to suppress false pretenses and to promote fair dealing in the sale of an article of food, and that it compels the sale of oleomargarine for what it really is by preventing its sale for what it is not; that the term 'commerce among the states' did not mean a recognition of a right to practice a fraud upon the public in the sale of an article, even if it had become the subject of trade in different parts of the country. ”

“ That it exists in no other substance than butter made from milk, and it is introduced to oleomargarine butter by adding to oleomargarine stock some milk, cream, or butter, and churning, and that when this is done it has all the elements of natural butter, but there must always be a smaller percentage of butterine in the manufactured product than in the butter made from milk. The only effect of the butterine is to give flavor to the butter, having nothing to do with its wholesomeness. ”

“ The legislature of the state has the power in many cases to determine as a matter of state policy whether to permit the manufacture and sale of articles within the state or to entirely forbid such manufacture and sale, so long as the legislation is confined to the manufacture and the sale within the state. ”

“ It is manufactured to imitate in its appearance butter, with a view to deceiving the ultimate consumer as to its character, and this deception cannot be avoided by coverings, labels, or marks upon the product. The legislature of Pennsylvania was, therefore, so far justified in protecting its citizens against oleomargarine by prohibiting its sale; that the legislation in question does not discriminate in favor of the citizens of Pennsylvania, or in any manner against any particular state or any particular manufacturer of the article ”

“ Any legislation of congress upon the subject must, of course, be regarded by this court as a fact of the first importance. If congress has affirmatively pronounced the article to be a proper subject of commerce, we should rightly be influenced by that declaration. By reference to the statutes e discover that congress in 1886 passed 'An act defining butter, also imposing a tax upon and regulating the manufacture, sale, importation, and exportation of oleomargarine.' 24 Stat. ”

“ Up to that point of time, we hold that, in the absence of congressional permission to do so, the state had no power to interfere, by seizure or any other action, in prohibition of importation and sale by the foreign or nonresident importer.' The right of the state to prohibit the sale in the original package was denied in the absence of any law of congress upon the subject permitting the state to prohibit such sale. There is no such law of congress relating to articles like oleomargarine. ”

“ We do say that a sale of a 10-pound package of oleomargarine, manufactured, packed, marked, imported, and sold under the circumstances set forth in detail in the special verdict, was a valid sale, although to a person who was himself a consumer. We do not say or intimat that this right of sale extended beyond the first sale by the importer after its arrival within the state. Waring v. Mayor, etc., 8 Wall. 110-122. The importer had the right to sell not only personally, but he had the right to employ an agent to sell for him ”

“ We must determine the question with reference to those facts which are so well and universally known that courts will take notice of them without particular proof being adduced in regard to them, and also by reference to those dealings of the commercial world which are of like notoriety. ”

“ It appears from the opinion that on the trial of that action 'it was proved on the part of the defendant by distinguished chemists that oleomargarine was composed of the same elements as dairy butter. That the only difference between them was that it contained a smaller proportion of fatty substance known as 'butterine.' That this butterine exists in dairy butter only in a small proportion,-from three to six per cent. ”