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The plaintiff in error was convicted of sell[32] ing a package of *oleomargarine not of pink color, in violation of the statute, and was sentenced 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 oleomargarine 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 article at wholesale in the original packages. It has paid the special United States taxes imposed by the act of Congress of August 2, 1886 (Supp. to R. S. of U. S., 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 article has the color of butter, the same coloring matter being used to color it that is frequently used to color butter, and is 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. It is not manufactured 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 oleomargarine sold was the oleomargarine of commerce as the same is known and dealt in as an article of food.

ute under which he was indicted and convicted is void, because in contravention of the Constitution of the United States, which gives power to Congress "to regulate commerce with foreign nations and among the several states and with the Indian tribes."

We think this case comes within the principle of the cases just decided regarding the statute of the commonwealth of Pennsyl vania prohibiting the introduction of oleomargarine into that commonwealth. Thi 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 suppression 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 foreign substance to it, in the manner described in the statute. Pink is not the color of oleomargarine in its natural state. The act necessitates 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"The respondent claimed that upon these essary result of a statute *must be taken into [34] facts he was not guilty, because the statute consideration when deciding as to its validof this state is in contravention of the Con-ity, even if that result is not in so many stitution of the United States and its amendments 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 prosecution, pending at the time of the repeal of an act, for any offense committed or for the recovery 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 statthat they can be 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 2 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 dever to the purchaser with it a label bearing the words indicating its character as above, in like letters.

words either enacted or distinctly provided for. In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect. Henderson v. Mayor of New York [Henderson v. Wickham], 92 U. S. 259 [23: 543]; Morgan's L. & T. R. & S. S. Co. v. Louisiana Bd. of Health, 118 U. S. 455, at 462 [30: 237, 241]. Although under the wording of this statute the importer is permitted to sell oleomargarine 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 prevent any sale, amounts in law to a prohibition.

If this provision for coloring the article were a legal condition, a legislature could

Sec. 20. If any person shall sell, or offer for sale, or keep in possession with intent to sell, in this state, any substance or compound of the kinds described in the preceding section in a manner that is made unlawful by said section, or shall sell, offer for sale, or keep in possession with intent to sell, any such substance or compound without disclosing its true character, he shall be fined not more than one hundred dollars, or be imprisoned not more than sixty days,

or both.

[35]

fully did conceal and aid in the concealment of distilled spirits on which the tax had not been paid, which said spirits had been removed to a place other than the distillery warehouse provided by law, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States."

The count was drawn under § 3296 of the Revised Statutes, which provides that:

not be limited to pink in its choice of colors. | oaths aforesaid, do further present, that, at The legislative fancy or taste would be bound- the time and place and within the jurisdicless. It might equally as well provide that tion aforesaid, the said George Pounds unlawit should be colored blue or red or black. Nor do we see that it would be limited to the use of coloring matter. It might, instead of that, provide that the article should only be sold if mixed with some other article which, while not deleterious to health, would nevertheless give out a most offensive smell. If the legislature have the power to direct that the article shall be colored pink, which can only be accomplished by the use of some for"Whenever any person removes, or aids or eign substance that will have that effect, we do not know upon what principle it should be abets in the removal of, any distilled spirits confined to discoloration, or why a provision on which the tax has not been paiu, to a place for an offensive odor would not be just as other than the distillery warehouse provided valid as one prescribing the particular color. by law, or conceals, or aids in the concealThe truth is, however, as we have above stat-ment of, any spirits so removed, or removes, ed, the statute in its necessary effect is pro- or aids or abets in the removal of, any dishibitory, and therefore upon the principle tilled spirits from any distillery warehouse, recognized in the Pennsylvania cases it is in- or other warehouse for distilled spirits authorized by law, in any manner other than is valid. The judgment of the Supreme Court of provided by law, or conceals or aids in the [36] New Hampshire is reversed, and the case re-concealment of any spirits so removed, he manded to that court for further proceedings not inconsistent with this opinion.

shall be liable to a penalty of double the tax imposed on such distilled spirits so removed or concealed, and shall be fined not less than Mr. Justice Harlan and Mr. Justice two hundred dollars nor more than five thou Gray dissented.

GEORGE POUNDS, Plff. in Err.,

0.

UNITED STATES.

(See S. C. Reporter's ed. 35-38.)

Indictment for concealing distilled spirits separation of jury.

1. An indictment in the language of U. S. Rev. Stat. § 3296, charging the concealment of distilled spirits on which the tax had not been pald, which had been removed to a place

other than the distillery warehouse provided

by law, is sufficiently certain and sufficiently
alleges the existence of a warehouse provided
for such spirits.

2. A claim that a jury separated before the
verdict was returned is ineffectual, where
that fact does not appear on the record, but it
does appear that a sealed verdict was re-
turned, under agreement of counsel for both
parties, in open court and in the presence of
the defendant.

[No. 298.]

sand dollars, and imprisoned not less than three months nor more than three years."

After the verdict, and before the judgment, the plaintiff in error filed his motion in arrest of judgment, as follows:

"Now comes the defendant after the rendition of the verdict of the jury finding him guilty as charged in the sixth count of the indictment and before judgment and sentence, and moves the court to arrest the judgment in this case, upon the ground that the sixth count of the indictment is too vague and uncertain to authorize a judgment and sentence against the defendant."

Afterwards an amended motion in arrest

of judgment was filed, as follows:

"By leave of the court first had and obtained the defendant amends his motion in arrest of judgment by adding the following grounds:

"First. The said sixth count of the indictment fails to show that there was a warehouse provided by law to which the spirits alleged to have been concealed should have been removed.

"Second. That the jury separated before the Submitted May 6, 1898. Decided May 23, verdict of the jury was returned into court."

1898.

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The overruling of this motion is assigned

as error.

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until the tax thereon shall have been paid; and such warehouse, when approved by the Commissioner of Internal Revenue, on report of the collector, is hereby declared to be a bonded warehouse of the United States, to be known as a distillery warehouse, and shall be under the direction and control of the collector of the district, and in charge of an internal revenue storekeeper, assigned thereto by the Commissioner."

Section 3287 provides that all distilled spirits shall be drawn from the receiving cisterns into casks of a designated capacity and the quantity of spirits marked thereon, "and shall be immediately removed into the distillery warehouse," and stamps designating the quantity of spirits shall be applied thereto. Other sections provide that no distilled

of judgment, it is enough to say that there is nothing in the record to show that the jury separated before the verdict was returned into court, but the record does show that a sealed verdict was returned by ne jury by agreement of counsel for both parties in open court and in the presence of the defendant. This verdict was rightly received and recorded. Commonwealth v. Carrington, 116 Mass. 37.

The judgment is affirmed.

WALTER H. HARRISON, Plff. in Err.,

D.

FRANKLIN J. MORTON.

spirits upon which the tax has been paid Review of state judgment-when this court

shall be stored or allowed to remain on any distillery premises, and such spirits found in a cask containing 5 gallons or more without having the stamp required by law shall be forfeited.

To secure the enforcement of this provision, 3296 was enacted.

Plaintiff in error says:

"It seems clear that section 3296 of the Revised Statutes intended to provide a punishment for a distiller who had complied with the various provisions of chapter four of the Revised Statutes, and had provided a warehouse as required by section 3271, and then concealed or aided in the concealment of distilled spirits which had been removed, the tax not having been paid, to a place other than the distillery warehouse so provided."

will not review it.

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1898.

State of Maryland to review a judgment of
IN ERROR to the Court of Appeals of the
that court affirming the judgment of the
Franklin J. Morton, in an action brought by
state trial court in favor of the defendant,
Walter H. Harrison, plaintiff, to recover dam-
ages for breach of contract for the sale of
certain patent rights. Dismissed.
See same case below, 83 Md. 456.

And it hence claimed that the indictment is Argued May 2, 3, 1898. Decided May 23, too uncertain to sustain the judgment, because it does not inform the defendant that a warehouse was provided in which the spirits which he is charged to have concealed should have been stored until the tax was paid. Undoubtedly, the statute was intended to punish a distiller who violated its provisions. It was also intended to punish any [38] one else who did, and the offense could be committed by a removal of spirits from the premises before storage in the distillery warehouse or by concealment of the spirits so removed. And it is this concealment which the indictment charges, and it sufficiently Statement by Mr. Justice McKenna: alleges the existence of a warehouse. This suit was brought by the plaintiff in It also alleges that the tax had not been paid. The error Harrison against the defendant in error offense was purely statutory. In such case it on the 8th of February, 1895, in the Baltimore is generally sufficient to charge the defend- city court, to recover the sum of $300,000 ant with acts coming within the statutory damages for the breach of a contract under description in the substantial words of the seal for the sale of certain patent rights. statute without any further expansion of the matter. United States v. Simmons, 96 U. S. 360 [24: 819]; United States v. Britton, 107 U. S. 655 [27:520].

One of the acts which is made an offense by § 3296 is the concealment of distilled spirits on which the tax has not been paid, removed to a place other than the distillery warehouse provided by law. The indictment charges in the language of the statute the performance of that act at a particular time and place. It was therefore sufficiently certain.

As to the second ground of motion in arrest

Under the alleged contract the plaintiff in error sold, and the defendant in error bought

NOTE. As to jurisdiction in the United States Supreme Court where Federal question arises

or where are drawn in question statutes, treaty, ter, 4:97; Matthews v. Zane, 2: 654; and Willor Constitution,-sce notes to Martin v. Hualams v. Norris, 6:571.

As to jurisdiction of United States Supreme Court to declare state law void as in conflict with state Constitution; to revise decrees of state courts as to construction of state laws

-see notes to Jackson, Hart, v. Lamphire, 7: 679, and Commercial Bank v. Buckingham, 12: 169.

[35]

The count was drawn under § 3296 of the Revised Statutes, which provides that:

not be limited to pink in its choice of colors. oaths aforesaid, do further present, that, at The legislative fancy or taste would be bound-the time and place and within the jurisdicless. It might equally as well provide that tion aforesaid, the said George Pounds unlaw. it should be colored blue or red or black. fully did conceal and aid in the concealment Nor do we see that it would be limited to the of distilled spirits on which the tax had not use of coloring matter. It might, instead of been paid, which said spirits had been rethat, provide that the article should only be moved to a place other than the distillery sold if mixed with some other article which, warehouse provided by law, contrary to the while not deleterious to health, would never- form of the statute in such case made and theless give out a most offensive smell. If provided, and against the peace and dignity the legislature have the power to direct that of the United States." the article shall be colored pink, which can only be accomplished by the use of some foreign substance that will have that effect, we "Whenever any person removes, or aids or do not know upon what principle it should be abets in the removal of, any distilled spirits confined to discoloration, or why a provision on which the tax has not been paiu, to a place for an offensive odor would not be just as other than the distillery warehouse provided valid as one prescribing the particular color. by law, or conceals, or aids in the concealThe truth is, however, as we have above stat-ment of, any spirits so removed, or removes, ed, the statute in its necessary effect is pro- or aids or abets in the removal of, any dishibitory, and therefore upon the principle tilled spirits from any distillery warehouse, recognized in the Pennsylvania cases it is in- or other warehouse for distilled spirits authorized by law, in any manner other than is The judgment of the Supreme Court of provided by law, or conceals or aids in the [36] New Hampshire is reversed, and the case re-concealment of any spirits so removed, he manded to that court for further proceedings shall be liable to a penalty of double the tax not inconsistent with this opinion. imposed on such distilled spirits so removed or concealed, and shall be fined not less than

valid.

Mr. Justice Harlan and Mr. Justice two hundred dollars nor more than five thou Gray dissented.

GEORGE POUNDS, Plff. in Err.,

0.

UNITED STATES.

(See S. C. Reporter's ed. 35-38.)

Indictment for concealing distilled spirits separation of jury.

1. An indictment in the language of U. S. Rev. Stat. § 3296, charging the concealment of distilled spirits on which the tax had not been paid, which had been removed to a place

other than the distillery warehouse provided

by law, is sufficiently certain and sufficiently
alleges the existence of a warehouse provided
for such spirits.

2. A claim that a jury separated before the
verdict was returned is Ineffectual, where
that fact does not appear on the record, but it
does appear that a sealed verdict was re-
turned, under agreement of counsel for both
parties, in open court and in the presence of
the defendant.

[No. 298.]

Submitted May 6, 1898. 1898.

sand dollars, and imprisoned not less than three months nor more than three years."

After the verdict, and before the judgment, the plaintiff in error filed his motion in arrest of judgment, as follows:

"Now comes the defendant after the rendition of the verdict of the jury finding him guilty as charged in the sixth count of the indictment and before judgment and sentence, and moves the court to arrest the judgment in this case, upon the ground that the sixth count of the indictment is too vague and uncertain to authorize a judgment and sentence against the defendant."

Afterwards an amended motion in arrest of judgment was filed, as follows:

"By leave of the court first had and obtained the defendant amends his motion in arrest of judgment by adding the following grounds: th count of the indic there was a w which the s cealed should

"First. The said
ment fails to s
house provided
alleged to hay
been removed,
"Second. T

Decided May 23, verdict of th
The ove

as error.

IN ERROR to the District Court of the
United States for the Northern District of
Alabama to review a judgment convicting
George Pounds for concealing distilled spirits General,
on which the tax had not been paid.
Affirmed.

Statement by Mr. Justice McKenna:
The indictment under which the defendant
(plaintiff in error) was tried contained fifteen
counts. He was convicted on the sixth count,
which read as follows:

separated Feturned i

s motion

Mr. J.
Mr. Ja

h for rd, A

t in /

Mr. J ion of t

Secti vides t his own

on and
premise

"The grand jurors aforesaid, upon their of disti

until the tax thereon shall have been paid;
and such warehouse, when approved
by the Commissioner of Internal Revenue,
on report of the collector, is hereby declared
to be a bonded warehouse of the United
States, to be known as a distillery warehouse,
and shall be under the direction and control
of the collector of the district, and in charge
of an internal revenue storekeeper, assigned
thereto by the Commissioner."

Section 3287 provides that all distilled
spirits shall be drawn from the receiving cis-
terns into casks of a designated capacity and
the quantity of spirits marked thereon, "and
shall be immediately removed into the distil-
lery warehouse," and stamps designating the
quantity of spirits shall be applied thereto.

of judgment, it is enough to say that there is nothing in the record to show that the jury separated before the verdict was returned into court, but the record does show that a sealed verdict was returned by e jury by agreement of counsel for both parties in open court and in the presence of the defendant. This verdict was rightly received and recorded. Commonwealth v. Carrington, 116 Mass. 37.

The judgment is affirmed.

WALTER H. HARRISON, Plff. in Err.,

D.

FRANKLIN J. MORTON.

will not review it.

Other sections provide that no distilled spirits upon which the tax has been paid Review of state judgment-when this court shall be stored or allowed to remain on any distillery premises, and such spirits found in a cask containing 5 gallons or more without having the stamp required by law shall be forfeited.

To secure the enforcement of this provision, §3296 was enacted.

Plaintiff in error says:

(See S. C. Reporter's ed. 38-47.)

1. To give this court jurisdiction to review a state judgment, a Federal question must have been presented to the state court and decided adversely to the party claiming the Federal right, or it must appear that the judgment could not have been rendered without deciding such question.

2.

This court will not review a state judgment, although a Federal question was decided adversely to the plaintiff in error, if another question, not Federal, was also raised and decided against him, the decision of which is sufficient to sustain the judgment. [No. 245.]

"It seems clear that section 3296 of the Revised Statutes intended to provide a punishment for a distiller who had complied with the various provisions of chapter four of the Revised Statutes, and had provided a warehouse as required by section 3271, and then concealed or aided in the concealment of distilled spirits which had been removed, the tax not having been paid, to a place other than the distillery warehouse so provided." And it hence claimed that the indictment is Argued May 2, 3, 1898. Decided May 23, too uncertain to sustain the judgment, because it does not inform the defendant that a warehouse was provided in which the spirits which he is charged to have concealed State of Maryland to review a judgment of IN ERROR to the Court of Appeals of the

should have been stored until the tax was

to p

sion

[38] on

1898.

paid. Undoubtedly, the statute was intended that court aflirming the judgment
of the
distiller who violated its provi-Franklin J. Morton, in an action brought by
state trial court in favor of the defendant,
also intended to punish any Walter H. Harrison, plaintiff, to recover dam-
d, and the offense could be
removal of spirits from the ages for breach of contract for the sale of
storage in the distillery ware-
certain patent rights. Dismissed.
cealment of the spirits so re-
See same case below, 83 Md. 456.
is this
ment which
charge
sufficiently

co

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It also aid. The ch case it e defendstatutory ls of the on of the

96 U. S. utton, 107

Statement by Mr. Justice McKenna: This suit was brought by the plaintiff in error Harrison against the defendant in error on the 8th of February, 1895, in the Baltimore city court, to recover the sum of $300,000 damages for the breach of a contract under seal for the sale of certain patent rights.

Under the alleged contract the plaintiff in error sold, and the defendant in error bought

NOTE. As to jurisdiction in the United States Supreme Court where Federal question arises or where are drawn in question statutes, treaty, offense by or Constitution,-sce notes to Martin v. Huailled spirits ter, 4:97; Matthews v. Zane, 2: 654; and Willid, removed iams v. Norris, 6:571.

warehouse As to jurisdiction of United States Supreme t charges in Court to declare state law void as in conflict performance with state Constitution; to revise decrees of e and place. state courts as to construction of state laws

Lain.

otion in arrest

-see notes to Jackson, Hart, v. Lamphire, 7: 679, and Commercial Bank v. Buckingham, 12: 169.

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