than those of the weights fixed, though there be a demand in the municipality adopting such ordinance for loaves of other weights.3 §71. Marking Capacity of Bottle Containing Liquid. The Legislature may require a dealer in bottled or canned goods to indicate the amount contained in the bottle or can, or to state the capacity of such bottle or can. It may even require that statement to be blown in the bottle, although thereby the bottles on hand when the statute is enacted are rendered useless for the purpose to which they were then devoted. Such a statute is not the taking of property without just compensation. Thus a statute of Illinois required every milk bottle in which milk was offered for sale to have blown in its side its capacity. This was held to be a valid statute; and a dealer who sold milk in a bottle of less capacity than that marked upon it was liable, even though he did not know it was below the capacity marked. The State may delegate this power to a municipality to exert. Such legislation is not special legislation, although it does not apply to all milk dealers or to all persons who vend substances in liquid form. "Milk or cream are articles of general consumption. They are usually sold by the pint or quart, and, while such transaction involves but a few cents, the number of such transactions in a large city like Chicago reaches a large sum. The opportunities for fraud in their sales are great, and the ordinary legal remedy afforded the individual consumer to protect himself against fraud or deceit is wholly inadequate. Clearly, therefore, an ordinance like the one under consideration is valid, and it is not obnoxious to any of the provisions of the State or national Constitution. Nor does the fact, we think, that the ordinance does not apply. to all persons who vend substances in liquid form, or to all persons who engage in the business of selling milk or cream in the city of Chicago, make the ordinance void as special legislation. The ordinance, so framed, applies to all persons 3 Chicago v. Schmidinger, supra. who sell milk or cream in bottles or glass jars in the city of Chicago, and in the fullest sense is general in its terms. 971 § 72. Destruction of Property Devoted to Manufacture of Oleomargarine Before Enactment of Statute. A statute which prohibits the manufacture of oleomargarine is not invalid because it prevents the use of property for that purpose which was in such use when it was enacted. It is not the depriving one "of his property without that compensation required by law."2 In this respect the manufacturer of oleomargarine (and perhaps other substances) stands upon the same ground as the manufacturer of beer.2 § 73. Rate of Taxation, Declaring Illegal-Federal Oleomargarine Statute. The courts can not declare that the rate of taxation imposed upon a product-as upon oleomargarine-is illegal because too high, even if it prohibit the manufacture of the article taxed. It is for the Legislature to determine what tax shall be imposed, and with that determination the courts can not interfere. The courts are without authority to avoid an Act of the Legislature lawfully exerting the taxing power, even in an instance when to the judicial mind it seems that the Legislature had, in putting the power in motion, abused its lawful authority by levying a tax which was oppressive and unwise, or the result of the enforcement of which might be to indirectly affect subjects not within the powers delegated to or possessed by the Legislature; nor can the courts inquire into the purpose or motive of the Legislature in adopting a statute levying a tax within its constitutional power. In the case of Congress, neither the Fifth nor the Tenth Amendment to the Federal Constitution operates 1 Chicago v. Bowman Dairy Co., 234 Ill. 294, 84 N. E. 913, 17 L. R. A. (N. S.) 684, 123 Am. St. 100. 1 Powell v. Commonwealth, 127 U. S. 678, 8 Sup. Ct. 992, 1257, 32 2 Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205. to take away the grant of power to tax conferred upon it by the Constitution; and that power being unrestrained except as limited by the Constitution, Congress may select the objects upon which the tax shall be levied, and in exerting the power no want of due process of law can possibly result, and the courts can not usurp the functions of Congress in order to control that branch of the government in exercising its lawful functions. Therefore the Act of Congress of 1886,1 as amended in 1902, imposing a tax of one-quarter of one percent on oleomargarine not artificially colored any shade of yellow, so as to look like butter, and ten cents a pound if so colored, levies an excise tax, and is not unconstitutional as outside the powers of Congress, or an interference with the powers accorded to the States; nor can the courts declare the tax void because it is too high, nor because it amounts to destruction of the business of the manufacturer of oleomargarine, nor because it discriminates against oleomargarine and in favor of butter.2 132 U. S. Stat. at Large 93. See Appendix. 2 McCrary v. United States, 195 U. S. 27, 24 Sup. Ct. 769, 49 L. Ed. 78, citing Patton v. Brady, 184 U. S. 608, 22 Sup. Ct. 493, 46 L. Ed. 713; Knowlton v. Moore, 178 U. S. 41, 20 Sup. Ct. 747, 44 L. Ed. 969; Nicol v. Ames, 173 U. S. 509, 19 Sup. Ct. 622, 43 L. Ed. 786, affirming 89 Fed. 144; In re Kollock, 165 U. S. 526, 17 Sup. Ct. 444, 41 L. Ed. 813; Kilbourn v. Thompson, 103 U. S. 168, 26 L. Ed. 377; Champion v. Ames, 188 U. S. 321, 23 Sup. Ct. 321, 47 L. Ed. 492; License Tax Cases, 5 How. 462, 12 L. Ed. 256, affirming 24 Pick. 374, 1 R. I. 193, 13 N. H. 536; Pacific Insurance Co. v. Soule, 7 Wall. 433, 19 L. Ed. 95; Ausin v. Boston, 7 Wall. 694, 19 L. Ed. 224, affirming 14 Allen 359; Veazie Bank v. Fenno, 8 Wall. 533, 19 L. Ed. 482; Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921, 31 L. Ed. 763; Treat v. White, 181 U. S. 264, 21 Sup. Ct. 611, 45 L. Ed. 853; Capitol City Dairy Co. v. Ohio, 183 U. S. 238, 22 Sup. Ct. 120, 46 L. Ed. 171, affirming 62 Ohio St. 350, 57 L. R. A. 181, 57 N. E. 62. In the case following a like ruling was made. Schick v. United States, 195 U. S. 65, 24 Sup. Ct. 826, 49 L. Ed. 99. U. S. Supp. Rev. St., p. 505, ch. 840, imposing a tax on manufacturers and dealers in oleomargarine, and regulating the sale of such articles is valid. United States v. Dougherty, 101 Fed. 439. § 74. Amount of Tax, Validity of Statute. The amount of tax to be levied upon an article of food so as to restrict its sale is a question for the Legislature and not for the courts. This was held in the case of oleomargarine where the effect of the Federal statute, it was claimed, was to prohibit its manufacture. "As we have said," said the Supreme Court of the United States, "it has been conclusively settled by this court that the tendency of that article to deceive the public into buying it for butter is such that the States may, in the exertion of their police powers, without violating the due process clause of the Fourteenth Amendment, absolutely prohibit the manufacture of the article. It hence results that, even though it be true that the effect of the tax in question is to repress the manufacture of artificially colored oleomargarine, it can not be said that such repression destroys rights which no free government could destroy, and, therefore, no ground exists to sustain the proposition that the judiciary may invoke an implied prohibition, upon the theory that to do so is essential to save such rights from destruction. And the same considerations dispose of the contention based upon the due process clause of the Fifth Amendment. That provision, as we have previously said, does not draw or expressly limit the grant of power to tax conferred upon Congress by the Constitution. From this it follows, as we have also previously declared, that the judiciary is without authority to avoid an Act of Congress exerting the taxing power, even in a case where to the judicial mind it seems that Congress had, in putting such power in motion, abused its lawful authority by levying a tax which was unwise or oppressive, or the result of the enforcement of which might be to indirectly affect subjects not within the powers delegated to Congress. Let us concede that if a case was presented where the abuse of the taxing power was so extreme as to be beyond the principles which we have previously stated, and where it was plain to the judicial mind that the power had been called into play, not for revenue, but solely for the purpose of destroying rights which could not be rightfully destroyed consistently with the principles of freedom and justice upon which the Constitution rests, that it would be the duty of the courts to say that such an arbitrary act was not merely an abuse of a delegated power, but was the exercise of an authority not conferred. This concession, however, like the one previously made, must be without influence upon the decision of this cause for the reasons previously stated; that is, that the manufacture of artificially colored oleomargarine may be prohibited by a free government without a violation of fundamental rights."" $75. Injoining Violations of Pure Food Statute. The Legislature may confer upon a court jurisdiction to injoin the violation of the pure food laws. Such a statute is valid. So the legality of the acts of a pure food officer, and the question whether he is exceeding his powers, may be tested in an action to enjoin him from the commission of acts alleged to be without authority.2 876. Injoining Void Statute or Ordinance Regulating Sale or Manufacture of Food. 1 If an ordinance or statute regulating the sale or manufacture of food be void, then its enforcement may be enjoined by a court of equity, and so may all those seeking to enforce it. But the statute or ordinance must involve something more than a penalty if it be violated. If enforced, it must mean the destruction of the complainant's business. But if the statute be valid, its enforcement can not be injoined by a 1 McCrary v. United States, 195 341, 126 N. W. 324, 27 L. R. A. T. S. 27, 24 Sup. Ct. 769, 49 L. Ed. 78; Schick v. United States, 195 U. S. 65, 24 Sup. Ct. 826, 49 L. Ed. 99; Red C. Oil Mfg. Co. v. Board, 172 Fed. 695. 1 Commonwealth v. Andrews, 24 Pa. Super. Ct. 571. 2 State v. District Court, 17 N. D. 285, 115 N. W. 675. 1 Bear v. Cedar Rapids, 147 Iowa (N. S.) 1150; Austin v. Austin City Cemetery Asso., 87 Tex. 330, 28 S. W. 528, 47 Am. St. 114; Ewing v. Webster City, 103 Iowa 226, 72 N. W. 511; Armour & Co. v. Augusta, 134 Ga. 178, 67 S. E. 417, 27 L. R. A. (N. S.) 676; State v. District Court, 17 N. D. 285, 115 N. W. 675. |