Pierce v. State

Robinson, J., delivered the opinion of the Court. The Act of 1884, ch. 248, provides that every person who shall manufacture for sale, or who shall offer for sale, any article or substance, known as oleomargarine, shall cause every parcel or package, to be stamped in plain Roman letters, “ Olbomab.gab.ine and that every retailer shall cause every package sold by him to be stamped in the like manner. Sec. 2 provides that every person who shall sell, or offer to sell, or have in his possession, with intent to sell, the article known as oleomargarine without being stamped as required by section first, and that every retailer who sells a package or parcel, without delivering to the purchaser, the package or parcel labelled as required by the first section, shall for each such offence forfeit and pay a fine of one hundred dollars. Sec. 3 provides, that every person who shall sell, or offer, or expose for sale, the article known as oleomargarine without having it stamped or labelled as required by the first section of the Act, shall be guilty of a misdemeanor, and he imprisoned in jail, &c.

So far as selling, or offering for sale, what is known as oleomargarine without having it stamped as such, there is a plain inconsistency and repugnancy between the punishment prescribed by the second and third sections. By section two the offence is punishable by a fine of one hundred dollars, and by section three, the same offence is punishable by imprisonment in the county jail. To this extent these two sections must be adjudged invalid, because it is impossible for the Court to say, under which of these two sections the party is to be punished. But section 3 does not provide a punishment for one who has oleomargarine in his possession, with intent to sell the same, without having it stamped as required by the first section ; nor does it provide a punishment for one who sells it at retail without having the package stamped ⁵⁹⁶ as required by said section.

For either one of these offences, a party may be' indicted and punished under the second section. This indictment does not,