Wright v. State

Pear.ce, J., delivered the opinion of the Court. The Act of 1888, ch. 312, which has been codified in sections 88, 89, 90 and 91 of Art. 27 of the Code of Public General Laws, provides in section 88 that “No person shall manufacture out of any oleaginous substance or substances, or any compound of the same, other than that produced from unadulterated milk, or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk, or cream of the same; or shall sell, or offer for sale the same, as an article of food. This provision shall not apply to pure skim milk, or cheese made from pure skim milk.” Section 89, prohibits the manufacture or sale of any article, in imitation or semblance of natural butter or cheese produced from pure unadulterated milk or cream of the same, “ whether such articles be made or produced in this State or elsewhere.” Section 90 makes it unlawful for any person to have in his possession any such article or substance, with intent to sell or offer the same for sale, for butter or cheese made from unadulterated milk or cream. Section 91 makes it unlawful for any proprietor or manager of any place of public entertainment, to keep, use, or serve, therein any such article or substance.

Under this Act, Peter E. Wright was indicted in the Circuit Court for Allegany County. The indictment contained three counts. The first count charged a sale as an article of food “ of a certain article designed to take the place of butter produced from pure unadulterated milk or cream of the same, to wit, an article called and known as Oleomargarine.” The second count charged an offering for sale of the same article; and the third count, both a sale, and an offering for sale. To this indictment the traverser demurred, and the Court ⁴³⁸ overruled the demurrer.

The trial then proceeded before a jury; a verdict of guilty was rendered, upon which judgment was entered, and the traverser appealed. In the course of the trial, a single exception was taken to the admissibility of evidence, which will now be disposed of. The testimony of Henry Hast showed that the traverser kept a provision store in the City of Cumberland, Md., and that on April 18th, 1898 witness went to the store and asked for a pound of butter; that, he received a package, in a paper wrapper, which looked and tasted like butter; and that the words, “ Peter E. Wright, Oleomargarine,” were printed on the wrapper; that being asked by counsel what became of the wrapper he replied that he did not know, he did not keep it; whereupon the traverser objected to witness stating what was printed on the wrapper unless the same was produced, or its loss proved; but the Court overruled the objection and allowed the question and answer. This ruling was clearly correct.

The general rule of law on this subject is, that “ if the instrument be destroyed or- lost, the party seeking to give secondary •evidence of its contents, must give some evidence that the original once existed, and must then prove its destruction positively, or at least presumptively, as by showing it has been thrown aside as useless, or he must •establish its loss by proof that a search has been unsuccessfully made for it in the place or places where it was most likely to be found.” Brashears v. State, 58 Md. 565 . Each case must of' course depend much upon its own peculiar circumstances. The sole usefulness of the paper now in question was as a wrapper or carrier of the article of food it enclosed and there was no occasion for its preservation for any purpose. When the article reached the purchaser’s home, and was placed upon his table, the wrapper was naturally and properly consigned to the kitchen stove or to the garbage box.

The statement that he had not kept a paper of that character, and that he did not know where it was, was equivalent to saying it had been thrown away as useless, and its non-production was legally accounted for. With this evi ⁴³⁹ dence the proof was clear that the article was Oleomargarine, since the traverser had stamped it as such under his own name, and had offered no evidence to show that it was not what he had represented it to be. It is also contended, in view of the decision of the Supreme Court of the United States in Schollenberger v. Penn, 171 U. S. 1, decided May 28th,1898 (and which will be hereafter considered upon the main point in this case) that if the statute in question can be maintained at all, as applied to a sale in Maryland by a citizen of Maryland, yet this indictment is bad, because that decision has imported into the statute an exception in favor of all non-residents of Maryland, and the indictment does not negative the exception. Where an exception is so incorporated with the enacting clause of a statute, that one cannot be read without the other, it is well understood that the rule of pleading requires the indictment to negative such exception; but whether this rule could be invoked in any case where the exception does not actually appear as part of the text of the statute, and where the exception is the result of judicial construction, may well be doubted.

But waiving this doubt, and assuming for the moment that under the decision referred to, such an exception is imported into this statute in such manner as to require the application of the rule, this indictment would still be good; because it describes the traverser as “ late of Allegany County aforesaid,” that is —“ late of Allegany County, in the State of Maryland,” as shown in the venue and in the body of the indictment. The venue is “ State of Maryland, Allegany County, to wit,” and the averment in the body of the indictment that the traverser was “ late of Allegany County aforesaid,” is equivalent to an averment that he was a citizen of Maryland, and such an averment negatives the possibility of his being a non-resident of Maryland. We now come to the demurrer under which it is contended by the appellant that the Act upon which the indictment is founded is invalid, because in contravention of the Bill of Rights of Maryland, and of the provisions of the Federal Constitution. This appeal was ⁴⁴⁰ not orally argued in behalf of the State, and in the brief filed by the Attorney-General, he relied without argument, upon the case of McAllister v. The State, 72 Md. 390 , as the law of this case.

In McAllister’s case, which arose upon the same Act which is now drawn in question, this Court did not enter into any original discussion of the principles of law involved, but reposed its decision upon the two cases of Powell v. Pennsylvania, 127 U. S. 680 , and Dent v. West Virginia, 129 U. S. 114 , in both of which was upheld by the Supreme Court of the United States the power of the State to preserve public health and morals and to secure its citizens against the consequences of fraud and deception. And well might this Court have relied upon these decisions, for in Powell v. Pennsylvania, Justice Harlan stated the question before the Court in the’following language: “ The question therefore is whether the prohibition of the manufacture out of oleaginous substances, or out of any other compound thereof, other than that produced from unadulterated milk or cream from unadulterated milk, of an article designed to take the place of butter and cheese produced from pure unadulterated milk, or cream from unadulterated milk, or the prohibition upon the manufacture of any imitation or adulterated butter or cheese, -or upon the selling or offering for sale or having in possession with intent to sell the same as an article of food, is a lawful exercise by the State of the power to protect by police regulations the public health; ” and the Court then proceeded to decide that the State of Pennsylvania could lawfully exercise such power. In Eilenbecker v. District Court of Plymouth County, 134 U. S. 40 , Justice Miller cited and approved Powell v. Pennsylvania, stating that all the prohibitory clauses of the statute of Iowa relating to the sale of “liquor, which the Court was then considering, had been held in Powell’s case to be within the constitutional powers of the State Legislature; and in Crutcher v. Kentucky, 141 U. S. 47 , Justice Bradley also cited Powell’s case with approval, and this too in a case where he said it could not be held “ that everything ⁴⁴¹ which the Legislature of a State may deem essential for the good order of society and the well-being of its citizens can be set up against the exclusive power of Congress to regulate foreign and interstate commerce.” A comparison of the Pennsylvania and Maryland Statutes will show that the question thus stated and decided in Powell v. Pennsylvania is the exact question determined by this Court in McAllister’s case, and which we are now required to review. It cannot therefore be said that in deciding McAllister’s case we either set up any erroneous views of our own or relied upon any authority other than the highest attainable upon the matter in controversy.

But, however this may be, it is now argued that we can no longer sustain McAllister’s case upon the authority of Powell’s case, since the decision in Schollenberger v. Pennsylvania before referred to, and to this contention we will now address ourselves. It is contended by the appellant that the Act of 1888, chap. 312, is in contravention of that clause of the Constitution of the United States which declares that “ the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; ” but we think it is clear that the object of this clause is to prevent discrimination by the several States against the citizens of other States, and in this Act, there is no such discrimination whatever. The fourteenth amendment of the Constitution further provides that “ no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.” Appellant’s counsel do not, in terms, refer to the fourteenth amendment, but it would seem they must have had it in mind, when they said in their brief: “ It should not be necessary to argue in this Court for equal commercial and industrial privileges, and we shall rather quote. The late Judge Cooley in his Commentary on Constitutional Law, speaking