# Schollenberger v. Pennsylvania

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## Dissenting Opinion

    Gray
United States Supreme Court
171 U.S. 1
Schollenberger v. Pennsylvania
Page 2 The questions in these three cases are the same, and they arise out of the selling of certain packages of oleomargarine.
The plaintiffs in error were indicted for and convicted of a violation of a statute of Pennsylvania prohibiting such sale. The act was passed on the 21st of May, 1885, and is to be found in the volume of the Laws of Pennsylvania for that year, pg e 22. It provides as follows:
'That no person, firm or corporate body shall manufacture out of any oleaginous substance 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 from the same, or of any imitation or adulterated butter or cheese, nor shall sell or offer for sale, or have in his, her or their possession with intent to sell the same as an article of food.'
A violation of the act is made a misdemeanor, and punishable by fine and imprisonment.
The jury found a special verdict in each case. The only difference between the facts stated in the verdict in No. 86 and those contained in the other cases is that in the latter the package sold was 10 pounds instead of 40 pounds, and was sold by the plaintiffs in error in those cases as agents of a different principal, carrying on the same kind of business in the state of Illinois, and the package was sold to a different person, and upon a different date.
The following facts were set out in the special verdict in No. 86:
'(1) The defendant, George Schollenberger, is a resident and citizen of the commonwealth of Pennsylvania, and is the duly-authorized agent in the city of Philadelphia of the Oakdale Manufacturing Company of Providence, Rhode Island.
'(2) The said Oakdale Manufacturing Company is engaged in the manufacture of oleomargarine in the said city of Providence and state of Rhode Island, and as such manufacturer has complied with all the provisions of the act of congress of August 2, 1886, entitled 'An act defining butter; also imposing a tax upon and regulating the manufacture, sale, importation and exportation of oleomargarine.'
'(3) The said defendant, as agent aforesaid, is engaged in business at 219 Callowhill street, in the city of Philadelphia, as wholesale dealer in oleomargarine, and was so engaged on the 2d day of October, 1893, and is not engaged in any other business, either for himself or others.
'(4) The said defendant, on the 1st day of July, 1893, paid to the collector of internal revenue of the First district of Pennsylvania the sum of four hundred and eighty dollars as and for a special tax upon the business, as agent for the Oakdale Manufacturing Company, in oleomargarine, and obtained from said collector a writing in the words following:
'"Stamp for Special tax,
$480United States $480
per year Internal Revenue. per year.
No. A 434 No. A 434.
"Received from George Schollenberger, agent for the Oakdale Manufacturing Company, the sum of four hundred and eighty dollars for special tax on the business of wholesale dealer in oleomargarine, to be carried on at 219 Callowhill street, Philadelphia, state of Pennsylvania, for the period represented by the coupon or coupons hereto attached.
"Dated at Philadelphia, Pa., July first, 1893.
"[Seal.] William H. Doyle,
"$480. Collector, First District of Penna.' 'The following clauses appear on the margin of the above:
"This stamp is simply a receipt for a tax due the government, and does not exempt the holder from any penalty or punishment provided for by the law of any state for carrying on the said business within such state, and does not authorize the commencement nor the continuance of such business contrary to the laws of such state or in places prohibited by a municipal law. Rev. St. U.S. § 3243.
"Severe penalties are imposed for neglect or refusal to place and keep this stamp conspicuously in your establishment or place of business. Act Aug. 2, 1886.'
'Attached to this were coupons for each month of the year in form as follows:
"Coupon for special tax on wholesale dealer oleomargarine for October, 1893.'
'(5) On or before the said 2d day of October, 1893, the said Oakdale Manufacturing Company shipped to the said defendant, their agent aforesaid, at their place of busie §§ in Philadelphia, a package of oleomargarine separate and apart from all other packages, being a tub thereof, containing forty pounds, packed, sealed, marked, stamped, and branded in accordance with the requirements of the said act of congress of August 2, 1886. The said package was an original package, as required by said act, and was of such form, size, and weight as is used by producers or shippers for the purpose of securing both convenience in handling and security in transportation of merchandise between dealers in the ordinary course of actual commerce, and the said form, size, and weight were adopted in good faith, and not for the purpose of evading the laws of the commonwealth of Pennsylvania, said package being one of a number of similar packages forming one consignment shipped by the said company to the said defendant. Said packages forming said consignment were unloaded from the cars and placed in defendant's store, and then offered for sale as an article of food.
'(6) On the said 2d day of October, 1893, in the said city of Philadelphia, at the place of business aforesaid, the said defendant, as wholesale dealer aforesaid, sold to James Anderson the said tub or package mentioned in the foregoing paragraph, the oleomargarine therein contained remaining in the original package, being the same package, with seals, marks, stamps, and brands unbroken, in which it was packed by the said manufacturer in the said city of Providence, Rhode Island and thence transported into the city of Philadelphia, and delivered by the carrier to the defendant; and the said tub was not broken nor opened on the said premises of the said defendant, and as soon as it was purchased by the said James Anderson it was removed from the said premises.
'(7) The oleomargarine contained in said tub was manufactured out of an oleaginous substance not produced from unadulterated milk or cream, and was an article designed to take the place of butter, and sold by the defendant to James Anderson as an article of food; but the fact that the article was oleomargarine, and not butter, was made known by the defendant to the purchaser, and there was no attempt or purpose on the part of the defendant to sell the article as butter, or any understanding on the part of the purchaser that he was buying anything but oleomargarine; and the said oleomargarine is recognized by the said act of congress of August 2, 1886, as an article of commerce.
'(8) The above transaction specifically found by the jury is one of many transactions of like character made by the defendant during the last two years.'
Upon this special verdict the trial court directed judgment to be entered for the defendant. The case was taken by the commonwealth to the supreme court of the state, where, after argument, the judgment was reversed, and judgment was entered in favor of the commonwealth, and the record remanded, that sentence might be imposed by the court below. The plaintiffs in error have brought these judgments of conviction before this court for review by virtue of writs of error.
The opinion of the supreme court of the state is to be found reported under the name of Com. v. Paul, 170 Pa. St. 284, 33 Atl. 82.
W. D. Guthrie, R. C. Dale, H. R. Edmunds, and A. H. Veeder, for plaintiffs in error.
John G. Johnson, for defendant in error.
Mr. Justice PECKHAM, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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