#### Meyer and another, Plaintiffs in error, vs. The State, Defendant in error.

*November 30, 1907*

January *8, 1908.*

*Food: Imitation butter: Evidence: Statutes: Construction: Police regulations: “Color:" Acquittal:*Scienter.

1. Under sec. 4607c, Stats. (1898), as amended by ch. 151, Laws of 1901 (denouncing a penalty upon any person who shall sell, etc., any article, product, or compound made wholly or in part of any fat oil or oleaginous substance or compound thereof, not produced from unadulterated milk or cream from the same, and without the admixture of any fat foreign to said milk or cream, which shall be in imitation of yellow butter produced from such milk or cream with or without coloring matter), the prohibitory and descriptive words of the statute are not enlarged by the further provision: “Nothing in this section shall be construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form and in such manner as will advise the consumer of its real character, and free from coloration or ingredient that causes it to look like butter.”

2. Such portion of the statute relating to oleomargarine, in connection with other statutes relating to the same subject matter, is, however, an aid in determining upon what particular ground of police regulation the statute is founded.

3. Such statute relating to oleomargarine is *held*to be a police regulation respecting public safety, that is, relating to the prevention of frauds or imposition and not to the public health.

4. The words “yellow butter” in sec. 4607c, Stats. (1898), as amended by ch. 151, Laws of 1901, are used in their popular, rather than their trade or technical, sense, and define themselves.

5. Yellow butter does not mean all kinds of butter, and hence it is error in a.prosecution under sec. 4607c, Stats. (1898), as amended by ch. 151, Laws of 1901, to instruct the jury: “Butter, that is natural butter, as is shown by the undisputed testimony in this case and as is a matter of common knowledge, varies in the degree of yellow from light straw color in winter to a rich light orange yellow in the summer. Colored butter varies from a shade- of yellow somewhat more pronounced than the natural color of winter butter to shades higher than the *157highest natural color of summer butter; and all these shades of yellow in butter come within the protection of this law, and it is equally forbidden to sell oleomargarine in imitation of the lightest shade of yellow butter, colored or uncolored, as it is of the most pronounced or intermediate shades.”

6. In a prosecution under sec. 4607c, Stats. (1898), as amended by ch. 151, Laws of 1901, it is error to permit a witness to answer questions how the article sold by plaintiffs in error compared . in color with butter manufactured in the vicinity for named foreign markets, and whether it would pass such markets so far as color was concerned.

7. In a prosecution under sec. 4607c, Stats. (1898), as amended by* ch. 151, Laws of 1901, the inquiry is twofold: (1) Does the _ compound in question come within the prohibition of the statute? (2) Did the accused sell, ship, consign, etc., this compound?

8. In a prosecution under sec. 4607c, Stats. (1898), as amended by ch. 151, Laws of 1901, if the article claimed to be in violation of the statute is in imitation of yellow butter, it is immaterial whether such imitation is brought about by the addition of a dye or by the selection of ingredients. ’

9. Color is the impression given to the eye by lines of light of various rates of vibration.

10.The words “which shall be in imitation of,” used in sec. 4607c, Stats. (1898), as amended by ch. 151, Laws of 1901, in describing the contraband compound, imply a conscious imitation in the manufacture thereof.

[11. Sec. 4607c, Stats. (1898), as amended by ch. 151, Laws of 1901, contains no words indicating that the prohibited acts must have been knowingly or wilfully done. What would be the consequence to one who sold or shipped in entire ignorance of the fact that the article was not butter and who had no intention to sell or ship any compound in imitation of yellow butter, not determined.]

12. In a prosecution under sec. 4607c, Stats. (1898), as amended by ch. 151, Laws of 1901, it is not error to refuse to direct a verdict of acquittal when there was evidence from which the jury would be authorized to infer conscious imitation in the manufacture of the compound; and that the accused had knowledge that the compound was not butter, and in fact sold or shipped it.

EheoR to review a judgment of the circuit court for Jefferson county: Georgs Grimm, Circuit Judge.

*Reversed.*

*158Error to review tbe conviction of tbe plaintiffs in error. Tbe information charged tbat tbe plaintiffs in error (hereinafter called defendants) at tbe county of Jefferson did unlawfully, by themselves, their agents and servants, have in their possession with intent to sell, and did offer and expose for sale, and did sell, a certain article, product, and compound which was made partly out of fat oil and oleaginous substances and partly out of a compound thereof, and neither the said article, product, or compound, nor the said fat oil and oleaginous substance, nor the said compound thereof was produced from unadulterated milt or from cream and unadulterated milk, and said article, product, and compound and said substance of said compound contained the admixture and addition of fat foreign to unadulterated milk and foreign to unadulterated cream, and said article, product, or compound was then and there in imitation of yellow butter, with or without the coloring matter, such butter being produced from said unadulterated milk or cream from the same, etc.; that said article was in fact oleomargarine and in imitation of yellow butter, etc. There was a verdict of guilty, and certain specific errors hereinafter noted are assigned in the reception and 'rejection of evidence, in refusing to direct a verdict of not guilty, and in instructing the jury.

Among other references plaintiffs in error cited the following: *State ex rel. S. B. & L. M. 8. 0. & H. Oo. v.*Oomm’rs, 34 Wis. 162; *Minis v. U. 8.*15 Pet. 423, 4 Rose’s Notes, 121; *Olijf v. U. 8.*195 U. S. 159, 25 Sup. Ct. 1; *Brown v. 0. & N. W. B. Oo.*102 Wis. 137, 77 N. W. 748, 78 N. W. 771; *Plumley v.*Massachusetts, 155 U. S. 461, 15 Sup. Ct. 154; sec. 4607d, Stats. (1898); *Louisville & N. B. Oo. v.*Comm. 99 Ky. 132, 35 S. W. 129, 33 L. R. A. 209; *L. & N. B. Oo. v, B. B.*Oomm’n> 19 Eed. 679; *B. B. Comm’n*Cases, 116 U. S. 307, 336, 6 Sup. Ct. 334, 388, 1191; *Tozer v. U. 8.*52 Eed. 917; *YicJc Wo v.*Hoplcins, 118 *159U. S. 356, 6 Sup. Ct. 1064; *Slate ex rel. Miliuaulcee Med. Coll. v. Chittenden,*127 Wis. 468, 107 N. W. 500; *Wis. Keeley Inst. Co. v. Milwaukee Co.*95 Wis. 153, 70 N. W. 68; *C., B. & Q. B. Co. y. People ex rel. Drainage Comm’rs,*200 U. S. 561, 26 Sup. Ct. 341'; *McCray v. U. S.*195 U. S. 27, 24 Sup. Ct. 769; *Schollenberger v. Pennsylvania,*171 U. S. 1, 18 Sup. Ct. 757; *Powell v. Pennsylvania,*127 U. S. 678, 8 Sup. Ct. 992; *Lochner v. New York,*198 U. S. 45, 25 Sup. Ct. 539; *Mugler v. Kansas,*123 U. S. 623, 8 Sup. Ct. 273; *Collms v. New Hampshire,*171 U. S. 30, 18 Sup.-Ot. 768; Tiedeman, Police Power, 510; *Lawton v. Steele,*152 U. S. 133, 14 Sup. Ct. 499; *Holden v. Hardy,*169 U. S. 366, 18 Sup. Ct. 383; sec. 4607e, Stats. (1898).

Among other references defendant in error cited the following: Sec. 4607c, Stats. (1898) ; *Leisy v. Hardin,*135 U. S. 100, 10 Sup. Ct. 681; *Capital City D. Co. v. Ohio,*183 U. S. 238, 22 Sup. Ct. 12Ó; *In re Bahrer,*140 U. S. 545, 11 Sup. Ct. 865; Act May 9, 1902, ch. 784, 32 Stats, at Large, 193 [U. S. Comp. Stats. Supp. 1907, p. 636] ; *Harrington v. Smith,*28 Wis. 43; *State v. Shove,*96 Wis. 1, 70 N. W. 312; *Chippewa B. Co. v. Durand,*122 Wis. 85, 99 N. W. 603; *Canterbury v. N. W. Mut. L. Ins. Co.*124 Wis. 169, 102 N. W. 1096; *Lehmann v. Parwell,*95 Wis. 185, 70 N. W. 170; *Yon Bueden v. State,*96 Wis. 671, 71 N. W. 1048; *Brown v. C. & N. W. B. Co.*102 Wis. 137, 77 N. W. 748, 78 N. W. 771; *State v Hartfiel,*24 Wis. 60; Clark, Crim. Law, 68, 70; *U. S. v. Anthony,*11 Blatchf." 200; *Douglass v. State,*4 Wis. 387; *Harmon v. State,*70 Wis. 448, 36 N. W. 1; *Barnard v. State,*88 Wis. 656, 60 N. W. 1058; *Spear v. Sweeney,*88 Wis. 545, 60 N. W. 1060.

*Charles Quarles,*for the plaintiffs in error.

Eor the defendant in error there was a brief signed by *Clin & Butler*and *L. B. Gettle,*of counsel, and oral argument by *J. M. Olin.*

*160TimxiN, J.

Sec. 4607c, Stats. (1898)-, as amended by cb. 151, Laws of 1901, under which the defendants were convicted, and so far as material here, provides that any person who “shall by himself, his agent or servant, render or manufacture, sell or solicit or accept orders for, ship, consign, offer or expose for sale, or have in possession with intent to sell, any article, product or compound made wholly or partly out of any fat oil or oleaginous substance or compound thereof, not produced from unadulterated milk or cream from the same, and without the admixture or addition of any fat foreign to said milk or cream, which shall be in imitation of yellow butter produced from such milk or cream with or without coloring matter,” shall be punished, etc. “Nothing in this section shall be construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form and in such manner as will advise the consumer of its real character, and free from coloration or ingredient that causes it to look like butter.”

We cannot consider the last-quoted sentence as enlarging in any degree the preceding prohibitory or descriptive words of the statute. Manufacturing, selling, or having in possession with intent to sell a described product is prohibited. Following this by a provision that the preceding words shall not be construed to prohibit the manufacture or sale, etc., of oleomargarine in a certain manner and of a certain kind merely indicates that in the exercise of abundant caution the legislature forbade the extension of the prohibitive mandate of the statute so as to take in or include that which is described as excluded. There is a common form of expression often found in statutes and other writings where a general word or words followed by an excepted thing or instance is somewhat broadened by such exception because of the inference that the exception noted is the only exception. But the form of expression under consideration is not within that rule. This last sentence may, however, in connection with other .statutes re*161lating to the same subject matter, such as sec. 4601&, Stats. (1898), perform some office as an aid in construction; that is to say, in determining upon what particular ground of police regulation these statutes are founded, and whether or not the legislature intended to recognize as lawful in this state the manufacture, possession, and sale of oleomargarine as a commodity subject to the regulations found in the statutes.

It is established by the evidence and conceded upon the argument that the oleomargarine in question is a healthful food product compounded of oleo oil extracted from beef tallow, neutral lard, cotton-seed oil, and salt. The statutes referred to recognize the right to manufacture, sell, and -deal in this product. The question whether the legislature possesses the power to forbid its manufacture, sale, or use in this state is not before us. It being conceded that the product contains no ingredient injurious or dangerous to health, and the statutes containing provisions recognizing the right to sell, but requiring the seller to disclose the nature of the article sold, and forbidding the product to be in imitation of yellow butter, it must follow that this police regulation respecting the manufacture and sale relates, not to the public health, but to the public safety, that is, to the prevention of frauds or imposition. The statute must be construed accordingly. It was known to the legislature when this law was enacted that butter varies in color from nearly white to yellow. The compound prohibited is only that kind of oleomargarine which shall be in imitation of yellow butter. The statute apparently recognizes the right of a producer of whitish or lightcolored butter to escape from the competition of oleomargarine by dyeing his butter yellow. This has some bearing upon the construction of the statute. But the same statute authorizes the sale of oleomargarine unless it shall be in imitation of yellow butter. The words “yellow butter” require no definition to explain their meaning. They are used in this statute in the popular, rather than in any trade or technical, sense. They *162define themselves. And first’of all it must be obvious that yellow butter does not mean all kinds of butter. Yet the trial court instructed the jury as follows:

> “Butter, that is, natural butter, as is shown by the undisputed testimony in this case and as is a matter of common knowledge, varies in the degree of yellow from light straw color in winter to a rich light orange yellow in the summer. Colored butter varies from a shade of yellow somewhat more pronounced than the natural color of winter butter to shades higher than the highest natural color of summer butter; and all these shades of yellow in butter come within the protection of this law, and it is equally forbidden to sell oleomargarine in imitation of the lightest shade of yellow butter, colored or uncolored, as it is of the most pronounced or intermediate shades.”

Here the jury are'informed that natural butter, as a matter of common knowledge, varies between certain shades of yellow. This must have been understood by the jury to mean all natural butter. This is the ordinary and natural import of the language. It may be that there is no purely white butter, and that placed alongside of white paint the whitest butter would show a yellow tinge, and it may be that light straw color approximates white but never quite reaches it. But after having assumed this to be true and after having thus described butter generally, when the court charged the jury that it was forbidden to sell oleomargarine in imitation of the lightest shade of yellow butter, colored or uncolored, as much as it was forbidden to sell it in imitation of the most pronounced or intermediate shades, he added to the statute something not found therein, and it laid down a rule of law which, if followed by this court, would go far to convict the lawmakers of having, under pretense of making a police regulation to prevent fraud, enacted a law to exclude all competition of oleomargarine with all kinds of butter. This was error.

We are also convinced that the trial court erred in the reception of evidence. After the witness W. D. Hoard testified *163that he was familiar with the shade of yellow butter that is manufactured and sold in Wisconsin for the markets of Chicago, Elgin, and Hew York, he was shown the oleomargarine in which the defendants had been dealing and which was offered and received in evidence as Exhibit A, and asked: “Q. How does that article, Exhibit A, 'compare in color with the color of butter that is manufactured here in this part of the state for those markets?” An objection to this question was overruled, and we consider that ruling erroneous for reasons to be given. The witness J. Gr. Moore was asked: “Q. I will ask you to state in your judgment whether Exhibit A would pass as far as color is concerned for the markets of Elgin, Hew York, Milwaukee, and Chicago?” There was similar error in overruling an objection to this question. The samples of cotton-seed oil, Exhibit 7, light-colored oleo oil, Exhibit S, 'yellow oleo oil, Exhibit 9, and neutral lard, Exhibit 10, were properly received in evidence, because the testimony of the witnesses positively identified them as such oils and lard, and it was shown they were ingredients entering into the manufacture of oleomargarine generally and of the article in question. The experimental Exhibits E and Gr were also properly admitted in evidence, and the same is true of Exhibits H and 11. The inquiry in a criminal prosecution under this statute may for the purpose of analysis be divided into two branches: (1) Does the compound in question come within the prohibition of the statute ? (2) Did the accused sell, ship, consign, etc., this compound ?

1. With reference to the first branch of the inquiry, viz.: Is the article in question an article, product, or compound made wholly or partially out of any fat oil or oleaginous substance not the product of milk or cream, and which is in imitation of yellow butter ? It does not tend to establish the affirmative of this simple issue of fact, but rather to confuse it, when evidence is offered to show how the article in question compares in color with the color of butter that is manu*164factured in tMs part of the state for the markets of Chicago, Elgin, and New York. The article is to he compared with yellow butter by direct testimony of any person who is able to testify on the subject, and that will include all ordinary witnesses except those who show affirmatively their lack of knowledge or some degree of color blindness. These reasons exclude any evidence in regard to whether or not the article in question would pass as far as color is concerned for the markets of Elgin, Chicago, Milwaukee, and New York, or in any other market. Such evidence tends to lead the jury away from the true point of inquiry, and, having received the sanction of the court by his ruling admitting it and thereafter in the charge to the jury, must be deemed to have had a prejudicial effect. The jury were thus led to compare the article or compound in question, not with the terms of the statute, but with some rule or criterion not found in the statute. It would be adding to the statute to construe it as prohibiting the sale of a compound in imitation of any very light shade of yellow butter or in imitation of some shade of yellow butter which met the demands of the market or the standard of the operators at Elgin or elsewhere, if such shade or standard was not in fact yellow butter within the plain and popular meaning of these terms. If such standard was yellow butter within the ordinary and popular meaning of these terms, then the evidence was immaterial but misleading.

One of the contentions of plaintiffs in error is:

> “The court erred in instructing the jury that, although the color of Exhibit A was produced solely by its ingredients, they were to consider the claim made by the state ‘that the ingredients were so selected and used in the manufacture of the oleomargarine sold, in such manner and in such quantities and proportion as to produce the oleomargarine so sold which was then and there in imitation of yellow butter.’ ”

The question whether the article sold by the defendants was the identical thing which is contraband by statute must *165be determined by tbe testimony of witnesses wbo have seen it or by tbe testimony of witnesses aided by an- inspection of tbe article itself, and its resemblance to yellow butter is a factor in sucb determination. If tbe article is in imitation of yellow butter, it matters not wbetber sucb imitation is brought about by tbe addition of a dye or by tbe selection of ingredients. Color is tbe impression given to tbe eye by lines of light of various rates of vibration. Tbe reason for tbe natural color of bodies is a difficult subject and one that is scarcely yet understood. It has perhaps some relation to tbe molecular or atomic structure of such bodies, but there is no scientific distinction, so far as producing color is concerned, between imitating or producing color by tbe addition of an ingredient known as a dye and added for the purpose alone of producing a given color and tbe selection and addition of an ingredient which performs tbe same coloring function but at tbe same time adds other qualities to tbe compound. Tbe words “which shall be in imitation of,” used in describing tbe contraband compound, imply a conscious imitation in tbe manufacture thereof. If one forming a compound of several ingredients knowingly select and use an ingredient which imparts to tbe compound tbe color of yellow butter, be having choice of ingredients, be will have made bis compound in imitation of yellow butter just as well as if be selected a dye. There is, however, this difference, viz., proof of tbe presence of tbe dye, which can have no other function than that of producing color, shows tbe conscious imitation quite clearly, while proof of tbe selection of tbe ingredients which produced tbe color of yellow butter, tbe person selecting having a choice of ingredients, is a fact from which tbe jury is authorized to infer a conscious imitation notwithstanding sucb ingredient so selected has other qualities or is in one of its forms or in one of its colors a necessary ingredient of oleomargarine. Wbetber or not tbe article in question is in imitation of yellow butter cannot be determined alone by its re*166semblance to yellow butter, but resemblance aided by evidence of the existence of a dye as one of its ingredients, or resemblance aided by evidence of the existence of available necessary ingredients wbicb will not impart to the compound the color of yellow butter and of the existence of other available ingredients which will impart to the compound the color of yellow butter, may be considered by the jury as establishing or tending to establish conscious imitation by selection of ingredients. What is yellow butter and whether the article in question is in imitation of yellow butter are questions of fact. The trial in the circuit court digressed far from these simple and sufficient inquiries.

2. Did the accused sell, ship, etc. ? Upon this branch of the inquiry different questions arise. The statute declares unlawful the mere act of selling, shipping, etc., the unlawful compound, and contains no words to indicate that such sale or shipment must have been knowingly or intentionally made. What would be the .consequence of a sale, shipment, etc., by one who was entirely ignorant of the fact that the compound was not butter and had no intention to sell or ship oleomargarine or any other compound in imitation of butter we do not determine, because no such question is before the court. But upon the error assigned in refusing to direct a verdict of acquittal we are required to pass upon the question whether there was in the case at bar a *prima,, facie*case made against the accused, and we think there was, because there was evidence from which the jury was authorized to infer conscious imitation in the manufacture of the compound as herein indicated, and because there was evidence tending to show that the accused had knowledge that the compound in which they were dealing was not butter but oleomargarine and that it resembled yellow butter. Upon this second branch of the inquiry, resemblance to yellow butter, together with knowledge that the compound is not butter, >with proof of the fact of selling, shipping, etc., will consti*167tute a *prima facie*case. But it will be necessary, of course, to cover by the proof botb branches of tbe inquiry. We therefore find no error in refusing to direct a verdict of acquittal. This applies to each of the defendants. Other questions are discussed in the briefs, but the foregoing renders their separate discussion here unnecessary.

*By the Court.*— The judgment of the circuit court is reversed, and the cause remanded for a new trial.