The herald., 1896-10-25
AN 0LEAG|NOUS DECISION
Oleomargarine May Look
Like Butter
and STILL NOT Be IN IMITATION
Justice Owens Renders an I'm.
portant Opinion
A TEST CASE IS DECIDED
Another Fine Point as to Labels Is
Passed Upon
IfProperIy Tagged No Circular Need Be Given
to Purchasers
An Exhaustive Review Of the Statutes
Governing the Case-The Defendant
Found Not Guilty and Dis
charged-Law Not Violated.
IfProperly Tagged No Circular Need Be Given
to Purchasers


charged-Law Not Violated.
A decision was yesterday rendered by
Police Justice Owens in the two cases
against John Moriarity, q Main-street
grocer, arrested some months ago for
selling oleomargarine. the color Of which
was in imitation Of that of genuine but
ter. A second charge was also placed
against the defendant, alleging that at
the same time and place he sold oleo-
margarine without delivering to the
purchaser, as required by law, copy
Of q statement containing the name Of
the manufacturer and the percentage
Of ingredients of which the bull butter
was composed.
The case was heard some time aga.
Deputy District Attorney James ap-
pearing for the people and Gen. A. B.
Campbell for the defendant. AS the
action was the first Of its kind taken IN
the state under recently enacted laws,
Justice Owens took time to consider his
decision, but has now found the de-
fendant not guilty. The opinion In full
is as follows: s.
The above-named defendant was COM
planned against upon two charges, the
first of which alleges that defendant, In
the city of Los Angeles. did willfully
and unlawfully sell, offer for sale, ex-
pose for sale, and have in his possession
with intent to sell a certain article,
product and compound made partly out
Of fat, oil and oleaginous substance and
compounds thereof, not produced d.
rectly and at the time OF the manufac-
Isp1k 49, ot,1 H.
or cream from the same; the said article,
product and compound being then and
there colored in imitation of butter pro-
duced from unadulterated milk or cream
from the same.
This action is brought under the pro-
visions Of section 2 Of chapter Ss. of the
laws of 1895, entitled, IAN act to prevent
deception in the manufacture and sale
of butter and of cheese" etc., the ma
terial parts Of which section are as fol-
lows:
"No person, by himself or his agents
or servants, shall render or manufac-
ture, sell, offer for sale. expose for sale,
or have in his possession with intent to
sell any article, product or
compound made wholly or partly out of
any rat, oil or oleaginous substance, or
compound thereof, not produced direct
ly and at the time of manufacture from
unadulterated milk or cream from the
same. which article, product or COM
pound shall be colored in imitation Of
butter or cheese produced from unadul-
terated milk or cream from the same;
provided, that nothing In this section
shall be construed to prohibit the man
ufacture or sale, under the regulations
hereinafter provided, Of substances de-
signed to be used as q substitute for
butter or cheese, and not manufactured
or colored as in this section prohibited"
The undisputed testimony in this case
is: First-That the defendant sold to
the complaining witness, at the time
and place charged in the complaint, q
10-pound tub of oleomargarine, being
an original package manufactured by
the Armour Packing company in Kan
sas City, Kan.
second-That the color Of the said
oleomargarine so sold is light canary
yellow, and almost the same color as that
of roll Of pure butter placed in evil
dence.
Third-That no artificial coloring mat
ter Whatever had been used to produce
the said color, but that the color was
produced entirely by the ingredients out
of which the oleomargarine has been
manufactured.
This case seems to turn entirely upon
the construction to be given to the word
"colored," as used in said section The
learned counsel for the people contends
that the word "colored" should be con-
''of the color; that is, that any oleo-
margarine Of the color Of butter comes
within the purviewsof the statute, nos-
withstanding the fact that no artificial
coloring matter whatever was used to
produce the color. The counsel for the
people admits that such a construction
would practically make the statute pro
hibitory, and cites large number of
authorities to the effect that q prohibit
ory statute would be valid.
The case principally relied upon by the
people, and which seems to be the lead
Ing case upon this subject, is that of
Commonwealth VS.. Russell, 80 N, =.
Reporter, ITO. being a decision of the
supreme court of Massachusetts, The
Massachusetts, statute prohibits the
manufacture or exposing for sale of any
compound made out of any fat not pro-
from the same, which shall be in imi-
tation of yellow butter produced from
pure, unadulterated milk, etc. And that
IN order to escape the provisions of the
Massachusetts, statute, the imitation
must be free from coloration or ingredi-
ent that causes 1t to look like butter.
The Massachusetts statute is much
stronger than the one under considera-
ton, because section of our statute
provides that for the purpose of this
act. every article. substance or com
pound other than that produced from
PuA AAAAh VI CACdHi IL IOlIl lie same, made
in the semblance Of butter, and designei
to be used as substitute for butter
made from pure milk or cream from the
same, is hereby declared to be imitation
butter" Then 1Srovides that the U.S.
Of salt, rennet and harmless coloriny
matter for coloring the product of pure
milk or cream shall not be construed Ia
render such product an imitation.
So that, constituting sections 1 and
together, the statute provides for the
manufacture and sale of compound
made in the semblance of butter and
designed to be used as a substitute for
butter;" and that the legislators, when
they used the word 'colored" had in
mind the use of coloring matter; and
intended to prohibit its use in the man
ufaoture Of imitation butter If the leg
islature had intended to prohibit color
alton by reason of the ingredients used,
it should have used language covering
such a case and might have copied the
Massachusetts, statute which was adop.
ted years ago.
The defendant insists that the statute
| II void upon the ground that It Ii in con-