Daily Kennebec journal., 1901-02-26
IMPORTANT DECISION OF LAW COURT.
The Olcoma7garinc or Bu,tcrinc Law Held
Constitutional.

TIE following is an abstract Of the
opinion in state y. Osca; Rogers. pre-
pared by JudG2 Whitchousc. The
case was tried in AndroscogGin county.
This was an Indictment against tn" de
PENDANT for selling a quantity of 4
certain substance made in imitation of
yellow butter. and not made ex-
Iuyiycly ana wholly Of cream or milk,
ANA containing fats, oil and grease not
Iludu, ed from milk or cream"
That part of the statute involved in
a decision of this case is as follows:
"Whrever by himself or his agent
manufacturers. soils. exposes for sal"
or has in his 10 secession with intent ~
SOL. or takes orders for the future de-
livery If an article. substance or com
pound made in imitation Of yellow nut-
ter or cheese. and not made exclus-
lively or wholly of cream or milk, or
containing any fats. oil or grease not
produced from milk or cream. whether
said article. substance or compound y"
named olcomargarinc. hutterine or
otherwise named, forfcits for the first
offence one hundred dollars and fo" the
second and each subsequent offence
two hundred dollars. to be recovered
by Indictment with costs. one third to
go to the complainant and the balance
to the State"
Ii was contended in behalf of the de
fendant that this act WAS imperative
because repugnant to the constitutions
Of this State and, Of the United States.
The jury returned a verdict of guilty
ana the case comes to this court on
the defendants exceptions.
I. The power of the judicial depart
mcnt of the government to prevent
the enforcement of a legislative enact
ment by declaring it unconstitutional
ana void. is attended with responsible
ties so grave that its exercise is prop
crly confined to statutes that ar"
clearly ana conclusively shown to be
in conflict with the organic law. II is
the duty Of one department to pre-
sumo that another has acted within
it's legitimate province until the con
trary is made to appear by strong and
convincing reasons.
1t will be noted that the act does not
assume to impose an absolute pro
hibtion on the manufacture or sale OF
"oleomargarine" or "butterine in its
avowed character as such. 1t does not
seek to interfere with any inherent
right or privilege the people may have
to engage in the manufacture ana sale
Of any wholesome product or compound
designed simply to be used as q sub
Stitutc for butter. provided 1t IS not
made in imitation of yellow butter.
and the true character of it is openly
L. 81 1
hibits the manufacture and sale of
ANY substance or compound made IN
imitation of yellow butter and not
made ''Whoily Of cI"am or milk. The
statute prohibits the sale ola simulated
article put upon the market IN such
form ana color as to be calculated to
deceive the purchaser. The obvious
purpose of it was to prevent the fraud
and deception practiccd in selling for
genuine yellow butter any spurious arti-
cle or conn ound made in imitation Of it..
Where the resemblance between the
external appearance" of yellow butter
and the counterfeit article is 50 clos"
that it Is not practicable by any ord
mary inspection for the purchaser to
distinguish the one from TIL" other,
and the only effective means of pro
tectinC the public against the dcCcr-
tion are to be found in the abSout"
suppression Of the business and the
entire exclusion Of such limitations from
the market. the enactment Of Such
prohibitory statute as the one in
question. for the prevention of fraud,
the protection of public morals and
promotion of Il sound public policy
NAV well be deemed a rcaSona BILE ami
lawful exercise by the legislature of
tho police powers Of the State and not
in conflict with any provisions of our
State constitution.
1t is contended. however. that mas
much az the statute was manfestly in
tended to prohibit the sale of all such
products although imported from other
states and sold in the original pack
ages. it must be held imperative and
void as repugnant to that clause OF the
federal constitution comforting upon
Congress the power ITO regulate com
merce with foreign nations and among
the several states. But it is within
the power of a state to exclude from
its markets any compound manufac-
tured in another state which has been
Grtifcially colored or adulterated SC
as to cause it to look like an article OF
fcod in general use. ana tie sale ot
Which may. by reason Of such oolora