§ 22. Renovated Butter. The State may require all renovated butter to be distinctly labeled as such; and where a statute requires it to be labeled, it is not a sufficient compliance with the statute for the vendor to orally inform the purchaser when making the purchase that it is renovated butter.2 § 23. Federal Oleomargarine Statute of 1886. The Federal Statute of 18861 and the amended Act of 1902, imposing a tax upon oleomargarine, and regulating its manufacture and sale, are constitutional. Congress possessed the power to impose the tax it did in that statute and to discriminate between oleomargarine colored to resemble butter and butter colored so as to resemble butter of a higher grade than it was in fact.3 § 24. Federal Statute on Oleomargarine Prohibiting State Regulation of its Manufacture and Sale. The Federal statute1 of 1886 on the subject of oleomargar That a State can not prevent the compounding of a number of wholesome articles of food and their sale as an article of food, see Powell V. Commonwealth, 114 Pa. 265, 60 Am. Rep. 350; State v. Newton, 50 N. J. L. 254, 2 Inter. Com. Rep. 63; Palmer v. State, 39 Ohio St. 236, 48 Am. Rep. 429. 1 Commonwealth v. Seiler, 20 Pa. Super. Ct. 260. 2 People v. Waters, 114 N. Y. App. Div. 669, 100 N. Y. Supp. 1. S. Stat. at Large 209. See Appendix. 2 32 U. S. Stat. at Large 93. See Appendix. 3 McCrary v. United States, 195 U. S. 27, 24 Sup. Ct. 769, 49 L. Ed. 78; Schick v. United States, 195 U. S. 65, 24 Sup. Ct. 826, 49 L. Ed. 99; United States v. Dougherty, 101 Fed. 439. The motives of Congress in imposing a tax on artificially colored oleomargarine are not open to judicial inquiry in considering the power of that body to enact such legislation. McCrary V. United States, supra. 124 U. S. Stat. at Large 209; Rev. Stat. Supp. 2d Ed. 505. See Appendix. ine does not prohibit a State enacting a law so regulating its sale as to prevent the public being deceived. It does not prevent a State requiring oleomargarine to be sold in a separate and distinct form, and in such a manner as will advise the consumer of its real character, free from coloration or ingredient that cause it to look like genuine butter. It may be conceded that Congress in the Act of 1886 has legislated fully on the subject of oleomargarine "so far as the purpose of that Act is concerned. But there is no ground to suppose," said the Supreme Court of the United States, "that Congress intended in that enactment to interfere with the exercise by the State of any authority they could rightfully exercise over the sale within their respective limits of the article defined as oleomargarine. The statute imposed certain special taxes upon manufacturers of oleomargarine, as well as upon the wholesale and retail dealers in that compound." After calling attention that the Act adopts certain prior sections in point of time of the Revised Statutes, where it is provided that the payment of an internal revenue tax "shall not be held to exempt any person from penalty or punishment provided by the laws of any State for carrying on the same within such State, or in any manner to authorize the commencement or continuance of such trade or business contrary to the laws of such State or in places prohibited by municipal law;" and the payment of the tax shall not "be held to prohibit any State from placing a duty or tax on the same trade or business, for State or other purposes," the court said: "It is manifest that this section was incorporated into the Act of August 2, 1886, to make it clear that Congress had no purpose to restrict the power of the States over the subject of the manufacture and sale of oleomargarine within their respective limits. The taxes prescribed by that Act were imposed for national purposes, and their imposition did not give authority to those who paid them to engage in the manufacture or sale of oleomargarine in any State which lawfully forbade such manufacture or sale, or to disregard any regulations which a State might lawfully prescribe in reference to that article. Nor was the Act of Congress re lating to oleomargarine intended as a regulation of commerce among the States. Its provisions do not have special application to the transfer of oleomargarine from one State of the Union to another. They relieve the manufacturer or seller, if he conforms to the regulations prescribed by Congress or by the Commissioner of Internal Revenue under the authority conferred upon him in that regard, from penalty or punishment so far as the general government is concerned, but they do not interfere with the exercise by the States of any authority they possess of preventing deception or fraud in the sale of property within their respective limits."" The Federal statute providing for the taxation of persons engaged in the manufacture and sale of oleomargarine does not authorize such manufacture and sale in a State where such State's laws forbid its sale.3 The Act of Congress of 1890 is usually not in conflict with State laws upon the subject of adulteration of foods." § 25. Cottolene, Labeling as a "Lard Substitute"- Cottolene is probably a wholesome substance, possibly as much so as pure lard. As usually manufactured it resembles lard. Yet, notwithstanding this, a statute which requires it to be labeled "Lard Substitute" is valid. It prevents a deception being practiced upon the public. Thus when a statute provided that every person who manufactures or sells any substance made in the semblance of lard, or as an imitation thereof, or a substitute therefor, designed to take the place of lard, should cause the package containing it to be labeled "Lard Substitute;" and a provision provided that the Act should "not apply to cottolene, a compound consist 2 Plumley v. Massachusetts, 155 C. S. 461, 15 Sup. Ct. 154, 39 L. Ed. 223, affirming 156 Mass. 236, 30 N. E. 1127, 15 L. R. A. 839; Capitol City Dairy Co. v. Ohio, 183 U. S. 238, 22 Sup. Ct. 120, 46 L. Ed. 171, affirming 62 Ohio St. 350, 57 N. E. 62, 57 L. R. A. 181. 3 People v. Meyer, 89 N. Y. App. Div. 185, 85 N. Y. Supp. 834. 4 Ch. 839. See Appendix. 5 Crossman v. Lurmon, 171 N. Y. 329, 63 N. E. 311. ing of a mixture of beef stearine and refined cotton-seed oil, where the package shall be labeled with the word 'Cottolene;'" but cottolene shall not be manufactured in imitation of lard and should not contain any substance deleterious to health, it was held that any substance made in imitation of lard must be labeled; and that cottolene must also be labeled "Lard Substitute," as it resembled lard. If it were so labeled it could be sold. "There is no hardship in the requirement that cottolene manufactured so as to resemble lard shall be labeled 'Lard Substitute.' If cottolene is just as wholesome, just as good, and cheaper than lard, let it compete with the hog product on fair terms, under a label declaring the truth, that it is a substitute for lard, and not lard, as it appears to be. It probably is true in this particular case that the package containing the cottolene was so marked that no intelligent purchaser could be deceived into believing that he was buying lard. But it is the province of the Legislature to determine what precautions must be observed to prevent deception in the sale of food products, and the courts have no power to substitute something else which they may deem to be equally as efficacious. It is only when the specific means prescribed by the Legislature to prevent such deception are arbitrary or prohibitive that the courts can interfere."" A statute which requires a seller of lard compounds and lard substitute to disclose to the purchaser by label or card the nature and ingredients of the article is valid, as an exercise of the police power of the State.2 § 26. Imitation of Butter in Oleomargarine Produced by Combination of Natural Ingredients. If a statute forbids the sale of oleomargarine which shall be in imitation of yellow butter produced from milk or cream, then it is immaterial how the imitation was produced, 1 State v. Hanson, 84 Minn. 42, 86 N. W. 768, 54 L. R. A. 468; State v. Aslesen, 50 Minn. 5, 52 N. W. 220, 36 Am. St. 620; State v. Snow, 81 Iowa 642, 47 N. W. 777, 11 L. R. A. 355. 2 State v. Aslesen, 50 Minn. 5, 52 N. W. 220, 36 Am. St. 620. whether by putting in coloring matter for that purpose or by a combination of materials out of which oleomargarine is made in such proportion as to produce a substance resembling or in imitation of butter. Either practice is forbidden. "If the article is in imitation of yellow butter, it matters not whether such imitation is brought about by the addition of a dye, or by the selection of ingredients. Color is the impression given to the eye by lines of light of various rates of vibration. The reason for the natural color of bodies is a difficult subject, and one that is scarcely yet understood. It has perhaps some relation to the molecular or atomic structure of such bodies; but there are no scientific distinctions, so far as producing color is concerned, between imitating or producing color by the addition of an ingredient known as a dye and added for the purpose alone of producing a given color, and the selection and addition of an ingredient which performs the same coloring functions, but at the same time adds other qualities to the compound. The words, 'which shall be in imitation of,' used in describing the contraband. compound, imply a conscious imitation in the manufacture thereof. If one forming a compound of several ingredients knowingly select and use an ingredient which imparts to the compound the color of yellow butter, he having choice of ingredients, he will have made his compound in imitation of yellow butter just as well as if he selected a dye. There is, however, this difference, viz.: proof of the presence of the dye, which can have no other function than that of producing color, shows the conscious imitation quite clearly, while proof of the selection of the ingredients which produced the color of yellow butter, the person selecting having the choice of ingredients, is a fact from which the jury is authorized to infer a conscious imitation notwithstanding such ingredient so selected has other qualities, or is in one of its forms, or in one of its colors, a necessary ingredient of oleomargarine. Whether or not the article in question is in imitation of yellow butter can not be determined alone by its resemblance to yellow butter, but resemblance aided by evidence of the existence of a dye as one of its ingredients, or resemblance |