Hebe Company v. Shaw/Dissent R. Day
Mr. Justice DAY, with whom concurred Mr. Justice VAN DEVANTER and Mr. Justice BRANDEIS, dissenting.

The right to prohibit the sale of plaintiffs' product in the state of Ohio is mainly rested upon section 12725 of the General Code of that state. In the absence of a construction by the Supreme Court of Ohio, we must interpret the statute ourselves. We have been unable to come to the conclusion, reached by the majority of the court, as to the meaning of the law. As the result of this decision is to exclude from sale in the state of Ohio, a food product not of itself harmful, but shown to be wholesome, we shall briefly state the reasons which impel the dissent.

Section 12725 of the General Code of Ohio reads:

'Whoever manufactures, sells, exchanges, exposes or offers      for sale or exchange, condensed milk unless it has been made      from pure, clean, fresh, healthy, unadulterated and wholesome      milk, from which the cream has not been removed and in which      the proportion of milk solids shall be the equivalent of      twelve per cent. of milk solids in crude milk twenty-five per      cent. of such solids being fat, and unless the package, can      or vessel containing it is distinctly labeled, stamped or      marked with its true name, brand, and by whom and under what      name made, shall be fined not less than fifty dollars nor      more than two hundred dollars, and, for each subsequent      offense, shall be fined not less than one hundred dollars nor      more than five hundred dollars and imprisoned not less than      ten days nor more than ninety days.'

The statute defines a crime, and the question is not different than it would be it the plaintiffs were indicted for its violation. While all statutes are to receive a reasonable interpretation, those of a criminal nature are not to be extended by implication. Condensed milk when this statute was passed was well known to be milk from which a considerable portion of water had been evaporated. Condensed milk to be what its name imports must be made from whole milk. If not so manufactured, the legislature has the right to provide that the public shall be advised of the treatment to which it has been subjected. Skimmed milk, conspicuously labeled as such, may be sold in the State of Ohio. Section 12720, Gen. Code Ohio. The legislature has shown no intention to condemn it as an unwholesome article of food. It is not less so when condensed.

We are unable to find in these statutes anything which prohibits the sale of condensed, skimmed milk when it is a part of a wholesome compound sold for what it really is, and distinctly labeled as such. In the section under consideration, 12725, the Ohio legislature was not dealing with compounds. It was undertaking to assure the purity of a well-known article of food condensed milk. The statute provides that such condensed milk so offered for sale shall be made of pure, clean, fresh, unadulterated and wholesome milk from which the cream has not been removed, and that the can containing it shall be distinctly labeled with its true name. With deference to the contrary view, it seems to us that reading the statute in the light of its purpose to require condensed milk to be made from whole milk and sold for what it is, the necessary result is to exclude the plaintiffs' compound from the words and meaning of the act. It is not evaporated milk, and makes no pretense of being such. It is a food compound consisting in part of condensed skimmed milk. It is so labeled in unmistakable words in large print on the can containing it. The label states with all the emphasis which large type can give that it is a compound made of 'evaporated skimmed milk and vegetable fat.' The proportions of the ingredients are stated. The striking label does not describe condensed milk, and he who reads it cannot be misled to the belief that he is buying that article. It is shown to be wholesome and clean and free from impurities.

It seems to us that the case is within the principle stated by this court in Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153, 37 Sup. Ct. 28, 61 L. Ed. 217, Ann. Cas. 1917B, 643, in which a statute forbidding the sale as ice cream of an article not containing a certain portion of butter fat was sustained as within the police power of the state. The statute was construed by the highest court of the state where it was produced to include articles sold as ice cream; thus interpreted, we held it to be a constitutional exercise of the police power of the state. So here, we think the legislature of Ohio intended to deal with condensed milk when sold as such, and to make it an offense to sell it when of less than the required purity.

It may be conceded that the statute would include such an article when not up to the standard, but sold for the real thing. The public is entitled to protection from deception as well as from impurity. This principle seems to have controlled the decision of the District Court. The record discloses that in one or more instances dealers had supplied this article as condensed milk. But an act or two of this sort by fraudulent dealers ought not to be the test of the plaintiffs' right, or control the meaning of this statute. If such were the case, very few food compounds would escape condemnation. The few instances of deception shown had not the sanction of plaintiffs' authority. Such acts did violence to the plain terms in which the plaintiffs' printed label disclosed that its product was a compound and defined its parts. The label so truly expresses just what the substance is, that it is difficult to believe that any purchaser could be deceived into buying the article for something other than it is.

The interdiction of the State Board is not against the sale of this article as condensed milk, but of all sales of this compound in the state of Ohio. In our view this criminal statute, rightly interpreted, does not embrace the plaintiffs' product, and that reason alone should be sufficient to warrant a reversal of the decree. 

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