Schollenberger v. Pennsylvania/Dissent Gray
Mr. Justice GRAY, with whom concurred Mr. Justice HARLAN, dissenting.

Mr. Justice HARLAN and myself cannot concur in this judgment, and will state, as briefly as may be, some of the grounds of our dissent. The question at issue appears to us to be so completely covered by two or three recent judgments of this court, as to make it unnecessary to cite other authorities.

As has been said by this court, speaking by the present Chief Justice: 'The power of the state to impose restraints and burdens upon persons and property in conservation and promotion of the public health, good order, and prosperity, is a power originally and always belonging to the states, not surrendered by them to the general government, nor directly restrained by the constitution of the United States, and essentially exclusive. And this court has uniformely recognized state legislation, legitimately for police purposes, as not, in the sense of the constitution, necessarily infringing upon any right which has been confided, expressly or by implication, to the national government.' Rahrer's Case, 140 U.S. 545, 554, 11 Sup. Ct. 865.

The statute of Pennsylvania of May 21, 1885, under which the plaintiffs in error were indicted and convicted for selling in Pennsylvania oleomargarine in the original packages in which it had been sent to them from other states, provides that 'no person, firm, or corporate body shall manufacture out of any oleaginous substance or any compound of the same, other than that produced from unadulterated milk or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk or cream from the same, or of any imitation or adulterated butter or cheese, nor shall sell or offer for sale, or have in his, her or their possession with intent to sell the same, as an article of food.' Pa. St. 1885, c. 25.

In Powell v. Pennsylvania, 127 U.S. 678, 8 Sup. Ct. 992, 1257, the defendant was indicted under this very statute for selling, and for having in his possession with intent to sell, oleomargarine manufactured in Pennsylvania before the passage of the statute, and at the trial, in order to show that the statute was not a lawful exercise of the police power of the state, offered to prove that the articles whic  he sold, and those which he had in his possession for sale, were, in fact, wholesome and nutritious, and were part of a large quantity manufactured by him before the passage of the statute, by the use of land, buildings, and machinery, purchased by him at great expense for carrying on this business, and the value of which would be destroyed if he were prevented from continuing it. The evidence offered was excluded, and the defendant was convicted, and his conviction was affirmed by the supreme court of Pennsylvania, and by this court upon writ of error.

This court, in its opinion upholding this statute as a constitutional and valid exercise of the police power of the state, after mentioning the defendant's offer to prove that the articles which he sold or had in his possession for sale were in fact wholesome and nutritious, proceeded as follows: 'It is entirely consistent with that offer that many-indeed, that most kinds of oleomargarine butter in the market contain ingredients that are or may become injurious to health. The court cannot say, from anything of which it may take judicial cognizance, that such is not the fact. Under the circumstances disclosed in the record, and in obedience to settled rules of constitutional construction, it must be assumed that such is the fact.' 'Whether the manufacture of oleomargarine, or imitation butter, of the kind described in the statute, is or may be conducted in such a way, or with such skill and secrecy, as to baffle ordinary inspection, or whether it involves such danger to the public health as to require, for the protection of the people, the entire suppression of the business, rather than its regulation in such manner as to permit the manufacture and sale of articles of that class that do not contain noxious ingredients, are questions of fact and of public policy, which belong to the legislative department to determine. And as it does not appear upon the face of the statute, or from any facts of which the court must take judicial cognizance, that it infringes rights secured by the fundamental law, the legislative determination of those questions is conclusive upon the courts. It is not a part of their functions to conduct investigations of facts entering into questions of public policy merely, and to sustain or frustrate the legislative will, embodied in statutes, as they may happen to approve or disapprove its determination of such questions.' 'The legislature of Pennsylvania, upon the fullest investigation, as we must conclusively presume, and upon reasonable grounds, as must be assumed from the record, has determined that the prohibition of the sale, or offering for sale, or having in possession to sell, for purposes of food, of any article manufactured out of oleaginous substances or compounds other than those produced from unadultered milk or cream from unadulterated milk, to take the place of butter produced from unadulterated milk or cream from unadulterated milk, will promote the public health, and prevent frauds in the sale of such articles.' 127 U.S. 684-686, 8 Sup. Ct. 996, 1263.

That decision appears to us to establish that the courts cannot take judicial cognizance, without proof, either that oleomargarine is wholesome or that it is unwholesome; and we are unable to perceive how judicial cognizance of such a fact can be acquired by referring to the various opinions which have found expression in scientific publications, or in testimony given in cases before other courts and between other parties.

Evidence that the articles sold were wholesome and nutritious having been excluded as immaterial when offered in defense in Powell's Case, it necessarily follows that the commonwealth in the case at bar had no occasion to offer evidence to prove the contrary.

The decision in Powell's Case conclusively establishes that the statute in question is a constitutional exercise of the police power of the state, unless it can be considered as affected by the power to regulate commerce, as granted o  or exercised by congress under the constitution of the United States.

The act of congress of August 2, 1886 (chapter 840), imposing internal revenue taxes upon manufacturers and sellers of oleomargarine, and defining what shall be considered as oleomargarine for the purposes of that act, expressly provides, in section 3, that section 3243 of the Revised Statutes, so far as applicable, shall apply to such taxes and persons. 24 Stat. 209. By section 3243 of the Revised Statutes, 'the payment of any tax imposed by the internal revenue laws for carrying on any trade or business shall not be held to exempt any person from any 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; nor shall the payment of any such tax be held to prohibit any state from placing a duty or tax on the same trade or business, for state or other purposes.'

As was said by this court in Plumley v. Massachusetts, 155 U.S. 461, 15 Sup. Ct. 156: '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 of 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 relating 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 sales of property within their respective limits.' 155 U.S. 466, 467, 15 Sup. Ct. 158. 'If there be any subject over which it would seem the states ought to have plenary control, and the power to legislate in respect to which it ought not to be supposed was intended to be surrendered to the general government, it is the protection of the people against fraud and deception in the sale of food products. Such legislation may, indeed, indirectly or incidentally affect trade in such products transported from one state to another state. But that circumstance does not show that laws of the character alluded to are inconsistent with the power of congress to regulate commerce among the states.' 155 U.S. 472, 15 Sup. Ct. 154.

In Plumley's Case, it was accordingly adjudged by this court, affirming the judgment of the supreme judicial court of Massachusetts, that a statute of Massachusetts, imposing a penalty on the manufacture, sale, offering for sale, or having in possession with intent to sell, 'any article 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, which shall be in imitation of yellow butter produced from pure unadulterated milk or cream from the same,' was constitutional and valid, as applied to sales in Massachusetts of oleomargarine made in another state, artificially colored so as to look like yellow butter, and imported in the packages in which is was sold.

The necessary result of the decisions in Powell's Case and in Plumley's Case, and of the reasoning upon which those decisions were founde,  and by which alone they can be justified, appears to us to be that each state may, in the exercise of its police power, without violating the provisions of the constitution and laws of the United States concerning interstate commerce, make such regulations relating to all sales of oleomargarine within the state, even in original packages brought from another state, as the legislature of the state may deem necessary to protect the people from being induced to purchase articles, either not fit for food or differing in nature from what they purport to be; that the questions of danger to health, and of likelihood of fraud or deception, and of the preventive measures required for the protection of the people, are questions of fact and of public policy, the determination of which belongs to the legislative department, and not to the judiciary; and that, if the legislature is satisfied that oleomargarine is unwholesome, or that in the tubs, pots, or packages in which it is commonly offered for sale it looks so like butter, the only way to protect the people against injury to health in the one case or against fraud or deception in the other is to absolutely prohibit its sale, it is within the constitutional power of the legislature to do so. 

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