Commonwealth v. Shirley , 152 Pa. 170 ( 1893 )

Opinion by

Mr. Chief Justice Paxson,

The constitutionality of the act of assembly, approved May 21,1885, P. L. 22, entitled “ An act for the protection of public health, and to prevent the adulteration of dairy products, and fraud in the sale thereof,” was settled by Powell v. The Commonwealth, 114 Pa. 265. While we listened patiently to an elaborate discussion of the same question in this case, we are not disposed to go over it again, or to reopen the subject. It remains to consider whether the judgment entered against the defendant was justified by the facts set forth in the case-stated.

A large portion of the case-stated is taken up with the description of the article, called oleomargarine, and the process of its manufacture. All this was entirely irrelevant to the matter before the court. The act of assembly having prohibited its manufacture and sale, it is immaterial of what it is composed, or how made. It further appears that the oleomargarine, sold and kept on sale by the defendant, was manufactured in the state of Illinois, where it is lawful to manufacture and sell the same, and that every pound thereof was duly accounted for to the government of the United States. The same was brought into the state of Pennsylvania in a package plainly marked “ Oleomargarine Butter.” It also appears that after said package was brought into said state, it had been broken, and the contents separated for the purpose of retail.

From the ease-stated it further appears that on the 21st day of December, A. D. 1891, the defendant did, in the county of Allegheny, have in his possession with intent to sell, and did expose for sale and did sell, one pound of oleomargarine as an article of food. And that on the day and year aforesaid at the county aforesaid, after the aforesaid sale, the defendant had other of the same substance in his possession with intent to sell, and exposed the same for sale as an article of food.

Upon this state of facts the court below entered judgment in favor of the commonwealth, and against the defendant in the sum of two hundred dollars and costs.

This suit was brought in the court below to recover the penalty provided by the act of 1885, before mentioned, for the sale of oleomargarine. It is enacted by the first section of said act: “ That no person, firm or corporate body shall manufacture out of any oleaginous substance, or any compound of the same, other than produced from unadulterated milk or from cream from the same, any article designed to take the place of butter or cheese, produced from pure or 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.”

Section four of the same act provides that “ Every person who violates the provisions of the first section of this act shall be deemed guilty of a misdemeanor, and, upon conviction, shall be punished by a fine of not less than one hundred dollars, nor more than three hundred, or by imprisonment in the county jail for not less than ten, or more than thirty days, or both such fine and imprisonment for the first offence, and imprisonment for one year for every subsequent offence.”

The learned judge below gave judgment upon the theory that one sale of oleomargarine was a completed offence, and that the subsequent exposure of the substance for sale rendered the defendant liable to a second penalty. He therefore gave judgment against the defendant for the sum of two hundred dollars.

The correctness of this proposition may well be doubted. It is true, the sale of the article on the day referred to constituted a complete offence, and had the ease-stated set forth the fact, that upon a subsequent day the defendant exposed the like article for sale, it would have constituted another and complete offence. It appears, however, that all this occurred upon the same day. The exposure of it resulted in a sale, and for this sale the defendant was properly fined. It.is not the policy of the law to multiply penalties, and' we do not think the defendant can be punished both for exposing for sale, and for selling on the same day, when, as here, it appeared to be a single transaction.

It will be noticed, however, that by the fourth section of the act of 1885, before referred to, the defendant was liable to the maximum fine of three hundred dollars, for the one offence of the sale of oleomargarine. It follows that the judgment of two hundred dollars was authorized by the act. The judgment being lawful, we cannot reverse it, although an erroneous reason may have been given by the learned judge below for imposing it.

Judgment affirmed.

(See. also, tlie next ease.)