State v. Paxton & Gallagher Co.

Barnes, J.

In the district court for Lincoln county, the state instituted a prosecution against defendant for violating the pure food law by selling to Ernest T. Tramp, October 5, 1911, six half-gallon cans of improperly labeled or misbranded syrup. The trial court sustained a demurrer to the information and dismissed the prosecution. For the purpose of settling the question of law raised by the demurrer, an exception by the county attorney to the decision below is presented here under section 515 of the criminal code.

The information charged: “That Paxton & Gallagher Company, a corporation, on or about the 5th day of October, 1911, in the county of Lincoln then and there being did then and there wilfully and unlawfully sell to one Ernest T. Tramp, six cans of syrup, each of which said cans did contain a food product, composed of more than one ingredient, to wit, commercially pure cane syrup, and commercially pure maple syrup, and which said product was composed of 75 per cent, of said cane syrup and 25 *217per cent, of said maple syrup, and as thus prepared was offered for sale in said cans containing said mixture, and was composed solely as aforesaid, each of which said cans was then and there labeled and branded:

“ ‘i/2 Gallon,
«‘YELLOWSTONE “ ‘Brand “ ‘Pure
“ ‘SUGAR CANE SYRUP “ ‘and
“‘CANADIAN MAPLE SYRUP “ ‘Guaranteed equal to any blended syrup “ ‘on the market. Packed for “‘PAXTON & GALLAGHER CO.
“ ‘Omaha,' Neb/
“And there was not printed on the outside on the main label of said cans, or anywhere else on the outside of any of said cans, a correct statement of the percentage of cane syrup and the percentage of maple syrup of the contents of said cans, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Nebraska.”

The pure food law makes the sale of a misbranded article of food unlawful. Comp. St. 1911, ch. 33, sec. 22. It further provides that an article shall be deemed misbranded in the case of food: “If sold for use in Nebraska and in package form, other than canned corn; if every such package, as branded and named below, does not have a correct statement clearly printed, on the outside of the main label, of the contents * * * viz., all dairy products, lard, cottolene, or any other article used for a substitute for lard, wheat products, oat products and corn products, and mixtures, prepared or unprepared, sugar, syrup and molasses, tea, coffee, and dried fruit: * * * Provided, that an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated' or misbranded in the follow*218ing cases: First. In the case of mixtures or compounds which may he now, or from time to time hereafter, known as articles of food, under their own distinctive names, and not an imitation of, or offered for sale, under the distinctive name of another article, if the name he accompanied on the same label or brand with a statement of the place where said article has been manufactured or produced, * * * and in case of syrups the per cent, of each ingredient composing said food.” Comp. St. 1911, ch. 33, sec. 8.

Did the pure food law require defendant to state on its label or brand the percentage of each kind of syrup in its cans? It is agreed by both parties that this is the question presented. It is clear that the statute required defendant to place on each can a correct statement of the contents. Defendant contends that the label or brand copied in the information was such a statement. The state insists that any lawful statement includes the percentage of each syrup. In determining this question the purposes of the legislation, the evils against which it is directed, and the remedies provided must be considered. In Gran v. Houston, 45 Neb. 813, 825, this court said: “In giving a construction to a statute the court will consider its policy and the mischief to be remedied, and give it such an interpretation as appears best calculated to advance its object by effectuating the design of the legislature.”

It is well understood, and often stated by the courts, that the promotion of honesty and fair dealing in the sale of foods is one of the purposes of pure food laws. Imposition and fraud arising from the custom of inclosing food in packages for the purposes of sale and delivery, without being opened, are among the evils which called for, and resulted in, the legislation on this subject. The legislative remedies require dealers in some form to make certain packages of food show what they contain, and how much, and to submit to punishment for failure to comply with such requirements. As applied to the cans of syrup sold by defendant, what, in the light of the purposes, *219evils and remedies considered in the pure food law, is meant by the term “correct statement of the contents”? Each half-gallon can contained two distinct kinds of syrup. The maple syrup has a distinct character and quality of its own. It is known to be more expensive than cane syrup. If the label used did not indicate that the quantity of cane syrup in a can was the same as the maple, there was nothing on the outside of the package to show the proportion of each. The demurrer admits that 25 per cent, only was maple syrup. The quantity thereof was not stated on the label. As applied to the contents of a can containing two distinct kinds of syrup of different quality and value, the quantity of each kind is as clearly within the purposes, evils and remedies affected by the pure food law as the names of the syrups. A “correct statement of the contents,” therefore, included the quantity or proportion of the different syrups, as well as the name of each. In this view of the law, the demurrer should have been overruled. It follows that exception of the county attorney is sustained.

Exception sustained.-

Reese, C. J., not sitting.