State v. Armour & Co.

Fisk, J.

(dissenting). I cannot concur in the conclusions reached hy the majority. Much that is said in the majority opinion concerning abstract propositions of law is coneededly correct and no longer open to debate in the courts. Indeed, counsel in the case at har do not disagree in the least upon those fundamental and well-settled rules; nor do they seriously differ in any respect other than in the application of such rules to the case in hand.' I take it for granted that all must agree that, in its exercise of the so-called police power of the state, the legislature does not have absolutely a free hand, but is restricted by certain constitutional limitations, and that it is the solemn duty of the courts, when called upon so to do, to uphold such constitutional limitations by pronouncing any act null and void which plainly transgresses them. Instead of the legislature being the exclusive judges, it is for the courts to determine whether an attempted exercise of such police power is necessary for the public welfare, or whether it is a mere arbitrarily, unnecessary, and capricious interference with the legitimate business of the citizen.

I am, therefore, unwilling to sanction the doctrine that because Professor Ladd, who concededly stands high in the public estimation as an expert on pure foods and pure drugs, drafted the bill which finally became the act in question, and that such legislation successfully found *209its way upon our statute books through the friendly offices of both the legislative and executive departments of the state, that this gives it a carte blanche which the courts are in duty bound to respect. If such a doctrine is to receive the sanction of the courts, I fear, that serious consequences may result, even through the best of intentions on the part of such distinguished experts as Professor Ladd, although in good faith sanctioned by legislative and executive authority. That such doctrine is not the law, I think the courts have spoken in no uncertain language. A mere statement of the proposition ought to suffice to disclose its fallacy. In support of my position I deem it entirely useless to do more than refer to a few expressions of the courts and law writers upon the question.

The supreme court of Illinois has said: “When the police power is asserted for the purpose of regulating a useful business or occupation and the mode in which that business may be carried on or advertised, the legislature is not the exclusive judge as to what is a reasonable and just restraint upon the constitutional right of the citizen to pursue his calling and to exercise his own judgment as to tJtie manner of conducting it.” Ruhstrat v. People, 185 Ill. 133, 49 L.R.A. 181, 76 Am. St. Rep. 30, 57 N. E. 41, 12 Am. Crim. Rep. 453, and cases cited.

The United States Supreme Court in Lawton v. Steele, 152 U. S. 133, 38 L. ed. 385, 14 Sup. Ct. Rep. 499, in speaking upon this subject through Mr. Justice Brown, said: “To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that, the interests of the public generally as distinguished from those of a particular class require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts.”

As is very aptly stated by Freund on Police Power, § 494: “To prevent an abuse of the police power for the alleged protection of health or safety, or the alleged prevention of fraud, the courts must be allowed to judge whether restrictive measures have really these ends in view. A *210remote and slight danger should not be recognized as a sufficient ground of restriction, and the provisions of the law should be scrutinized in order to see whether they in reality tend to effectuate their object.”

Upon the question of the police power of a state and the restrictions upon its exercise, Marshall, J., in speaking for the supreme court of Wisconsin in a recent case, very exhaustively and accurately stated what I deem to be sound. Among other things, he said:

“It is conceded that the legislation in question was an attempt to exercise the police power of the state, which is inherent in sovereign authority under such limitations as exist in the national and state Constitutions, and that if as a police regulation it is not legitimate, it is not the law though possessing the form thereof. A legislative enactment approved by the executive, and duly published, is not necessarily a law or binding on anyone in respect to his liberty, his business, or his property. It is such if it is susceptible 'of passing the judicial test of whether it is warranted by the fundamental law, which our constitutional system contemplates may be applied to all such enactments. Perhaps the thought sometimes expressed that the vital feature suggested, which every good law must possess, is not as fully appreciated by the lawmaking power as it ought to be, leading to infractions of some express limitation as well as that broad general restriction of legislative power contained in the declaration that ‘all men are born equally free and independent, and have certain inherent rights; among these are life, liberty, and the pursuit of happiness; to.secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.’

Too much dignity cannot well be given to that declaration. That it was intended to cover a broad field not practicable to circumscribe by any specific limitation or limitations cannot well be doubted. This court has given thereto its proper place in unmistakable language, particularly in recent decisions. Durkee v. Janesville, 28 Wis. 464, 471, 9 Am. Rep. 500; State ex rel. Adams v. Burdge, 95 Wis. 390, 37 L.R.A. 157, 60 Am. St. Rep. 123, 70 N. W. 347; State ex rel. Kellogg v. Currens, 111 Wis. 431, 435, 56 L.R.A. 252, 87 N. W. 561; State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530, 58 L.R.A. 748, 91 Am. St. Rep. 934, 90 N. W. 1098; State ex rel. Jones v. Froehlich, 115 Wis. 32, 42, 58 L.R.A. 757, 95 Am. St. Rep. 894, 91 N. W. 115; State ex rel. Mil*211waukee Medical College v. Chittenden, 127 Wis. 468, 521, 107 N. W. 500. Doubtless the fathers of the Constitution foresaw the likelihood and danger of the security of personal rights, which the fundamental law was intended to firmly intrench with the judiciary as its efficient defender, being jeopardized at times by excessive regulation of the ordinary affairs of life, and, with that in view, incorporated in the fundamental law at § 22, article 1, that admonition so full of meaning: ‘The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.’

The idea is found expressed now and then, that the police power is something not dealt with or affected by the Constitution, at least in any marked degree, which is a mistake hardly excusable. The error suggested here and there, that the police power is ‘a sovereign power in the state, to be exercised by the legislature, which is outside, and in a sense above, the Constitution (Donnelly v. Decker, 58 Wis. 461, 46 Am. Rep. 637, 17 N. W. 389, or that a police regulation which is clearly a violation of express constitutional inhibition is legitimate, subject to a judicial test as to reasonableness. . . . (Tiedeman, State & Federal Control of Persons & Property, § 3), or that no police regulation, not condemned by some express constitutional prohibition, is illegitimate, or that legislation not so condemned is legitimate if the lawmaking power so wills, though it violates some fundamental principles of justice, or that the reasonableness of a police regulation, and whether it unjustly deprives the citizen of natural rights, is wholly of legislative concern (Hedderich v. State, 101 Ind. 564, 51 Am. Rep. 768, 1 N. E. 47), and others of a similar character now and then found in legal opinions and text-books, are highly misleading’ and have been distinctly discarded by this court. State ex rel. Milwaukee Medical College v. Chittenden, supra. As was there said, ‘If it were true that all police regulations are legitimate which are reasonable, and all are reasonable which the legislature so wills, the Constitution as to very much of the field of civil government would be of no use whatever. The contrary has been the rule without any legitimate question since Marbury v. Madison, 1 Cranch, 137, 2 L. ed. 60.’

“The following significant expressions of this court as to the consti*212tutional limitations in the exercise of the police power leave nothing further to be said on the subject:

‘As the police power imposes restrictions and burdens upon the natural and private rights of individuals, it necessarily depends upon the law for its support; and, although of comprehensive and far-reaching character, it is subject to constitutional restrictions. . . .' State ex rel. Adams v. Burdge, 95 Wis. 390, 398, 37 L.R.A. 157, 60 Am. St. Rep. 123, 70 N. W. 347, 349.” State v. Redmon, 134 Wis. 89, 14 L.R.A.(N.S.) 229, 126 Am. St. Rep. 1003, 114 N. W. 137, 15 Ann. Cas. 408.

Judge Marshall, in the above case, defines the term “police power” as “the power to make all laws which in contemplation of the Constitution promote the public welfare.” And he says “that both defines the power and states the limitations upon its exercise, it being understood that it is a judicial function to determine the proper subject to be dealt with, and that it is a legislative function, primarily, to determine the manner of dealing therewith, but ultimately a judicial one to determine whether such manner of dealing so passes the boundaries of reason as to overstep some constitutional limitation> express or implied. This court, in common with others, has said that the police power extends to legislation, regulating, reasonably — that is, to an extent not entering the realms of the destructive — all matters appertaining to the lives, limbs, health, comfort, good morals, peace, and safety of society. ...

As it is a judicial function to define the proper subjects for the exercise of police power (Lake View v. Rose Hill Cemetery Co. 70 Ill. 191, 22 Am. Rep. 71), it must be to decide, as to any enactment, whether it really relates to a legitimate subject, or under the guise of doing so violates rights of persons or property. The idea that all legislation is within the police power which the lawmaking authority determines to be so, and that all which might be within such power is within it if the legislature so determines, is, as we have seen, a heresy, and one which was repudiated sufficiently for all time by the early decision, heretofore referred to, in Marbury v. Madison, supra, the American classic which first and conclusively defined the general character of the constitutional limitations and the relations of the legislature and the judiciary thereto and to each other. The doctrine there laid down *213more than a century ago in the unanswerable logic of Chief Justice Marshall has never been departed, from, except accidentally, inconsiderately, or ignorantly.

These words of the Supreme Court of the United States, speaking by Mr. Justice Harlan, in Mugler v. Kansas, 123 U. S. 623, 661, 31 L. ed. 205, 210, 8 Sup. Ct. Rep. 273, 297, express in a different form the spirit of the opinion in Marbury v. Madison, supra:

'The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.’ . . . It is not every enactment which will, to some extent, promote the public health, comfort, or convenience, which is legitimate. Otherwise the way would be open for legislative interference with the ordinary affairs of life to an extent destructive of many of the most valuable purposes of civil government. An expert on sanitation, or one on the manner of living best calculated to promote long and enjoyable life, who has become an enthusiast in his special study of the matter, could doubtless suggest a multitude of really, or apparently, good rules to be followed; the temperature of the air of sleeping rooms, the proper size of the rooms as regards the number of occupants, the arrangements for frequently changing the air by displacing that within for that without the habitation, the hours for sleeping, for retiring, and for arising, the amount and kind of food to eat, the proper number of meals per day, the proper admixture of solids and liquids, and length of time for each meal, the amount and kind of exercise required, and other things too numerous to mention might be suggested for legislative interference, each with a provision for severe penalty for its violation, with a division of the penalty, perhaps, between the informer and the public, till one would be placed in such a strait-jacket, so to speak, that liberty and the pursuit of happiness, the incentive to industry, to the acquirement and enjoyment of property, — those things commonly sup*214posed to make a nation intelligent, progressive, prosperous, and great,— would be largely impaired and in some cases destroyed. That such an extreme would be regulation run mad, and is quite improbable, ’tis true, but it would be possible without limitations of some sort, if a police law be conclusively legitimate merely because it promotes, however trifling in degree, public health, comfort, or convenience.”

That police regulations must bear the judicial test of reasonableness under the circumstances is well settled. Plessy v. Ferguson, 163 U. S. 537, 41 L. ed. 256, 16 Sup. Ct. Rep. 1138; Rideout v. Knox, 148 Mass. 368, 2 L.R.A. 81, 12 Am. St. Rep. 560, 19 N. E. 390.

The highest court in our land in the recent case of Lochner v. New York, 198 U. S. 45, 49 L. ed. 937, 25 Sup. Ct. Rep. 539, 3 Ann. Cas. 1133, announced the principle that the individual right to make contracts in relation to business is a part of that liberty protected by the Constitution. The court there fully vindicates the right of the individual to freedom in the' conduct of any legitimate business and his right to make contracts accordingly.

The New York court of appeals in the recent case of Schnaier v. Navarre Hotel & Importation Co. 182 N. Y. 83, 70 L.R.A. 722, 108 Am. St. Rep. 790, 74 N. E. 561, announced a principle in harmony with the foregoing. In condemning as unconstitutional a statute requiring that every employing or master plumber shall be registered and hold a certificate of competency from the examining board of plumbers of the city, the court said: “It is not within any reasonable or proper exercise of the police power, since a provision for the registration of the firm as such, or for the registration of one or more members of the firm who were skilled plumbers to act for the firm, would be a sufficient protection to the public from all the dangers that the legislation was supposed to prevent or mitigate.”

According to the reasoning of the majority opinion in the case at bar, as I construe it, the question of the sufficiency of the protection afforded the public under the facts in the New York case would be held a legislative, and not a judicial, question.

"With these preliminary observations and the foregoing well-entrenched rules as to the limits controlling the legislative exercise of the police power in mind, I approach a consideration of the act in question, which is chapter 236, Laws 1911.

*215Such act purports to regulate “weights, measures, and count of food products.” Section 2 reads: “Every lot of lard or lard compound or of lard substitute, unless sold in bulk, shall be put up in pails or other containers holding one (1), three (3), or five (5) pounds net weight, or some whole multiple of these numbers, and not any fractions thereof. If the container be found deficient in weight, additional lard, compound, or substitute shall be furnished to the purchaser to make up the legal weight. The face label shall show the true name and grade of the product, the true net weight, together with the true name and address of the producer or jobber. . .

Appellant was informed against and convicted for selling to one E. F. Ladd “a quantity of lard, and not in bulk, which said lard was then and there put up, sold, and delivered to said E. F. Ladd in a pail which then and there held more than 2 pounds and less than 3 pounds net weight of lard, to wit, 2 pounds and 6 ounces of lard, and which said pail or container did not then and there have or display on the face label thereof the true net weight of said lard in even pounds or whole multiples thereof, but expressed the weight of the lard in pounds and ounces.” The quotation is taken from the information, and it should be noted that the only complaint is that the pail did not contain even pounds, it being expressly alleged that the true net weight was stated on the face label thereof in pounds and ounces. Defendant appeals from the judgment of conviction.

The statute is assailed as unconstitutional upon various grounds, but two of which I need notice.

Appellant contends that the act Complained of is unnecessary, unreasonable, arbitrary, and capricious as applied to the lard industry at the date of the passage of the act; and as a side-light to show the correctness of such contentions it offered at the trial a large mass of testimony showing the growth and development of the lard industry, the business methods in vogue in the conduct of such industry at the date the act was passed, and also showing the effect-of such act upon this industry. Such testimony is uncontradicted, and while the same is not necessarily of controlling or any particular weight in determining the constitutionality of the law in question, I here give space to the following summary of such testimony as stated in appellant’s brief:

“Lard is not used as a food by itself, but only in the preparation, of *216foods. .It is a pastry shortening and cooking fat. It bears the same general relation to foods in the domestic economy as seasoning or spices, on the one hand, and butter and oils, on the other. The original shortening and cooking facts were vegetable products, notably olive oil, cocoanut oil, peanut oil, and a considerable number of other similar vegetable oils. Indeed these oils have all along been used in large quantities for these purposes. To them should be added cotton-seed oil, which is one of the most popular and commonly used shortening products at the present time. By a process of hardening and bleaching these oils have the general appearance and consistency of lard, and are-, put up in pails of similar size and shape.
“Aside from the production of lard in the home and retail market, the principal source of supply is the packing establishments. In these establishments lard is a by-product, utilizing the fat of the hog remaining after taking away the portions that commonly go into hams, bacon, pork loins, and pork sides. The relative proportion of lard from these various sources at present sold in North Dakota has been estimated at 40 per cent produced by local meat markets, 20 per cent by consumers, and 40 per cent by packing establishments.
“Originally lard was sold only in tierces or tubs, a method of sale commonly referred to as in 'bulk,’ but early in the industry there arose a demand for smaller packages of a size suitable for the consumer, and this demand has been supplied by lard in pails. The demand for this style of package began about the year 1880, and has grown until at the present time about 40 per cent of the lard sold by the defendant in the United States is put up in pails.
“The advantages of the handling of lard in pails are numerous to-the manufacturer, dealer, and consumer; namely (a) the improved keeping and handling qualities of the article, both in the store and home;, (b) the protection to the public against careless or dishonest tradesmen as to the quantity given; (c) the greatly improved sanitary condition of the product; (d) the preservation of its freshness, wholesomeness,, and bright appearance, which qualities are largely lost by exposure to-the atmosphere; and (e) the greater convenience to the merchant in that it is already weighed and put up, and to the housewife in that it. is delivered in a suitable receptacle for keeping the product, which receptacle may be afterwards used for other purposes.
*217“From the beginning of the industry lard in pails has always been sold in gross weight packages. Manufacturers have always filled the packages to the full gross weight. There has been no disposition to give short weights.
“From the beginning the price has always been based upon the price of the same grade of bulk lard, to which has been added only the cost of the labor and material required to make this convenient and sanitary package.”

Attention is called to the fact that for a great many years all products sold by weight in package form have been sold on the basis of gross weight, and that this is well understood by dealers, as well as by the public generally, and has been recognized as a legitimate business method, and counsel for appellant argue that the effect of the law in question strikes a blow at this long-established standard or method in the business world, and arbitrarily substitutes one heretofore unknown in the industry.

The evidence discloses that the appellant maintains packing establishments at numerous large centers throughout the country, at each of which points lard is prepared by it for the market. That defendant manufactures its own pails of tin of a specified weight and size, and that in such manufacture it has installed complicated machinery at great expense, and that the pails used by it at the time this prosecution was instituted consisted of twenty different styles and sizes, requiring an equipment of special material, machinery, and appliances at each of its plants for the different styles and sizes of such pails, and it offered expert testimony to show the expense which it would be put to in complying with the act in question in order to supply its North Dakota trade. It is, of course, perfectly apparent to anyone, and it needs no testimony to show, that to comply with this law the various lard manufacturers would be put to an enormous expense, which ultimately would have to be borne by the consumers of lard in this state. Such fact, however, is not a controlling consideration, but merely a sidelight tending for what it is worth to shed light upon the reasonableness or unreasonableness of the act in question. If the legislature in the enactment of such statute did not transcend the due exercise of its police powers, and if the act in no way infringes the mandates of the Federal or state Constitutions, then it is clearly our duty to uphold the same, *218however onerous its provisions may prove to be, either to the manufacturers of lard or to the consumers thereof. This, of course, goes without saying, for it is elementary.

One of the crucial questions for determination is whether the provisions of the act requiring the pails to contain .“one (1), three (3), or five (5) pounds net weight, or some whole multiple of these numbers, and not any fractions thereof,” is a reasonable, and not a purely arbitrary and capricious, requirement. Appellant does not question the power of the legislature to require the net weight of the article to be stated upon the outside of the wrapper or container, and whether appellant has complied with chapter 195, Session Laws of 1907, thus prescribing, as well as the other requirements of that law, in regard to the matters to be stated upon such wrapper, is not here in question. I do not think it can be successfully contended that the method thus universally in vogue in the lard industry at the time this law was enacted in any way tended to deceive or mislead the purchaser as to the weight and contents of the pails. It would seem clear, therefore, that there was and is no necessity or justification for that portion of the 1911 enactment here challenged. Will a package or pail of lard containing an even number of pounds (net weight) with a necessary gross weight somewhat larger, tend in any respect to protect the purchasers from fraud or deception to any greater degree than packages containing a net weight in pounds and ounces, when such net weight is plainly noted on the outside wrapper ? Is it, in other words, within the proper exercise of the police power to prescribe that lard in pails cannot be sold except in certain designated quantities?

Again, is it within the legitimate exercise of legislative power to prescribe, as is attempted to be done in § 2 of the act, a different classification as to the lard industry from that prescribed for all other industries in §§ 1 and 3 thereof, the former relating generally to all articles of food and beverages, and the latter specifically relating to bread? By §§ 1 and 3 no restrictions whatever are placed upon the size of the packages. All food products, except lard, may be sold in any quantity, provided that the net weight of the contents of such packages, excluding the wrapper, is “stated in terms of pounds, ounces, and grains avoirdupois weight,” or in case of articles sold by measure, is stated in “terms of gallons of 231 cubic inches or fractions thereof, as quarts, *219pints, and ounces.” And bread is authorized to be sold in whole, half, and quarter loaves, and, “when plainly labeled with the exact weight thereof,” may be sold in any size or quantity. In other words, lard is singled out from among all the food products and beverages, and placed in a class by itself in so far as the quantity which may be sold in a package is concerned. Why the legislature deemed such a distinction necessary I am wholly at a loss to understand. Neither the majority of the court nor counsel for the state have advanced any reasonable explanation for such discrimination, and I am forced to the conclusion that the attempted classification rests upon no natural nor reasonable ground, but is manifestly purely arbitrary and capricious. This appears so palpable and self-evident to my mind after due reflection, that I have no hesitancy, for this reason alone, in pronouncing the act unconstitutional and void upon its face. In Millett v. People, 117 Ill. 294, 57 Am. Rep. 869, 7 N. E. 631, the court on this question said: “We recognize fully the right of the general assembly, ... to prescribe weights and measures, and to enforce their use in proper cases; but we do not think that the general assembly has power to deny to persons in one kind of business the privilege to contract for labor and to sell their products without regard to weight, while at the same time allowing to persons in all other kinds of business this privilege, there being nothing-in the business itself to distinguish it in this respect from any other kind of business.”

As we have seen, the so-called police power of a state does not confer upon the legislature an absolutely free hand in prescribing rules and regulations of the character in question. Legitimate business transactions cannot be hampered or restricted or otherwise interfered with by the legislature, except to the extent reasonably required for the proper protection of the public interests or the public welfare. If the attempted police regulation clearly extends beyond the supposed threatened evil, and is manifestly capricious and wholly arbitrary, it, to that extent, constitutes an unwarranted interference with the rights of the citizens to contract, and it becomes the plain duty of the courts to interfere by adjudging such attempted regulation void.

The act in question deals confessedly with a legitimate trade industry, and the only possible justification for the attempted regulation is upon the ground that it is necessary to prevent fraud. But, as before *220stated, I am wholly unable to perceive how the enforcement of such new statutory restriction will, or possibly can, operate in the least degree-to this end. And moreover, conceding that it will to some slight degree thus operate, is this not manifestly true as to all other staple food products covered by the act ? Is there, in the nature or character of the lard industry, anything to differentiate it in the manner here attempted from the many other food industries sufficient to warrant a special rule applicable alone to the former ? I think not, and this unwarranted discrimination is alone sufficient to condemn the statute.

3Hy attention has been called to no statute elsewhere under which such an exercise of the police power has been attempted by any legislature. A statute in Tennessee which was upheld by the supreme court of that state in the case of State v. Co-operative Store Co. 123 Tenn. 399, 131 S. W. 867, Ann. Cas. 1912C, 248, is the nearest like the act in question of any I have discovered. The statute there in question made it unlawful for any person “to pack for sale, sell, or offer for sale in this state any corn meal except in bags or packages containing by standard weight 2 bushels or 1 bushel or -J bushel or ^ bushel or bushel respectively.” Such act also provided that “each bag or package of corn meal shall have plainly printed or marked . thereon, . . . the amount it contains in bushels or fraction of a bushel, and the weight in pounds: Provided, the provisions of this section shall not apply to the retailing of meal direct to consumers from bulk stock when priced and delivered by actual weight or measure.” A violation thereof was made a misdemeanor. In sustaining the law against an attack upon the ground that it attempts to abridge the right of persons to contract, and deprives them of their liberty and property without due process of law, the court, among other things, said: “The object of this statute, is the prevention of fraud in the sale of one of the most common articles of commerce and food. The fraudulent practice sought to be suppressed is the sale of packages of com meal, purporting, expressly or by implication, to contain certain weights and measures for which the purchaser is charged, when in fact they contain less quantities, whereby the public is deceived and defrauded to the extent of the deficiency in weight or measure of the -package purchased. The prevention of fraud in general has always been recognized as well within the police power. Statutes enacted for this purpose, and which have a fair, just, and reasonable *221relation to the preservation of the lives, health, morals, and general welfare of the public, do not contravene the constitutional provisions here relied upon, although they may interfere to some extent with individual •liberty and the free use and enjoyment of private property.”

I have no quarrel with the reasoning or conclusion of that able court in the light of the facts of that case, but the statute in the case at bar is plainly distinguishable from the Tennessee act in at least one important particular. At the time of the passage of the Tennessee law there was a well-recognized evil to be remedied. The act conclusively shows this by the language therein, “that whereas the practice in this state of putting up and selling meal in shortweight packages is against the public welfare and the interest of legitimate trade.” The portion of the above-quoted opinion also expressly recognizes the existence of such fraudulent practice. It is to be noted, also, that the points that the act was an unnecessary and unreasonable exercise of the police power of the state, and that the same constituted an unwarranted discrimination and was class legislation, were not urged or raised by the defense. An entirely different situation is presented in the case at bar, as already ■observed. None of the numerous authorities cited and relied upon by the Tennessee court involved facts parallel with those in the case at bar, and I am satisfied that the North Dakota statute is, in the light of the undisputed facts, unique in the history of such legislation.

The contention that purchasers are or may be deceived in the quantity of lard purchased where the pails are not of the size prescribed in this act is, I think, not tenable; for, as above stated, the true net weight is required to be plainly stated on the outside wrapper of each pail. At least, this is all that in reason ought to be required in order to furnish such information, where, as appears here, no actual or attempted fraud or deception has- ever been practised by the manufacturers or vendors of lard in this form. It is difficult to comprehend how such deception can ■occur to any appreciable extent, but if it does, how is the purchaser injured thereby when he gets all the lard which he pays for ? The fact that he is, in addition, required to pay for the container and wrapper, •and the added expense of putting it up in this sanitary form, affords no just ground for complaint, nor does it justify the act in question. This is true as to any sized pail, and is according to a long and well-*222established general custom of the trade of which he is presumed to have knowledge.

In State v. Hanson, 118 Minn. 85, 40 L.R.A.(N.S.) 865, 136 N. W. 412, Ann. Cas. 1913E, 405, a statute providing in substance that no person, firm, or corporation shall manufacture or sell oleomargarine which shall be in imitation of butter of any shade or tint of yellow, unless-such oleomargarine shall be made and kept free from all coloration or ingredients causing it to look like butter of any shade or tint of yellow,, nor unless the same shall be kept and presented in a separate and distinct form, and in such manner as will advise the purchaser and consumer of its real character, was held unconstitutional for reasons therein stated. The decision is not particularly in point here, but I think certain reasoning in the opinion lends support to my views as above, stated. I quote: “We construe the law, therefore, as making criminal the sale or manufacture of oleomargarine purposely made of any shade or tint of yellow, whether the tint or shade be dark yellow, golden, or light yellow. Even as so construed, § 1 of the law might be sustained as a valid exercise of the police power, if it made proof of an intent to-deceive or defraud the purchaser or consumer essential to a conviction. And it would be immaterial that no artificial-coloring was used, or that the product was entirely wholesome, was exactly like butter in taste, or was in fact butter. The purchaser is entitled to know what he is buying; and any law enacted to prevent fraud or deceit, and having any fair tendency in that direction, would be valid. But this law does not make the intent to deceive or defraud essential to a conviction of a violation of § 1. Intentionally making oleomargarine of a shade or tint of yellow is made criminal, without proof of an intent to deceive. This being so, the law cannot be sustained, unless there is a reasonable probability that the purchaser or consumer will be deceived by the yellow shade or tint into buying or eating oleomargarine, mistaking it for butter. . . . The power of the legislature to regulate its manufacture and sale rests, not upon the right to legislate in the interest of the public health, but upon the undoubted right to enact laws to protect the public against fraud and deception, to suppress false pretenses, and promote fair dealing in an article of food. But we are quite unable to perceive how there is any but a remote possibility of deceiving the purchaser or consumer by making oleomargarine imitate butter in color, whether *223it be a conscious or accidental imitation. The intent to make oleomargarine of a shade or tint of yellow by the selection of ingredients is no evidence of an intent to deceive either purchaser or consumer. Oleomargarine is made to resemble butter of a yellow color, not to deceive anybody, but because the public buys the substitute if it has the yellow shade, but refuses to buy it if it has a light shade. The intent is not to deceive the public, but to make an article which will find a market. It seems clear, not only that there was no intent to defraud or deceive, but that the color of the product has, in view of the stringent provisions of the law that clearly tend to prevent deception, no fair tendency to make either purchaser or consumer mistake oleomargarine for butter.”

The court then refers to the provisions of law relating to placards upon the tubs or packages in which it is exposed for sale, to the wrappers, stamped with the word “oleomargarine,” in which the retail dealer is required to deliver it to the purchaser, and other like provisions and says: “It may be suggested that the guests of a private housekeeper have not this protection, or that store, hotel, or restaurant proprietors may not obey the law as to placards, or that a purchaser who cannot read may be deceived. But, granting that there may be a few instances where, by mistake, the consumer may take into his system oleomargarine, when he thinks he is eating hutter, does this furnish a ground upon which the legislature can prohibit the manufacture and sale of a perfectly wholesome and healthful article of food? On the record before us, such a deception would be wholly without damage. In its last analysis, it is a mere matter of sentiment.”

In a prior portion of the opinion it is also said: “There can be, however, no intent to deceive the purchaser or consumer, as the provisions of the law concerning labels on packages and wrappers are fully complied with. It is utterly impossible for the purchaser to be deceived.”

The majority opinion cites certain decisions upholding the validity of ordinances prescribing the weight of loaves of bread. People v. Wagner, 86 Mich. 594, 13 L.R.A. 286, 24 Am. St. Rep. 141, 49 N. W. 609, is one of the cases cited, but I find in the opinion the following language, which serves to differentiate this case from the case at bar. I quote: “Sales are invariably made in loaves of the size of 1, 2, or 4 pound packages, and the ordinance simply takes the usual and ordinary *224package or loaves in which bread is made and fixes the standard of weight of each package. It does not prohibit the sale of bréad by weight if it overruns, as it is claimed it sometimes does, nor does it prohibit the exaction of an increased price by reason of the additional weight. It does not prohibit the sale of a half or a quarter or any other fraction of a loaf.”'

In the case at bar the undisputed proof shows a well-established custom in the lard industry to put lard up in pails of the size of 3, 5, 10, and 20 pounds gross weight, but containing a label showing their net weight. The legislature, therefore, by § 2 of the act in question, has not attempted to standardize these packages in accord with such general established custom, but it seeks to force a radical departure therefrom, without the least resulting benefit to anyone. It is to be observed that by § 1 the legislature has, on the contrary, recognized the existing general trade custom as to all other food products as to weight, measure, and numerical count.

I have examined the opinions in the other so-called bread cases relied oh, and I think practically all, if not all,, of them may be differentiated in like manner from the case at bar.

In this connection see Buffalo v. Collins Baking Co. 39 App. Div. 432, 57 N. Y. Supp. 347, where the court upheld the lower court’s decision reported in 24 Misc. 745, 53 N. Y. Supp. 968, holding an ordinance fixing the weight of loaves of bread at not less than impounds each, and prohibiting sales thereof in any other size, to be unconstitutional and void, under facts quite analogous to those in the case at bar, as an unreasonable exercise of the police power, and an unwarranted interference with the rights of persons engaged in a legitimate business. I think the reasoning and conclusion of the court are sound, both on principle and authority.

I think that the portion of the act here in question is unconstitutional, and that it is our plain duty to so decide.

In what I have above stated I do not wish to be understood as holding that this whole act is unconstitutional, but merely that portion of § 2 prescribing the sizes of the pails or packages. The objectionable feature may be eliminated without affecting the balance of the Act.

I think the judgment should be reversed.

Spalding, Ch. J. I concur in the above.