94 OLEOMARGARINE. 



The difference between these two sections was that in the Massa- 

 chusetts law the phrase was, "shall be in imitation of yellow butter 

 produced from pure unadulterated milk or cream from the same," etc., 

 while in the Pennsylvania law, which was declared unconstitutional, 

 the language was, "Designed to take the place of butter or cheese." 



An examination of the pleadings in these cases reveals the fact that 

 the oleomargarine sold in each case was in the original package in 

 which it was imported into the State, and that all the provisions of the 

 act of Congress of August 2, 1886, had been complied with in each 

 case. 



In the Massachusetts case it was admitted in the pleadings that the 

 article sold was that forbidden b} r the statute; it was therefore made 

 in imitation of yellow butter; but that it was marked and distinguished 

 by all the marks, words, and stamps required of oleomargarine by the 

 laws of Congress and those of the Commonwealth of Massachusetts. 



In the Pennsylvania case it was conceded that the oleomargarine 

 sold was manufactured out of an oleaginous substance, not produced 

 from unadulterated milk or cream, and was designed to take the place 

 of butter as an article of food; " but the fact that the article was oleo- 

 margarine and not butter was made known by the defendant to the 

 purchaser, and there was no attempt or purpose on the part of the 

 defendant to sell the article as butter, or any understanding on the 

 part of the purchaser that he was buying anything but oleomargarine." 



The Supreme Court, in its opinion in the Schollenberger case, refer- 

 ring to the decision and opinion in the Plumley case, said: 



"This court held that a conviction under that (Massachusetts) 

 statute for having sold an article known as oleomargarine, not pro- 

 duced from unadulterated milk or cream, but manufactured in imita- 

 tion of yellow butter produced from pure unadulterated milk or cream, 

 was valid. Attention was called in the opinion to the fact that the 

 statute did not prohibit the manufacture or sale of all oleomargarine, 

 but only such as was colored in imitation of yellow butter produced 

 from unadulterated milk or cream of such milk. If free from colora- 

 tion or ingredient that caused it to look like butter, the right to sell it 

 in separate and distinct form and in such manner as would advise the 

 consumer of its real character was neither restricted nor prohibited. 

 The court held that under the statute the party was only forbidden to 

 practice in such matters a fraud upon the general public, that the 

 statute seeks to suppress false pretenses and to promote fair dealing 

 in the sale of an article of food, and that it compels the sale of oleo- 

 margarine for what it really is by preventing its sale for what it is not." 



The court further held that is, the court in the Schollenberger 

 case in reference to the Plumley case: 



" It will thus be seen that the case was based entirely upon the the- 

 ory of the right of a State to prevent deception and fraud in the sale 

 of any article, and that it was the fraud and deception contained in 

 selling the article for what it was not, and selling it so that it should 

 appear to be another and a different article that this right of the State 

 was upheld. The question of the right to totally prohibit the intro- 

 duction from another State of the pure article did not arise, and, of 

 course, was not passed upon." 



The only difference in the texts of the two statutes in question is 

 found in these phrases: In the Massachusetts statute these words are 

 used: '"Any article * * * which shall be in imitation of yellow 



