610 OLEOM AEG AEINE. 



down an opinion regarding this right which Swift & Co. says "goes 

 without saying." It was" the case of Plumley v. Massachusetts. Plum- 

 ley had been convicted under the Massachusetts law of selling a com- 

 pound known as oleomargarine, colored in semblance of butter. The 

 matter was carried to the supreme court of the State, where judgment 

 was affirmed; it was then taken to the Supreme Court of the United 

 States. The defense was that Plumley was held under a statute which 

 was unconstitutional for two reasons. 



The statute in that case prevented the sale of this substance in imi- 

 tation of yellow butter produced from pure unadulterated milk or cream 

 of the same, and the statute contained a proviso that nothing therein 

 should be "construed to prohibit the manufacture or sale of oleomar- 

 garine in a separate or distinct form and in such manner as will advise 

 the consumer of its real character, free from coloration or ingredients 

 that cause it to look like butter." The court held that a conviction 

 under that statute for having sold an article known as oleomargarine, 

 not produced from unadulterated milk or cream, but manufactured in 

 imitation 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 oleomarga- 

 rine, but only such as was colored in imitation of yellow butter pro- 

 duced from unadulterated milk or cream of such milk. If free from 

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

 sell it in a separate and distinct form and in such manner as would 

 advise the customer of the 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 

 oleomargarine for what it really is by preventing its sale for what it is 

 not; that the term "commerce among the States" did not mean a rec- 

 ognition of a right to practice a fraud upon the public in the sale of an 

 article even if it had become the subject of trade in different parts of 

 the country. 



Judge Harlan, in delivering this opinion, said: 



And yet it is supposed the owners of a compound which has been put in a condi- 

 tion to cheat the public into believing it is a particular article of food in daily use 

 and eagerly sought for by people in every condition of life are protected by the Con- 

 stitution in making a sale of it against the will of the States in which it is offered 

 for sale because of the circumstance that it is in an original package and has become 

 a subject of ordinary traffic. We are unwilling to accept this view. We are of the 

 opinion that it is within the power of a State to exclude from its markets any com- 

 pound manufactured in another State which has been artificially colored or adulter- 

 ated so as to cause it to look like an article of food in general use and the sale of 

 which may, by reason of such coloration or adulteration, cheat the general public 

 into purchasing that which they may not intend to buy. 



The Constitution of the United States does not secure to anyone the privilege of 

 defrauding the public. The deception against which the statute of Massachusetts 

 is aimed is an offense against society. The States are as competent to protect their 

 people against such offenses or wrongs as they are to protect them against crimes 

 or wrongs of more serious character, and this protection may be given without 

 violating any right secured by the national Constitution and without infringing the 

 authority of the General Government. A State enactment forbidding the sale ot 

 deceitful imitations of articles of food in general use among the people does not 

 abridge any privilege secured to citizens of the United States, nor in any just sense 

 interfere with the freedom of commerce among the several States. 



We further quote from numerous authorities: 



It has been uniformly held that the legislature, in the exercise of its police pow- 

 ers for the protection of the general welfare of the community and the promotion of 

 the public health, has the right to prohibit the manufacture and sale of any article 



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