The judgment of the state court in this case was based upon the
consideration given by it to all the asserted violations of the
statutes jointly, and hence no one of the particular violations can
be said, when considered independently, to be alone adequate to
sustain the conclusions of the court below that a judgment of
ouster should be entered.
The contention that the statutes of Ohio in question are
repugnant to the commerce clause of the Constitution is without
merit. Those statutes were, the act of 1884, the act of 1886, and
the act of 1890, all referred to in the opinion, and all relating
to the sale of drugs or articles of food, and especially
oleomargarine.
The Fifth Amendment to the Constitution operates solely on the
national government, and not on the states.
The Legislature of Ohio had the lawful power to enact the
statutes in question, and so far as they related to the manufacture
and sale of oleomargarine within the Ohio by a corporation created
by the laws of Ohio, they were not repugnant to the Constitution of
the United States.
This Court, on error to a state court, cannot consider an
alleged federal question, when it appears that the federal right
thus relied upon had not been, by adequate specification, called to
the attention of the state court, and had not been considered by
it, it not being necessarily involved in the determination of the
cause.
The case is stated in the opinion of the Court.
MR. JUSTICE WHITE delivered the opinion of the Court.
By a law of the State of Ohio, enacted in 1884, it was made the
duty of everyone manufacturing or exposing for sale any drug or
article of food included in the provisions of the act to furnish,
on demand, to the person who should apply for and
Page 183 U. S. 239
tender the value of the same, a sufficient sample to enable an
analysis to be made. This law is compiled in Bates' Annotated
(Ohio) Statutes, sec. 4200-7.
By the provisions of another statute enacted in 1886, and
amended in 1887, it was made unlawful to sell or offer for sale or
exchange any substance purporting, appearing, or represented to be
butter or cheese, or having either the semblance of butter or
cheese, not wholly made of pure milk or cream, salt, and harmless
coloring matter, unless done under its true name, and it was
exacted that each package should have distinctly marked upon it, in
the manner pointed out in the statute, the true name of the article
and its constituent ingredients. And it was further forbidden, in
the marking, to use any words or combination of words indicating
that the article was either butter, cream, or dairy product. This
statute is compiled in Bates' Annotated Statutes of Ohio, sec.
4200-30.
In 1890, it was further provided that no person should
manufacture within the state, or should offer for sale therein,
whether manufactured therein or not, any substance made out of any
animal or vegetable oil, not produced from unadulterated milk or
cream from the same, in imitation or semblance of natural butter or
cheese produced from butter, unadulterated milk or cream. The terms
butter and cheese, as defined in the statutes, were declared to be
articles manufactured exclusively from pure milk or cream, or both,
with salt, and with or without any harmless coloring matter.
It was provided, however, in this act, that nothing therein
contained
"shall be construed to prohibit the manufacture or sale of
oleomargarine in a separate and distinct form and in such manner as
will advise the consumer of its real character, free from any
coloring matter or other ingredient causing it to look like or
appear to be butter, as above defined."
This statute is compiled in Bates' Annotated Statutes of Ohio,
sec. 4200-13-14.
On May 16, 1894, it was further enacted that
"no person shall manufacture, offer, or expose for sale, sell,
or deliver, or have in his possession with intent to sell or
deliver any oleomargarine which contains any methly [methyl]
orange, butter
Page 183 U. S. 240
yellow, annotto aniline dye, or any other coloring matter."
Bates' Annotated Statutes, sec. 4200-16.
On January 27, 1893, the plaintiff in error was incorporated
under the general laws of the State of Ohio
"for the purpose of manufacturing, selling, and dealing in
oleomargarine and the materials and utensils employed in the
manufacture, storage, and transportation thereof, and all things
incident thereto."
Under this charter, the corporation thereafter carried on its
business in the State of Ohio.
On April 12, 1898, proceedings in
quo warranto were
begun in the Supreme Court of the State of Ohio by the attorney
general of that state to forfeit the franchise of said corporation
and for the appointment of trustees to wind up its affairs. The
relief demanded was based on the charge that the corporation
had
"continuously, since about the time of its creation, up to the
present day, within this state, . . . offended against the laws of
this state, misused its corporate authority, franchise, and
privileges, and assumed franchises and privileges not granted to
it, and has assumed and exercised rights, privileges, and
franchises specially inhibited by law,"
in enumerated particulars. The specifications of the petition
are reproduced in the margin.
*
Page 183 U. S. 241
The defendant answered, its defenses being reiterated under
seven different headings. It suffices for the purposes of the
issues now before us to summarize the answer as follows:
It traversed all the facts alleged in the petition except as
admitted in the answer. It expressly denied that the corporation
had abused or misused its corporate powers. It admitted that the
corporation had been engaged under its charter in the manufacture
and sale of oleomargarine. It denied that any such product had been
offered for sale as an imitation of butter, and without being
plainly marked in conformity with the laws of the State of Ohio and
the laws of the United States. It denied that the corporation had
refused to deliver samples of its products to the duly qualified
inspector and agent of the state, as alleged in the fourth charge
of the petition, and averred that the entire matter alleged in the
fourth charge was based upon
Page 183 U. S. 242
a personal difficulty which happened on one isolated occasion
between an officer of the corporation and one of the agents of the
dairy and food commissioners "who was not an assistant
commissioner."
The answer admitted that, for a brief period between January 1,
1898, and March 1, 1898, the corporation had manufactured
oleomargarine and colored it with a coloring matter known as
annotto, which was entirely harmless; that this was done in
midwinter; that the effect of such use was to give the
oleomargarine a yellow color; that the butter made at that period
of the year was not naturally yellow, and that therefore the use of
the coloring matter did not cause the oleomargarine to look like
natural butter; on the contrary, it was averred that oleomargarine
cannot be made so as to look unlike butter unless the manufacturer
is allowed to color it; that all the oleomargarine thus
manufactured during the period stated was made not for sale in the
State of Ohio, but for sale in other states, and was wholly sent
out of the State of Ohio to such other states; that the statutes of
the State of Ohio enacted in 1890 and 1894, above referred to, did
not forbid the use in the manufacture of oleomargarine of a
harmless coloring matter, but that, if they did, they were
repugnant to the Constitution of the State of Ohio and to Section 8
of Article I of the Constitution of the United States and Section 1
of the Fourteenth Amendment of that Constitution.
The answer additionally alleged that, as the statutes which it
was alleged had been violated imposed criminal penalties, the
proceeding in
quo warranto to forfeit the charter was
unauthorized, at least until a previous criminal conviction for the
acts complained of had been obtained. The portion of the answer
setting up this defense concluded as follows: "And that this
proceeding is in contravention of the Constitution of the United
States."
A demurrer was filed to the defenses, which asserted the
repugnancy to the Constitution of the state and of the United
States of certain of the statutes charged to have been violated,
but no action seems to have been taken upon such demurrer.
A reply was filed in which the state substantially
reiterated
Page 183 U. S. 243
the allegations of the petition, taking issue with the claim
that the company had used only a harmless coloring matter for a
short period, and in oleomargarine intended solely for sale outside
of the State of Ohio. The reply also took issue with the claim that
the natural color of oleomargarine was a light yellow, and it was
also denied that oleomargarine "cannot be made to look
unlike'
butter unless the manufacturer is allowed to color it."
The case was heard "upon the petition and answer, testimony, and
arguments of counsel." The Supreme Court of Ohio found the
averments of the petition to be true, and entered a decree ousting
the corporation from its corporate rights, privileges, and
franchise, adjudging that it be dissolved, and appointing two
trustees for the creditors and stockholders of the corporation, to
wind up its affairs. 62 Ohio St. 350. The court, on the day this
opinion was announced, entered an order, which it declared was made
a "part of the record of this case," in which it was stated that at
the request of the defendant it was certified that in deciding the
case the court had found it necessary to consider whether the Ohio
act of 1884 providing for the furnishing of samples, that of 1886,
as amended in 1887, requiring all oleomargarine to be marked in a
specific manner, the act of 1890 forbidding the manufacture and
sale of any oleomargarine colored to look like butter, as well as
the act of 1894, forbidding the use of coloring matter in
oleomargarine, were not repugnant to the third clause of Section 8
of Article I of the Constitution of the United States conferring
upon Congress the power to regulate commerce, and to the Fifth and
Fourteenth Amendments of that instrument, and that the court had
sustained the validity of the statutes, although their
unconstitutionality had been asserted by the defendant. A writ of
error was allowed by the Chief Justice of the Supreme Court of
Ohio.
Before disposing of the controversies presented by the
assignment of errors, it is necessary to notice a motion of the
defendant in error to dismiss. It is predicated upon the ground
that as the court below found the defendant had violated the
statute in refusing to furnish samples as required by the law
of
Page 183 U. S. 244
1884, this affords adequate support for the judgment of ouster,
irrespective of any substantial federal question. It is true, in
the pleadings it was not asserted that the provision of the Ohio
law requiring the delivery of samples was repugnant to the
Constitution of the United States, but in the certificate made by
the Supreme Court of Ohio on the day its opinion was announced, it
is certified that, for the purposes of the decision of the case, it
became necessary to determine whether the act of 1884, providing
for the delivery of such samples, was repugnant to the Constitution
of the United States. Conceding that the certificate can only serve
to aid in elucidating whether a federal question was presented by
the record, and that such certificate cannot, independently in and
of itself, import into the record such a question when not
otherwise properly inferable from the record, we do not think the
motion to dismiss is well taken. We cannot, from an inspection of
the opinion of the Supreme Court of the State of Ohio, conclude
that the judgment of ouster which that court rendered was
predicated alone upon the fact that the defendant had failed to
deliver samples as required by the statute. On the contrary, we
think the context of the opinion of the court demonstrates that the
judgment against the corporation was based upon not alone the mere
failure to deliver the samples, but because of that failure, as
connected with and explained by the acts of the corporation, in
continuously, and, as declared by the court, flagrantly, violating
not one, but most, of the other statutes relied on. In other words,
we think that the judgment of the state court was based upon the
consideration given by it to all the asserted violations of the
statutes jointly, and hence no one of the particular violations can
be said, when considered independently, to be alone adequate to
sustain the conclusions of the court below that the judgment of
ouster should be entered. We come, then, to the principal
contention which the record presents -- the asserted repugnancy of
the before-mentioned statutes of the State of Ohio to the
Constitution of the United States.
At the outset, it is apparent that all the statutes assailed
except the Act of May 16, 1894, were on the statute books of the
state at the date when the provisions of the general
incorporation
Page 183 U. S. 245
law of the state were taken advantage of. The question thus at
once arises whether the corporation can be heard to assail the
validity of the statutes which were in force when it voluntarily
caused itself to be incorporated. We do not, however, pursue this
thought further, since it is impossible to separate, for the
purposes of the questions here arising, the laws existing at the
time of the charter from the act of 1894, which was enacted after
the incorporation.
The contention that the statutes in question are repugnant to
the commerce clause of the Constitution is manifestly without
merit. All the acts of the corporation which were complained of
related to oleomargarine manufactured by it in the State of Ohio,
in violation of the laws of that state, and therefore operated on
the corporation within the state, and affected the product
manufactured by it before it had become a subject of interstate
commerce.
Kidd v. Pearson, 128 U. S.
1;
United States v. E. C. Knight Co.,
156 U. S. 1. It
results that the plaintiff in error is not in a position to assail
the validity of the statutes because of their supposed operation
upon interstate commerce, and we are not called upon to express an
opinion respecting the constitutionality of the statutes upon this
assumption.
The contention that the statutes in question violate the Fifth
Amendment to the Constitution of the United States need not be
dwelt upon, as it is elementary that that amendment operates solely
on the national government, and not on the states.
Brown v. New
Jersey, 175 U. S. 172,
175 U. S. 174,
and cases cited.
The inquiry, then, is this: do the provisions of the Ohio
statutes, which, although allowing the manufacture and sale of
oleomargarine when free from any coloring matter or other
ingredient causing it to look like or to appear to be butter as
defined in the statute, and which, moreover, expressly forbid the
manufacture or sale within the state of any oleomargarine which
contains and methyl, orange, butter yellow, annotto, aniline dye,
or any other coloring matter, contravene the Constitution of the
United States?
The proposition is that, as by the Ohio statutes harmless
coloring matter is permitted to be used in butter, the effect
of
Page 183 U. S. 246
prohibiting the use of such harmless ingredients in
oleomargarine is to deprive the manufacturer of oleomargarine of
the equal protection of the laws, and to take from him his property
without due process of law.
The Supreme Court of Ohio, however, having before it the
evidence introduced upon the issues of fact made in the pleadings,
held that oleomargarine was an article which might easily be
manufactured so as to be hurtful, and thus result in fraud upon and
injury to the public, and that the inhibition of the use of
coloring matter in oleomargarine was a reasonable police regulation
tending to insure the public against fraud and injury. The purpose
of the legislature in permitting the use of harmless coloring
matter in butter, and requiring that oleomargarine be sold in its
natural state, was declared not to be for the purpose of
discriminating in favor of butter, but to provide a ready means by
which the public might know that an article offered for sale was
butter, and not oleomargarine.
It cannot in reason be said as a mere matter of judicial
inference that such regulations for such purpose were a mere
arbitrary interference with rights of property, denying the equal
protection of the laws, or that they amounted to a taking of
property without due process of law. It follows that the
Legislature of Ohio had the lawful power to enact the regulations.
Gundling v. Chicago, 177 U. S. 183.
Indeed, the controversy is governed by the decisions in
Powell
v. Pennsylvania, 127 U. S. 678, and
Plumley v. Massachusetts, 155 U.
S. 461. In the
Powell case, a statute
absolutely forbidding the manufacture and sale in the State of
Pennsylvania of oleomargarine was held valid because designed to
prevent fraud. Speaking of the case in
Schollenberger v.
Pennsylvania, 171 U. S. 1, this
Court said (p.
171 U. S.
15):
"That case did not involve rights arising under the commerce
clause of the federal Constitution. The article was manufactured
and sold within the state, and the question was one as to the
police power of the state acting upon a subject always within its
jurisdiction."
In the
Plumley case, the power of the state, in
legislating for the prevention of deception in the manufacture and
sale of
Page 183 U. S. 247
imitation butter, was held to extend to the prohibition of the
sale of oleomargarine artificially colored so as to look like
yellow butter, although brought into Massachusetts from another
state.
Applying the principles enunciated in the cases to which we have
just referred, it results that the Ohio statutes under
consideration, insofar as they relate to the manufacture and sale
of oleomargarine within the State of Ohio by a corporation created
by the laws of Ohio, were not repugnant to the Constitution of the
United States.
We have previously stated that in the answer of the defendant it
was asserted that the remedy for the alleged violations of the Ohio
statutes whose constitutionality were assailed was by a criminal
proceeding, and not by an action in
quo warranto for the
purpose of forfeiting the charter of the defendant, and that, in
said pleading, it was averred in general terms that "this
proceeding" was "in violation of the Constitution of the United
States." Under the assumption that the general reference to the
Constitution just adverted authorizes this Court to pass upon them,
two federal questions are elaborately pressed upon our attention.
they are:
First. That as the acts done by the corporation which are
complained of were by the statutes of Ohio made the subject of
criminal penalties, such acts could not be availed of as the basis
of civil proceedings in
quo warranto until, in any event,
prior thereto there had been criminal conviction, without denying
to the defendant the equal protection of the laws or taking its
property without due process of law contrary to the Fourteenth
Amendment.
Second. That the appointment of trustees to wind up the affairs
of the corporation as a consequence of the judgment of ouster
produced not only like results, but also violated the contract
clause of the Constitution of the United States, because amounting
to an impairment of the obligations of the contract which the
charter of the corporation had engendered. It is conceded that the
Ohio statute which authorized the proceedings in
quo
warranto for any abuse or misuse of corporate powers, and
which empowered the court, if it decreed against
Page 183 U. S. 248
the defendant, to appoint trustees to liquidate the affairs of
the corporation, was a part of the general law of Ohio at the time
the defendant corporation was organized. The contentions then
reduce themselves to this, that the contract rights of the
corporation arising from the charter were denied and the Fourteenth
Amendment to the Constitution was violated because the corporation
was subjected to the general laws of Ohio, which became impliedly a
part of the charter. While thus to bring the propositions to their
ultimate analysis may be wholly adequate to dispose of them, we do
not pass upon them, since they do not properly arise for decision
on this record.
It is settled that this Court, on error to a state court, cannot
consider an alleged federal question when it appears that the
federal right thus relied upon had not been by adequate
specification called to the attention of the state court and had
not been by it considered, not being necessarily involved in the
determination of the cause.
Green Bay & Miss. Canal Co. v.
Patten Paper Co., 172 U. S. 62,
172 U. S. 67;
Oxley Stave Co. v. Butler County, 166 U.
S. 648,
166 U. S.
654-655, and cases cited. Now the only possible support
to the claim that a federal question on the subject under
consideration was raised below was the general statement in the
answer to which we have already adverted, that "this proceeding is
in violation of the Constitution of the United States." Nowhere
does it appear that at any time was any specification made as to
the particular clause of the Constitution relied upon to establish
that the granting of relief by
quo warranto would be
repugnant to that Constitution; nor is there anything in the record
which could give rise even to a remote inference that the mind of
the state court was directed to or considered this question. On the
contrary, it is apparent from the record that such a contention was
not raised in the state court. Thus, although, at the request of
the defendant below, the plaintiff in error here, the state court
certified to the existence of the federal questions which had been
called to its attention and which it had decided, no reference was
made in the certificate to the claim of federal right we are now
considering.
The foregoing considerations are equally applicable to the
proposition that the obligations of the contract engendered by
Page 183 U. S. 249
the charter were impaired by the appointment by the court of
liquidating trustees. Indeed, though the appointment of such
trustees was expressly prayed in the petition, the record does not
even suggest that a constitutional question in respect to such
appointment was raised or called to the attention of the court
below.
Judgment affirmed.
*
"First charge. Said defendant corporation has, during the times
and at the places aforesaid, manufactured and sold an article in
imitation and semblance of natural butter; which said article was
made out of animal and vegetable oils, and compounded with milk or
cream and both; which said article was not then and there in
separate and distinct form and in such a manner as would advise
consumers of its real character, and was not free from coloring
matter or other ingredients causing it to look like and appear to
be butter, and said article was not butter, but was an article made
in imitation and semblance thereof."
"Second charge. The defendant corporation has at the times and
places above mentioned, manufactured, and has offered and exposed
for sale and has sold and delivered, and had in its possession with
the intent to sell and deliver, oleomargarine in large quantities
-- as your relator is informed, in quantities from 10,000 to 20,000
pounds thereof daily, which said oleomargarine contained coloring
matter, to-wit, annotto and other coloring matter unknown to
relator."
"Third charge. The said defendant corporation, during the times
and at the places above stated, has manufactured and sold a
substance purported and appearing to be butter and having the
semblance of butter, but which substance was not butter, but was
oleomargarine; but the packages, rolls, and parcels thereof were
not distinctly and durably stamped, or painted, or stenciled, or
marked in the true name thereof in the ordinary bold-faced capital
letters required by the Act of May 17, 1886, entitled 'An Act to
Prevent the Adulteration of and Deception in the Sale of Dairy
Products, etc.' (83 O. L. 178)."
"Fourth charge. Said defendant corporation has refused and still
refuses to deliver and furnish to the duly appointed, qualified,
and acting inspector and agent of the dairy and food commissioner
of this state any sample or quantity of the oleomargarine
manufactured by it, although duly demanded by him, and the value of
the same for a ten-pound package thereof, or any other reasonable
quantity thereof, was tendered it for the analysis thereof,
contrary to section 4 of the Act of March 20, 1884, entitled 'An
Act to Provide Against the Adulteration of Food and Drugs' (81 O.
L. 67), and said defendant has refused and still refuses to permit
said inspector and agent to enter into its factory for any purpose
whatsoever, and has refused and still refuses to permit him to
examine or cause to be examined any of the products manufactured by
it."
"Fifth charge. All of said violations of the laws of this state,
as set forth in the first, second, third, and fourth charges, have
been made and done by said defendant corporation with full
knowledge of the said violations of law, and for the expressed
purpose and intent of violating said laws and evading the same, and
for the purpose of deceiving the people of this state and other
states as to the real character of its said product, contrary to
the Act of March 7, 1890, entitled 'An Act to Prevent Deception in
the Sale of Dairy Products and to Preserve Public Health' (87 O.L.
51)."