Plumley v. Massachusetts/Dissent Fuller

Mr. Chief Justice FULLER, dissenting.

The power vested in congress to regulate commerce among the several states is the power to prescribe the rule by which that commerce is to be governed; and, as that commerce is national in its character, and must be governed by a uniform system, so long as congress does not pass any law to regulate it, or allowing the states to do so, it thereby indicates its will that such commerce shall be free and untrammeled. Manifestly, whenever state legislation comes in conflict with that will, it must give way.

In whatever language such legislation may be framed, its purpose must be determined by its natural and reasonable effect; and the presumption that it was enacted in good faith cannot control the determination of the question whether it is or is not repugnant to the constitution of the United States.

Upon this record oleomargarine is conceded to be a wholesome, palatable, and nutritious article of food, in no way deleterious to the public health or welfare. It is of the natural color of butter, and looks like butter, and is often colored, as butter is, by harmless ingredients, a deeper yellow, to render it more attractive to consumers. The assumption that it is thus colored to make it appear to be a different article, generically, than it is, has no legal basis in this case to rest on. It cannot be denied that oleomargarine is a recognized article of commerce, and, moreover, it is regulated as such, for revenue purposes, by the act of congress of August 2, 1886 (24 Stat. 209, c. 840); U.S. v. Eaton, 144 U.S. 677, 12 Sup. Ct. 764.

The act under consideration prohibits its sale if 'in imitation of yellow butter,' though it may be sold 'in a separate and distinct form, and in such manner as will advise the consumer of its real character, free from coloration or ingredient that causes it to look like butter.' This prohibits its sale in its natural state of light yellow, or when colored a deeper yellow, because in either case it looks like butter. The statute is not limited to imitations made for a fraudulent purpose; that is, intentionally made to deceive. The act of congress requiring, under penalty, oleomargarine to be sold only in designated packages, marked, stamped, and branded as prescribed, and numerous acts of Massachusetts, minutely providing against deception in that respect (Pub. St. Mass. c. 56; St. 1884, c. 310; St. 1886, c. 317; St. 1891, c. 412), amply protect the public from the danger of being induced to purchase oleomargarine for butter. The natural and reasonable effect of this statute is to prevent the sale of oleomargarine because it looks like butter. How this resemblance, although it might possibly mislead a purchaser, renders it any the less an article of commerce, it is difficult to see.

I deny that a state may exclude from commerce legitimate subjects of commercial dealings because of the possibility that their appearance may deceive purchasers in regard to their qualities.

In the language of Knowlton, J., in the dissenting opinion below, I am not 'prepared to hold that no cloth whose fabric is so carded and spun and woven and finished as to give it the appearance of being wholly wool, when in fact it is in part cotton, can be a subject of commercial transactions, or that no jewelry which is not gold, but is made to resemble gold, and no imitations of precious stones, however desirable they may be considered by those who wish to wear them, shall be deemed articles of merchandise in regard to which congress may make commercial regulations.' Other illustrations will readily suggest themselves. The concession involves a serious circumspection of the realm of trade, and destroys the rule by an unnecessary exception.

The right to import, export, or sell oleomargarine in the original package under the regulations prescribed by congress cannot be inhibited by such legislation as that before us. Fluctuation in decision in respect of so vital a power as that to regulate commerce among the several states is to be deprecated, and the opinion and judgment in this case seem to me clearly inconsistent with settled principles. I dissent from opinion and judgment, and am authorized to say that Mr. Justice FIELD and Mr. Justice BREWER concur with me in so doing.