whole people of our country should rise in their might and proclaim their determination to have some important change brought about on this subject". The convention responded by instructing its legislative committee to take prompt action.

The Wisconsin Dairymen's Association 2 adopted the following resolution in 1881:

The dairy interest of Wisconsin has become the leading branch of farm production, and this great interest is seriously menaced, and in danger of being ruined by the manufacture of large quantities of oleomargarine, sueine and other adulterations disguised to take the place of genuine butter, which find their way into the general market and are placed before the consumer as pure butter, greatly to the injury of the butter makers of the state, therefore,

Resolved, That in view of these facts and their bearing on the great interests we represent, this Association most earnestly requests at the hands of the present legislature, the passage of a law, etc.

Among other resolutions the Michigan State Dairy Association adopted the following:

Resolved, That the Michigan State Dairy Association emphatically demand the passage of a law compelling dealers to give with every purchase of imitation butter a written or printed notice that the product sold is a substitute for butter or an imitation of it.

Other state dairy associations were also active. Enough has been cited to show that the real force behind the movement was the dairy farmer through his dairy association. Not only did the farmer work for state dairy laws but for

1 Report of Illinois Dairymen's Association for 1880, p. 348. 2 Report for 1881, p. 130.

the federal law as well. A portion of the Report of the House Committee on Agriculture says, "That there are from four to five million American citizens engaged in the dairy business and that they must all abandon it and be driven into some other already overworked branch of industry unless they can be relieved from the present ruinous competition with cheap imitations of butter and cheese ".1 When the law of 1886 was to be amended in 1902 dairy associations again became active.2

This was mainly a fight between economic intereststhe dairymen on one side and the oleomargarine interests and stockmen on the other. The arguments the oleomargarine interests raised were that the product was a boon to the poor people who could not pay the price of butter, that large quantities of cottonseed oil were consumed in the manufacture of oleomargarine, and that large amounts of the country's capital were invested in oleomargarine establishments. These arguments were presented to enlist various classes to aid them in their fight with the dairymen.

The laws themselves show very little of the nature of this movement. Some of the early laws, however, reflect it in their titles. For instance, the title of the first New York law reads: "An Act for the protection of dairymen and to prevent the deception in sales of butter". The title of the Maryland law of 1878 is similar.

Very little also can be learned as to the nature and origin of the movement for oleomargarine legislation from the opinions of the Supreme Court deciding upon the ultimate validity of these laws. The logic and reasoning of the court rather tend to center one's attention upon abstract ethical

1 Report of the U. S. Internal Revenue Commissioner for 1887, p. cxxxi.

'Vide, for instance, Michigan Dairy Association Report for 1901, P. 108.

principles and legal technicalities. In most cases opinions deal with fraud, public health, public policy, and the relation of the oleomargarine law to the interstate commerce clause. However, in the case of Plumley v. Mass., 155 U. S., 475, the economic interests behind the movement are plainly visible. In this case Justice Harlan quotes from the opinion in People v. Arenburg, 105 N. Y., 123, in language as follows:

Assuming, as is claimed, that butter made from animal fat or oil is as wholesome, nutritious, and suitable for food as dairy butter; that it is composed of the same elements and is essentially the same article, except as regards its origin, and that it is cheaper; and that it would be a violation of the constitutional rights and liberties of the people to prohibit them from manufacturing or dealing in it, for the mere purpose of protecting the producers of dairy butter against competition, yet it cannot be claimed that the producers of butter, made from animal fat, or oils, have any constitutional right to resort to devices for the purpose of making their product resemble in appearance the more expensive article known as dairy butter, or that it is beyond the power of the legislature to enact such laws as they may deem necessary to prevent the simulated article being put upon the market in such a form and manner as to be calculated to deceive.

There is much justification for the dairy laws that have been enacted. Fraud must be prevented. The consumer must be enabled to choose between butter and oleomargarine. The public health must be protected. The use of all deleterious ingredients in the manufacture of oleomargarine must be prohibited. Oleomargarine must be sold upon its merits, and to this extent the dairy interests of the country have every right to demand and to receive protection.

CHAPTER X

THE OLEOMARGARINE LAW AND ITS DEVELOPMENT

SUMMARY OF DEVELOPMENT

THE state and federal oleomargarine laws are an evolutionary product. The first state laws passed between 1877 and 1884 were inoperative because the necessary machinery to enforce them was lacking. In 1884 the state of New York created the office of Dairy Commissioner, whose special duty it was to ferret out violations of the law and to prosecute offenders. This was a very important innovation in the dairy and food legislation of the United States. It had the effect of enforcing not only the provisions of the law pertaining to oleomargarine, but also those pertaining to milk and other dairy and food products. Other states followed in the establishment of the office of dairy and food commissioner.

The general principle upon which all of the early state laws were based was restrictive; that is, it restricted the manufacture and sale of oleomargarine to a product which contained no coloring matter and required that it be marked or branded so as to inform the purchaser of its real character."

Then came the period of prohibitory laws. These

1 Laws of N. Y., 1884, p. 255.

"Vide Laws of New York, 1882, Chap. 238; laws of Pennsylvania, 1878, p. 87.

465]

241

prohibited the manufacture and sale of oleomargarine in any form whatsoever. This principle was resorted to because the states were unable to cope with the oleomargarine frauds. The New York legislature, for instance, in 1884, authorized the Senate Committee on Public Health to make a thorough investigation of the oleomargarine trade and to make such recommendations as it might deem proper. The committee went into the question of drafting a more stringent law than was in effect at that time. The state of Missouri had already enacted a prohibitory law' whose constitutionality and validity had been upheld in a decision of the Circuit Court of Missouri. The New York Senate Committee, therefore, concluded that a prohibitory law, together with the establishment of effective executive machinery, would best meet the needs of the exigency in their state. The New York law of 18843 accordingly embodied the prohibitory principle, which, however, was declared unconstitutional by the Court of Appeals in the case of People v. Marx, 99 N. Y. 377. Pennsylvania made its law prohibitory in 1885. Maine, Michigan, Minnesota, and Wisconsin also enacted prohibitory laws. Some states carried the principle of restriction to such an extreme that in its application it was prohibitory. New Hampshire, Vermont, and South Dakota, for instance, passed laws requiring that oleomargarine be colored pink. The constitutionality of the prohibitory

5 Vide résumé of state laws in Report of N. Y. State Dairy Commissioner for 1886, p. 410; and report of Wisconsin Dairy and Food Commissioner for 1898, p. 204.