<p>As early as chapter 72, Sess. Laws 1899, North Dakota has each year enacted legislation upon the subject of pure foods and honest weights and measures. The 1907 act provides that every package, bottle, or container should bear the true net weight of the product. Chapter 236, Sess. Laws 1911, provides that every article of food or beverage as defined in the statutes of this state shall be sold by weight, measure, or numerical count, and labeled in accordance with the provisions of the laws of this state; that all weights shall be net, excluding the wrapper or container, and that every lot of lard, lard compound, or lard substitute, unless sold in bulk, shall be put up in pails or containers holding ,1, 3, or 5 pounds net weight or some whole multiple of these numbers, and not any fraction thereof. Defendant is a corporation having packing houses in Chicago, Omaha, and other large cities, and maintaining a branch establishment in the city of Eargo, North Dakota, to which its goods are shipped in carload lots to be distributed therefrom. In October, 1911, the state food commissioner went to this branch establishment in Eargo and asked to purchase 3 pounds of lard. He was sold a pail containing 2 pounds and 6 ounces. The sale and the resultant arrest were made to test the constitutionality of the 1911 law. The defendant claimed that the law was unconstitutional for seven reasons, the first reason being subdivided into six parts.</p> <p>Unconstitutional law — arbitrary — legislature — courts — interference — burden on person attacking law — beyond reasonable doubt — prejudice — profit to middleman — weights and measures.</p> <p>1. Plaintiff’s contention is that the law is unconstitutional because it is arbitrary, unreasonable, and not justified under the police powers of the state, (a) It is contended that the 1911 law was unnecessary because the 1907 law providing for the display of net weights was ample to protect the consumer against fraud. Held, that the legislature has primarily the choice of laws regulating weights, and the court will not interfere with this choice. The burden is upon the person attacking the constitutionality of the law to show beyond a reasonable doubt that the Constitution has been violated, that in the ease at bar the defendant has failed in his proof, there being many reasons for the 1911 enactment, (b) It is contended that the law is unreasonable because it interferes with a custom of the lard industry extending over a period of more than thirty years. Held, that this is no objection to the law. The fact that an abuse has existed for thirty years does not foreclose the state from an attempt to regulate the same, (c) It is contended that the law is unreasonable because it imposes an additional expense upon the packers. Held, upon an examination of the evidence, that this contention is not well founded. The defendant is already supplying a private'firm with net-weight pails that would comply with the laws of North Dakota. No reason is shown why those pails could not be lithographed with the Armour brand and used in North Dakota, (d) It is further urged that the law is unnecessary and unreasonable because in any event the customers are not prejudiced. That they are paying merely the price of bulk lard plus the extra expense of the tin pails. Held, upon an examination of the evidence, that the consumer pays more than the mere cost of the container. This cost includes expensive advertising upon the pail itself, and a probable profit to the middlemen upon the cost of the pail as well as of the lard, (e) It is urged that the law is unreasonable as interfering with the regular custom of all trades, it being contended that butchers and grocers include the weight of the paper bag with the goods sold. Held, that even if true it furnishes no reason why laws should not be enacted to regulate this abuse, (f) It is contended that the enforcement of this law will drive the packers to use bulk lard only, to the detriment of the commodity. Held, íhat from the evidence, the packers never furnished over 40 per cent of the lard to the trade in this state, and this defendant furnishes but between 5 per cent and 10 per cent of the lard used, and .even should it withdraw from the state it would not materially affect the lard industry. The authorities upon the subject of the control of weights and measures by compelling even weights in containers are collected in the opinion.</p> <p>Note. — On the general question of the power to require weight of package to be indicated upon it, see note in 17 L.R.A.(N.S.) 684. And as to the constitutionality of discriminations in statutory regulations concerning food products, see note in 3-i L.R.A.(N.S.) 650.</p> <p>Constitutional guaranties — freedom of contract — equal protection — police power — private rights — public — protection.</p> <p>2. The law of 1911 does not interfere with the guaranties of the Constitution relative to the right of freedom of contract and the equal protection of the law. Under the police power, the state can interfere with private rights when necessary to protect the public from fraud or the opportunity for fraud. Whatever injury one particular citizen may suffer is compensated to him by the general protection afforded him against other evils, by such police power.</p> <p>Due process of law — taking of property without.</p> <p>3. Said statute does not constitute the taking of property without due process of law.</p> <p>Lard industry — other' articles of food — fraud — sale of foods.</p> <p>4. The claim of appellant that the lard industry is singled out from all articles of food, and subjected to regulation, is not supported by the evidence in this ease. Every article of food or beverage, as well as ordinary articles of commerce, such as paints, formaldehyde, Paris green, etc., are regulated by the same or similar acts. The 1911 law specifically mentions lard, lard compounds, and lard substitutes, and the manner of their regulation in pails, but this is a mere incident of the law. The object of the law is to prevent the opportunity for fraud in the sale of all articles of food.</p> <p>Commerce clause — Federal Constitution — original package — sale local or intrastate.</p> <p>5. The claim of the defendant that the law is in violation of the commerce clause of the Federal Constitution is not sustained. Congress has control of commerce between the several states, with foreign nations and among the Indian tribes, while the states have control over intrastate commerce. The pail of lard sold to the food commissioner was shipped into the state in a railway car, and was itself contained in a crate containing'20 similar pails. The original package was either the railway car or the crate, and had been broken prior to the sale. Tlius the sale was a local or intrastate transaction. The eases upon this phase are collected in the opinion.</p> <p>Interpretation — gross weights — repeal by judicial construction — courts.</p> <p>6. It is contended by defendant that the act should be given a reasonable interpretation, thus permitting the sale of gross-weight pails if labeled with the net weight. Held, that the import of the law is plain, and that the construction required by the defendant would result in a repeal of the law by judicial construction, which this court will not do.</p> <p>Congress — foods — weights — sale — intrastate — control of.</p> <p>7. It is contended that Congress has assumed control of the field of pure foods and weights, and therefore the laws of North Dakota upon the subject have become ineffectual. Under the fifth paragraph of this opinion it is held that the sale in question was an intrastate transaction, entirely within the control of the state, and entirely outside of the control of the United States.</p> <p>Upon consideration of the whole act it is held that the law is not unreasonable, and it in no manner prejudices the defendant, and is not in conflict with any of the enumerated provisions of the Constitution.</p>
