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Opinion of the Court.

Story says, "of arbitrary or capricious discretion, dependent upon the mere pleasure of the judge, but of that sound and reasonable discretion which governs itself as far as it may by general rules and principles; but at the same time which withholds or grants relief, according to the circumstances of each particular case, when these rules and principles will not furnish any exact measure of justice between the parties." 1 Story Eq. Jur. § 742. One of these rules is, that in cases of this character relief should not be granted, after an unreasonable delay, or unless the proof is clear and satisfactory, both as to the existence of the agreement and as to its terms.

In our judgment the proof fails to show such an agreement between Nickerson and wife as could be made the basis of a decree in her behalf. The allegations of the bill are expressly denied by the answer; and the statements of the wife in her deposition are flatly contradicted by the husband in his deposition. The only other witness in the cause in behalf of the plaintiff is her mother, and the deposition of the latter was not taken until nearly fifteen years after her daughter married the defendant. It contains a detailed account of an interview with him at the time she visited Portland, in the spring of 1870, for the purpose of personally expressing her opposition to the marriage of her daughter to Major Nickerson. In recalling what then passed between herself and him, she was not aided by any contemporaneous memorandum of what occurred. It is true that in her deposition, as well as in that of the appellant, are to be found such words and phrases as "agreement," promised," "promised and agreed," "promise and agreement," "understood and agreed," "in consideration of marriage," and "marriage settlement and gift." But there is strong internal evidence in the depositions that these words and phrases if not suggested by others familiar with their import were not used or understood by the witnesses in their technical legal sense. Their evidence, in connection with all the circumstances of the case, especially the lapse of time, should be regarded as establishing, at most, only an honest belief and expectation upon the part of the appellant and her mother, before and at the time of the marriage, superinduced

Opinion of the Court.

by the general conduct or loose expressions of the defendant, that he intended, at some time after marriage, to provide his wife with a permanent home out of the proceeds of the sale of the Portland property. It is the case of a husband, who, prior to marriage, induced in the mind of his intended wife expectations in reference to real property which, after marriage, he failed to meet, but in respect to which property he did not enter—and, perhaps, intentionally refrained from entering into any distinct and binding agreement.

She purposely forebore, as her bill shows, from having the Portland property conveyed to trustees for her benefit, and permitted the title to remain in the husband, in order that it might be easily handled, and in the belief that he would act in good faith toward her. She relied upon his honor, and has been deceived. But those facts, however strongly they appeal to our sympathy, cannot justify the court in finding, upon the meagre evidence in this cause, that there was an agreement upon his part, in consideration of marriage, to settle upon her either the property in Portland or the property purchased with the proceeds of its sale.

There is another serious obstacle in the way of granting to the appellant the relief she seeks. It is not proved, with sufficient certainty, that any part of the proceeds of the Portland property was, in fact, applied to the purchase of the lot in square one hundred and fourteen. If it did not, there is no ground, in any view of the case, upon which a trust could be fastened upon that lot for the benefit of the appellant.

In view of what has been said it is unnecessary to consider the question, so fully discussed by counsel, and so elaborately examined in the adjudged cases, as to whether marriage itself, standing alone, can be deemed part performance of an agreement as to lands, which otherwise could not be enforced with due regard to the letter and spirit of the statute of frauds.

Upon the whole case, we feel bound to hold that the appellant has not established sufficient grounds for the relief asked, and the decree must be

Affirmed.

Counsel for Parties.

POWELL v. PENNSYLVANIA.

ERROR TO THE SUPREME COURT OF PENNSYLVANIA.

No. 914. Argued January 4, 1888. Decided April 9, 1888.

The Fourteenth Amendment to the Constitution was not designed to interfere with the exercise of the police power by the State for the protection of health, the prevention of fraud, and the preservation of the public morals.

The prohibition of the manufacture out of oleaginous substances, or out of any compound thereof other than that produced from unadulterated milk or cream from unadulterated milk, of an article designed to take the place of butter or cheese produced from pure unadulterated milk or cream from unadulterated milk; or the prohibition upon the manufacture of any imitation or adulterated butter or cheese, or upon the selling or offering for sale, or having in possession with intent to sell, the same, as an article of food, is a lawful exercise by the State of the power to protect, by police regulations, the public health. Whether the manufacture of oleomargarine, or imitation butter, of the kind described in the act of the legislature of Pennsylvania of May 21, 1885, (Laws of Penn. of 1885, p. 22, No. 25,) is, or may be, conducted in such a way, or with such skill and secrecy, as to baffle ordinary inspection, or whether it involves such danger to the public health as to require, for the protection of the people, the entire suppression of the business, rather than its regulation in such manner as to permit the manufacture and sale of articles of that class that do not contain noxious ingredients, are questions of fact and of public policy, which belong to the legislative department to determine.

The Statute of Pennsylvania of May 21, 1885, "for the protection of the public health, and to prevent adulteration of dairy products and fraud in the sale thereof" neither denies to persons within the jurisdiction of the State the equal protection of the laws; nor deprives persons of their property without that compensation required by law; and is not repugnant in these respects to the Fourteenth Amendment to the Constitution of the United States.

THE case is stated in the opinion.

Mr. D. T. Watson and Mr. Lyman D. Gilbert for plaintiff in error. Mr. W. B. Rodgers was with them on the brief.

Mr. Wayne Mac Veagh for defendant in error. Mr. A. H Wintersteen was with him on the brief.

Opinion of the Court.

MR. JUSTICE HARLAN delivered the opinion of the court.

This writ of error brings up for review a judgment of the Supreme Court of Pennsylvania, sustaining the validity of a statute of that Commonwealth relating to the manufacture nd sale of what is commonly called oleomargarine butter.

at judgment, the plaintiff in error contends, denies to him certain rights and privileges specially claimed under the Fourteenth Amendment to the Constitution of the United States.

By acts of the General Assembly of Pennsylvania, one approved May 22, 1878, and entitled "An act to prevent deception in the sale of butter and cheese," and the other approved May 24, 1883, and entitled "An act for the protection of dairymen, and to prevent deception in sales of butter and cheese," provision was made for the stamping, branding, or marking, in a prescribed mode, manufactured articles or substances in semblance or imitation of butter or cheese, not the legitimate product of the dairy, and not made exclusively of milk or cream, but into which oil, lard, or fat, not produced from milk or cream, entered as a component part, or into which melted butter or any oil thereof had been introduced to take the place of cream. Laws of Pennsylvania, 1878, p. 87; 1883, p. 43.

But this legislation, we presume, failed to accomplish the objects intended by the legislature. For, by a subsequent act, approved May 21, 1885, and which took effect July 1, 1885, entitled "An act for the protection of the public health and to prevent adulteration of dairy products and fraud in the sale thereof," Laws of Pennsylvania, 1885, p. 22, No. 25, it was provided, among other things, as follows:

"SECTION 1. That no person, firm, or corporate body shall manufacture out of any oleaginous substance or any compound of the same, other than that produced from unadulterated milk or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk or cream from the same, or of any imitation or adulterated butter or cheese, nor shall sell or offer for sale, or have in his, her, or their possession, with intent to sell the same, as an article of food.

Opinion of the Court.

"SECTION 2. Every sale of such article or substance, which is prohibited by the first section of this act, made after this act shall take effect, is hereby declared to be unlawful and void, and no action shall be maintained in any of the courts in this State to recover upon any contract for the sale of any such article or substance.

"SECTION 3. Every person, company, firm, or corporate body who shall manufacture, sell, or offer or expose for sale or have in his, her, or their possession with intent to sell, any substance, the manufacture and sale of which is prohibited by the first section of this act, shall, for every such offence, forfeit and pay the sum of one hundred dollars, which shall be recoverable with costs by any person suing in the name of the Commonwealth as debts of like amounts are by law recoverable; one-half of which sum, when so recovered, shall be paid to the proper county treasurer for the use of the county in which suit is brought and the other half to the person or persons at whose instance such a suit shall or may be commenced and prosecuted to recovery.

1

"SECTION 4. Every person who violates the provisions of the first section of this act, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than one hundred dollars, nor more than three hundred, or by imprisonment in the county jail for not less than ten nor more than thirty days, or both such fine and imprisonment for the first offence, and imprisonment for one year for every subsequent offence."

The plaintiff in error was indicted, under the last statute, in the Court of Quarter Sessions of the Peace in Dauphin County, Pennsylvania. The charge in the first count of the indictment is, that he unlawfully sold, "as an article of food, two cases, containing five pounds each, of an article designed to take the place of butter produced from pure, unadulterated milk or cream from milk, the said article so sold, as aforesaid, being an article manufactured out of certain oleaginous substances and compounds of the same other than that produced from unadulterated milk or cream from milk, and said article so sold, as aforesaid, being an imitation butter." In the

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