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Wilkerson v. Rahrer, 140 U. S. 545, 560, 562, 11 Sup. Ct. 865, 868, 869, 35 L. Ed. 572, 576
Williams v. Heard, 140 U. S. 529, 11 Sup. Ct. 885, 35 L. Ed. 550..
Wilmington & W. R. Co. v. Alsbrook, 146
Wehrman v. Conklin, 155 U. S. 314, 15
Western Union Tel. Co. v. Attorney Gen-
33 C. C. A. 113, 90 Fed. 379..138, 142
133, 136, 151, 501 120 Fed. 362, 981.... ..136, 151, 501 178 U. S. 239, 243, 244, 20 Sup. Ct. 867, 869, 44 L. Ed. 1052, 1053, 1054....137, 138, 147, 149, 150, 693 195 U. S. 540, 547, 25 Sup. Ct. 133, 49 L. Ed. ..256, 501 Western Union Tel. Co. v. Taggart, 163 U. S. 1-14, 16 Sup. Ct. 1054, 41 L. Ed. 49-54. Western Union Tel. Co. v. Texas, 105 U. S. 460, 26 L. Ed. 1067. 139 Westinghouse v. Power Brake Co., 170 U. S. 537, 18 Sup. Ct. 707, 42 L. Ed. 1136 700 Wetmore v. Markoe, 196 U. S. 68, 25 Sup. Ct. 172, 49 L. Ed.
Wilson v. Deen, 121 U. S. 525, 7 Sup. Ct. 1004, 30 L. Ed. 980.
65 Wilson v. Dresser, 152 Ill. 387, 38 N. E. 888 ...94, 95 53
Wilson v. McNamee, 102 U. S. 572, 26 L.
Wilson Bros. v. Nelson, 183 U. S. 191, 22
W. W. Cargill Co. v. Minnesota, 180 U. S. 452, 466, 21 Sup. Ct. 423, 45 L. Ed. 619, 625 .54, 360 Wyckoff v. Scale Co. of 1886, 110 Fed. 520 610 Wyckoff, Seamans & Benedict v. Scale Co. of 1886, 58 C. C. A. 510, 122 Fed. 348.. 610 Wyeth Hardware & Mfg. Co. v. H. F. Lang & Co., 127 Mo. 242, 247, 29 S. W. 1010, 27 L. R. A. 651, 48 Am. St. Rep. 626.. 627 Wyman v. Halstead, 109 U. S. 654, 656, 3 Sup. Ct. 417, 27 L. Ed. 1068, 1069. Wyman v. U. S., 109 U. S. 654, 656, 3 Sup. Ct. 417, 27 L. Ed. 1068, 1069... 723 Wy Shing, In re, 13 Sawy. 530, 36 Fed. 553 650
Yamataya v. Fisher, 189 U. S. 86, 97, 23
Yesler v. Washington Harbor Line, 146 U.
Young v. Martin, 8 Wall. 356, 357, 19 L.
32 Yung Sing Hee, In re, 36 Fed. 437...... 650 Zadig v. Baldwin, 166 U. S. 485, 17 Sup. Ct. 639, 41 L. Ed. 1087....
Excises -tax on artificially colored oleo
margarine finding of fact. 1. Oleomargarine containing a small quantity of a vegetable oil, which substantially serves only to give the product the yellow shade which causes it to resemble butter, cannot be regarded as within the proviso in the act of August 2, 1886 (24 Stat. at L. 209, chap. 840,
U. S. Comp. Stat. 1901, p. 2,228), § 8, as amended by the act of May 9, 1902 (32 Stat. at L. 193, chap. 784),* imposing a less
er tax on oleomargarine when "free from
artificial coloration that causes it to look
like butter of any shade of yellow," on the theory that the use of a substance which Congress has, in § 2 of the original act, recognized as a possible ingredient, cannot be artificial coloration, since this congressional enumeration of ingredients specifical.y includes coloring matter.
A finding that the use of palm oil as an ingredient of oleomargarine was substantially only for coloring purposes will not be disturbed on appeal, where it is based on testimony that, out of a total of 160 ounces, only 11⁄2 ounces were palm oil, and that this quantity imparted the yellow shade which caused the product to resemble butter.
Solicitor General Hoyt for defendant in
Mr. Justice Brewer delivered the opinion of the court:
August Cliff was convicted in the district court of the United States for the northern district of Illinois of a violation of § 11 of the act of August 2, 1886 (24 Stat. at L 209, chap. 840, U. S. Comp. Stat. 1901, p. 2,228), amended May 9, 1902 (32 Stat. at L. 193, chap. 784).* A judgment for $50, as prescribed by the section, was entered, with an order for collection by execution. That judgment was brought directly to this court The constitutionality of by writ of error. the oleomargarine legislation and the right to waive a trial by jury in petty criminal offenses were affirmed in McCray v. United States, 195 U. S. 27, 49 L. ed. 78, 24 Sup. Ct. Rep. 769, and Schick v. United States, 195 U. S. 65, 49 L. ed. 99, 24 Sup. Ct. Rep. 826. Nothing need be added to the opinions in those cases on these questions.
There is in this case a further question. Section 2 reads:
"Sec. 2. That for the purposes of this act certain manufactured substances, certain extracts, and certain mixtures and com
Argued December 2, 1903. Decided October pounds, including such mixtures and com
I United States for the Northern District N ERROR to the District Court of the of Illinois to review a conviction of having knowingly purchased and received for sale oleomargarine which had not been stamped according to law. Affirmed.
The facts are stated in the opinion. Messrs. William D. Guthrie, John Maynard Harlan, Miller Outcalt, Charles E. Prior, Francis J. Kearful, Delavan B. Cole, and Charles C. Carnahan for plaintiff in error.
U. S. Comp. St. Supp. 1903, p. 266. 25 S. C.-1.
pounds with butter shall be known and des
ignated as 'oleomargarine,' namely: All substances heretofore known as oleomargarine, oleo, oleomargarine-oil, butterine, lardine, suine, and neutral; all mixtures and compounds of oleomargarine oleo, oleomargarine oil, butterine, lardine, suine, and neutral; all lard extracts and tallow extracts; and all mixtures and compounds of tallow, beef fat, suet, lard, lard oil, vegetable oil annotto and other coloring matter, intestinal fat and offal fat made in imitation or semblance of butter, or, when so made, calcu*U. S. Comp. St. Supp. 1903, p. 266.
lated or intended to be sold as butter or for the oleomargarine, and, therefore, that the butter."
In § 8 is this provision:
oleomargarine so colored is not free from artificial coloration, and becomes subject to the tax of 10 cents per pound."
Now the contention is that, Congress having by § 2 named the possible ingredients of oleomargarine, the coloring given to a compound of some or all by the use of one of the named ingredients is a natural color
"Sec. 8. That upon oleomargarine which shall be manufactured and sold, or removed for consumption or use, there shall be assessed and collected a tax of ten cents per pound, to be paid by the manufacturer thereof; and any fractional part of a pound in a package shall be taxed as a pound: Providing, and not an artificial coloration, subjected, When oleomargarine is free from artificial coloration that causes it to look like butter of any shade of yellow said tax shall be one fourth of one cent per pound."
By 14 the Commissioner of Internal Revenue
ing to a tax of 10 cents per pound. In order that the precise contention may be understood we quote the following from one of the briefs filed for plaintiff in error:
"By parity of reasoning, when one is speaking of oleomargarine, natural coloration means a coloration due to a natural ingredient of oleomargarine; and to find out whether a certain ingredient is a natural ingredient of oleomargarine, we turn to the statute which defines the nature of oleomargarine. If the color-giving ingredient be a natural, that is a statuory, ingredient of oleomargarine, then how can it be truly said that the color caused by such ingredient is 'artificial coloration' merely because the quantity of such ingredient used is small or
"is authorized to decide what substances, extracts, mixtures, or compounds, which may be submitted for his inspection in contested cases, are to be taxed under this act; and his decision in matters of taxation under this act shall be final. The Commissioner may also decide whether any substance made in imitation or semblance of butter, and intended for human consumption, contains ingredients deleterious to the public health." Defendant was charged with having knowingly purchased and received for sale "cer-even minute, and the purpose of its use is to tain oleomargarine which had not been stamped according to law, that is to say, 10 pounds of a mixture and compound composed, as he, the said August Cliff, well knew, of oleo oil, neutral lard, cotton-seed oil, milk, common salt, and palm oil (which said last-named ingredient, to wit, palm oil, produced an artificial coloration in the said oleomargarine that caused it to look like butter of a shade of yellow), which said oleomargarine had then lately before, to wit, on the day aforesaid, been manufactured at Chicago aforesaid by William J. Moxley."
It was shown that the tax of 10 cents per pound had not been paid, that the package contained 10 pounds, that its ingredients and their proportions were: 3 pounds of oleo oil; 1 pound and 12 ounces of neutral lard; 2 pounds of cotton-seed oil; 1 pound and 14 ounces of milk; 1 pound and 4 ounces of salt; 1 ounces of palm oil. In other words, out of 160 ounces, only 1 ounces were palm oil. There was introduced in evidence a ruling of the Commissioner of Internal Revenue, as follows:
"This office rules that where so minute and infinitesimal a quantity of a vegetable oil is used in the manufacture of oleomargarine as is proposed to be used of palm oil, and through its use the finished product looks like butter of any shade of yellow, it cannot be considered that the oil is used with the purpose or intention of being a bona fide constituent part or element of the product, but is used solely for the purpose of producing or imparting a yellow color to
impart the desired color? Howsoever minute may be the quantity of palm oil used, it is none the less a vegetable oil, a statutory, or, so to speak, a natural, ingredient of oleomargarine, and displaces in the finished product an equal volume of some other statutory ingredient of oleomargarine; as, for instance, cotton-seed oil. The statute confers no power upon the Commissioner to prescribe the formula for the manufacture of oleomargarine, or the proportion of the different ingredients, or to exclude any ingredient except upon the ground of its being deleterious to health. But does not the government, in effect, assume such power to be in the Commissioner, when, by reason of his arbitrary classification, based upon the quantity of palm oil used, it requires a tax of 10 cents per pound upon oleomargarine containing a small or minute proportion of palm oil, while, if the percentage used of that oil were large enough to constitute what the Commissioner would regard as a substantial part of the finished product, it is conceded that the tax would be only of a cent per pound?"
We do not undervalue the force of this argument, but, as applied to this case, hold that it cannot prevail. It is true that under the last clause of § 2 oleomargarine includes "all mixtures and compounds" of the substances named, "made in imitation or semblance of butter, or, when so made, calculated or intended to be sold as butter or for butter," and that palm oil is a vegetable oil, one of those substances. But in this enumera