Dibble v. Hathaway

(dissenting):

Aside from the statute, the defendant had, of course, the right to deface any thing on his own tubs. The simple question then is, whether he violated the statute. And that depends on this: whether the painting of the maker’s name on a tub and the cutting of marks thereon with a chisel are “ branding.”

The word “ brand ” itself shows its meaning. It is a piece of wood burning, or partly burnt — hence, a mark made by burning with a hot metal. Excluding the poetical and figurative use of the word, I find no definition which does not include the idea of burning. (See Webster’s Dictionary and Richardson’s Dictionary.)

In modern times the branding of articles has, to some extent, given place to the marking them by means of a stencil plate. But neither such marking, nor the cutting of characters with a chisel, is branding.

The statute is penal and “ can not be extended by implication or construction to cases within the mischief, if they are not, at the same time within the terms of the act fairly and reasonably interpreted.” (Verona Cheese Co. v. Murtaugh, 50 N. Y., 317.)

It is quite possible that the legislature may have intended to require this peculiarly permanent kind of marking. If they had intended to permit other kinds, they would have said “ mark or brand.” This is the language which they did use in regard to bales of hay (Sess. Laws 1860, chap. 155.) And again, in chapter 415 (Sess. Laws 1877): “ Shall distinctly and durably stamp, brand or mark upon every tub,” etc. Thus they have showed their knowledge of the meaning of this word “ brand.” So the sealers of weights are to “ seal and mark,” thus being allowed to use any proper kind of marking. And the witness Culver, in this case, who made the tubs, testifies : “ I did not brand them, either name or weight.” Erom which it appears that he, too, understood that while a brand might be a mark, yet every mark was not a brand.

In my opinion then, the stenciled name was not a “ brand,” and more plainly the chisel cuts, supposed to indicate weight, were not “ brands.”

There is, I think, another defect. It appears that the only marking supposed to indicate weight was “ with two parallel, perpendicular lines,” It does not appear that there was any thing marked *577on tbe tubs to show that these two lines indicated tbe weight. They might stand for pints, or pounds, or ounces, or the day of the month. The statute requires the branding with “the true and actual weight.” Two parallel perpendicular lines, without any thing more, do not mean two or eleven pounds.

We have nothing to do with the defendant’s supposed intent to defraud. He is civilly liable for any fraud. We have only to inquire whether he altered or defaced a “ brand ” made under the direction of that statute. I think that he did not, and that the judgment should be reversed.

Judgment affirmed, with costs.

The court held, in effect, that the placing of the name of the manufacturer on the tubs in legible letters with a stencil plate, and indicating the weight by characters made with a chisel or other sharp instrument, was a brcmdi/ng within the meaning of the act giving the penalties recovered in this action. Such ruling presents the only question before us on this appeal.

It is a very familiar rule of law that penal statutes must be strictly construed; at the same time, they are to receive such construction as will render them effectual according to the intention of the legislature, when that result may be obtained without doing violence to the language employed. So it is the duty of courts so to construe statutes as to meet the mischief which the law was intended to remedy, and to advance the remedy, when this may be done without violating fundamental principles. (Hart v. Cleis, 8 Johns., 41-44.) It was also laid down in Maillard v. Lawrence (16 How. [U. S.], 251), that the popular or received import of words, furnishes the general rule for interpretation of public laws. And again it was *575said in McCluskey v. Cromwell (11 N. Y., 593-601), that statutes should be read and understood according to the natural and most obvious import of the language, without resorting to subtle and forced construction, for the purpose of either limiting or extending their operation. It is further laid down as a sound general principle in the exposition of statutes, that less regard be paid to the words that are used than to the policy which dictates the act. Then let us first examine the policy of the law now before us, by taking note of the mischief it was intended to remedy. It is entirely manifest that this act was designed to prevent fraud, in overestimating the weight of butter contained in packages upon its sale and transfer in market. So to effectuate this purpose, it was provided that the manufacturer of the tub, firkin or other vessel in which butter was to be packed, should ascertain and mark the weight thereon, and to give such mark verity, he was also required to add his name. The marking in a legible and distinct manner was what was desired and intended to be secured. The language is, that the manufacturer “ shall brand in legible letters and characters upon every such firkin, tub,” etc., his name and the weight of the vessel. The object to be attained would be perfectly answered by marking, as was done in this case, by stencil plate and chisel. To brand, in common parlance and according to common acceptance at this day, means to mark. Indeed, what was formerly generally done by a hot iron in the way of marking packages, is now done by the more convenient and very common use of the stencil plate. The purpose to be attained by the statute is equally well answered by such use. In referring to marks placed upon packages of merchandize, it is denominated branding quite as often as otherwise. To brand has become an equivalent expression with to stamp, and to mark. It is quite obvious that the word “ brand,” was used in this sense in the statute; certainly it was used in this sense within the spirit of the law. That this is so, is also made apparent on referring to the title of the act, as “ an act in relation to the weights cmd ma/rhs on casks and packages containing butter.”

The ruling of the court was correct as we think, and the judgment must be affirmed, with costs.