Bartolloti v. Police Court

WORKS, J., pro tem.

In this proceeding the appellant seeks a writ of prohibition restraining the respondent police court from trying him under a charge of having committed a misdemeanor in violating the provisions of a certain act of the legislature. The respondents answered and made a motion for judgment on the pleadings, which was granted. The appeal is from the judgment.

The act under which it is sought to punish Bartolloti is found at page 416 of the Statutes of 1911 (Deering’s Gen. Laws, Act 4122). Section 1 of the act provides, to state it in general terms, that persons engaged in manufacturing, bottling, and selling certain commodities, also specifically mentioned in section 2, which is set forth below, may file in the office of the county clerk and of the Secretary of State a description of the names, marks, or devices used on the receptacles in which the commodities are sold, and cause the description to be published for a certain period in a newspaper.

Section 2 of the act follows: “It is hereby declared to he unlawful for any person or persons, corporation or corporations, to fill with olive oil, salad oil, or any substitution therefor, or similar to olive oil, ripe or green olives, soda waters, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, beer, small beer, larger beer, weiss beer, white beer, or other beverages, or Worcestershire or other sauce or sauces or with medicine, compounds, or mixtures, any bottle, box, siphon or keg, so marked or distinguished as aforesaid, with or by any name, mark or device, of which a description shall

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have been filed and published, as provided in section one of this act, or deface, erase, obliterate, cover up, or otherwise remove or conceal any such name, mark or device thereon, or to sell, buy, give, take or otherwise dispose of or traffic in the same, without the written consent of, or unless the same shall have been purchased from the person or persons, corporation, or corporations, whose mark or device shall be or shall have been in or upon the bottle, box, siphon, or keg so filled, trafficked in, used, or handled as aforesaid. It is hereby declared to be unlawful for any person, firm, or corporation engaged in the manufacture, preparation or selling of drugs, or food products to use bottles, in bottling or packing their products that have been previously used for other purposes. Any person or persons or corporation offending against the provisions of this section shall be deemed guilty of a misdemeanor, and shall be punished for the first offense by imprisonment of not less than ten days nor more than six months or by a fine of fifty cents for each and every such bottle, box, siphon or keg so filled, sold, used, disposed of, bought, or trafficked in, or by both such fine and imprisonment; and for each subsequent offense by imprisonment not less than twenty days nor more than one year, or by a fine of not less than one dollar nor more than five dollars for each and every bottle, box, siphon, and keg so filled, sold, used, disposed of, bought or trafficked in, or by both such fine and imprisonment, in the discretion of the magistrate before whom the offense shall be tried.”