CHAPTER 221 - USE OF MILK BOTTLES AND OTHER RECEPTACLES

AN ACT TO AMEND CHAPTER 100, 3594 SECTION 159, AS AMENDED BY CHAPTER 210, VOLUME 35, LAWS OF DELAWARE, IN RELATION TO THE USE OF MILK BOTTLES AND OTHER RECEPTACLES USED IN THE SALE AND DELIVERY OF DAIRY PRODUCTS.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:

Section 1. That 3594, Section 159, of Chapter 100 of the Revised Code of the State of Delaware, as amended by Chapter 210, Volume 35, Laws of Delaware, be and the same is hereby amended by striking out all of said Section and the amendment thereto and inserting in lieu thereof the following 11 Sections to be known respectively as 3594, Section 159; 3594A, Section 159A; 3594B, Section 159B; 3594C, Section 159C; 3594D, Section 159D; 3594E, Section 159E; 3594F, Section 159F; 3594G, Section 159G; 3594H, Section 159H; 35941, Section 1591; and 3594J, Section 159J.

3594, Section 159. Any person, firm or corporation engaged in manufacturing, bottling, or selling milk, cream, or other dairy products in bottles, boxes, tins, cans, or other receptacles or containers, with his, her, their, or its name or names or other mark or marks, or device or devices, branded, stamped, engraved, etched, blown, impressed or otherwise produced upon such bottles, boxes, tins, cans or other receptacles or containers used by him, her, them, or it, in the same or delivery of milk, cream, or other dairy products, may file in the Office of the Secretary of State a description of the name or names, marks or devices so used by him, her, them or it, respectively, and cause such description to be printed once a week for two weeks successively in a newspaper published in the County in which the principal office or place of business of the owner shall be located and, upon legal proof being furnished the Secretary of State a certificate shall be issued by the Secretary of State, which certificate shall be competent evidence in any court of law of the State of Delaware of the right of such person or persons, or such firm or firms, or such corporation or corporations, to the absolute use of such bottles, boxes, tins, cans, or other receptacles or containers, with such devices marked thereon, and of the publication and registration of the same. Provided, however, that if such person or persons, firm or firms, corporation or corporations, shall have obtained a certificate from the Secretary of State and thereafter retire from business, such person or persons, firm or firms, corporation or corporations, shall have the right to legally transfer such certificate to such person or persons, firm or firms, corporation or corporations, who shall succeed such person, firm or corporation in the business aforesaid.

3594A. Section 159A. It is hereby declared to be unlawful for any person, firm or corporation to fill with milk, cream or other dairy products, or other beverages, oils, compounds or mixtures, any bottles, boxes, tins, cans, or other receptacles or containers, so marked or distinguished by or with any name, mark or device, of which such a description shall have been filed and published as provided for in this Act; or to deface, erase, obliterate, cover up, or otherwise remove or conceal, any such name, mark or device thereon; or to sell, buy, give, take, retain, or to break, mutilate or destroy, or otherwise dispose of, or traffic in the same; without the written consent of the owner or owners thereof being first obtained.

3594B, Section 159B. The fact of any person, firm, or corporation other than the rightful owner or owners thereof using any such bottles, boxes, tins, cans, or other receptacles or containers for the sale or storage therein of any milk, cream or other dairy products, or other beverages, oils, compounds or mixtures, without the written consent of such owner or owners, of which a description of the names, marks, or devices thereon shall have been filed and published in the manner provided for in this Ad; or the buying, selling, using, disposing of, destroying, retaining, or trafficking in such bottles, boxes, tins, cans, or other receptacles or containers, by any person, firm, or corporation other than the owner or owners thereof, without such written consent; or having in his, her, their or its possession, by any junk dealer or other dealer in second-hand articles, of any such bottles, boxes, tins, cans, or other receptacles or containers, of which a description of the names, marks, or devices thereon has been so filed and published as aforesaid, without any written consent, is declared to be prima facie evidence of the unlawful use, retention, possession of, or trafficking in such bottles, boxes, tins, cans, or other receptacles or containers.

3594C, Section 159C. The requiring, taking, or accepting of any deposit upon the delivery of any bottle, box, tin, can or other receptacles or containers, the name, mark, or device upon which has been filed and published as provided for in this Act, shall not be deemed to constitute a sale thereof, either optional or otherwise.

3594D, Section 159D. The owner or proprietor, or his or its agent or agents, may take possession of any such bottles, boxes, tins, cans, or other receptacles or containers, used in violation of this Act, whether such receptacles or containers be full or partly full of any liquid, beverage or other substance, or empty, and shall not be liable in damages therefor, or for any trespass arising out of such taking possession. Should the party or parties having possession of such receptacles or containers refuse to empty the same of the contents contained therein immediately, upon notice and demand by the owner or proprietor, or his or its agent or agents, then such owner, proprietor or agent may empty such receptacles or containers and shall not be liable therefor.

3594E, Section 159E. If any person shall make oath or affirmation before the Municipal Court of the City of Wilmington or any Justice of the Peace that he has reason to believe that any of the bottles, boxes, tins, cans, or other receptacles or containers, the property of any person, firm or corporation who have complied with the provisions of this Act are being unlawfully used, filled or trafficked in, retained or destroyed or possessed by any person, firm or corporation engaged in manufacturing or selling milk, cream, or other dairy products, or other beverages, oils, compounds, or mixtures; or that any junk dealer in second-hand articles, or any other person, firm or corporation who has any such bottles, boxes, tins, cans, or other receptacles or containers, in his, her, their or its possession, or secreted in any place; the said Municipal Court of the City of Wilmington or Justice of the Peace shall issue a search warrant, which may be served at any time during the day or night, to discover and obtain the same, and to bring before such Municipal Court of the City of Wilmington or Justices of the Peace the person or persons in whose possession such bottles, boxes, tins, cans or other receptacles or containers may be found; and if any such are found unlawfully in the possession of any such person or persons, the said person or persons shall, for the first offense, forfeit and pay the sum of Fifty Cents for each bottle, box, tin, can, or other receptacle or container so unlawfully filled or sold, or used, or disposed of, or bought, or trafficked in, together with the cost of suit, and for each subsequent offense, forfeit and pay the sum of One Dollar for each bottle, box, ,tin, can or other receptacle or container, together with the cost of suit; to be recovered before the Municipal Court of the City of Wilmington or any Justice of the Peace as fines and penalties are by law recovered for the use of the State.

The following form shall constitute the warrant mentioned in this Section:

"______________________ County, SS.

The State of Delaware.

To any constable of the said ____________ Greeting:

Whereas, due proof has this day been made before me _______ Judge of the Municipal Court of Wilmington, or Justice of the Peace for _______ on oath of _____________ of said ________________ that one ______________ is unlawfully using and now has concealed in his (or her) premises, or in his (or her) wagons, the bottles of said deponent, obtained by purchase, traffic or gift from others than the rightful owner thereof. These are therefore in the name and by the authority of the State of Delaware, and by virtue of the powers and duties attaching to me under the Act of the General Assembly in such case made and provided, to authorize you, the said constable, with necessary and proper assistance, diligently to search for the said bottles on the premises of the said ________ and if the same be found, upon search, you do bring the same before me to be dealt with according to law.

Witness the said ________ who hath hereunto set his hand and seal, the _____ day of _______, A D. 19___".

3594F, Section 159F. Glass bottles used in the sale and delivery of milk, cream and other dairy products shall be sterilized before each and every filling, and shall not be used by the owner or owners thereof, or by any other person or persons, for any other purpose whatsoever.

Whosoever shall violate any of the provisions of this Section shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine not exceeding Ten Dollars for each offense.

3594G. Section 159G. Any Justice of the Peace of the County in which any of the above offenses shall have been committed shall have jurisdiction to hear, try and determine any violation under this Act.

3594H, Section 159H. The Municipal Court of the City of Wilmington shall have concurrent jurisdiction of all violations of this Act committed within the corporate limits of the City of Wilmington.

3594I, Section 1591. Any person, firm or corporation convicted under the provisions of this Act shall have the right of an appeal to the Court of General Sessions of the County, upon giving bond with surety satisfactory to the Justice of the Peace or Judge before whom such person shall have been convicted. Such appeal to be taken and bond given within five days from the time of conviction.

3594J, Section 159J. All laws or parts of law inconsistent hereto to be and the same are hereby repealed.

Approved April 15, 1935.