and intentional imitation of dairy butter, in manufacturing the new product, and not at a resemblance in qualities inherent in the articles themselves and common to both." The court therefore held that artificial coloring of oleomargarine for the mere purpose of making it resemble dairy butter came within the statutory prohibition against imitation, and "that such prohibition is within the power of the Legislature, and acts upon the same principle which would sustain a prohibition of coloring winter dairy butter for the purpose of enhancing the market price by making it resemble summer dairy butter, should the Legislature deem such a prohibition necessary or expedient." In Missouri a statute prohibits the manufacture and sale of oleaginous substances, or compounds of the same, in imitation of dairy products. In discussing the object of this statute the Supreme Court of that State said: "The central idea of the statute before us seems very manifest; it was, in our opinion, the prevention of facilities for selling or manufacturing a spurious article of butter, resembling the genuine article so closely in its external appearance as to render it easy to deceive purchasers in buying that which they would not buy but for the deception. The history of legislation on this subject, as well as the phraseology of the Act itself, very strongly tends to confirm this view. If this was the purpose of the enactment now under discussion, we discover nothing in its provisions which enables us, in the light of the authorities, to say that the Legislature, when passing the Act, exceeded the power confided. to that department of government; and unless we can say this, we can not hold the Act to be anything less than valid."? In response to the suggestion that oleomargarine colored with annatto was a wholesome article of food, the sale of which could not be prohibited, the Supreme Court of New Jersey said: "If the sole basis of this statute were the protection of 1 People v. Arenberg, 105 N. Y. 123, 11 N. E. 277, 59 Am. Rep. 483; McAllister v. State, 72 Md. 390; People v. Simpson Crawford Co., 62 N. Y. Misc. 240, 114 N. Y. Supp. 945; affirmed 142 N. Y. 2 State v. Addington, 77 Mo. 110, affirming 12 Mo. App. 214. the public health, this objection would be pertinent, and might require us to consider the delicate questions, whether and how far the judiciary can pass upon the adaptability of the means which the Legislature has proposed for the accomplishment of its legitimate ends. But, as already intimated, this provision is not aimed at the protection of the public health. Its object is to secure to dairymen and to the public at large a fuller and fairer enjoyment of their property, by excluding from the market a commodity prepared with a view to deceive those purchasing it. It is not intended that annatto has any other function in the manufacture of oleomargarine than to make it a counterfeit of butter, which is more generally esteemed and commands a higher price. That the Legislature may repress such counterfeits does not admit, I think, of substantial question. Laws of this character have of late years been frequently assailed before the courts, but always without success.'' 3 State v. Newton, 50 N. J. L. 534, 14 Atl. 634, 2 Inters. Com. Rep. 63; Pierce v. State, 63 Md. 596; Minn. 446, 83 N. W. 417, 50 L. R. A. 660, 81 Am. St. 268; State v. Layton, 160 Mo. 474, 61 S. W. 171, 62 L. R. A. 163, 83 Am. St. 487; State v. Capitol City Dairy Co., 62 Ohio St. 350, 57 N. E. 62, 57 L. R. A. 181; State v. Collins, 70 N. H. 218, 45 Atl. 1080; State v. Ball, 70 N. H. 40, 46 Atl. 50. An ordinance forbidding the sale of milk containing coloring matter, a provision to prevent deception and unfair advantage over honest competitors, is valid. St. Louis v. Polinsky, 190 Mo. 516, 89 S. W. 625; St. Louis v. Jud (Mo.), 139 S. W. 440. A statute preventing the removal of cream, or any part thereof, from milk sold as pure milk to any factory in which milk is used as a material, is valid. Mantel v. State, 55 Tex. Cr. App. 456, 117 S. W. 855, 131 Am. St. 818; Sue Lung v. § 10. Preservatives in Food. Notwithstanding the great power of the Legislature under the police power of the State, yet it has its limits. Under the guise of preventing the sale of pure food it may not prohibit the sale of food in which preservatives have been used to maintain its purity, if such preservative is harmless. Upon this question the New York Court of Appeals has made these observations: "The preservation of food, and the arrest of its tendency to decay, is certainly a proper and lawful object in itself. It is a work in which man has been engaged, to some extent, from earliest history. It is the subject of large industries in this country, and the products of those industries are generally used by the community, and are lawful objects of manufacture and sale. The industry has grown to an enormous extent. These are matters of common knowledge. There is doubtless in the prosecution of these industries danger of adulteration, and of the use of processes injurious to public health. The regulation of these subjects for the protection of the public health, and the prevention of imposition on consumers, is within the power of the legislature, and the propriety of its exercise can not be questioned. But, while it may regulate, the Legislature may not destroy, the industry; and that is not a valid regulation, which, in dealing with the means of preserving food, makes the preservation of food itself an unlawful act. Ingredients and processes may be prohibited as unwholesome or causing deception, but not solely because they preserve. But here the cases are not State (Tex. Cr. App.), 117 S. Deception in sale of substances for butter may be forbidden. State V. Bockstruck, 136 Mo. 335, 38 S. W. 317; People v. Rotter, 131 Mich. 250, 91 N. W. 167, 9 Detroit Leg. N. 284; People v. Meyer, 89 N. Y. App. Div. 185, 85 N. Y. Supp. 834; People v. Simpson Crawford Co., 62 N. Y. 991 Misc. 240, 114 N. Y. Supp. 945, A statute may require all vinegar to be sold without artificial coloring, even though the coloring be harmless and the bottle containing it be labeled "colored." State v. Earl, 152 Mo. App. 235, 133 S. W. 402. 1 People v. Biesecker, 169 N. Y. in harmony, for in Missouri it has been held that an ordinance prohibiting the sale of milk and cream containing a preservative was valid, even though one not injurious to health be used.2 811. Pure Food Statutes Not Violations of the Fourteenth Amendment. Pure food laws that apply to all persons alike are not in contravention of the Fourteenth Amendment. A claim that they are is untenable. Speaking of a Pennsylvania statute concerning the manufacture, sale and keeping of oleomargarine, the Supreme Court of the United States said: "The statute places under the same restrictions, and subjects to like penalties and burdens, all who manufacture, or sell, or offer to sell, or keep in possession to sell, the articles embraced by its prohibition; thus recognizing and preserving the principle of equality among those engaged in the same business." Earlier in the same opinion the court said: "It is scarcely necessary to say that this statute is a legitimate exercise of the police power of the State for the protection of the health of the people, and for the prevention of fraud. It is not inconsistent with the amendment; for it is the settled doctrine of this court that, as government is organized for the purpose, among others, of preserving the public health and the public morals, it can not divest itself of the power to provide for those objects; and that the Fourteenth Amendment was not designed to interfere with the exercise of that power by the States."" 53, 61 N. E. 990, 88 Am. St. 534, 57 L. R. A. 178. 2 St. Louis v. Schuler, 190 Mo. 524, 89 S. W. 621, 1 L. R. A. (N. S.) 928. 1 Powell v. Commonwealth, 127 U. S. 678, 8 Sup. Ct. 1257, 32 L. Ed. 253, affirming 114 Pa. 265, 7 Atl. 913, 5 Cent. Rep. 890, 60 Am. Rep. 350; State v. Schlenker, 112 Iowa 642, 84 N. W. 698, 51 L. R. -- A. 347; North American Cold Stor- § 12. Intent, Statute Rendering Unnecessary to the It is competent for the Legislature to render an accused amenable to a statute forbidding the sale of adulterated articles, though he had no knowledge that the article he sold. was adulterated at the time he made the sale. This is par ticularly true of milk. There is no doubt of the power of the legislators to enact such a statute. "It is notorious," said the New York Court of Appeals, "that the adulteration of food products has grown to proportions so enormous as to menace the health and safety of the people. Ingenuity keeps pace with greed, and the careless and heedless consumers are exposed to increasing perils. To redress such evils is a plain duty but a difficult task. Experience has taught the lesson that repressive measures which depend for their efficiency upon proof of the dealer's knowledge and intent to deceive and defraud are of little aid and rarely accomplish their purpose. Such an emergency may justify legislation which throws upon the seller the entire responsibility of the purity and soundness of what he sells and compels him to know and to be certain.' § 13. Statute Authorizing Board of Health to Adopt Rules Regulating Standard of Foods and Defining Adulteration. The Legislature may authorize a Board of Health to adopt rules regulating minimum standards of foods, defining specific adulteration, declaring the methods of collecting and examining foods, and make a violation of these a penal offense. This is not a delegation of legislative power. The obvious purpose of such a statute is "to commit to a body 98 Minn. 351, 107 S. W. 953, 108 S. W. 470; People v. Bowen, 182 N. Y. 1, 74 N. E. 489, reversing 97 N. Y. App. Div. 642, 90 N. Y. Supp. 1108; People v. West, 106 N. Y. 293, 12 N. E. 610, 60 Am. Rep. 452, affirming 44 Hun 162; State v. Foucade, 45 La. Ann. 17, 13 So. 187, 40 Am. St. 249; People v. Griffin (N. Y.), 128 N. Y. Supp. 946. 1 People v. Kibler, 106 N. Y. 321, 12 N. E. 795. See also People v. Friedman, 138 N. Y. App. Div. 29, 122 N. Y. Supp. 500; affirmed 200 N. Y. 591, 9 N. E. 1096. |