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SEC.

60. Inspection of food and drugs. 61. Inspection laws preventing importation.

62. Discrimination in the inspection of domestic and imported food.

63. State inspection laws in controvention of Federal meat inspection laws of 1908.

64. Labeling impure food. 65. Labeling to prevent deceptionBaking powder.

66. Labeling small packages taken from original packages.

67. Branding fruit for shipment to

show locality where grown.

68. Official certificate that article has been inspected-Stamping.

69. Marking weight of package on label.

70. Weight of loaves of bread.

71. Marking capacity of bottle containing liquid.

72. Destruction of property devoted

SEC.

to manufacture of oleomargarine before enactment of statute.

73. Rate of taxation, declaring illegal - Federal oleomargarine statute.

74. Amount of tax, validity of statute.

75. Enjoining violation of pure food statute.

76. Enjoining void statute or ordinance regulating sale or manufacture of food.

77. Inspection to prevent violation of law.

78. Title of statute or ordinance. 79. Corporation, quo warranto. 80. Municipality delegating power to grant or refuse a license to sell milk.

81. Power of municipality to inspect food Milk-Inspection

of dairies.

82. Regulation and sale of drugs and medicines.

§1. What is Food.

The word "food" includes whatever is eaten or drunk by man; and therefore includes milk,' and the word "milk” used in statute in its general sense includes cream.2 "Condiment" is a food and not a medicine. Whisky is a drug under the Ohio statutes, nor is drink a food under the Pennsylvania statute of 1895.5 The fact that a "food" may also

1 Commonwealth v. Hartman, 19 Pa. Co. Ct. Rep. 97, 6 Pa. Dist. Rep. 136; State v. Smith, 69 Ohio St. 196, 68 N. E. 1044.

2 Commonwealth v. Gordon, 159 Miss. 8, 33 N. E. 709; St. Louis v. Ameln, (Mo.), 139 N. W. 429; State v. Stone, 46 La. 147, 15 So.

3 Savage v. Scovel, 171 Fed. 566. 4 State v. Hutchinson, 56 Ohio St. 82, 46 N. E. 71.

5 Commonwealth v. Kebort, 212 Pa. 289, 61 Atl. 895. P. L. 317. But this was owing to a defect in the statute.

be a medicine or possess medicinal properties does not exempt it from the operation of a statute regulating the sale of foods. A manufacturer who designates an article made and sold by him as a food is estopped to deny that it is such within the meaning of a statute regulating the sale of food."

§ 2. Exposure for Sale of Unwholesome Food a Common Law Offense.

In any discussion of the power of the Legislature to prevent the sale of impure food and drugs, or to prevent a deception of the public in their sales, it must be borne in mind that at common law it was an indictable offense to wilfully expose unwholesome provisions for sale as food.1 To

Savage v. Scovel, 171 Fed. 566. 7 Savage v. Scovel, 171 Fed. 566. Where a statute provided that "food shall be deemed adulterated if any substance or substances have been mixed with it so as to lower or depreciate or injuriously affect its strength, quality or purity;" and a statute enacted two years later than this one made it a misdemeanor to sell or offer for sale "adulterated" milk for domestic or potable use, it was held that the two statutes were in pari materia and must be so read; and that the former applied to the adulteration of milk by adding thereto pure water. "Milk is the food of foods," said the court. "The felicity of the table hinges on milk. Nay, con sidered by and large, bar milk, and how long would the race itself last? We know, too, that cow's milk is a respectable and common substitute for mother's milk. To injure the young is to grind the seed corn. It being essentially a food, when the Legislature two years later used the word adulterated in con

nection with food, it was presumably connected in the legislative mind with its prior legislative definition. a definition on all fours with that of standard lexicographers and with the ordinance" [in question]. St. Louis V. Austin (Mo.), 139 S. W. 429.

"Food, in its general sense, is that which nourishes the body without regard to its physical state; that is, it may be solid, liquid or gaseous. More particularly defined, food is that material taken into the body in the ordinary process of eating which contains the elements necessary for the growth of tissues, for the repair of the destruction to which the tissues are subjected during the ordinary vital processes and for furnishing heat and energy necessary to life."Wiley, Foods and Their Adulteration 7.

1 State v. Snyder, 44 Mo. App. 429; State v. Smith, 3 Hawks (N. C.) 378, 14 Am. Dec. 594; State v. Norton, 2 Ired. L. 40.

mix or knowingly permit servants to mix unwholesome ingredients with any article of food which is intended for sale is also a misdemeanor at common law.2 Thus a baker was indicted and convicted at common law who furnished bread to an asylum for children into which, to his knowledge, his servants had introduced alum.3 And a person who knowingly sells food or drugs under a false description may be guilty of obtaining money by false pretenses.*

§3. Basis for Pure Food Legislation.

At this day and age it seems scarcely necessary to state the ground upon which pure food legislation rests, nor to cite cases in support of it. The right to prevent the sale of impure food, to inspect food, or even destroy it when found impure, rests upon the police power of the State, which remains unimpaired by the Federal Constitution. "Every well organized government has the inherent right to protect the health and provide for the safety and welfare of its people. It has not only the right, but it is a duty and obligation which the sovereign power owes to the public, and as no one can foresee the emergency or necessity which may call for its exercise, it is not an easy matter to prescribe the precise limits within which it may be exercised. It may be said to rest upon the maxim, 'salus populi suprema lex,' and the constitutional guarantees for the security of private rights, relied upon by the appellant, have never been understood as interfering with the powers of the State to pass such laws as may be necessary to protect the health and provide for the safety and good order of society."1

"Constitutional limitations which declare that no person shall be deprived of his property or liberty without due process. of law," have never been construed as being incompatible with

2 Rex v. Dixon 3 M. & S. 11, 4 Cowp. 12, 15 R. R. 381; Regina v. Stevenson, 3 F. & F. 106; Burnby v. Bollet, 16 M. & W. 644, 17 L. J. Exch. 190, 11 Jur. (O. S.) 827. 3 Rex v. Dixon, supra.

4 Regina v. Foster, 2 Q. B. Div. 301, 41 J. P. 295.

1 Deems v. Baltimore, 80 Md. 164, 30 Atl. 648, 26 L. R. A. 541, 45 Am. St. 339.

the principle equally vital because essential to the peace and safety, that all property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community. "To justify such interference with private rights, the exercise must have for its immediate object the promotion of the public good, and, so far as may be practicable, every effort should be made to adjust the conflicting rights of the public and the private rights of individuals. At the same time the emergency may be so great and the danger to be averted so imminent, that private rights must yield to the paramount safety of the public, and to await in such cases the delay necessarily incident to ordinary judicial inquiry in the determination of private rights would defeat altogether the object and purpose for which the exercise of this salutary power was involved. Whatever injury or inconvenience one may suffer in such cases, he is in the eye of the law compensated by sharing the common benefit resulting from the summary exercise of this power, and which, under the circumstances, was absolutely necessary for the protection of the public."

2 Mugler v. Kansas, 123 U. S. 623, 31 L. Ed. 205, 8 Sup. Ct. 273.

W.

8 Deems v. Baltimore, 80 Md. 164, 30 Atl. 648, 26 L. R. A. 541, 45 Am. St. 339; People v. Biesecker, 169 N. Y. 53, 61 N. E. 990, 57 L. R. A. 178, 88 Am. St. 534, affirming 58 N. Y. App. Div. 391, 68 N. Y. Supp. 1067, which affirms 33 N. Y. Misc. Rep. 35, 68 N. Y. 134; State v. Nelson, 66 Minn. 166, 68 N. 1066, 34 L. R. A. 318, 61 Am. St. 399; State v. Broadbelt, 89 Md. 565, 43 Atl. 771, 45 L. R. A. 433, 73 Am. St. 201; State v. Schlencker, 112 Iowa 642, 84 N. W. 698, 51 L. R. A. 347, 84 Am. St. 360; State v. Crescent Creamery Co. 83 Minn. 284, 86 N. W. 107, 54 L. R. A. 466, 85 Am. Rep. 464; People v. Marx,

99 N. Y. 377, 52 Am. Rep. 34, 2 N. E. 29; People v. Gibson, 109 N. Y. 389, 17 N. E. 343, 4 Am. Rep. 465; People v. Girard, 145 N. Y. 105, 39 N. E. 823, 45 Am. Rep. 595; Gundling v. Chicago, 177 U. S. 183, 20 Sup. Ct. 633, 44 L. Ed. 725; Isenhour v. State, 157 Ind. 517, 62 N. E. 40, 87 Am. St. 228; Sanders v. Commonwealth, 117 Ky. 1, 25 Ky. L. Rep. 1165, 77 S. W. 358, 1 L. R. A. (N. S.) 932, 111 Am. St. 219; People v. Van de Carr, 199 U. S. 552, 26 Sup. Ct. 144, 50 L. Ed. 305, affirming 175 N. Y. 440, 67 N. E. 913, 108 Am. St. 781, affirming 81 N. Y. App. Div. 128, 80 N. Y. Supp. 1108; Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643, affirming 183 Mass. 242, 67 L. R. A. 85, 66 N. E. 719;

§ 4. Legislative Determination that Certain Articles of Food are Detrimental to Health.-Oleomargarine.

It is a legislative prerogative to determine whether a certain article of food is detrimental to the health of the inhabitants of the State, and with that determination the courts

Davis v. Massachusetts, 167 U. S. 43, 17 Sup. Ct. 731, 42 L. Ed. 71, affirming 162 Mass. 510, 26 L. R. A. 712, 44 Am. St. 389, 39 N. E. 113; Wilson v. Eureka City, 173 U. S. 32, 19 Sup. Ct. 317, 43 L. Ed. 603, affirming 15 Utah 53, 48 Pac. 41; State v. Layton, 160 Mo. 474, 61 S. W. 171, 62 L. R. A. 163, 83 Am. St. 407; Stolz v. Thompson, 44 Minn. 271, 46 N. W. 410; State v. Sherod, 80 Minn. 446, 83 N. W. 417, 50 L. R. A. 660, 81 Am. St. 268; State v. Crescent Creamery Co., 83 Minn. 284, 86 N. W. 107, 54 L. R. A. 466, 85 Am. St. 464; Butler v. Chambers, 36 Minn. 69, 30 N. W. 308, 1 Am. St. 644; Kansas v. Cook, 34 Mo. App. 669; Helena v. Dwyer, 64 Ark. 424, 42 S. W. 1071, 39 L. R. A. 266, 62 Am. St. 206; Commonwealth v. Vandyke, 13 Pa. Super. Ct. 489; Commonwealth v. McCann, 14 Pa. Super. Ct. 221; Holtgreive v. State, 7 Ohio N. P. 389, 5 Ohio S. & C. P. Dec. 166; Commonwealth v. Diefenbacher, 14 Pa. Super. Ct. 264; McCann v. Commonwealth, 198 Pa. 509, 48 Atl. 470; State v. Rogers, 95 Me. 94, 49 Atl. 564; McAllister v. State, 94 Md. 290, 50 Atl. 1046; State v. Capitol City Dairy Co. 62 Ohio St. 350, 57 N. E. 62, 57 L. R. A. 181; affirmed 183 U. S. 238, 22 Sup. Ct. 120, 46 L. Ed. 171; People v. Rotter, 131 Mich. 250, 91 N. W. 167, 9 Det. Leg. N. 284; Commonwealth

v. Seiler, 20 Pa. Super. Ct. 260; State v. Myers, 42 W. Va. 822, 26 S. E. 539, 35 L. R. A. 844, 57 Am. St. 887; State v. Bockstruck, 136 Mo. 335, 38 S. W. 317; Collins v. New Hampshire, 171 U. S. 30, 18 Sup. Ct. 768, 43 L. Ed. Armour Packing Co. v. Snyder, 84 Fed. 136; Schollenberger v. Commonwealth, 171 U. S. 1, 18 Sup. Ct. 757, 43 L. Ed. 49, reversing 170 Pa. 284, 30 L. R. A. 396, 33 Atl. 82, 5 Inters. Com. Rep. 506, 170 Pa. 296, 33 Atl. 85; Wright v. State, 88 Md. 436, 41 Atl. 795; People v. Worden Grocer Co., 118 Mich. 604, 77 N. W. 315; People v. Freeman, 242 Ill. 373, 90 N. E. 366; Commonwealth v. McDermott, 224 Pa. 95, 73 Atl. 427, 37 Pa. Super. Ct. 1; People v. Fried, 133 N. Y. Misc. App. 889, 118 N. Y. Supp. 1131; People v. Simpson-Crawford Co., 133 N. Y. Misc. 889, 118 N. Y. Supp. 1132; People v. Hale, 62 N. Y. Misc. 240, 114 N. Y. Supp. 945; Plumley v. Massachusetts, 155 U. S. 461, 15 Sup. Ct. 154, 39 L. Ed. 223, affirming 156 Mass. 236, 30 N. E. 1127, 15 L. R. A. 839; In re Brosnahan, 18 Fed. 62; Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 1257, 32 L. Ed. 253, affirming 114 Pa. St. 265, 7 Atl. 913, 60 Am. Rep. 350; Walker v. Commonwealth, 127 U. S. 699, 8 Sup. Ct. 997, 32 L. Ed. 261; State v. Snow, 81 Iowa 642, 47 N. W. 777, 11 L. R. A.

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