§ 28. Adulteration Not Reducing Strength of Milk Below Standard Fixed by Statute. A statute of Missouri declared that "Food shall be deemed to be adulterated: 1. If any substance or substances have been mixed with it so as to lower or depreciate or injuriously af sale of skimmed milk. Kansas A statute providing that any City v. Cook, 38 Mo. App. 660. The legislature may prohibit the delivery of diluted milk to butter or cheese factories. People v. West, 106 N. Y. 293, 12 N. E. 610, 60 Am. Rep. 452, affirming 44 Hun 162. The legislature may make the sale of mixed pure milk and pure water an offense. Commonwealth v. Waite, 11 Allen 264, 87 Am. Dec. 111; People v. West, 106 N. Y. 293, 12 N. E. 610, 60 Am. Rep. 452. Where an ordinance or statute provides that no person shall have in his possesion, with intent to sell, any adulterated milk, and declares that milk shall be deemed adulterated if any substance has been mixed with it, so as to lower or depreciate or injuriously affect its strength, quality or purity, the court will take judicial notice that the addition of water lowers and depreciates the quality of milk of any standard, and the ordinance or statute prohibits the addition of water to milk, without reference to the standard obtained, notwithstanding the addition; and a complaint charging a sale of adulterated milk is not objectionable for failure to allege a fixed standard by which to judge the strength and quality. St. Louis v. Ameln (Mo.), 139 S. W. 429. person who shall adulterate milk in enumerated ways, with a view of selling or offering the same for sale, or shall deliver it to a purchaser, is not in conflict with an ordinance or other statute which declares that no person shall have any milk which is adulterated, for the first is leveled against the act of adulteration with the prescribed intent, so that for a person to be guilty under it he must create the contraband milk, while the latter is leveled against the act of having in possession the contraband milk with the intent to sell, under which it is only essential to a conviction that the person charged shall have had such milk in his possession with the interdicted intent. St. Louis v. Ameln (Mo.), 139 S. W. 429. A statute which provides that whoever sells or offers or exposes for sale within the state any milk, or sells or offers for sale, or delivers to another, adulterated or unwholesome milk, shall be guilty of a misdemeanor, is not in conflict with an ordinance which provides that no person within the city shall have in his possession, with intent to sell, any adulterated milk, and prescribing what shall constitute adulteration, because the statute is silent with reference to "possession with intent to sell," In the case fect its strength, quality or purity. 6. of dairy products, if any such product be drawn or produced from cows fed on unhealthy or unwholesome food, or on which is made an offense by the ordinance. St. Louis v. Ameln (Mo.), 139 S. W. 429. A section of a statute referred to a series of enumerated and interdicted kinds of milk, each connected with the other by the disjunctive conjunction "or," and solely related to the selling, offering, or exposing for sale any milk or cream of the several kinds described, and provided that whoever should sell or offer or expose for sale within the state any milk of the kinds specified, or should sell or offer for sale, or deliver to another, adulterated or unwholesome milk, should be guilty of a misdemeanor. The phrase, "injurious to the health," was used in connection with milk sold, offered, or exposed for sale, containing foreign substances or preservatives of any kind. Another section provided that food should be deemed adulterated if any substance was mixed with it, so as to lower or depreciate or injuriously affect its strength, quality or purity. It was held that these sections, when read together, prohibited the sale of milk within the state, the quality of which had been reduced by adding pure water, and that it was not the policy of the state to permit the sale of watered milk so long as a specific standard was retained. St. Louis v. Ameln (Mo.), 139 S. W. 429. An ordinance prescribing a lower standard of non-fatty solids for milk sold within the city than that speci fied by a statute of the state, is not for that reason invalid or against the policy of the state. It is not void as discriminatory, on the theory that the inhabitants of he municipality are entitled to the same grade of milk to which the other inhabitants of the state are entitled, where the ordinance prohibits the having in possession impoverished milk within the municipality, with intent to sell, without reference to whether the possessor is a resident or a non-resident, and does not affect the application of the state law in the city. The ordinance is not repealed by the statute. The ordinance prohibited the sale of milk containing less than eight and fivetenths percent non-fatty solids, and the statute required milk sold within the state to contain not less than eight and seventy-five one hundredths per cent. It was held that the ordinance was not invalid, because it proviued a different standard for milk sold within the city. Under the rule, so long as the ordinance, within the grant of municipal legislative power, falls within but does not exceed, and is not inconsistent with the state statute, there is no such conflict or inconsistency as to invalidate the ordinance. The ordinance was a mere exercise of proper municipal discretion not to bring the machinery of the city courts into operation to prosecute for violations in excess of the municipal standard, waste, slops, refuse, leavings or residue of any nature or kind from distilleries, breweries or vinegar factories, or on food in a state of putrefaction, or from cows diseased in any way. . . . Or 10. If it does not conform to the standard of strength, quality and purity now or hereafter to be established by the United States Department of Agriculture." The United States Department of Agriculture established a standard for skim milk at "not less than 9.25 percent of milk solids;" and consequently if milk contained only 90.75 percent of water it did not violate this standard. It was contended that if pure water was added to milk, but not to exceed 90.75 percent of the entire bulk the statute was not violated; but the court was not willing to concede the rightfulness of such contention, and held that the putting of pure water into milk was a violation of the statute though the percentage of water was not increased beyond that permitted in milk taken directly from the cow.1 § 29. Unadulterated Milk Below Standard. The State may forbid the sale of milk below a given standard, although it be unadulterated and come fresh from the animal. It may be known to the Legislature that certain kinds of foods produce different degrees of richness in milk, and it may be known to them that certain kinds of food leaving the state to enforce its own law at all points and to the limit prescribed. St. Louis v. Scheer (Mo.), 139 S. W. 434; St. Louis v. Klausmeier, 213 Mo. 119, 112 S. W. 516; St. Louis v. Meyer (Mo.), 139 S. W. 438; St. Louis v. Kellman (Mo.), 139 S. W. 443; St. Louis v. Schulte (Mo.), 139 S. W. 449; St. Louis v. Niehaus (Mo.), 139 S. W. 450. A city cannot prescribe a higher standard than that prescribed by a statute of the state. St. Louis v. Schulte (Mo.), 139 S. W. 449. 1 St. Louis v. Kruempeler (Mo.), 139 S. W. 446. This question was involved and incidentally discussed in the following cases: St. Louis V. Ameln (Mo.), 139 S. W. 429; St. Louis v. Scheer (Mo.), 139 S. W. 434; St. Louis v. Meyer (Mo.), 139 S. W. 438; St. Louis v. Jud (Mo.), 139 S. W. 441; St. Louis v. Kellman (Mo.), 139 S. W. 443; St. Louis v. Kruempeler (Mo.), 139 S. W. 446; St. Louis v. Schulte, (Mo.), 139 S. W. 449; St. Louis v. Niehaus (Mo.), 139 S. W. 450. "will cause a great flow of watery milk, and it may be known to the Legislature that this watery milk supplied as food to children cheats them with the appearance of nourishment and deprives them of that nutritious food which they need. It may be known to legislators, then, that milk below the standard which they fix by this law is unsuitable for food and should not be sold. At any rate, all this is matter for the Legislature."" "It is equally a fraud on the buyer, whether the milk which he buys was originally good and has been deteriorated by the addition of water, or whether in its natural state it is so poor that it contains the same proportion of water as that which has been adulterated. Again, since it may sometimes happen, though we presume infrequently, that milk as it comes from the cow is below the standard of quality, it would be difficult .. to prove that its poor quality was due to adulteration, although in a very large majority of cases such would probably be the fact. By putting such milk in the same category with adulterated milk, the prosecution is relieved from the difficulty." Nor is such a statute or ordinance invalid on the ground that it is unequal and partial in its operation and discriminates in favor of owners of 1 People v. Cipperly, 101 N. Y. 634, 4 N. E. 107, 37 Hun 324; People v. Eddy, 59 Hun 615, 12 N. Y. Supp. 628; State v. Layton, 160 Mo. 498, 61 S. W. 171, 83 Am. St. 487, 62 L. R. A. 163; St. Louis v. Liessing, 190 Mo. 464, 89 S. W. 611, 1 L. R. A. (N. S.) 918, 109 Am. St. Rep. 774; State v. Campbell, 64 N. H. 402, 10 Am. St. 419, 13 Atl. 585; Pain v. Boughtwood, L. R., 24 Q. B. Div. 353, 53 J. P. 469; People v. Kibler, 106 N. Y. 323, 12 N. E. 795: People v. Schaeffer, 41 Hun 23: Commonwealth V. Farren, 9 Allen 489; Commonwealth v. Warren, 160 Mass. 533, . 36 N. E. 308; Kansas City v. Cook, 38 Mo. App. 660. "There is a great variation in the composition of milk in different breeds of cattle and also in different individuals of the same herd. For instance, the Holstein breed of cattle affords a milk with a very low content of fat, sometimes as low as three and twenty-five onehundredths percent, and in individual cases lower. On the other hand, the Jersey breed of cattle affords milk of a very high content of fat; sometimes reaching as high as six percent, and in individual cases very much higher." Wiley, Foods and Their Adulteration 169. cows which give rich, pure milk and against owners of cows giving milk of inferior quality." §30. Tests for Determining Purity of Milk. In prescribing the amount of milk solids which shall be necessary in milk offered for sale the usual statute or ordinance prescribes no test by which these solids shall be determined. In such an instance the only thing to be ascertained is "Did the milk possess the requisites prescribed by the statute or ordinance"? A Missouri ordinance required the analysis of milk to show "not less than three percent by weight of butter fat, eight and five-tenths solids not fat, and seven-tenths of one percent ash, of which fifty percent shall be insoluble in hot water." In a provision it was declared "that in contested analysis of milk condemned under this ordinance, butter fat shall be estimated gravimetrically by the Adams paper coil process; total solids by evaporation, and nonfatty solids by difference between total solids and butter fat, and ash by weighing the residue after incineration of total solids at a dull red heat until all the organic matter is destroyed." In a case for a violation of this ordinance, several witnesses testified that the test imposed was not the best, but the result shown by the tests made in the 2 State v. Smyth, 14 R. I. 100, 51 Am. Rep. 344. Of an ordinance fixing a standard for milk, the Supreme Court of Missouri said: "Again, the ordi nance is said to be void because passed without regard to the wholesomeness or adulteration of milk. That contention, we take it, mean 3 that the city has no power to regulate milk, otherwise than to prevent the sale of adulterated or diseased milk; in other words, has no power to prescribe a scientific standard, indicative of the nutritive contents of milk. Such is not the law. The city may prescribe such standard, and milk that does not come up to it, whether fault of cow or dealer, may not be dealt in." St. Louis v. Scheer (Mo.), 139 S. W. 434, citing St. Louis V. Reuter, 190 Mo. 514, 89 S. W. 628; St. Louis v. Grapeman Dairy Co., 190 Mo. 507, 89 S. W. 627, 1 L. R. A. (N. S.) 926; St. Louis v. Liessing, 190 Mo. 464, 89 S. W. 611, 1 L. R. A. (N. S.) 918, 109 Am. St. 774. 1 State v. Newton, 45 N. J. L. 469. |