an infamous crime, the motion to quash must be allowed, since, under the authorities, it is well settled that a prosecution can be maintained upon information made by the district attorney for such a crime.1

"As I understand the authorities, they hold that any of fense, the punishment for which may be imprisonment in the penitentiary, with or without hard labor, is an infamous crime.2

"On an examination of the Act under which this suit is instituted, I find that the punishment therefor is a fine not exceeding two hundred dollars for the first offense, and upon conviction for each subsequent offense, not exceeding three hundred dollars, or by imprisonment not exceeding one year, or both, in the discretion of the court.

"Under the authorities above cited, it is held that a defendant can not be imprisoned in the penitentiary, unless the time for which he is sentenced shall be more than one year. Under the Act of June 30, 1906, the imprisonment can not exceed one year. Therefore, the court has no power to sentence the defendant to imprisonment to the penitentiary, because that would be in excess of the maximum time which the court is authorized to imprison a party for such offense.

"As I understand the authorities, they hold in substance that where the court may imprison the accused for more than one year, the confinement must be in the penitentiary, and that fact, with or without labor, constitutes an infamous crime. Upon the other hand, where the period of imprisonment is for one year or less, the court must imprison in a county jail, and that would not be an infamous crime.

"If the court has the power to imprison for more than one year, the crime is infamous. If for a year or less, it is not infamous.

"Under section 1022 of the Revised Statutes it is provided

1 Citing Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89. 2 Citing Mackin v. United States, 117 U. S. 348, 6 Sup. Ct. 777, 29 L. Ed. 909; Parkinson V. United

States, 121 U. S. 281, 7 Sup. Ct. 886, 30 L. Ed. 959; In re Cleasen, 140 U. S. 200, 11 Sup. Ct. 735, 35 L. Ed. 409.

that all crimes and offenses committed against the provisions of ch. 7, entitled 'Crimes,' which are not infamous, may be prosecuted either by indictment or by information filed by the district attorney.

"It appearing from the foregoing that the crime for which the defendant is charged is not infamous, I am of the opinion that this suit can be maintained upon the information filed, and the motion to quash will be disallowed.''

§ 517. Liability of Corporation and Corporate Officers.

In the Massachusetts statute it is held that the word "whoever," with regard to the sale of adulterated milk, includes a corporation.1 Where corporate officers employ a general manager for their corporation, to operate the plant and sell its manufactured product, without restriction, they will be criminally liable for his acts in violation of the Pure Food Law, if they know or have good reasons to know he is doing so.2

3 Judge McCall, United States v. J. Lindsay Wells, 186 Fed. 248, N. J. 794.

1 Commonwealth v. Graustein & Co. (Mass.), 95 N. E. 97.

2 United States v. Mayfici, 177 Fed. 765.

Statutes are in force in many States giving the inspectors power to take samples of milk offered for sale or sold, for analysis, and these statutes have been upheld as valid exercise of the State's police power. We can here only give some of the results of the decisions in construing these statutes. A statute made the selling of adulterated milk a misdemeanor, and defined what should be deemed an adulteration. It provided that when a sample of milk had been taken by the Commissioners of Agriculture with a view of prosecuting the producer for selling adulterated milk, another sample should afterwards be taken of the mixed milk of the herd, and if this sample should contain no higher percentage of milk solids and fats than the sample taken from the creamery or other place, no action should lie against the producer.

1 Sections 37 and 38.

It

was held that the fact that the herd sample was no better than the other sample was a bar only to an action by the Commissioners for a penalty, and not to a criminal prosecution by other authorities for selling adulterated milk. Where a statute required every milk dealer, on demand of an agent of the health department, to sell a sample of his milk sufficient for the purpose of analysis, it was held that a dealer was not guilty of a violation of its provisions because he refused to sell a half pint on demand of an inspector of the health office, putting his refusal on the ground that he did not sell milk in any quantity less than a pint, and then only in original bottles as received from the dairy, but offered to sell him a pint bottle of his milk. It was said that the statute required a reasonable sample to be sold, and under such circumstances a pint is such a sample. A mandatory injunction will not lie to compel the milk vendor to furnish samples of milk when the statute makes it an offense to refuse to furnish them. Where a statute requires the inspector to seal up and deliver to the milk dealer a part of the milk taken, or to his attorney in case complaint is made against the dealer, the defendant is entitled on the trial to have the jury told that the mere placing of a sealing wax upon the top of the cork, without extending it over the mouth of the bottle-without making it air-tight-was not a sealing within the meaning of the Act.5 Whether or not the addition of a few drops of carbolic acid to that part

2 People v. Beaman, 102 N. Y. App. Div. 151, 92 N. Y. Supp. 295. See also People v. Gilmor, 73 N. Y. App. Div. 483, 77 N. Y. Supp. 273. This statute did not give the commissioners exclusive power to take samples of milk and institute prosecutions for the sale of adulterated milk, so as to deprive all other officers of the power formerly given them by statute to institute such proceedings. People v. Beaman, supra. As to the practice under

this statute, see People v. Bailey, 136 N. Y. App. Div. 130, 120 N. Y. Supp. 618; People v. Terwilliger, 59 N. Y. Misc. 617, 110 N. Y. Supp. 1034.

3 District of Columbia v. Garrison, 25 App. D. C. 563. See also Weigand v. District of Columbia, 22 App. D. C. 559.

4 State v. Capitol City Dairy Co., 62 Ohio St. 123, 56 N. E. 651.

5 Commonwealth V. Lockhardt, 144 Mass. 132, 10 N. E. 511.

of the milk returned to the defendant affected the sample so as to constitute a failure to comply with the provisions of the statute requiring the inspector to furnish the dealer a sample of the milk taken is a question for the jury. Notwithstanding a statute requires the inspector to give the milk dealer a sealed sample of the milk taken, and excludes evidence of the analysis if it be not left with him, yet a failure to leave a sample, when the inspector "buys" a sample, and does not "take" it, without disclosing he is an inspector, yet evidence that the milk thus bought was below the legal standard may be shown by proof of an analysis showing such to be the fact. A statute prohibited the sale of adulterated or unwholesome milk, and provided for the taking of samples by State inspectors for analysis. The statute also required that when the milk was delivered by the producer for manufacture, sale or shipment, or from a milk vendor who produces the milk which he sells, and it is designed to prosecute such producer, a sample should be taken from the mixed milk of the herd of cows from which the milk claimed to have been adulterated was drawn. It was held that, since, in a prosecution of a milk vendor not a producer of the milk sold, no herd sample was required to be taken, evidence that no herd sample had been taken from the producer of the milk sold by the vendor was incompetent.8

• Commonwealth v. Spear, 143 Mass. 172, 9 N. E. 632.

7 Commonwealth v. Coleman, 157 Mass. 460, 32 N. E. 662.

In an action to recover a penalty for selling or exposing for sale impure milk, evidence of the defen

dant that he tested the milk before sending it to customers is insufficient to sustain a judgment for the plaintiff. People v. McDermottBunger Dairy Co., 38 N. Y. Misc. Rep. 365, 77 N. Y. Supp. 888.

8 People v. Laesser, 79 N. Y. App. Div. 384, 79 N. Y. Supp. 470.

A statute providing that no milk shall be sold as certified milk, unless it is conspicuously marked with the name of the "association" certifying it, is invalid if it fails to designate the association by which the certification is to be made. People v. Briggs, 193 N. Y. 457, 86 N. E. 522, reversing 121 N. Y. App. Div. 927, 106 N. Y. Supp. 1140.

The entire sample taken need not be analyzed. Rolfe v. Thompson, 2 Q. B. 196, 56 J. P. 425, 61 L. J. M. C. 184, 67 L. T. 295, 8 T. L. R. 644.