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dealt with the sale of condensed milk, it used those words.3 It is claimed, to be sure, that the defendant's product is not condensed milk, but it certainly resembles that other manufactured article more closely than it does natural milk. Moreover, the object of our statute regulating the sale of milk, to insure the supply to consumers of a pure, unadulterated article of a certain nutritive value, is not interfered with by what the defendant has done. As we have seen, it is not denied that the diluted or extended mixture which it is intended to sell was fully up to the required standard; it was not claimed that it contained any more water, was of any less nutritive value, or was of less nutritive value, or was less fitted in any respect for a food, than the best natural milk. If, as the evidence tended to show, the process of modified pasteurization to which the manufactured product had been subjected had resulted in greatly diminishing the number of bacteria and in prolonging the time during which the extended mixture could safely be kept, this is neither a reason against its use nor an argument for extending the statutory prohibition so as include a product which is neither within the common meaning of its words nor, so far as now appears, within the mischief which the statute was designed to prevent.

3 Citing R. L,. ch. 56, §§ 59, 63, not the statute under which the defendant was prosecuted.

4 Commonwealth v. Boston White Cross Milk Co. (Mass.), 95 N. E. 85. "If it should appear in any other case that such a product as this, after having been extended into the form in which it was intended to be sold and used, had been further altered by the addition of water or any other foreign substance, whether by the defendant or by any other person, a different question would be presented. But that is not this case.

So, too, if the use of the defendant's product shall be found to

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§ 532. Adulteration.

Statutes or ordinances upon the subject of adulteration of milk almost universally prescribed what shall constitute adulteration. When that is the case the court can not substitute a definition of its own. Adulteration in its ordinary sense consists in adding some baser or cheaper substance, or extracting some necessary constituent, so that the article adulterated is by reason thereof rendered impure, spurious and inferior.1 And where a statute declared that food should be deemed adulterated "if any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it," it was held that it did not authorize the conviction of one who, under the description of "skimmed milk," sells milk from which the cream has been taken by separator process, known as the "centrifugal method," though thereby more cream is extracted than by the oldfashioned skimming process. Where a statute provided that the sale of adulterated milk by adding a substance containing poison was a misdemeanor, and added that food should be deemed adulterated where any substance had been mixed with it so as to lower or injuriously affect its quality or purity, or if any substance had been added which was poisonous or injurious to health, and the provision "or," if it was milk, "if it is the produce of a diseased animal, or diluted with any inferior liquid, or mixing with any inferior substance," was held not to exclude any adulteration of milk under the general provisions of the section. Where a statute makes it an offense to sell "adulterated milk" and

1 Commonwealth v. Hartman, 19 Pa. Cr. Ct. Rep. 97, 6 Pa. Dist. Rep. 136; St. Louis v. Jud (Mo.), 139 S. W. 441.

2 Commonwealth v. Hufnal, 185 Pa. 376, 39 Atl. 1052, 42 W. N. C. 78.

3 Lansing v. State, 73 Neb. 124, 102 N. W. 254.

If a statute makes it an offense to put any foreign substance in

or

food of any kind" in any quantity" for any purpose which is poisonous injurious to health, putting formaldehyde in milk is an offense, even though the quantity placed in the milk be so small that it is not sufficient to cause death or injury to health. St. Louis v. Wortman, 213 Mo. 131, 112 S. W. 520; Commonwealth v. Wetherbee, 153 Mass. 159, 26 N. E. 414.

defines "adulterated milk" as containing more than a certain percentage of fluids, it is no offense to sell milk from a cow which has more fluids in it in its natural state than that denounced by such a statute.1

4 People v. Salisbury, 2 N. Y. App. Div. 39, 37 N. Y. Supp. 420.

"Milk is an article which varies considerably in composition; the difference arising partly from the breed of the cow, and partly from the way in which the animal is fed and housed. There is also a perceptible difference between the milk given by the same cow at different parts of the year. By the milk Regulations, 1901, a definite standard, of fat three percent and other solids eight and five-tenths percent, has been set up. But it should be observed that milk falling short of the standard is only to be presumed to be adulterated until the contrary is proved, and if a seller of such milk succeeds in proving that the milk was the unaltered product of a cow, he will escape, unless it appears that the cow was unhealthy, improperly fed or improperly milked. However, in practice, it is found very difficult to prove this. Though there is no doubt that individual cows, especially of some foreign breeds, sometimes give milk which fails to come up to the standard. The mixed milk of a herd of healthy cows is almost invariably Iwell above the standard.

The most usual methods of adulterating milk are: (1) the mixing of skimmed or separated milk with whole milk; (2) the addition of water. The first method reduces the percentage of fat and slightly increases the percentage of non

fatty solids; the second reduces the percentage of fat and also that of non-fatty solids." Bell's Sale of Food and Drugs Act (5th Ed.) 241.

"There is a great variation in the composition of milk in different breeds of cattle, and also in different individuals of the same breed. For instance, the Holstein breed of cattle affords a milk with a very low content of fat, sometimes as low as 3.25 percent, and in individual cases lower. On the other hand the Jersey breed of cattle affords a milk of a very high content of fat, sometimes reaching as high as six percent, and in individual cases very much higher. The content of the nitrogenous element in milk is more stable than that of fat and the common content of casein in milk ranges from 22 to 34 percent. The sugar in milk is usually the complementary substance with the fat, diminishing in relative proportions as the fat increases and vice versa. The average content of sugar in cow's milk is approximately 4 percent. The content of mineral substances in milk is also quite constant, being about 0.70. The ash contains the phosphoric acid which is one of the essential food components of milk. A milk of fair average quality contains 12 percent of solids and 88 percent of water. This is an expression for milk during the various seasons of the year and from

§ 533. Milk from which any Part of the Cream has been

Removed.

If a statute defines adulterated milk as milk from which the cream has been taken, then to remove any part of the cream from milk makes it adulterated milk, although it in other respects complies with the requirements of the law and is in fact wholesome. Thus, where such a statute was

all breeds and kinds of cows. The influence of season has much to do with the quantity of milk produced. It is always greatest in the spring and summer months, when the cows are turned out to pasture and the growths on which they feed are usually succulent. The increase in volume is not attended with a proportionate increase of solids, and thus the percentage of solids in spring and summer milk is less than that in the winter milk unless the cows are particularly well fed during the winter on a generous diet, including large quantities of roots." Wiley, Foods and Their Adulteration, p. 169.

Upon hearing a charge of selling adulterated food, the court is entitled to take into consideration facts within their own knowledge as to whether the food adulterated. Shortt v. 63 J. P. 295; St. Louis (Mo.), 139 S. W. 429. See also Regina v. Admiral Field, 11 T. L. R. 240.

has been Robinson, v. Ameln

If a statute makes it an offense to sell milk with any foreign substance in it, it is immaterial that such foreign substance is harmless. Commonwealth V. Schaffner, 146 Mass. 512, 16 N. E. 280; St. Louis v. Wortman, 213 Mo. 131, 112 S. W. 520; St. Louis v. Ameln (Mo.),

139 S. W. 429; St. Louis v. Meyer (Mo.), 139 S. W. 438; St. Louis v. Jud (Mo.), 139 S. W. 441; St. Louis v. Kruempeler (Mo.), 139 S. W. 446.

To put annatto into milk is to adulterate it. St. Louis v. Jud (Mo.), 139 S. W. 441.

If it be an offense to sell adulterated milk, it is no defense that there was no "intent" to sell such milk. Commonwealth v. Granstein & Co. (Mass.), 95 N. E. 97.

"We think that the ordinance proceeds on the notion that, however much the cow waters her own milk in her humble and honest way (letting nature taker her course), the milkman has no right to designedly duplicate nature's gift of water by a further gift of his own from the barnyard pump. It proceeds on the underlying theory that it is a fraud, a trick, and a veritable cheat-contrary to the common law, and hence of that phase of it known colloquially as the 'square deal'-to sell water when milk, not water, is the commodity dealt in. If one is not to get a stone who asks for bread, no more (under the spirit of the ordinance) is he to get water who asks for milk." St. Louis v. Ameln (Mo.), 139 S. W. 429.

in force, a dealer sold milk in cans, after having taken from them about two quarts of cream and then filling the same with milk from other cans from which the same quantity of cream had been taken, and it was held that he had violated its provisions.1

§ 534. Skimmed Milk.

An English statute provides that "No person shall sell to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance and quality of the article demanded by such purchaser, under a penalty not exceeding twenty pounds."" Under this section a milk dealer was prosecuted for selling skimmed milk as milk. He was acquitted on the ground that skimmed milk is a kind of milk; and this decision was upheld. Another section of the same statute provides that "no person shall, with the intent that the same may be sold in its altered state without notice, abstract from an article of food any, part of it so as to affect injuriously its quality, substance or nature, and no person shall sell any article so altered without making disclosure of the alteration, under a penalty in each case not exceeding twenty pounds."3 A milk seller was prosecuted under this section for having sold skimmed milk without disclosing that it was skimmed milk. He in fact sold a tin of condensed milk which had upon it a label on which were printed the words, "Condensed Milk, Swiss

1 People v. Koster, 121 N. Y. App. Div. 852, 106 N. Y. Supp. 793.

1 Sale of Food and Drugs Act 1875, § 6.

2 Lane v. Collins, 14 Q. B. Div. 193, 49 J. P. 89, 54 L. J. M. C. 76, 52 L. T. 257, 33 W. R. 365. "The argument was extremely short, no authorities being cited to the court, and the decision does not appear to have been followed in any subsequent case. In Smithers v.

Bridge [1902], 2 K. B. 13, 66 J. P. 740, 87 L. T. 167, 50 W. R. 686, Lord Alverstone, C. J. said that Lane v. Collins was decided on its own special facts, and that he did not know that he would have agreed with the decision. It is suggested that Lane v. Collins can not be regarded as law." Bell's Sale of Food and Drugs Act (5th Ed.), p. 24.

3 Sale of Food and Drugs Act, 1875, § 9.

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