made an offense by the ordinance, the two were not in conflict as to such offense.1 An ordinance prohibited the sale of milk containing less than 8.5 percent nonfatty solids; and a statute of the State required milk sold within the of milk containing less than 8.5 percent nonfatty solids; or 0.70 percent more than the ordinance required. It was held that the ordinance was not invalid because it provided a different standard for milk sold within the city, under the rule that, so long as the city 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. Such ordinance did not authorize a sale of milk within the city which violated the State law, but was a mere exercise of a proper municipal discretion not to bring the machinery of the city courts and city laws into operation to prosecute for violations in excess of the municipal standard, leaving the State to enforce its own law at all points and to the limit prescribed. Such ordinance was not void on the ground that it was against the policy of the State. Nor was it void on the theory that the inhabitants of the city were entitled to the same grade of milk to which the other inhabitants of the State were entitled, since the ordinance prohibited the having in possession impoverished milk within the city, with intent to sell it, without reference to whether the possessor was a resident or nonresident, and did not affect the application of the State law within the city. Nor was the ordinance repealed by the statute, either expressly or by implication.1 An ordinance providing a standard for salable skim milk, with reference to fatty and nonfatty solids, and containing no provision with reference to adulteration by the addition of water or otherwise, is not in conflict with another ordinance which prohibits the having in possession, with intent to sell, any milk adulterated by mixing with any substance so as to lower or depreciate its strength. So an ordinance prohibiting the possession of adulterated milk with intent to sell is 1 St. Louis v. Ameln (Mo.), 139 S. W. 429. 1 St. Louis v. Scheer (Mo.), 139 S. W. 434. not in conflict with another ordinance prohibiting the traffic in milk containing a substance which is poisonous or injurious to health, but each supplement the other. So a statute prohibiting the sale or offering for sale of milk adulterated with water or any other substances, or any milk produced from diseased cows is not in conflict with an ordinance prohibiting the "possession" of adulterated milk with intent to sell it. The word "adulterated" as used in a statute providing that it shall be a misdemeanor to sell or offer for sale any milk containing any foreign substance or preservative injurious to health, or shall sell or offer for sale any unclean, "adulterated," or unwholesome milk, is used in the sense ordinarily given by lexicographers, which is the additon of a foreign matter to change or improve the appearance or flavor of an article; and such statute is not in conflict with an ordinance prohibiting the having in possession adulterated milk, with the intent to sell it, and providing that it 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, or if it was mixed or colored, so that inferiority was concealed, or if it was made to appear better than it really was, on the theory that the statute permitted the addition of coloring matter which was not harmful.3 2 St. Louis v. Meyer (Mo.), 139 S. W. 438; St. Louis v. Schulte (Mo.), 139 S. W. 449. 3 St. Louis v. Jud (Mo.), 139 S. W. 441; St. Louis v. Kruempeler (Mo.), 139 S. W. 446; St. Louis v. Niehaus (Mo.), 139 S. W. 450. A municipal code provided that no special or general ordinance which was in conflict or inconsis tent with general ordinance of prior date should be valid or effectual until such prior ordinance, or its conflicting parts should be repealed by "express terms." An ordinance of a city acting under this code, relating to the sale and "amended by striking it out" and inserting in lieu thereof a new section bearing the same number, and providing a new standard for skimmed milk to be sold within the city. It was held that the term "strike out" as so used meant to "force out," to "blot out," "to efface," "to erase," and as SO construed connected itself with the statutory definition of repeal, and hence there was a repeal of the section amended by express terms. St. Louis v. Kellman (Mo.), 139 S. W. 443. § 545. Statutes Concerning Labels, Marks and Notices. In many instances foods or drugs are required to be labeled, distinctly stating thereon the constituent elements thereof. In a number of statutes where this is done permission is given. to sell the food labeled, although it is not up to the standard required. Where such a statute prevails it is no defense that the article is sold in the same state or condition as when it was received from the manufacturer. As a rule popular names must be used on the labels-such as the general public commonly use and understand-and not technical ones. Not infrequently the size of the letters to be used in the label are specified. In the case of oleamargarine the letters are usually required to be of large size. Such is the case of the English statute of 1899, where the paper wrapper in which oleomargarine is sold must be "capital black letters, not less than half an inch long and distinctly legible, and no other printed matter.' 162 and 63 Vict., ch. 51, § 6. By one section of a statute ev ery person manufacturing or selling any substance made in the sem § 546. Label, Popular Understanding of Name Used On- Where a statute requires the contents of a package to be stated in the label attached to it, when it is to be sold to the general public, the popular or common understanding of the name under which it is sold, and not its trade or commercial meaning, is to be used. As the pure food statutes are enacted to protect the purchasers of food, to permit the use of scientific terms and names, or trade and commercial terms, and names which are unknown or known only to a few of those who purchase it for consumption, would be to practically nullify the effect of the statute so far as a protection to those who buy it. The object of such statute is to protect those who purchase and consume the food. "Courts will take cognizance of the well-known fact that farmers, laboring men and consumers are not generally familiar with the customs of trade and commerce in importing goods, or of understandings of the trade between manufacturers and merchants who buy those products for retail trade. Such constructions (the use of trade and commercial names) would emasculate the pure food laws and deprive the people of the protection which the Legislature wisely intended to give them." Thus, where it was the practice to use cereal meal in sausage, it was held that the label should be "sausage and cereal," and not merely "sausage," although the trade recognized that blance of lard must cause the package containing it to be labeled "Lard Substitute." By another section it was enacted that the first section should not apply to cottolene where the package was labeled "Cottolene," if the cottolene was not manufactured in imitation of lard. It was held that these sections forbade the sale of cottolene which was manufactuerd so as to resemble lard, unless the package containing it was labeled "Lard Substitute." State v. Hanson, 84 Minn. 42, 86 N. W. 768, 54 L. R. 1 Armour & Co. v. Bird, 159 Mich. 1, 123 N. W. 580, 25 L. R. A. (N. S.) 616, note. The statute in this instance required a label to be placed on mixtures or compounds; mixture or compound had to be "distinctly labeled under its own distinctive name, and in a manner so as to plainly and correctly show that it was a mixture or compound. sausage contained cereal; but it was not necessary for it to contain a statement that salt, spices and water was also a component part of it. "It is too manifest for further argument that the Legislature, in enacting the law, was not providing for the regulation of sales between manufacturers and merchants, but between retail dealers and consumers. They enacted the law solely for the protection of consumers-the people who buy and eat the products. The consumer who prefers sausage made of meat alone is entitled to be informed that he is buying such an article. The consumer who prefers sausage mixed with cereal is entitled to know he is purchasing that article. The contention of the complainant, if sustained, would deprive the consumer of this right which the statute plainly gives him."3 § 547. Oral Statement. An oral statement made to the purchaser can not take the place of a label where it is an offense to sell a package required to be labeled.1 § 548. The Package to be Labeled. An English statute requires every "package" to be labeled. Under this statute it was held that a tub of margarine standing at the back of the counter, from which margarine was scooped and supplied to customers in a "package," must be labeled. In another case margarine had been exposed for sale by retail in an open butt branded "margarine" on the bottom and side, from which it was scooped as required by customers. It was held that the butt was a "parcel" to which a label ought to have been attached. In another case 2 That the use of the word "sausage" was sufficient compliance with the statute. 3 Armour & Co. v. Bird, 159 Mich. 1, 123 N. W. 580, 25 L. R. A. (N. S.) 616. 1 People v. Waters, 188 N. Y. 632, 81 N. E. 1171, affirming 114 2 N. Y. App. Div. 669, 100 N. Y. 1 McNair v. Horan, 68 J. P. 518, 91 L. T. 555, 20 Cox C. C. 729, 2 L. G. R. 1239. 2 Maguire v. Porter [1905], 2 Irish Rep. 147. |