foreign demand for oleomargarine, butter and cheese. Nine million pounds of oleomargarine have been reduced to three million; 23 million pounds of butter have been reduced to 3 million; 20 million pounds of cheese have been reduced to 8 million.

The butter export trade of this country has been whittled to nearly nothing; the cheese export trade to a mere bagatelle.

That is what a newspaper lie widely circulated will do to trades not directly connected. Incidentally these figures will show why butter is not the price it should be in comparison with other products.

CEREAL MANUFACTURED FOODS. The Food Commissioners of Kentucky, Wyoming and Massachusetts have investigated "breakfast food" within the last two years. The latest widely advertised investigation was made by the Pennsylvania. Food Commission, the general results of which are furnished by Commissioner Foust for this issue of the American Food Journal. It will be seen from this contribution that conditions in this article of food are not greatly different from those existing in 1904. when Dr. Ealon made the following report to the Illinois Food Commissioners.

Prepared breakfast foods are the fad of the day. A few of the numberless varieties were inspected and analyzed. As a general rule nothing was found injurious to health or in conflict with the claims of manufacturers except as to the nutritive value of their product. In some cases the food represented as thoroughly cooked contained raw starch granules. In the majority of cases, however, both in the flaked and granulated forms, the starch was completely dextrinized. In a number of samples the food was placed in a pasteboard box without lining or inside wrapper of any kind. Besides the liability to absorb moisture and to mold, there is a possibility that the gaudy color profusely spread on the outside of the box will contaminate the food on the inside, and this possibility becomes a certainty should the box become damp. These colors are sometimes mineral (ultra marine) and sometimes aniline, and not being intended for food probably are of a poisonous nature and contaminated with arsenic, which is commonly used in the preparation of the cheaper aniline dyes.

The same danger exists in serving foods in green colored paper cups, as for example sauces and relishes, which is a common practice in the more expensive class of restaurants. The danger is aggravated by the fact that the vinegar in the sauce often dissolves the color, which is then taken with the food.

Most manufacturers of cereal foods make exaggerated claims as to the food value of their preparations.

While some allowance should be made for the unfamiliarity of the public with scientific terms, and still more for the zeal of the manufacturer in pushing his product, such misrepresentations should be discountenanced, as they can do more harm than the fairy stories of the merchants in other lines of trade.

We will send any Food Control official a framed group photograph of the delegates to the last convention of the Association of State and National Food and Dairy Department free of charge upon application.

NEW CALIFORNIA FOOD LAW. The California food law went into effect the first of January. The enforcement of this law is placed with the State Board of Health in co-operation with the sheriff of each county of the state. Dr. N. K. Foster is secretary of the State Board of Health and Prof. M. E. Jaffee director of the laboratories.

Prof. Jaffee is one of the foremost chemists on the coast. When chemist of the California Experiment Station he made many classical studies of foods from a dietetic standpoint, but up to the present time has not had a large experience in the detection of adulteration in food. The enforcement of the new law will probably keep the chemist busy for a time, particularly if San Francisco follows the lead of its western rival, Portland, the health commission of which city complained bitterly because Commissioner Bailey and his chemist were not willing to say from an examination of the milk what ailed the cow.

STOCKS CHEAP FOOD DEAR.

In view of the high price of food and the low price of securities, it has been suggested that we pull our money out of woolen socks and invest it in industrial stocks

Railroad, mining and manufacturing stocks have never been as low as now. Within the year they have depreciated over one hundred per cent. Food, on the other hand, has never been as high unless in the time of civil war, when there was some question as to the value of the currency offered in exchange.

The idea seems a good one. Industrial securities have surely reached the lowest level and must rise in value. Food on the contrary has suffered as much as possible from the muck-raker and the destroyer and must become cheaper. The logic is irresistible, buy stocks and starve.

The Pharmaceutical Era comes out in a new dress the 1st of January. It is 21 years old, therefore of age, and can choose for itself particularly in the matter of dress, but the old style was good enough for its many friends among the druggists. The new firm and type, however, are an improvement and all the features are retained, which have made the periodical popular. "May it live long and prosper."

According to the papers, Hon. Joseph Blackburn— "Uncle Joe" in Ohio-formerly Dairy and Food Commissioner of that state, aspires to represent Ohio in the U. S. Senate. Should Senator Foraker step into the presidency, he has a fair chance to realize his ambition. Julius Fleischmann, however, may be heard from when the time comes.

The holiday number of "The Breeders' Gazette" appears bigger and better than ever. It is the custom of this periodical to get out a superbly illustrated edition during the stock show and the financial situation did not prevent the progressive publishers from even surpassing their previous efforts in getting out an unusually attractive and valuable issue.

Portland, Ore., is seriously contemplating the establishment of a municipal laboratory to aid in the inspection and analyses of foodstuffs.

The Arkansas food law went into effect at midnight January 1, 1908.

COURT DECISIONS

CONSTRUCTION OF NEW YORK LAW WITH REGARD TO MISBRANDING.

The supreme court of New York, appellate division, fourth department, says that the sole question presented on the appeal in the case of People vs. Luke, 106 New York Supplement, 622, was whether the complaint stated facts sufficient to constitute a cause of action. It was alleged therein that, on or about a certain date, the defendant, at his place of business, "sold, offered for sale, and exposed for sale an article of food named and designated as 'tomato catsup,' which catsup was labeled as follows: 'Prepared from whole, ripe tomatoes, no artificial color, and contains one-tenth (1-10) of soda benzoate.' That such catsup, branded and labeled as aforesaid, was adulterated and misbranded, in that same contained benzoic acid and was artificially colored, and that, instead of containing one-tenth of soda benzoate, it contained twenty-two one-hundredths of 1 per cent thereof, all of which was and is in contravention and violation of Sections 164 and 165 of the agricultural law [Laws 1903, p. 1191, c. 524], being Chapter 33 of the General Laws of the state of New York."

Section 164 of the agricultural law provides: "No person or persons, firm, association or corporation shall within this state manufacture, produce, sell, offer or expose for sale any article of food which is adulterated or misbranded within the meaning of this act. The term 'food' as used herein shall include all articles used for food, confectionery or condiments by man, whether simple, mixed or compound."

66

The language of the section is broad and comprehensive, and it is clear that the acts alleged to have been done by the defendant fell within its condemnation, unless permitted by Section 165 of the agricultural law. Section 165 defines the meaning of the word "misbranded." It provides: .. An article of food shall be deemed to be misbranded: First. If it be an imitation of or offered for sale under the distinctive name of another article. Third. If the package containing it or its label shall bear any statement regarding the ingredients or the substances contained therein, which statement shall be false or misleading in any particular, or if the same is falsely branded as to the state or territory in which it is manufactured or produced: Provided, that an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases: First. In the case of mixtures or compounds which may be now or from time to time. hereafter known as articles of food, under their own distinctive names, and not included in definition first of misbranded articles of food in this section. Second. In the case of articles labeled, branded or tagged so as to plainly indicate that they are mixtures, compounds, combinations, imitations, or blends: Provided, that the same shall be labeled, branded or tagged so as to show the character and constituents thereof

The fair meaning of the section is that any article. of food is misbranded when it is an imitation of and offered for sale under the name of another article,

and the court thinks neither of the exceptions had any application. To illustrate: Oleomargarine is an imitation of butter. If it is branded and sold as “butter,” which is the distinctive name of another article of food, the statute, the court thinks, must be held to prohibit the offering for sale of such article of food in such manner. The provision in the section, marked "Third," prohibits the seller or person offering for sale from putting any statements upon the label regarding the ingredients contained therein which are false or misleading in any particular. The court thinks neither of the exceptions to which attention has been called in any manner permits the seller or the person offering for sale to put upon the label statements which are false or misleading in any particular. In other words, the court concludes that a person who offers an imitation of food for sale under the distinctive name of another article of food is

liable under the agricultural law. To illustrate: The person who sells or offers for sale oleomargarine under the name of "butter" is guilty of a violation of the statute. The court also considers that, if any package or its label shall bear any statements regarding the ingredients or the substances contained therein which are false or misleading, the person so selling or offering such package for sale is guilty under the statute. This conclusion is clearly correct, unless the exceptions which have been quoted permit

another course of action to be followed.

It is further provided in the section: "That an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases." Then we come to the first exception, which provides in substance that in cases of mixtures or compounds which may be known as articles of food under their own distinctive names, and not included in definition first of misbranded articles of food, which is where an imitation is sold for the real article, the section does not apply. In other words, under that exception it is clear that a person might manufacture, sell, or offer for sale oleomargarine, if it did not contain poisonous or deleterious ingredients, provided it was sold as oleomargarine, and not as butter.

So far as the second exception is concerned, it is provided that a food shall not be deemed to be misbranded in case the article of food is labeled, branded, or tagged so as to indicate that it is a mixture, compound, imitation, or blend, provided the same shall be labeled, branded, or tagged so as to show the character and constituents thereof. So that the court concludes that the fair meaning and interpretation of the statute is that it is not permissible to sell or offer for sale an imitation of a food under the distinctive name of another food under any circumstance whatsoever. The case of selling oleomargarine as butter illustrates the proposition as well as any other, and the court thinks is clearly prohibited by the statute. The other act which is prohibited absolutely by the statute is the labeling or branding of an article of food falsely and in such manner as to indicate that it contains certain ingredients in certain proportions, contrary to the fact; and in such case the court considers that it is entirely immaterial whether the imitation or compound offered for sale contains ingredients deleterious to health or not. The exceptions in this section in no manner affect either of those propositions. By such exceptions it is permissible for a.

party to sell or offer for sale "Quaker Oats," if it contains no poisonous or deleterious ingredients, or if no label or brand is placed thereon which assumes to give the ingredients of such article of food. But if the seller or person offering to sell assumes by label to give the ingredients of which such "Quaker Oats" is composed, he must state them truthfully, else he is guilty of a violation of the statute.

Where articles of food are labeled, branded, or tagged so as to indicate that they are compounds, combinations, imitations, or blends, there is no liability under the statute, provided the same shall be labeled, branded, or tagged so as to show the character and constituents thereof. Thus construed the court thinks the provisions of the statute are consistent, are reasonable and beneficial, and, if the court is right, it followed that the defendant violated the statute, because the statement put upon the label upon the goods in question was false, in that it stated that it contained no artificial color, when in fact it did, and in that it stated that it contained one-tenth of soda benzoate, whereas it contained twenty-two onehundredths of I per cent thereof, and also in that the article in question contained benzoic acid, not mentioned in the label.

SALE OF SKIMMED MILK UP TO STANDARD IN CONTENTS PUNISHABLE BY AC.

CUMULATED PENALTIES.

The supreme court of New York, appellate division, first department, says that the defendant in the case of People vs. Koster, 106 New York Supplement, 793, collected milk at his creamery, and had it shipped to New York, where he sold it in cans. It was the habit of his employes, in the morning prior to each shipment, to take from each can at the creamery about two quarts of cream, and then to fill up the can with milk from other cans from which the same quantity of cream had thus been taken. The evidence showed, upon two days, 25 separate and distinct sales to as many individuals, to whom were sold in all 36 separate cans of skimmed milk.

The defendant's acts were precisely within the letter of the New York agricultural law. Section 22 of that law provides that: "No person shall sell or exchange or expose for sale or exchange.

any adulterated or unwholesome milk," etc. And Section 20 provides that: "The term 'adulterated milk' when so used [i. e., in the act] means: . (5) Milk from which any part of the cream has been removed. . . All adulterated milk shall be deemed unclean, unhealthy, impure and unwholesome." Thus it clearly appeared that the defendant sold milk declared by law to be adulterated and unwholesome.

It was testified to by a chemist called by the plaintiff that the milk sold by the defendant came up in other respects to the requirements of the law; that is, that it contained no more than 88 per cent of water, and the requisite percentage of solids and fats. He also testified that such milk was in fact wholesome, and not deleterious.

The defendant claimed that in so far as the act prohibits the sale of wholesome milk, merely because it had been deprived of some of its richness, it was unconstitutional. But the act is aimed as well at fraud in the sale of milk as at unwholesomeness. Whether the milk, after the cream had been taken

from it, was or was not unwholesome, it was evident that the defendant was guilty of fraud towards his customers, for there was nothing to show that he ever sold it as milk from which the cream had been taken. He said that he sold it as "standard" milk. The statute contains no definition of "standard" milk, and it was evident that all the defendant meant was that he sold it as milk having the prescribed percentage of water, solids, and fat.

Nor does the court agree with the defendant's contention that he should not have been subjected to more than one, or, at most, two penalties. It says that the language of Section 37 of the agricultural law is very comprehensive and precise, and in the court's opinion, expressly provides for the collection of more than one penalty in a single action. It provides that · "Every person violating any of the provisions of the agricultural law shall forfeit to the people of the state of New York the sum of not less than fifty dollars and not more than one hundred dollars for the first violation, and not less than one hundred dollars or more than two hundred dollars for the second and each subsequent violation. When the violation consists of the sale of any prohibited article or substance the sale of each one of several packages shall constitute a separate violation.

The provision for one penalty for a first violation, and for a different penalty for the second and each subsequent violation, coupled with the explicit provision that the sale of each package shall constitute a separate violation, can be construed only as providing that more than one penalty may be collected when the defendant has been guilty of a series of violations. If this was the legislative intent, these accumulated penalties can certainly be enforced in a single action; for to require a separate action for each separate violation would impose both upon the state and the defendant a useless burden of litigation. This was not the case of a suit by a private individual for his own gain and to enforce a private right, as were all the cases relied on by the defendant, but the case of an action by the state to compel obedience to a state health law, enacted for the protection and benefit of all the people of the state.

In some of the cases to which the court was referred the court has evidently been impressed with the enormous sums that might be recovered, if each plaintiff was permitted to recover accumulated penalties, which frequently would have resulted in imposing upon the delinquent defendant a punishment. out of all proportion to the injuries suffered by the plaintiff. This consideration did not apply to the present case. While the judgment, abstractly considered, was not inconsiderable, the evidence afforded data from which it could readily be computed that the value of the cream which the defendant filched from the milk during the period that he pursued his illegal practices must have amounted to many times the sum for which the jury rendered a verdict. If accumulated penalties might not be collected in cases like the present, it is manifest that dishonest dealers could, well afford to take great chances of discovery and prosecution, and thus the enforcement of the statute would be rendered most difficult and uncertain.

"You say you are a chef?"

"Yes; I roast the chestnut an' cook the peanut.”Chicago Journal.

MICHIGAN SUPREME COURT DECISION ON

SAUSAGES.

STATE OF MICHIGAN.

The Circuit Court for the County of Ingham. In Chancery.

Armour & Company vs. A. Č. Bird, et al.

Opinion upon motion for temporary injunction. Complainant, manufacture and sell to retail deal ers in this state meat products called sausages. Defendant Bird is the dairy and food commissioner of this state and the other defendants are employes of the commissioner and I shall in this opinion treat Mr. Bird, the commissioner, as the defendant. In the manufacture of sausages sold in this state, complainant, with the meat used, employs from one to ten per cent of cereal and some water and this product is sold to customers over the meat counters by retail dealers as sausage without any information to the customer that he is buying other than chopped, spiced meat. Defendant claiming to act under the provisions of the pure food laws of this state has declared such product to be in violation of such food laws and has threatened to prosecute persons selling the same, unless they desist. Complainant contends its sausages are composed of pure and healthful ingredients, and that the dealer buying from it is informed they contain cereal and that defendant has no warrant for his action against the sale of the same. Upon the filing Upon the filing of the bill of complaint an order was made requiring the defendant to show cause why he should not be restrained from warning dealers in this state that sausage with cereal cannot be sold without such sale being a violation of the pure food law. No food law can prevent a man from buying meat-cereal-sausage-watered if he wants to, but food laws can prevent the sale of a well known food under an untrue name. The Federal inspection and approval of complainant's sausage products as between the maker of the same and the retail dealer with notice on the package of cereal in its makeup may protect such maker and the purchasers under the law of interstate commerce but cannot be invoked against the laws of this state regulating sales between citizens of this state. May this sausage be sold as such in this state by retail dealers without any disclosure to the consumers that they are buying meat, cereal and water? What the law ought to be has nothing to do with the matter, for what the law is determines the question of injunction or no injunction. The food commissioner as such, being but a creature of the statute has no authority except by statute and we must look to the provisions of the food law in order to ascertain whether in doing the acts complained of, he has exceeded his authority. The law makes it the duty of the commissioner to carefully inquire into the food products and their constituents offered for sale in this state to take samples and have the same analyzed, and if the same are adulterated, impure or unwholesome in contravention of the laws of this state to prosecute the manufacturers or venders thereof. He may seize and by proceedings pointed out in the statute cause adulterated food products to be condemned and destroyed. The commissioner is required by law to prepare an annual report to the governor, covering the doings of his office for the preceding year, and also prepare print and distribute to all the papers of the state and to such person as may be interested or may apply therefore a monthly bulletin containing results of inspections, the results of analy

ses made by the state analyst with popular explanation of the same, and such other information as may come to him in his official capacity relating to the adulteration of food and drink products so far as he may deem the same of benefit and advantage to the public. The statute defines what constitutes adulteration and one of the principal things condemned is the mixing of any substance with a well known article of food, so as to lower or depreciate its quality, strength or purity and also condemns as an adulteration the substitution of any inferior or cheaper substance in whole or in part for the article it purports to be. Cereal is cheaper than meat and water cheaper than cereal, and to sell chopped meat and cereal and the water it will take up as sausage to people who have a right to understand sausage is chopped meat seasoned, falls so clearly within the term of a cheaper substance than the thing it purports to be that if sold, it must be under its true name. If as claimed, the proviso of the act permits the sale of such article of food, it only does so upon the condition that each and every package sold bear the name of the manufacturer and be distinctly labeled under its own distinctive name, and in a manner so as to plainly and concisely show it is a mixture or compound, and it is not enough in order to comply with the law that the information stop with the retail dealer, for it is the consumer the food law also attempts to protect. This court should be slow to assume supervision over the administrative duties of a departmental official of the state, and the case must be clear and for the correction of an abuse before the strong arm of the court reaches out and stays the dairy and food commissioner from the exercise of what he claims to be a duty of his office. In case the food commissioner goes beyond his authority and through a mistaken notion of his official duties, injures one within the law, then the court's plain duty is to put him right and by injunction command him to stay right. It is very doubtful whether the commissioner has first the power to find out an offender and then forgive him upon his promise to offend no more. The law itself leaves him no such alternative, it in plain language directs him to prosecute, and the object of the law is too plain to deserve explanation. If prosecutions follow when offenders are caught, dealers will not leave it for inspectors to determine whether they are observing the law or not, but will take it upon themselves to determine to sell within the law. But this does not help very much for we must get back to the question of whether the sausage made by complainant may be retailed in this state as sausage without notice to the consumor of cereal and water in its composition, for if the sale is in violation of the food laws, it makes but little difference whether it is the dairy and food commissioner, the newspaper, or an individual that warns the public and the retail dealers of that fact. The statute against adulteration of food products is not as limited in its scope and operation as argued for complainant. Its purpose is to prohibit adulteration and to prevent fraud and deception in the manufacture and sale of articles of food. this generation largely reared upon farms and in small villages and who remember the home made sausage or the sausage made at the village meat market, there is no occasion to look at the dictionary in order to define sausage. The common understanding if sausage is that it is chopped meat seasoned, and this understanding must control as against the manu

With

facturer's process of adding cereal and water until the dealers by publicity of their change in its makeup let the purchasers know that their sausage is chopped meat, cereal and water seasoned. The court has endeavored to reach a solution of the question of whether the preliminary writ ought to issue without touching so much upon the merits of the case, but the bill of complaint and the showing against the granting of the writ and the arguments of counsel upon the hearing have made it necessary to do so and to touch upon the law applicable to the case, but it is to be understood that this opinion in no way forecloses the consideration of the merits upon the final hearing and the determination then and not now will finally govern the parties and their rights. I am of the opinion that the preliminary writ of injunction ought not to issue and therefore deny complainant's application for such preliminary writ, and the restraining order heretofore granted is revoked. This case should be heard upon the merits at an early date and that this may be done, the court now directs that it be heard early in January, and if the parties cannot agree upon a date, the court will upon the application of either party fix a date for the hearing, and in the meantime, it is recommended, rather than commanded, that the commissioner refrain from doing the things complained of. HENRY WIEST, Circuit Judge.

THE SOUTH DAKOTA DECISION.

The court holds in effect as follows on the contentions in the case: "The complaint shows that on the 20 day of December, 1907, at the City of Sioux Falls, R. F. Brown did then and there, being a druggist engaged in the business of selling drugs and medicines, wilfully, wrongly, and unlawfully offer and expose for sale, and unlawfully sell to A. H. Wheaton, certain prepared medicines, to wit: One bottle of Peruna, one bottle of Hamburger drops, one bottle of Chamberlain's diarrhea remedy, one bottle of Piso's consumption cure, one bottle of Kodol, and one bottle of Dr. King's new discovery, all of said prepared medicines being then and there misbranded, in that none of the said medicines bore a qualitive statement of what it was composed.

"Whether the act complained of constitutes a public offense depends upon judicial power to supply certain terms claimed to have been inadvertently omitted by the legislature, and which subject the petitioner to the operation of a penal statute, in which the word druggist does not appear.

"Section 2 authorizes such food and dairy commissioner to appoint and fix the compensation of the department analyst, and such inspectors and office assistants as he may deem necessary to carry out the provisions of the act. Sections 3, 4 and 5 define duties of the force and provide for their payment.

"Without any reference to either drugs or medicines, the four succeeding sections of the act are devoted to a legislative definition of the term "food" and a recital of what constitutes its adulteration or misbranding, and immediately following is section 10, which reads as follows: 'It shall be unlawful for any person acting for himself or as the servant or agent of any other person, firm or corporation, to manufacture. sell, offer or expose for sale any article of food which is adulterated or misbranded within the meaning of this act. The possession by any inn keeper, hotel

keeper, restaurant keeper, or boarding house keeper of any food or drug which is adulterated or misbranded within the meaning of this act, shall be deemed to be the keeping of such food or drug for sale.'

"Neither the term 'druggist' nor ‘medicine' was employed by the legislature in this provision and the unlawful possession of the adulterated or misbranded 'drug' mentioned only in the final sentence is unaccountably limited to the dispensers of food.

"Section 35, consisting of eight subdivisions, is declarative merely of what conditions are essential to constitute misbranded or adulterated drugs or articles of food, but no language is used therein tending in the slightest degree to evidence a legislative intent to make anything unlawful or justify the infliction of a penalty for the sale of prepared medicine 'bearing no qualitive statement of what it is composed.'

"While this section regulates nothing and is merely descriptive of the articles of food and medicine mentioned therein and is incapable of transgression by any person, the provision immediately following, being section 36. declares that 'Any person violating any of the provisions of the preceding section of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than ten nor more than one hundred dollars or by imprisonment in the county jail not to exceed thirty days, or by both such fine and imprisonment for such offense.'

"Were it to be assumed, as contended by the counsel for the food and dairy commissioner, that the expression, preceding section,' might be authoritively changed to preceding sections,' this prosecution would

not be maintainable for the reason that there is noth

ing in section 10, nor in any other provision of the pure food law' authorizing the arrest of a druggist or making anything that is charged in the complaint at penal offense. According to the elementary rule of construction, the statutory enumeration of persons of the same class by specific terms, such as inn, hotel, restaurant or boarding house, must be restricted to that class of individuals, and no consideration of the mischief to be remedied by the passage of the act is sufficient to justify the interpolation required to bring within its operation another class of persons whose business is distinctly different.

"There being no legal authority for the process under which the petitioner is restrained of his liberty nor general law to justify a conviction, his application to this court for a discharge on habeas corpus is granted."

Opinion by Fuller, presiding judge.

OF

POWERS RELATIVE TO REGULATION LOCATION OF DAIRIES. The supreme court of Louisiana says, in the case of city of New Orleans vs. Murat, 44 Southern Reporter, 8698, that by Act. No. 45, p. 46, of 1896, the city of New Orleans was given express authority and power to regulate the location of, and inspection and cleanliness of, dairies likely to be or become detrimental to health or comfort and to adopt such ordinances and regulations as should be necessary for the protection of health, and to prevent the spread of disease, and to maintain good sanitary conditions in the streets, In May, 1907, the common council of the city acted under that authority by adopting its Ordinance No. 13. 335. which declared that from and after its

etc.