dinance, 12 and that the burden, in case of prosecution, was upon defendant to show that the standard was unreasonable; moreover, (arguendo) that implied power was sufficient to sustain such ordinance. 13 In Minnesota it has been held that an ordinance requiring in inspection the application of the "tuberculine test" is reasonable. 14 4. Seizing Questionable Milk and Using as Evidence Against Dealer. State statutes have been sustained which authorize inspectors of milk to enter any place where milk is stored or kept for sale, and all carriages for the conveyance of milk; and whenever the inspectors have reason to believe that any milk found therein is adulterated, they shall take specimen thereof and cause the same to be analyzed, or otherwise satisfactorily tested, the result of which they shall record and preserve as evidence. 15 The fact that the thing 5. Municipal Regulation When Subject is Regulated by the State.-In a Connecticut case an ordinance of Waterbury, forbidding the sale of impure milk within the corporate limits, was held ultra vires, because the subject matter was regulated by general statutes, but it appears that here the municipal charter contained an express prohibition.18 The general doctrine is supported by the weight of judicial authority that, an act may be made a penal offense under the statutes of the state, and that further penalties may be imposed for its commission or omission by municipal ordinance. But to authorize such ordinance the local corporation must possess sufficient charter power, and such power must be exercised in the manner conferred and consistent with the constitution and laws of 12 State v. Fourcade, 45 La. Ann. 717, 13 So. Rep. 187. 13 State v. Stone, 46 La. Ann. 147, 151, 15 So. Rep. 11. 14 State v. Nelson, 66 Minn. 166, 34 L. R. A. 318, 68 N. W. Rep. 1066, 61 Am. St. Rep. 399. 15 Commonwealth v. Carter, 132 Mass. 12; Shivers v. Newton, 45 N. J. L. 469; Blazier v. Miller, 10 Hun (N. Y.), 435. 16 Commonwealth v. Dava, 2 Met. (Mass.) 329. the state. The cases present some discord respecting the nature of the grant of power necessary to sustain such additional regulations. 19 In New York it has been expressly held that notwithstanding the sale of impure and unwholesome milk may be forbidden by state statute, a municipal corporation with ample charter power may pass an ordinance forbidding the same thing. 20 6. Test of Validity. Regulations fixing the standard of quality of milk sold to the public, have been sustained repeatedly by courts of last resort, against the contention that such regulations are unreasonable or oppressive. Municipal corporations not only possess the power to safeguard the health of their citizens, but to prevent the practice of deception on them by vendors of milk and cream. They may, therefore, determine a reasonable standard of purity, to be scienti fically ascertained of milk and cream sold within their limits and forbid, under penalty, the sale of such articles of the quality inferior to that required by the standard so fixed. In dealing with regulations of this character the judicial rule is followed that, if the article is universally conceded to be so wholesome and innocuous that the court may take judicial notice of it, the legislature under the constitution has no right to prohibit it absolutely, but if there exists a dispute respecting the fact of its unwholesomeness for food or drink, then the legislature possesses power either to regulate or forbid it. The constitutionality of the law is not to be determined. upon a question of fact in each case, but the courts determine for themselves upon the fundamental principles of the constitution that the act of the legislature or municipal corporation is not to be declared void, unless the violation of the constitution is so manifest as to leave no room for reasonable doubt. 21 Therefore, the judicial presumption is in favor of the regulation. "It will scarcely be asserted," says the Supreme Court of Missouri, "that all milk is so wholesome and nutritious that there can be no doubt in the mind of the court of its wholesomeness. To do so 19 McQuillin, Mun. Ord. Sec. 500. 20 Polinsky v. People, 11 Hun (N. Y.), 390. 21 Cooley, Const. Lim. (6th Ed.) p. 216; Commonwealth v. Smith, 4 Bin. (Pa.) 117; Ogden v. Sanders, 12 Wheat. (U. S.) 213; Perry v. Keene, 56 N. H. 514; In re Wellington, 16 Pick. (Mass.) 87; State v. Layton, 160 Mo. 474. 23 would be to deny our common experience and to condemn legislation on this subject in almost every state in the union.” This view is amply supported by the adjudicated cases. 22 The validity and constitutionality of state statutes and municipal ordinances as police regulations which fix a reasonable standard of purity for milk and eream sold to the public is sustained by the great weight of authority. Recently, in a series of cases, the Supreme Court of Missouri declared valid and constitutional an ordinance of the City of St. Louis providing that "No milk shall be sold, kept, offered, or exposed for sale, stored, exchanged, transported, conveyed, carried or delivered, or with such intent as aforesaid be in the care, custody, control or possession of anyone, unless it show on analysis not less than three per cent by weight of butter fat, eight and five-tenths per cent solids not fat, and seventenths of one per cent ash, of which fifty per cent shall be insoluble in hot water. Provided, however, that in a contested analysis of milk condensed under this ordinance, butter fat shall be estimated gravimetrically by the Adams Paper Coil process; total solids by evaporation, and non-fatty solids by difference between tital 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."24 By charter of the city authority is given "for the inspection of and other provisions," power "to secure the general health of the inhabitants by any measure necessary," and to "pass all such ordinances as may be expedient in maintaining the peace, good government, health and welfare of the city, its trade, commerce and manufacture.” milk 7. Delegation of Power and Uniformity of Regulation. In prescribing such regulations. care must be taken not to delegate to an offieer or municipal department powers which can be only exercised by the municipal cor22 People v. Cipperly, 101 N. Y. 634, 37 Hun (N. Y.), 223; State v. Campbell, 64 N. H. 402; State v. Smythe, 14 R. I. 100. 23 Weigand v. District of Columbia (D. C.), 22 App. Cas. 559; Norfolk v. Flynn, 101 Va. 473; Blazier v. Miller, 10 Hun (N. Y.), 435; People v. Klibler, 106 N. Y. 32; State v. Schlenker, 112 Iowa, 642; Common. wealth v. Proctor, 165 Mass. 38. 24 St. Louis v. Liessing, 190 Mo. 464; St. Louis v. Grafeman Dairy Co., 190 Mo. 492, 507; St. Louis v. Reuter, 190 Mo. 514: St. Louis v. Polinsky, 190 Mo. 516; St. Louis v. Schuter, 190 Mo. 524. poration as a legal entity. Ordinances of this character, like all municipal laws, must prescribe a general and uniform rule of action for the government of the class upon which such regulations are designed to operate. The fact that the ordinance not only prescribes the standard of purity for milk, but provides the method by which it may be tested and its quality determined, in event of a contested analysis, does not commit to a single officer, as the city chemist, absolute power of controlling the sale of milk. No constitutional right is denied a vendor of milk because of the fact that a particular municipal officer is charged with the duty of analyzing all milk submitted to him by the various city inspectors. The delegation of like powers is recognized as entirely competent. If the regulation made the analysis of the city officer conclusive of the quality of the milk sold or offered for sale, the vendor would have just ground for complaint. But where such regulation merely provides one uniform standard of quality of milk and also prescribes an uniform test in case of contested analysis of milk, it does not thereby leave the standard of milk to the caprice of the city officer. The ordinance stands as a permanent legal provision which operates generally and impartially. As the owner of the milk is entirely free to contest the analysis of the city officer and as it is his right and privilege when prosecuted for alleged violation of the regulation to have his milk tested by other competent experts and by the same standard, it cannot be said justly that he is deprived of due process of law and the equal protection of his rights of property. 26 8. Compulsory Registration and Inspection Fee.-Municipal ordinances may legally require vendors of milk and cream to the public to register with a designated municipal department or officer and pay a reasonable registration fee. Such regulation is plainly a valid exercise of municipal police power and falls clearly within the authority to regulate inspection and sale of milk. The license to the vendor. contingent on such registration, is a guarantee to the community that milk and cream may be purchased with safety 25 St. Louis v. Fischer, 194 U. S. 361; Gundling v. Chicago, 177 U. S. 183; Wilson v. Eureka City, 173 U. S. 32. 26 St. Louis v. Liessing, 190 Mo. 464, 486, 487; State v. Newton, 45 N. J. L. 475. from vendors who are thus registered and licensed. 27 The judicial view is that such provision is not the imposition of a tax within the meaning of the law, but is simply an inspection fee designed as compensation for the services rendered.2 28 9. Legality of Business Does not Prevent Police Regulation. The fact that selling milk and cream is a legal occupation does not exempt it from reasonable municipal police regulations. This proposition has been much discussed in judicial decisions. The view taken by the courts is that where the municipal corporation possesses the necessary power, the propriety of enacting and enforcing a given regulation, which is reasonable, appertaining to a lawful occupation, is a matter exclusively within the discretion of the proper local authorities. "Regulations respecting the pursuit of a lawful business or trade," says the Supreme Court of the United States, "are of very frequent occurrence in the various cities of the country, and what such regulations shall be and to what particular trade, business or occupation they shall apply, are questions for the city to determine, and their determination comes within the proper exercise of the police power by the state, and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizens are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law, they do not extend beyond the power of the state to pass." 1929 The Supreme Court of Missouri thus states the rule: "When it is considered that no article of food is more universally used by the public, and that no other article is perhaps so sensitive to atmosphere and vegetable influences as milk, and that it is within a common knowledge that impure milk is a fruitful source of disease and disorders, especially among children, it needs no discussion to show that the milk business is one which particularly falls within the power of the state and its municipality to 27 St. Louis v. Grafeman Dairy Co., 190 Mo. 492, 503, 504; St. Louis v. Fischer, 167 Mo. 654; affirmed 194 U. S. 361. 28 Morgan Steamship Co. v. Board of Health, 118 U. S. 455; Norfolk v. Flynn, 101 Va. 473. Distinction between license to regulate and tax to raise revenue, McQuillin, Mun. Ord. § 408. 29 Gundling v. Chicago, 177 U. S. 183. regulate, and that the imposition of one dollar a year for registration is in no sense an onerous or unjust burden, and is intended as a pure police measure to cover in part the cost of inspection of milk and cream, is too plain for discussion.' 30 31 10. Forbidding Sale of Milk With Coloring Matter. A municipal ordinance is valid which forbids the sale to the public of milk or cream containing any foreign substance or coloring matter or adulterations or preservatives, whether for the purpose of artificially increasing the quality of milk or cream, or for preserving the condition or sweetness thereof, or for any purpose whatever. The adding of a coloring matter such as annatto to milk from poorly fed cows or to milk from healthy cows at certain seasons of the year, in order to give it the rich and golden color belonging to the milk of cows fed on green food, whether such adulteration increases or lessens the wholesomeness of the milk, is a deception and a fraud upon the milk-consuming public. $1 Laws intended to prevent like deception as to the nature and quality of food products are highly favored by judicial decisions. 32 "It is within the common knowledge that the quality of milk depends largely upon the nature of the food that cows are fed upon; that cows fed upon grass, clover or other fresh green food, give a quality of milk superior in richness and appearance to that drawn from cows fed on refuse, slops, or winter foods. By adding annatto to the white milk or cream given by winter fed or poorly fed cows, a deception is practiced upon the milk-consuming public by making this milk of inferior quality assume the rich golden appearance of superior milk. Such conduct is a fraud and deception upon the public and an unfair advantage over honest competitors who refuse to resort to such deception against which the ordinance is levelled."33 30 St. Louis v. Grafeman Dairy Co., 90 Mo. 492, 504, 505. 31 St. Louis v. Polinsky, 190 Mo. 516. 82 State v. Addington, 77 Mo. 110; State v. Bockstruck, 136 Mo. 335; People v. Girard, 145 N. Y. 105; People v. Arensberg, 105 N. Y. 123; Waterbury v. Newton, 50 N. J. L. 534; Commonwealth v. Schaffner, 146 Mass. 512; Commonwealth v. Waite, 11 Allen (Mass.), 264; Powell v. Commonwealth, 114 Pa. St. 265, affirmed 127 U. S. 678. 33 St. Louis v. Polinsky, 190 Mo. 516, 523; Weigand v. Dist. of Columbia, 22 App. Cas. (D. C.) 559, 571; Plumley v. Massachusetts, 155 U. S. 461, 475; Capital City Dairy Co. v. Ohio, 183 U. S. 238; State v. Schlenker, 112 Iowa, 642; State v. Campbell, 64 N. H. 402. 11. Forbidding the Sale of Milk Containing Preservatives. Municipal regulations have been sustained which prohibit the preservation of milk by placing a preservative therein, such as formaldehyde, to keep it from souring. This is merely a legitimate exercise of the police power, looking to the preservation of the public health. The ground upon which this prohibition against the use of preservatives in milk rests, in the opinion of the Missouri court, is the right of the local corporation to pass all needful and proper ordinances to secure the purity of milk and to prevent any tampering with milk by absolutely prohibiting the use of artificial preservatives therein. "The argument of the defendant that a preservative stands upon a different basis from mere coloring matter, which is liable to deceive, is in our opinion more plausible than sound. It is a matter of common knowledge that milk is a necessary food of the sick and infirm, of the old and young; that through the agencies of impure milk the germs of many diseases are disseminated, and even where there is an absence of any deleterious impurity of the germs of specific diseases, adulterated or diluted milk is not wholesome and nutritious."'34 12. Liability of Principal for Act of Employees. In an action for selling adulterated milk in violation of an ordinance, it was held (erroneously) by the Kansas City Court of Appeals, that the managing officer of the corporation whose milk was being sold, could not be held liable for the misconduct of a subordinate servant or employee unless the sale was made by the consent, or under the order of such managing agent. 35 But it was declared in an Illinois case that "there is no such thing as an agency in crime. The employer is as guilty as the agent and is an accomplice before the fact and under the law a principal” as to what he does by agent. 36 EUGENE MCQUILLIN. St. Louis, Mo. 34 St. Louis v. Schuler, 190 Mo. 524, 534, 535, reviewing cases, fully considering People v. Biesecker, 169 Mo. 53, which holds that a statute which provides that "no person shall sell, offer or expose for sale any butter or other dairy products containing a preserva. tive," etc., is unconstitutional. 35 Kansas City v. Dickey, 76 App. 437. 36 Spring Valley v. Henning, 42 Ill. App. 159, 162. Under Code Civ. Proc., § 1944, providing that evidence respecting handwriting may be given by com. parison made by the witness or the jury with writings admitted or treated as genuine by the party against whom the evidence is offered or proved to be genuine to the satisfaction of the judge, where an assignment of the claim sued on to the plaintiff had been offered in evidence, defendant was entitled to offer a release without proof, by means other than a comparison by the jury with the assignor's signature on the assignment, that such release also contained the assignor's genuine signature. Whether the signature to a release, relied on as a defense to an assigned claim, was genuine was a question of fact for the jury. A jury is not required to follow the opinion of experts with reference to the genuineness of handwrit ing, but may disregard such opinions and determine the matter on their own judgment. HARRISON, P. J.: The plaintiff seeks by this action to recover damages from the defendant for the breach of a contract entered into between him and the plaintiff's assignor. In his answer the defendant sets up several defenses, one of which is that prior to the assignment to the plaintiff his assignor, by an instrument executed by him, released the defendant from all claims aris ing out of the contract alleged in the complaint. At the trial the plaintiff offered in evidence the assignment to him and rested. The defendant then offered in evidence the written instrument of release alleged in his answer. The plaintiff objected to its introduction, upon the ground that there had been no proof of its execution, or of the signature of the maker thereof, or of the subscribing witness. The defendant then stating that he proposed to submit the paper to the jury for comparison with the signature to the assignment to the plaintiff already in evidence, as proof of its execution, the plaintiff made the further objection that proof by comparison of writings could not be made entirely by the jury; that the genuineness of the disputed writing must be first shown by a witness. The court overruled these objections, and admitted the paper in evidence, saying that he would let the jury look at it and determine from an inspection whether, in their opinion, the signature was genuine. To this ruling the plaintiff excepted. The defendant then rested, and the court instructed the jury, in substance, that they should find for the plaintiff or for the defendant according as they should find whether the signature to the writing offered by the defendant was genuine or not. The jury rendered a verdict for the plaintiff. Upon motion of the defendant the court granted a new trial, and from this order the present appeal bas been taken. The court did not err in admitting in evidence, without any previous testimony of experts thereon, the purported release, and allowing the jury to determine its genuiness by a comparison of the signature thereon with the signature upon the assignment to the plaintiff. To the general rule of the common law that the genuineness of disputed handwriting could not be determined by the court or jury by comparing it with other handwriting of the party, there was one well settled exception, viz., that if a paper admitted to be in the handwriting of the party, or to have been subscribed by him, is in evidence for some other purpose in the cause, the signature or paper in question may be compared with it by the jury. Moore v. United States, 91 U. S. 270, 23 L. Ed. 346. The restriction which the rules at common law placed upon the mode of proving the genuineness of handwriting has in modern days been greatly removed. and in this state the legislature has declared, in section 1944, Code Civ. Proc., that "evidence respecting the handwriting may also be given by a comparison made by the witness or the jury with writings admitted or treated as genuine by the party against whom the evidence is offered or proved to be genuine to the satisfaction of the judge.` Similar statutory provisions have been enacted in other states in this country and also in England, and, being remedial in their nature, are to be liberally construed. In People v. Molineux. 168 N. Y. 264, 61 N. E. Rep. 286, 62 L. R. A. 193, the court entered into an elaborate discussion of the law respecting the proof of handwriting by comparison and other modes (pages 318 330, 168 N. Y., pages 304-308, 61 N. E. Rep. [62 L. R. A. 193], and held that the object of these statutes is to enlarge, and not to narrow, the rules of the common law. The defendant was not seeking to establish the genuineness of the release by a comparison with exemplars which were irrelevant to the issue before the court, and authorities involving the common-law rule in such cases are inapplicable; but he was availing himself of the means authorized by section 1944 for making proof of its genuineness. The exemplar with which the jury were directed to make the comparison was already before them and admitted by the plaintiff to be genuine, and, under the definition of evidence in section 1923, Code Civ. Proc., a comparison made by the jury between the two signatures was a "means sanctioned by law for ascertaining the truth" respecting the question of fact presented for their determination-the genuineness of the signature to the release. Such comparison by the jury is in itself legal evidence, upon which alone they may render a verdict. Williams v. Drexel, 14 Md. 566. Whether the signature to the release was genuine or not was a question of fact to be determined by the jury, and not by the judge; nor could the judge, by refusing to allow the writing to be submitted to the jury, preclude the defendant from having the jury determine that question of fact. If the defendant had so desired, he could have offered the testimony of experts for the purpose of adding weight to his claim that it was genuine; but he was not required to do so. It is not to be assumed that he would submit the writing to them for comparison, unless there was, at least, a colorable resemblance to the exemplar already in evidence; but, if he was so disposed, he was entitled to have the jury pass upon the question of its genuineness without the aid of any corroborative testimony. The rule is of long standing that a jury is not required to follow the opinion of experts, but may disregard them entirely and exercise its own judgment in matters of this nature, and by section 612, Code Civ. Proc., they may, upon retiring for deliberation, take with them all papers that have been received in evidence in the case, except depositions. But while they will give proper weight to the testimony of experts, as was said by Lord Denman in Doe v. Newton, 5 Ad. & E. 514, no human power can prevent the jury from comparing the documents with a view to the question of genuineness," and they will determine the question according to their own judgment. See, also, People v. Storke, 128 Cal. 486, 60 Pac. Rep. 1090. The provision of section 1944, that "Evidence respecting the handwriting may also be given by a comparison made by the witness or the jury,” clearly indicates that the jury may make the comparison without any previous testimony of a witness. Mr. Greenleaf says (section 578) that, when other writings admitted to be genuine are already in the case, the comparison may be made by the jury "with or without the aid of experts." The same rule is given in Wharton on Ev., § 713; 1 Rice on Ev. 344; Taylor on Ev. (9th Ed.), § 870; Williams v. Drexel, 14 Md. 566; Rogers v. Tyley, 144 Ill. 652, 32 N. E. Rep. 393; People v. Molineux, 168 N. Y. 264, 330, 61 N. E. Rep. 286, 308, 62 L. R. A. 193; Cobbett v. Kilminster, 4 Fost. & Fin. 490. The aforesaid assignment and release constituted the only evidence submitted to the jury. Their verdict was the result of a comparison made by them of the signatures to the respective instruments. These writings were separate pieces of evidence upon the issue presented by the defendant, and the conflict between them as to the genuineness of the signature of the release was, in legal effect, the same as would have been a conflict between testimony of witnesses in reference thereto. If the court was of the opinion that in its determination of this conflict the jury did not give sufficient consideration to the signature upon the release, and that its verdict-which, in effect, found that this signature was a forgerywas not justified by the evidence, it was its duty to set the verdict aside and grant a new trial. Bjorman v. Ft. Bragg Redwood Co.. 92 Cal. 500, 28 Pac. Rep. 591; Domico v. Casassa, 101 Cal. 411, 35 Pac. Rep. 1024; Mills v. Oregon Ry. Co., 102 Cal. 387, 36 Pac. Rep. 772; Newman v. Overland P. R. Co., 132 Cal. 73, 64 Pac. Rep. 110. The court had the same opportunity as the jury |