Pure food laws are intended to protect the consumer, and not the least protection intended is against fraud and deception.

The public welfare, that is to guard against cheats, frauds and deception and thereby promote honesty, has always been and always should be one of the ends of good government.

Has the Commissioner misconstrued his powers, and unjustly, or in violation of complainants' rights, condemned a practice resorted to by it in the making of sausage?

He has threatened to prosecute dealers selling sausage containing cereal if they do not desist.

The Commissioner is but a creature of the law; he has no plenary powers, and like complainant and all others he must keep within the

law.

The power of the Commissioner rests upon the statute and the statute being specific in its provisions, leaves him no room for official discretion.

The statute defines with particularity what constitutes an adulteration of food products and creates an official to see that its provisions are enforced.

What is meant by pure food?

The statute answers this by defining adulteration.

It was evidently the intention of the legislature, regardless of all existing definitions of adulteration, to define in the law itself what constitutes adulteration of food products in this State.

It may be of interest, however, to examine into the definition of adulteration outside of the legislative definition.

"The term adulteration is derived from the Latin, adultero, which in its various inflections signifies to defile, to debase, to corrupt, to sophisticate, to falsify, to counterfeit, etc.

"The objects of adulteration are four fold, namely, to increase the bulk or weight of the article, to improve its appearance, to give it a false strength or to rob it of its most valuable constituent.

"All of these adulterations are manifestly of a designedly fraudulent character, and therefore properly the subject of judicial inquiry."

Com. v. Curry, 4 Penn. Superior Court, Rep. 360.

The legislative definition therefore does not differ from the well-established meaning of the term adulteration when applied to an article of food.

The Federal law defines adulteration substantially like ours, and under that law all makers of sausage for inter-state sale, if cereal is used in the product are required to plainly mark the same, showing it to be sausage with cereal.

The police power of the Federal government within its limits is no greater than that of the State government within its limits. In its regulation of inter-state trade the Federal government has required sausage with cereal to be marked and this must be because of the fact that the cereal in it is an adulteration.

In its regulation of health, the promotion of honesty and the pre

vention of deception, the State government requires sausage with cereal to be sold as such and not as pure sausage, because the use of cereal is an adulteration of a food product, a product requiring no cereal and to which cereal has been added to improve its appearance, lessen its cost to produce and increase the profits, all at the expense of the consumer, if sold as pure sausage and made possible because of the secrecy with which the practice has been carried on.

The purpose of a plain, sensible law ought not to be defeated by over nice definitions, or by effort at forced refinement until common sense is read out of the law.

The Legislature evidently had in mind something subtle by way of deceit in the making and sale of food products, and to avoid hair-splitting efforts to fritter away the safeguard they intended, they defined adulteration, and their definition is my law.

But it is said that the pure food law, so far as it applies to the maker of a food product, is to be considered in this case from the commercial standpoint of sausage, and that no matter what sausage may have been formerly, yet if at the time of the passage of this act in 1895, commercial sausage then had and had had for some time cereal in its makeup, the legislative body is conclusively presumed to have known of that fact, and under the law as it is passed, the use of cereal in commercial sausage cannot be declared to be an adulteration of a food product.

Members of the Legislature are drawn from the people by popular choice, and intended to represent fairly the intelligence of the communities from whence they come. I cannot clothe them with powers of discernment beyond that of citizens of average intelligence. To hold that when they passed the law of 1895 they knew commercial sausage contained flour and added water and therefore the courts must except sausage from their definition of adulteration, would charge them with light upon the subject apparently possessed by none of their constituents and beyond the knowledge of most all lexicographers and with knowledge of the trade practice complainant is now so strenuously objecting to having publicly revealed.

Sausage is a well-known article of food, and it has commonly been understood to be a meat product and not a mixture of meat and cereal. It derived its name from its makers at a time when it was a homemade product and before it became a commercial product.

The packers of this country found sausage to be a common article of food and they made it for the trade and sold it under the name everyone understood. The consumers and the customers of the packers not so very many years ago made it themselves and therefore know how to make it.

To profit out of the name and the common understanding of the consumers, some of the commercial makers of sausage have retained the name because of the demand for that particular article of food, but they have changed the makeup of the product.

I cannot hold that it must be assumed the Legislature had in mind when this act was passed commercial practices in the making of this food product and not the way everyone not in the secret supposed it was made, and that by a failure to specifically mention and condemn

this article, the definition adopted by the Legislature must not be made to apply to commercial practices.

If the Legislature is assumed to have had information upon the subject of what constitutes sausage, then under the evidence in this case it is sensible to hold that the knowledge possessed by the Legislative body was the knowledge possessed by the people themselves, and not knowledge possessed by a few who were endeavoring to keep the matter secret.

Had the members of the Legislature gone to the dictionaries they would have found sausage defined to be chopped or minced meat, seasoned, and this definition would have been supported by the understanding of practically all of their constituents.

"The Legislature intended that any particular product which differs from that which has hitherto been known under a certain name in being less valuable by reason of the abstraction of some ingredient, shall not be sold under that name. It must be given some name which will carry warning with it, which will prevent the public from being imposed upon."

Charge of Court in Com. v. Hunfal, 4 Penn. Sup. Court, 310.

"In construing legislative language, it must be received not necessarily according to its etymological meaning, but according to its popular acceptation, and especially in the sense in which the Legislature is accustomed to use the same words."

"It is the duty of the courts so to construe statutes as to meet the mischief and to advance the remedy, and not to violate fundamental principles; to bring sense out of the words used and not to bring a sense into them, to give the words a reasonable construction."

"The sense given to particular words by our great lexicographers is always entitled to weight, yet where a word is general and common, due regard must be had to the circumstances. The term 'skimmed-milk' is not a technical one, and must be presumed to have been used in its known and common sense."

Com. v. Hufnal.

By the means used in its making of sausage, the complainant in effect makes it possible to practice a fraud on the consumers in delivering to retail dealers for sale by them a cheaper article than its name imports, and this fraud, if permitted, in time must drive the honest dealer who will not stoop to the practice from the market.

Common knowledge has given sausage certain attributes, and everyone supposes he is informed upon what sausage is made of, but while it has been pretty thoroughly slandered, it has not been understood by the consumers to be a corn flour product to any extent.

Chopped meat, corn flour and water, seasoned with spices is probably as healthy as a pure sausage such as was known to the fathers and may be sold under its proper designation, but it cannot be passed over the counter and sold as sausage.

The trouble is not with the use of cereal in sausage, but the trouble

is that the Commissioner holds the seller must inform the customer at the retail counter that cereal is there, and therefore they are paying the price of meat for it.

The health properties of complainant's sausage with cereal and water may in the opinion of some be superior to an all meat product, but this does not help, for the Legislature intended that sales of all articles of food for use by man should be so marked and sold, as to not leave in doubt questions affecting their strength, quality or purity, and to prohibit sales being made under a name, the use of which makes the article appear better or of greater value than it really is. It is claimed that to compel commercial sausage to be truthfully labeled would result in the confiscation of complainant's business in this state, and be in violation of the 14th amendment to the Federal constitution.

This constitutional provision does not protect manufacturers at the expense of the people, neither does it interfere with the police power of the State Legislature in the promotion of the public health, the fostering of honesty and the prevention of deception.

If an article of food cannot be sold for what it is, but must be sold under another name in order to get people to buy it, and if the result of a law requiring the truth to be told is in violation of the constitution, then the constitutional provision means something different than has always been understood. But the amendment means no such thing. "The 14th amendment of the constitution was not designed to interfere with the exercise of the police power by the State for the protection of health, the prevention of fraud and the preservation of the public morals."

Powell v. Penn., 127 U. S. 678.

The police power is one of regulation, having the public interests and the most complete enjoyment of rights by all. What right has complainant to add cereal and water to seasoned chopped meat and sell it for pure sausage?

It contends in effect that sausage has not been pure for years, and the practice of using cereal and water must now be considered lawful.

It is lawful to use cereal and water in sausage, but it is not lawful to sell it as pure sausage. The law recognizes the right of complainant to make any healthful food product it wants to and to sell it anywhere, but the law does not recognize the right to use a name to conceal a fraud.

The law must consider the public interests and the most complete enjoyment of rights by all, and therefore while it permits one man to make sausage as he pleases so long as he employs nothing harmful to health, yet it does not, and ought not, to permit him to sell it under a name for the purpose of working a fraud upon the purchaser.

The complainant cannot complain if the law lets it do as it pleases short of practicing deceit. It has no right to insist that the State leave it to individuals to discover its practices and refuse its products. The State has seen fit to intervene between complainants practice and its consummation, and this the State has a right to do and in the interests of good government ought to do.

The Attorney General claims that all dictionaries define sausage to

be a product consisting of meat and seasoning and that flour is nowhere mentioned. In this he is in error, but his error is excusable for it has taken much search to find any definition other than he claims. The exception to the general definition is so obscure and unrecognized by authority, and the common one so in accord with the common understanding that there need to be no difficulty in determining what sausage should be in fact.

The consumer understands that sausage is chopped or minced meat seasoned, but complainant says such a person does not know and is not in a position to know what sausage is.

It is probable he does not know what complainant's sausage is, and this very ignorance on his part makes it possible for complainant to add cereal and water to chopped or minced meat and sell it to him in the belief on his part that he knows what he is getting.

It was said at the hearing that chopped meat seasoned described Hamburg steak and not sausage. It used to describe sausage, and will again if the pure food law is enforced. It does not describe the sausage made by complainant because it leaves out the filler of cereal and water.

The complainant claims there is a difference between commercial sausage and sausage known as such by the consumers. It is partly right.

There is a difference between commercial sausage as made by complainant and sausage, and this is the very thing the Commissioner insists the people have a right to know, and with such knowledge buy it or not as they see fit.

It was claimed at the hearing that people prefer sausage with cereal in it. If that is true, then complainant ought to welcome defendant's effort in behalf of publicity of the use of cereal, and not ask the court to restrain him in his effort to compel sellers to let buyers know what they are getting when they buy sausage.

The testimony of many sausage makers in this and other states has been submitted to the court, and the practice of using cereal in commercial sausage seems to be widespread, but not commonly known to the consumers of sausage.

Potato flour and bread crumbs have been used in some parts of Germany for many years, and the practice was brought to this country to some extent probably half a century ago, and has grown until lately it has become quite a factor in the making of commercial sausage.

I do not understand that a practice, even though it had been resorted to for many years, can fail to fall within the provisions of a law intended to prevent deception.

It is not now understood commonly, and certainly was not when the act of 1895 was passed, that manufacturers of sausage used cereal, in fact one of the complaints made by complainant is that defendant has injured its business in Michigan, by reason of his threats, and the publicity given to complainant's use of cereal in the making of sausage. It is claimed by complainant that sausage is a mixture or compound. and falls therefore within the proviso of the pure food act and cannot be declared adulterated if it contains cereal and added water.

To call an adulterated article a mixture or compound and exempt it from the law under the proviso would open a way for the escape of