in the case of Pratt Food Company vs. Bird, referring to the case of Arbuckle vs. Blackburn and other cases say "In so far as these cases lay down the rule that a court of equity will not interfere to restrain a public officer from invoking the criminal law and instituting a prosecution for the violation of a statute, they have our full approval. A court of equity will not transfer to its own jurisdiction the trial of a criminal case, and this though the prosecution may fall with some hardship upon the accused party."

Pratt Food Company vs. Bird, 14 D. L. N. 305.

By this opinion our supreme court emphatically endorsed the position taken by many of our courts, that courts of equity will not enjoin State officers from instituting a criminal prosecution for the violation of a statute, which is valid and constitutional, although the officer may be in error in the construction of the statute.

The common law courts have ample authority to pass upon the question whether the officer has erred in the construction of the statute, or upon the question of the applicability of the statute to the given state of facts in a criminal case, and those are the appropriate courts to pass upon such questions.

Our State court went still further in the case of Osborne vs. Charlevoix, 114 Mich. 655. In that case complainant filed a Bill of Complaint against the State Game and Fish Warden asking that the latter be restrained from enforcing the provisions of a certain act relating to the catching of fish on the ground that the provisions were unconstitutional or inoperative.

The court states "It is a general rule that criminal prosecutions cannot be restrained by injunctions. Once have it understood that they may be and the public would labor under additional embarrassment to the already great obstacles to the prosecution of crime. There is no ex

cuse upon reason or authority for enjoining the prosecution of the complainant for violation of the law providing for a close season. If the law were unconstitutional it would be available by way of defense to the criminal charge, and therefore no occasion for chancery to take jurisdiction for the want of an adequate remedy at law."

Osborne vs. Charlevoix C. Judge, 114 Mich. 655.

Courts of chancery have enjoined criminal proceedings, when attempts have been made to enforce unconstitutional or invalid laws, which might result in the direct destruction of property, and under this head of equity jurisdiction appear most of the cases cited by complainant. So there is a class of cases where the official is himself executing the law and confiscating property without having lawful authority to do so.

I do not regard the cases cited by complainants as analogous, to this. The law which the defendant seeks to enforce is valid and constitutional. If he is in error, it is simply as to whether the particular articles manufactured by complainant come within the meaning of the law. This question will often materially arise in cases of criminal prosecution for a violation of police law.

The real question in all this class of cases is whether the article is

manufactured in violation of law and the court is not called upon to determine any question of the validity of the law itself.

It is also to be observed that generally in the class of cases cited by complainant the injuries threatened to property rights by criminal prosecution were local, direct and within the immediate reach of the court, where an injunction would be an effective and practical remedy.

Relief by injunction in this case against criminal prosecution appears to me an impracticable and ineffectual remedy.

An injunction against the defendant for commencing criminal prosecutions will not prevent them from being commenced. Any one of the many prosecuting attorneys of the State may commence a criminal prosecution for selling the sausages manufactured by complainant, and the Food Commissioner would be powerless to prevent them. He has no exclusive authority to institute criminal proceedings. In fact he institutes them, if at all, through the agency of the prosecuting attorney. The injury threatened by criminal prosecution is not a local one. It is not confined to a single county. It may occur in any county of the State.

It does appear to me that an injunction so impracticable, so sweeping and so powerless to effect any restraint, would amount to an idle ceremony. Where the relief prayed can possibly accomplish no good; and cannot be effectively executed, courts of chancery deny it.

If the complainant be correct in its contention that its sausages are not made and sold in violation of law, a final interpretation of the law by the supreme court of the State, in the present case will afford ample protection to complainant from that time. A final authoritative decision of the court in favor of complainant's contention would undoubtedly be acquiesced in by the defendant and the prosecuting attorneys. This is the only remedy against the institution of criminal prosecution, that I can imagine possible. Injury may accrue to the complainants in the mean time. But it must be endured upon the ground that if criminal prosecutions could be enjoined by courts of equity under circumstances such as exist in this case, the administration of justice would be seriously embarrassed and a precedent established which might bring incalculable mischief to the people of the State.

For these reasons also I hold that the injunction must be dissolved, as against the institution of criminal proceedings.

These considerations by no means dispose of the case.

It seems to be conceded that the defendant has issued circulars broadcast condemning sausages containing cereals as a violation of the law, and warning dealers against selling them.

This has been done by the defendant in the capacity of a State officer and if not warranted by the provisions of the law, serious injury has been done the complainant. A continuation of such acts would result in additional injury. Under circumstances of this nature a State officer may be enjoined.

The Bill of Complaint in the Case of the Pratt Food Company vs. Bird was filed to restrain defendant from sending out bulletins, writings. and publications that complainant's food for horses and other articles were manufactured and sold in violation of the law.

Our supreme court in that case says "If the acts which are threatened are unlawful, it cannot be doubted that placing in the hands of every

dealer in the State a bulletin, which in effect threatens them with prosecution in case they make use of these products in the form in which they are lawfully sold to them would be to absolutely exclude complainants' business from the State."

Pratt Food Company vs. Bird, 14 D. L. N. 304.

The complainants are therefore entitled upon a proper showing that the sausages condemned by the Food Commissioner are not manufactured and sold in violation of the law, to an injunction restraining the Food Commissioner from sending out bulletins, writings, or publications or notices that complainants' sausages are manufactured and sold in violation of law and threatening prosecutions if such articles shall be sold. I have however already determined that this court can issue no injunction of this kind till after a hearing of proofs.

So far as the merits of complainants' case upon the main issue are concerned, I have made no decision and do not intend to do so. I think that it would be unwise and improper. The refusal of the injunction in no way affects the trial of the case upon its merits. The case must be tried and each party has a right to have it tried. I have therefore practically decided only one question which will arise at the final hearing, viz.: Whether the court can enjoin the State officers from instituting criminal proceedings. My present opinion is that an injunction of that kind can not be issued. The complainants on a hearing of the case are not precluded from asking again the same relief and the same question may recur both on the hearing in this court and on an appeal to the supreme court in case the decree of this court be appealed from.

The injunction issued must be dissolved for the reasons stated. ORVILLE W. COOLIDGE, Circuit Judge.

f

COOPERATION IN DAIRYING.

In unity is strength. The truth of this has been demonstrated repeatedly from time immemorial, proofs are abundant everywhere and can be observed in nature, in all walks of life and in almost every business. In fact it has become so common that we are prone to overlook its force until some great problem arises. Then we become conscious of it. A great wave of sentiment or enthusiam develops and unites us to concerted action for the common cause, and when this stage is reached all opposition must yield.

The great commonwealth of the United States of America is but one example of the strength and power of unity. It was cooperation on the part of each individual state which made this union possible and cooperation is the foundation on which it rests today.

From ancient time man has recognized and made use of the power and force cooperation embodies. Where man singly has been unable to cope with great difficulties, cooperation has been resorted to and in nearly every instance it has accomplished its object. It is of singular interest, however, to note that until a few years ago cooperation was only enlisted as the last resort and in time of dire need. We believe the time has come when man should plan ahead of the need, and if cooperation has proved of so great assistance in the past in solving great problems why not use it in the solution of problems which lie before us today.

Farming and more especially dairying lends itself more readily to cooperation and cooperative manipulation than any other occupation. There are so many ways in which farmers and dairymen can cooperate and there are so many problems to solve that we need not go hunting for opportunities to apply the principles. Reference is here had to matters of financial or pecuniary nature, but history has shown that where cooperation has once gained a foothold it has been more than a financial assistant. It has had an educational effect on the men engaged in it and on the communities in which these men live which tends for all that is desirable in citizenship. Educators testify that young men and women from communities in which cooperation is most extensively practiced make most desirable material from which to mould the good citizens of the future. It educates and produces intelligence and creates a clearer conception of the real value of life.

Cooperative dairying offers much pecuniary advantage. We need but look up the statistics of cooperative dairying in the old world to be convinced. The little country of Denmark for instance has in this way in the short period of 20 years increased the average production of butter per cow from 120 to 224 lbs. per year. Figuring the butter at 25 cents per lb. this means that the revenue from butter alone was increased from $30.00 to $56.00 a cow per year, or that the gross income per cow had been almost doubled.

The statistics of Michigan show an average production per cow of 143

lbs. of butter in a year, thus indicating a great field for development of production. We believe this development can best be accomplished, as it was accomplished in the old world, in a cooperative way, through the medium of cooperative cow testing associations and their inevitable followers the breeding associations. Cooperation in this way has already demonstrated its practicability under our Michigan conditions and should be encouraged by everyone who is interested in better economic results for the dairymen of the State. A little figuring will show the importance of this movement. According to the census of 1904 there is in the State 746,685 dairy cows at the age of two years or over. An increase in the average production per cow of even one single pound a year would mean 746,685 pounds of butter per year. Figuring the butter at a price of 25 cents a pound, it would mean an increased revenue to the dairymen of the State of $186,671 per year. Being accomplished by better breeding, economical feeding and selection of the most economical producer for breeding purposes, such addition to the annual revenues would be all clear profit.

Dairymen could cooperate in the purchasing of feed. When bought in large quantities it can usually be had at lower prices.

Cooperation is of advantage in the selection of breed. This has been demonstrated in our neighboring states and to some degree in this State. We find in this State whole communities interested in the same breed of dairy cattle and the result is that great bulls for breeding purposes can be obtained at much smaller expense to individuals living in the community. The surplus young stock is easier and more profitably disposed of if the community has created a reputation for uniformity of breed.

In the manufacture of butter and cheese cooperation has been practiced with marked success in many sections of the State, and it has produced better butter and cheese and more money for the dairymen. Failures in this line of cooperation have in most instances been due to errors of ignorance or mismanagement or due to lack of effort on the part of individuals. Cooperative effort depends for its success on the same every day principles which underlie success in any business undertaking. Creameries can cooperate for mutual advantage and for the benefit of the dairymen living in their territories. Creameries have come under our observation where the difference in the cost of manufacturing one pound of butter was more than two cents, although they were located only a few miles aprt. Cooperation would soon show them the cause of this variation and once found might be easily remedied. There is a great difference in the consumption of fuel for every 100 pounds of butter manufactured, due in many instances to causes which could be revealed and remedied through cooperation with neighboring factories. Cooperation among creameries would have a tendency to increase the uniformity and better the quality of the product and thus create a reputation for the butter manufactured in that section of the State. Cooperation may be resorted to to mutual advantage in the marketing of the product if uniformity of grade has been established. Saving in the cost of manufacture, introduction of better methods, and increased revenues accruing from markets established for uniform products at good prices would mean larger revenues for the dairymen located in such territory.