it to apply it to a dairyman who owns and conducts a butter or cheese factory for the manufacture of those articles from milk furnished exclusively by himself from his own cows. If the defendant is such a person, these facts are matter of defense, and their existence need not be negatived on the face of the indictment: People v. West, 106 N. Y., 293.

Under a Massachusetts law imposing a penalty for selling or offering to sell "adulterated milk, or milk to which any foreign substance has been added," it is immaterial whether the substance added is injurious or not. The indictment need not allege the quantity of such substance: Commonwealth v. Schaffner, 146 Mass., 512.

Under an act which prohibits the sale of milk which is not of a good, standard quality, the fact that the milk was delivered under a contract to furnish the person who bought it with the milk of one dairy is not a defense if that furnished was not of such quality. The contract would be held to contemplate milk which should be bought and sold: Commonwealth v. Holt, 146 Mass., 38. Sale, what is. A hotel-keeper who sells milk to be drunk by his guests on his premises is liable if the milk so sold is not of the quality prescribed by the next section: Commonwealth v. Vieth, 155 Mass., 442.

The Massachusetts statute uses the language "whoever by himself, or by his servant or agent," etc. Held to include a hotel-keeper's servant who made a sale to a guest, though the master was not present and did not consent to or know of the particular sale: Commonwealth v. Vieth, 155 Mass., 442.

Milk bought by a guest and delivered to him as part of his meal is just as much a sale as if a specific price had been put upon it or it had been bought or paid for by itself: Commonwealth v. Warren, 160 Mass., 533.

Intent to sell, evidence of. Where one is charged with having in his possession, with intent to sell, milk which is not of a good, standard quality, the fact that he was upon a wagon which had his name painted on it, and that therein were cans of milk, and that a sample was given from one of them to one employed by the milk inspector for analysis, is competent evidence to go to the jury upon the question of his intent: Commonwealth v. Rowell, 146 Mass., 128.

Standard for milk; evidence. Section 4607a. (As amended by ch. 138, laws of 1905.) In all prosecutions under the preceding section, or any other section of these statutes, or laws amendatory thereof or supplementary thereto, relating to the sale of adulterated milk or adulterated cream, the term adulterated milk shall mean : Milk containing less than three percentum of milk fat, or milk containing less than eight and one-half percentum of milk solids not fat. or milk drawn from cows within eight days before or four days after parturition, or milk from which any part of the cream has been removed, or milk which has been diluted with water or any other fluid, or milk to which has been added or into which has been introduced any coloring matter or chemical or preservative or deleterious or filthy substance or any foreign substance whatsoever, or milk drawn from cows kept in a filthy or unhealthy condition, or milk drawn from any sick or diseased cow or cow having ulcers or other running sores, or milk drawn from cows fed unwholesome food, or milk in any stage of putre

faction, or milk contaminated by being kept in stables containing cattle or other animals. The term adulterated cream shall mean cream containing less than eighteen percentum of milk fat, or cream taken from milk drawn from cows within eight days before or four days after parturition, or cream from milk to which has been added or introduced any coloring matter or chemical or preservative or deleterious or filthy substance or any foreign substance whatsoever, or cream from milk drawn from cows kept in a filthy or unhealthy condition, or cream from milk drawn from any sick or diseased cow or cow having ulcers or other running sores, or cream from milk drawn from cows fed unwholesome food, or cream contaminated by being kept in stables containing cattle or other animals, or cream to which has been added or into which has been introduced any coloring matter or chemical or preservative or deleterious or filthy substance or any foreign substance whatsoever, or cream in any stage of putrefaction; provided, that nothing in this act shall be construed to prohibit the sale of pasteurized milk or cream to which viscogen or sucrate of lime has been added solely for the purpose of restoring the viscosity, if the same be distinctly labeled in such manner as to advise the purchaser of its true character; and providing that nothing in this act shall be construed as prohibiting the sale of milk commonly known as "skimmed milk," when the same is sold as and for "skimmed milk." Milk drawn from cows within eight days before or four days after parturition, or milk to which has been added or into which has been introduced any coloring matter or chemical or preservative or deleterious or filthy substance or milk drawn from cows kept in a filthy or unclean condition, or milk drawn from any sick or diseased cow or cow having ulcers or other running sores, or milk drawn from cows fed unwholesome food, or milk contaminated by being kept in stables containing cattle or other animals and cream from any such milk, or cream in any stage of putrefaction are hereby declared to be unclean and unsanitary milk or unclean and unsanitary cream, as the case may be.

Validity. The supreme court of New York has ruled that a statute which provides that milk which contains less than three percentum of fat shall be declared adulterated is unconstitutional. The ground upon which this was held was that the statute deprived the defendant of his liberty and property without due process of law, in that it barred him of the right upon the trial of the accusation against him to have the issue determined according to what might be the proof, and compelled him to submit to the statutory declaration thereof, without regard to the truth: People v. Cipperly, 37 Hun, 317. This decision was not unanimous, and on appeal was reversed by the court of ap

peals, without opinion, and on the grounds given by the dissenting judge of the supreme court: eople v. Cipperly, 101 N. Y., 634.

A law of New Hampshire (ch. 42, laws of 1883) prohibited the sale of adulterated milk, or milk to which water or any foreign substance has been added, or, as pure, milk from which the cream or a part thereof has been removed. It authorized inspectors of milk to take samples and cause the same to be analyzed, and expressed that in all prosecutions under it if the milk is shown by analysis to contain more than eighty-seven per cent. of watery fluid, or less than thirteen per cent. of milk solids, it shall be deemed for the purposes of the statute to be adulterated. It was contended that the clause fixing the standard was unconstitutional. In answer the court said: "The statute tends to discourage the breeding of a certain class of cattle for the supply of the milk market. The difficulty of guarding against the adulteration of milk may have influenced the legislature in fixing a standard of richness. Practically it makes no difference whether milk is diluted after it is drawn from the cow, or whether it is made watery by giving her such food as will produce milk of an inferior quality, or whether the dilution regarded by the legislature as excessive, arises from the nature of a particular animal or a particular breed of cattle. The sale of such milk to unsuspecting consumers, for a price in excess of its value, is a fraud which the statute was designed to suppress. It is a valid exercise by the legislature of the police power for the prevention of fraud, and protection of the public health, and as such is constitutional:" State v. Campbell, 64 N. H., 402.

In Rhode Island a similar provision has been sustained against an objection to its validity on the ground that it virtually confined the testimony to the analysis of the samples taken by the inspector, which samples were destroyed in making the analysis, so that the testimony could not be controverted. The court was of opinion "that the testimony, though it may not always be practicable to controvert it directly by another analysis, can be controverted by evidence of collateral facts going to prove that the analysis is incorrect, and therefore that the act is not unconstitutional for the reason alleged:" State v. Groves, 1 Atl. Rep., 384. Shivers v. Newton, 45 N. J. L., 469, is to much the same effect.

Intent immaterial. The doing of the act condemned by the law constitutes the offense, if it is silent as to the knowledge or intent of the person who is charged with violating it. People v. Kibler, 106 N. Y., 321, 12 N. E. Rep., 795.

Milk of diseased cows, of cows kept in an unsanitary condition or fed on slops from a distillery or a vinegar factory. Section 4607b-1 (Section 1, chapter 313, laws of 1899.) No person by himself or agent shall offer for sale, furnish or deliver, or have in possession with the intent to sell, or offer for sale, or furnish or deliver, milk or cream drawn from sick or diseased cow or cows kept in filthy and unsanitary condition, or cows fed on refuse or slops from distilleries or vinegar factories, unless such refuse or slop be mixed with other dry sanitary grain or food to a consistency of a thick mush.

Foreign substance not to be added to milk or cream not pasteurized. Section 4607b-2. (Section 2, chapter 313, laws of 1899.) No person by himself or agent shall offer for sale or furnish or deliver or have in possession with the intent to

sell, offer for sale, or furnish or deliver, any milk or cream having therein or containing in any amount any foreign substance or coloring matter or any chemical or preservative, whether for the purpose of increasing the quantity of milk or cream or for improving its appearance, or for preserving the condition of sweetness thereof, or for any purpose whatever, provided that nothing in this act shall be construed to prohibit the sale of pasteurized milk or cream, to which viscogen or sucrate of lime has been added solely for the purpose of restoring the viscosity, if the same be distinctly labeled in such manner as to advise the purchaser of its true character

The foregoing section probably repeals in part sec. 4607b, Statutes of 1898, which reads as follows: "Any person who shall sell or offer for sale, consign or have in possession with intent to sell any milk, cream, butter, cheese or other dairy products, or who shall deliver to any creamery or cheese factory milk or cream to be manufactured into butter or cheese to which milk, cream, butter, cheese or other dairy products, boracic acid, salicylic acid or compounds containing them, or other antiseptics injurious to health have been added, shall be punished by fine not exceeding one hundred dollars nor less than twenty-five dollars."

Penalty for violating either of the two preceding sections Section 4607b-3. (Section 3, chapter 313, laws of 1899, as amended by ch. 66, laws of 1905.) Any person violating any of the provisions of this act shall, upon conviction, be fined not less than twenty-five dollars nor more than one hundred dollars for each and every offense, or be confined in the county jail not less than thirty days nor more than sixty days.

Unsanitary milk and cream.

CHAPTER 215, LAWS OF 1909.

An Act to repeal sections 4607b-4 to section 4607b-9, inclusive, of the statutes, and to create new sections to be numbered 4607b-4, 4607b-5, 4607b-6, 4607b-7, 4607b-8, aand 4607b-9, relating to unsanitary milk and unsanitary cream and providing a penalty.

The people of the State of Wisconsin, represented in Senate and Assembly, do enact as follows:

SECTION 1. Section 4607b-4 to section 4607b-9, inclusive, of the statutes, being chapter 67 of the laws of 1903, as amended by chapter 154 of the laws of 1905, entitled "An Act to Prevent the Sale of Unclean and Unsanitary Milk and the Use thereof in the Manufacture of Food Products, and to Prohibit Unclean and

Unsanitary Conditions of Creameries, Cheese Factories and Milk Dealers' Establishments or Outfits," are hereby repealed.

SECTION 2. There are added to the statutes new sections to be numbered section 4607b-4. section 4607b-5, section 4607b-6, section 4607b-7, section 4607b-8, section 4607b-9, to read:

or more

Section 4607b-4. For the purposes of this act, the term "milk" shall mean the fresh clean, lacteal secretion obtained by the complete milking of one healthy cows, properly fed and kept, excluding that obtained within eight days before and four days after calving, and contains not less than eight and one-half (8.5) per cent. of solids not fat, and not less than three (3) per cent. of milk fat; and the term "cream" shall mean that portion of milk, rich in milk fat, which rises to the surface of milk on standing, or is separated from it by centrifugal force, is fresh and clean, and contains not less than eighteen (18) per cent. of milk fat.

Milk which shall be drawn from cows that are kept in barns or stables which are not reasonably well lighted and ventilated, or that are kept in barns or stables that are filthy from an accumulation of animal feces and excreta or from any other cause; or milk which shall be drawn from cows which are themselves in a filthy condition; or milk kept or transported in dirty, rusty, or open-seamed cans or other utensils; or milk that is stale, putrescent, or putrid; or milk to which has been added any unclean or unwholesome foreign substance; or milk which has been kept exposed to foul or noxious air or gases in barns occupied by animals, or kept exposed in dirty, foul, or unclean places or conditions, is hereby declared to be unsanitary milk.

Cream produced from any such aforesaid unsanitary milk; or cream produced by the use of a cream separator, which separator had not been thoroughly washed, cleansed, and scalded after previous use in the separation of cream from milk; or cream produced by the use of a cream separator placed or stationed in any unclean or filthy room or place or in any building containing a stable wherein are kept cattle or other animals, unless such cream separator is so separated and shielded by partition from the stable portion of such building as to be free from all foul or noxious air or gases which issue or may issue from such place or stable; or cream that is stale, putrescent, or putrid; or cream that is kept or transported in dirty, rusty, or open-seamed cans or other utensils; or cream which has been kept exposed to foul or nox