ious air or gases in barns occupied by animals, or in dirty, foul, or unclean places or conditions, is hereby declared to be unsanitary cream.

Section 4607b-5. No

servant, or agent,

person shall by himself, his or as the servant or agent of any

other person, or as the officer, servant, or agent of any firm or corporation, sell or offer for sale, furnish or deliver, or have in possession, or under his control with intent to sell or offer for sale, or furnish, or deliver to any person, firm, or corporation as food for man, or to any creamery, cheese factory, milk condensing factory, or milk or cream dealer, any unsanitary milk or any unsanitary cream.

Section 4607b-6. No person shall by himself, his servant, or agent, or as the servant or agent of any other person, or as the servant or agent of

any firm or corporation, manufacture for sale any article of food for man from any unsanitary milk or from any unsanitary cream.

Section 4607b-7. All premises and utensils used in the handling of milk, cream, and by-products of milk, and all premises and utensils used in the preparation, manufacture, or sale, or offering for sale of any food product for man from milk or cream or the by-products of milk, which shall be kept in an unclean, filthy, or noxious condition are hereby declared to be unsanitary.

It shall be unlawful for any person, firm, or corporation engaged in selling, or furnishing milk, cream, or any byproducts of milk, intended for use as food for man; and it shall be unlawful for any person, firm, or corporation, engaged in selling or furnishing milk, cream, or any by-product of milk, to any creamery, cheese factory, milk condensing factory, or to any place where such milk, cream, or by-products of milk are manufactured or prepared into a food product for man, and for sale as such; and it shall be unlawful for any milk dealer, or an employe of such milk dealer, or any person, firm, or corporation, or the employe of such person, firm, or corporation, who operates a creamery, cheese factory, milk condensing factory, or who manufactures or prepares for sale any article of food for man from milk, cream, or byproduct of milk, or who manufactures, re-works, or packs butter for sale as a food product, to maintain his premises and utensils in an unsanitary condition.

Section 4607b-8. Any person, firm or corporation, who receives in cans, bottles, or other vessels any milk, or cream, or other dairy product intended as food for man, which has

been transported over any railroad or boat-line or by other common carrier, when such cans, bottles, or vessels are to be returned, shall cause the said cans, bottles, or other vessels. to be thoroughly washed and cleansed before return shipment. Section 4607b-9. Any person who by himself, his servant, or agent, or as the servant or agent of any other person, or as the officer, servant, or agent of any firm or corporation, who violates any provision of this act shall, upon conviction thereof, be punished by a fine of not less than twenty-five dollars nor more than one hundred dollars for each and every offense, or shall be imprisoned in the county jail not less than thirty days nor more than sixty days

SECTION 3. This act shall take effect and be in force from and after its passage and publication.

Condensed milk. Section 4607b-10. (Sec. 1, ch. 247, 1905.) No person shall manufacture for sale within this state, or offer or expose for sale, have in his possession with intent to sell, or sell or exchange, any condensed milk, sweetened or unsweetened, unless the same shall contain not less than twenty-eight percentum, by weight, of milk solids, of which not less than one-fourth shall be milk fat.

9.

Evaporated or condensed cream. Section 4607b-11. (Sec. 2, ch. 247, 1905.). No person shall manufacture for sale within this state, or offer or expose for sale, have in his possession with intent to sell, or sell or exchange, as and for evaporated or condensed cream, any substance except the product obtained by the evaporation of a portion of water from cream containing not less than eighteen percentum, by weight, of butter fat. Provided, that nothing in this act shall apply to goods manufactured for sale and shipment outside of the state.

Penalty. Section 4607b-12. (Sec. 3. ch. 247, 1905.) Whoever shall violate any of the provisions of this act shall be deemed guilty of a misdemeanor and, upon conviction thereof. shall be punished by a fine of not less than twenty-five dollars nor more than one hundred dollars, or by imprisonment in the county jail not less than thirty days nor more than sixty days.

Filled cheese: oleomargarine: penalties Section 4607c of the Statutes of 1898. as amended by chapter 15. laws of 1901. Any person who shall by himself, his agent or servant manufacture, buy, sell, offer, ship, consign, expose or have in

5-D & F

possession for sale, any cheese manufactured from or by the use of skim milk to which there has been added any fat which is foreign to such milk, or who shall by himself, his agent or servant manufacture, buy, sell, offer, ship, consign, expose or have in possession for sale, within this state, any skimmedmilk cheese or cheese manufactured from milk from which any of the fat originally contained therein has been removed, except such last mentioned cheese is ten inches in diameter and nine inches in height, or who shall, by himself, his agent or servant, render or manufacture, sell or solicit or accept orders for, ship, consign, offer or expose for sale or have in possession, with intent to sell, any article, product or compound made wholly or partly out of any fat, oil or oleaginous substance or compound thereof, not produced from unadulterated milk or cream from the same, and without the admixture or addition of any fat foreign to said milk or cream, which shall be in imitation of yellow butter produced from such milk or cream with or without coloring matter, shall for the first offense be punished by fine of not more than five hundred dollars, nor less than fifty dollars, and for each subsequent offense, by imprisonment in the county jail not to exceed sixty days nor less than ten days, or by fine of not more than five hundred dollars nor less than one hundred dollars, or by both such fine and imprisonment. Nothing in this section shall be construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form and in such manner as will advise the consumer of its real character. and free from coloration or ingredient that causes it to look like butter.

Origin. So much of the foregoing as relates to butter is almost an exact copy of sec. 1, ch. 5, acts of Mass., 1891. The words "ship, consign," "and without the admixture or addition of any fat foreign to said milk or cream," "or solicit or accept orders for," found in the section, are not in the Massachusetts act.

Validity. A state may lawfully prohibit the manufacture out of oleaginous substances, or out of any of its compounds other than that produced from unadulterated milk or cream from such milk, of an article designed to take the place of butter or cheese produced from unadulterated milk: People v. Arensberg, 105 N. Y., 123, Commonwealth v. Huntley, 156 Mass., 236; State v. Marshall, 64 N. H., 549; State v. Addington, 77 Mo., 110; Butler v. Chambers, 36 Minn., 69; McAllister v. State, 72 Md., 390; Weideman v. State, 56 N. W. Rep., 688; State v. Horgan, 55 Minn., 183. It may also prohibit the manufacture or sale, or the offering for sale, of any imitation or adulterated butter or cheese, or the having of it in possession with intent to sell the same as an article of food: Powell v. Pennsylvania, 127 U. S., 678.

Though it may be severe to punish those who unintentionally sell the article prohibited, the legislature has power to so provide in order that the much larger number may be protected: State v. Newton, 14 Atl. Rep., 604.

Such an act is not void though the oleomargarine sold was brought into the state where the sale was made from another state and was sold in the original package: Commonwealth v. Huntley, 156 Mass., 236; State v. Newton, 14 Atl. Rep., 604. The power of the state to enact such a law is not affected by the legislation of congress imposing special taxes upon manufacturers and wholesale and retail dealers in oleomargarine: Plumley v. Massachusetts, 155 U. S., 461.

The ruling of the United States supreme court. The validity of the Massachusetts statute, so far as it was affected by the clause of the federal constitution giving congress power over commerce, came before the supreme court of the United States in Plumley v. Massachusetts, 155 U. S., 461. It was there held, by a majority of the judges (three dissenting), that the federal statute imposing special taxes upon manufacturers and wholesale and retail dealers in oleomargarine does not restrict the power of the states over the manufacture and sale thereof within their respective limits. "The taxes prescribed by that act were imposed for national purposes, and their imposition did not give authority to those who paid them to engage in the manufacture or sale of oleomargarine in any state which lawfully forbade such manufacture or sale, or to disregard any regulation which a state might lawfully prescribe in reference to that article. Nor was the act of congress relating to oleomargarine intended as a regulation of commerce among the states. Its provisions do not have special application to the transfer of oleomargarine from one state of the union to another. They relieve the manufacturer or seller, if he conforms to the regulations prescribed by congress or by the commissioner of internal revenue, under the authority conferred upon him in that regard, from penalty or punishment so far as the general government is concerned, but they do not interfere with the exercise by the states of any authority they possess of preventing deception or fraud in the sales of property within their respective limits."

The opinion of the court then proceeds to discuss the validity of the statute of Massachusetts as affected by the commerce clause of the federal constitution. "It will be observed," said Justice Harlan, "that the statute of Massachusetts which is aneged to be repugnant to" that clause "does not prohibit the manufacture or sale of all oleomargarine, but only such as is colored in imitation of yellow butter produced from pure unadulterated milk or cream of such milk. If free from coloration or ingredient that causes it to look like butter, the right to sell it in a separate and distinct form, and in such manner as will advise the consumer of its real character,' is neither restricted nor prohibited. It appears, in this case, that oleomargarine, in its natural condition, is of a 'light yellowish color,' and that the article sold by the accused was artificially colored in imitation of yellow butter.' Now the real object of coloring oleomargarine so as to make it look like genuine butter is that it may appear to be what it is not, and thus induce unwary purchasers, who do not closely scrutinize the label upon the package in which it is contained to buy it as and for butter produced from unadulterated milk or cream from such milk. The suggestion that oleomargarine is artificially colored so as to render it more palatable and attractive can only mean that customers are deluded, by such coloration, into believing that they are getting genuine butter. If any one thinks that oleomargarine, not artificially colored so as to cause it to look like butter, is as palatable or wholesome for purposes of food as pure butter, he is, as already observed, at liberty under the statute of Massachusetts to manufacture it in that state or to sell it there in such manner as to inform the customer of its real character. He is only forbidden to practice, in such matters, a fraud upon the general public. The statute seeks to suppress false pretenses and to promote fair dealing in the sale of an article of food. It compels the sale of oleomargarine for what it really is, by preventing its sale for what it is not."

After reviewing many of the cases cited by the supreme court of the United States and relied upon by counsel for the defendant to support his contention

that the statute was void, the opinion uses this language: "In none of the above cases is there to be found a suggestion or intimation that the constitution of the United States took from the states the power of preventing deception and fraud in the sale, within their respective limits, of articles in whatever state manufactured, or that that instrument secured to any one the privilege of committing a wrong against society. If there be any subject over which it would seem that states ought to have plenary control, and the power to legislate in respect to which it ought not to be supposed was intended to be surrendered to the general government, it is the protection of the people against fraud and deception in the sale of food products. Such legislation may, indeed, indirectly or incidentally affect trade in such products transported from one state to another state. But that circumstance does not show that laws of the character alluded to are inconsistent with the power of congress to regulate commerce among the states. For, as said by this court in Sherlock v. Alling, 93 U. S., 99, 103: 'In conferring upon congress the regulation of commerce, it was never intended to cut the states off from legislating on all subjects relating to the health, life and safety of their citizens, though the legislation might indirectly affect the commerce of the country. Legislation, in a great variety of ways, may affect commerce and persons engaged in it without constituting a regulation of it within the meaning of the constitution.

And it may be said generally, that the legislation of a state, not directed against commerce or any of its regulations, but relating to the rights, duties, and liabilities of citizens, and only indirectly and remotely affecting the operations of commerce, is of obligatory force upon citizens within its territorial jurisdiction, whether on land or water or engaged in commerce, foreign or interstate, or in any other pursuits.

The opinion of the court then proceeds to point out that the case of Leisy v. Hardin, 135 U. S., 100, in which it was held that ardent spirits, distilled liquors, ale and beer, were subjects of exchange, barter and traffic, and, being articles of commerce, their sale while in the original packages in which they are carried from one state to another, could not, without the assent of congress, be forbidden by the state into which they were transported, was not conclusive of the case before it, because the articles sold in that case were what they purported to be. The opinion of the majority of the court on the Massachusetts statute concluded thus: 'We are of opinion that it is within the power of a state to exclude from its markets any compound manufactured in another state, which has been artificially colored or adulterated so as to cause it to look like an article of food in general use, and the sale of which may, by reason of such coloration or adulteration, cheat the general public into purchasing that which they may not intend to buy. The Constitution of the United States does not secure to any one the privilege of defrauding the public. The deception against which the statute of Massachusetts is aimed is an offense against society; and the states are as competent to protect their people against such offenses or wrongs as they are to protect them against crimes or wrongs of more serious character. And this protection may be given without violating any right secured by the national constitution, and without infringing the authority of the general government. A state enactment forbidding the sale of deceitful imitations of articles of food in general use among the people does not abridge any privilege secured to citizens of the United States, nor, in any just sense, interfere with the freedom of commerce among the several states." Expose for sale. Under the English statute regulating the sale of margarine it has been held that margarine kept for sale upon the counter of a shop, but behind a screen hiding it from the view of customers, is not exposed for sale (Crane v. Lawrence, 25 Queen's B. Div., 152), and that parcels of margarine placed upon a counter or shelf, in view of customers, are exposed for sale, although so wrapped in paper that the margarine cannot be seen. Wheat v. Brown, [1892] 1 Queen's B., 418.

In Massachuetts, from whence this section was borrowed (see first sentence of note), the court has said, in a case decided in 1893, that whenever goods are