[Sec. 7, ch. 452,

8. Payment of salaries and expenses. laws of 1889.] The salaries of the commissioner and his assistants shall be paid out of the state treasury in the same manner as the salaries of other officers are paid, and their official expenses shall be paid at the end of each calendar month upon bills duly itemized and approved by the governor, and the amount necessary to pay such salaries and expenses is hereby appropriated annually.

9. Laboratory, and materials for. [Sec. 8, ch. 452, laws of 1889.] The commissioner may, under the direction of the governor, fit up a laboratory, with sufficient apparatus for making the analysis contemplated in this act, and for such purpose the sum of fifteen hundred dollars, or so much thereof as may be necessary, is hereby appropriated, and for the purpose of providing materials and for other necessary expenses connected with the making of such analyses, there is also hereby appropriated so much as may be necessary, not exceeding six hundred dollars annually. The appropriations provided for in this section shall be drawn from the state treasury upon the certificates of the governor.

10. Biennial report. [Sec. 9, ch. 452, laws of 1889, as amended by ch. 109, laws of 1893.] Said commissioner shall be furnished a suitable office in the capitol at Madison, and shall make a biennial report to the governor, which shall contain an itemized account of all expenses incurred and fines collected, with such statistics and other information as he may regard of value; and with the consent of the governor not exceeding twenty thousand copies thereof, limited to three hundred pages, may be published biennially, as other official reports are published, and of which five thousand copies shall be bound in cloth.

Stationery. Ch. 197, laws of 1895, authorizes the commissioner to obtain stationery for the use of his office.

SALE OF IMPURE MILK.

11. Penalty for. [Sec. 1, ch. 425, laws of 1889, as amended by ch. 106, laws of 1897.] Any person who shall sell or offer for sale, or furnish or deliver, or have in possession, with intent to sell or offer for sale or furnish or deliver to any creamery, cheese factory, corporation, per. son or persons whatsoever, as pure, wholesome and unskimmed, any unmerchantable, adulterated, impure, or unwholesome milk, shall, upon conviction thereof, be punished by a fine of not less than twenty-five nor more than one hundred dollars for each and every offense.

Validity of statute. A New York law (ch. 183 of 1885, ch. 202 of 1884), providing that "no person or persons shall sell, supply or bring to be manufactured, to any butter or cheese manufactory, any milk diluted with water, or any unclean, impure, unhealthy, adulterated or unwholesome milk," has been sustained as a valid exercise of legislative power. People v. West, 106 N. Y., 293.

Construction-Indictment. The New York law does not make fraudulent intent a necessary ingredient of the offense and it would not be a reasonable construction of 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, 16 Northeast. Rep., 280, 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, 14 Northeast. Rep., 930, 146 Mass., 38.

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 go to the jury upon the question of his intent. Commonwealth v. Rowell, 15 Northeast. Rep., 151, 146 Mass., 128.

Effect of the act of 1889 upon previous laws. It seems reasonably clear that sec. 1, of ch. 425, laws of 1889, as amended by ch. 106, laws of 1897, paragraph 11, supersedes sec. 1, of ch. 157, laws of 1887, as to the offense of selling diluted, impure and unclean milk. Both the acts referred to cover the provisions of sec. 4607, R. S., and hence that section is not in force.

What is a sale. A restaurant keeper who sells milk to be drunk by his guests on his premises is liable if the milk so sold is not of the prescribed quality. Commonwealth v. Vieth, 155 Mass., 442. See note to paragraph 17. Milk bought by a guest and delivered to him as part of his meal is 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.

12. Standard for pure. [Sec. 2, ch. 425, laws of 1889.] In all prosecutions or other proceedings under this or any other law of this state relating to the sale or furnishing of milk, if it shall be proven that the milk sold or offered for sale, or furnished or delivered, or had in possession with intent to sell or offer for sale, or to furnish or deliver as aforesaid, as pure, wholesome and unskimmed, contains. less than three per centum of pure butter fat, when subjected to chemical analysis or other satisfactory test, or that it has been diluted or any part of its cream abstracted, or that it or any part of it was drawn from cows known to the person complained of to have been within fifteen days before or four days after parturition, or to have any disease or ulcers or other running sores, then and in either case the said milk shall be held, deemed and adjudged to have been unmerchantable and adulterated, impure or unwholesome, as the case may be.

Validity of provision as to standard of purity. The supreme court of New York has ruled that a statute which provides that milk which contains less than three per centum of fat shall be declared adulterated is un

constitutional. The ground upon which this was held was that the statute deprived the defendant of his liberty and property without due process of Jaw, 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 appeals, without opinion, and on the grounds given by the dissenting judge of the supreme court. People 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 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, however, was of the 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, 15 R. I., 208, 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.

13. Proof of adulteration, how made. [Sec. 2, ch. 157, laws of 1887, as amended by ch. 344, laws of 1889.] Proof of adulterations and skimming may be made with such standard tests and lacometers as are used to determine the quality of milk, or by chemical analysis.

14. Sale, etc., of milk or cream containing antiseptics injurious to health. [Ch. 168, laws of 1895.] Any person who shall sell or offer for sale, or consign, or have in his possession with intent to sell to any person or persons, 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 boracic acid, salicylic acid, or compounds containing them, or other antiseptics injurious to health, have been added, shall be deemed guilty of a misdemeanor, and upon conviction thereof be punished by a fine of not less than twentyfive nor more than one hundred dollars for each and every offense.

Intent to sell. See note to paragraph 11.

IMITATION BUTTER AND CHEESE.

15. Filled cheese. [Sec. 1, ch. 30, laws of 1895.] No person, by himself or by his agents or servants, shall manufacture, or shall buy, sell, offer, ship, consign, expose or have in his possession for sale any cheese manufactured from or by the use of skimmed milk to which there has been added any fat which is foreign to such milk.