Federal court, even though the officer enforcing it gives it an erroneous construction which results disastrously to the business of the person complaining, for to enjoin him in enforcing it would be to enjoin the State he represents; and as the Eleventh Amendment prohibits suit being brought against a State in a Federal court, a suit to enjoin such officer would be a violation of this provision of that organic law. And aside from a Federal question, the fact that an article of food is widely sold throughout a State will not enlarge the jurisdiction of a court of equity to enjoin the institution of prosecutions against its sale or violation of the pure food laws. Nor will equity enjoin an officer charged with the execution of a pure food law from publishing the opinion that a specified product is within the prohibition of the law, for the remedy of the person complaining is an action for libel.+

§ 77. Injunction to Prevent Violations of Law. Statutes sometimes empower courts to issue an injunction restraining the violation of pure food laws. These statutes are valid, even though the defendant be subject to a penalty.1

§ 78. Title of Statute or Ordinance.

Under a constitutional provision that "Every Act shall embrace but one subject and matter properly connected therewith, which subject shall be expressed in the title," an "Act forbidding the manufacture, sale or offering for sale, of any adulterated foods or drugs, defining foods and drugs, stating wherein adulteration of foods and drugs consists, and defining the duties of the State Board of Health in relation to foods and drugs, their inspection, purity, adulteration, declaring penalties for the violation of the laws, rules and ordiC. A. 122, 113 Fed. 616, 65 L. R. A. 864.

2 Arbuckle v. Blackburn, 51 C. C. A. 122, 113 Fed. 616, 65 L. R. A. 864. See also Scully v. Bird, 209 U. S. 481, 28 Sup. Ct. 597, 52 L. Ed.

3 Arbuckle v. Blackburn, 51 C.

4 Arbuckle v. Blackburn, 51 C. C. A. 122, 113 Fed. 616, 65 L. R. A. 864.

1 People v. Windholz, 68 N. Y. App. Div. 552, 74 N. Y. Supp. 241.

nances concerning foods and drugs, also liquors used or intended for drink," does not violate its provisions; because "forbidding the manufacture and sale of any adulterated foods, drugs or drinks, defining prohibited foods, drugs and drinks, and the duties of the State Board of Health in relation to the inspection and prescribing of standards of purity of foods, drugs and drinks, and declaring penalties for the violation of the law, or all matters clearly tending to a common end, and which unmistakably disclose what that end is." Under a similar constitutional provision an "Act in relation to the manufacture and sale of baking powders, sugars and syrups, vinegars, lards, spirituous and malt liquors, to prevent fraud, and to preserve the public health," is valid. "The Act does not embrace more than one subject," said the court, "within the meaning of the constitutional prohibition. The Act may be fairly designated as one relating to the adulteration of various articles of food and drink, and its provisions are properly related to the general subject." So, under a similar provision, an ordinance to license and regulate the sale of milk and cream, to provide for their inspection, and prescribing penalties to prevent the sale and distribution of any but pure, wholesome milk and cream, and to fix the mimimum limit of its composition, and defining its quality, is valid. "All the provisions of the ordinance are germane to the one subject of regulating the business of vending milk and cream, and the generality of the title is not an objection, so long as it is not made to cover legislation incongruous in itself. Sound policy and legislative convenience dictate a liberal construction of the title and subject matter of enactments to maintain their validity. There is but one subject to this ordinance, and that is clearly expressed in the title." A title, "To prevent fraud in the sale of lard," sufficiently expresses the subject of an Act the provisions of which [are] the sale of "lard or any article in

1 Isenhour v. State, 157 Ind. 517, 62 N. E. 40, 87 Am. St. 228.

2 Stolz v. Thompson, 44 Minn. 271, 46 N. W. 410.

PURE FOOD-9.

3 St. Louis v. Liessing, 190 Mo. 464, 89 S. W. 64, 1 L. R. A. (N. S.) 918, 109 Am. St. 774.

tended for use as lard," which contains any ingredients but the pure fat of healthy swine, without being plainly marked as provided by statute.*

§ 79. Corporation, Quo Warranto.

If a corporation manufacture and sell food of such a character as comes within the prohibition of a statute, it may be proceeded against by quo warranto to have its charter annulled, and the fact that it is subject to a fine for the violation of the statute is not a bar to the prosecution of the quo warranto proceedings. The writ of quo warranto may be invoked to stop the violation of the law on the part of the corporation, and if its acts be flagrant, then to oust the corporation from its powers.1

§ 80. Municipality Delegating Power to Grant or Refuse a License to Sell Milk.

Although a city have the power to grant a license to sell milk, yet it can not delegate that power to one of the officers or boards and vest him or it with absolute power to arbi4 State v. Snow, 81 Iowa 642, 47 N. W. 777, 11 L. R. A. 355. "The title of the Act is a plain statement that it is to prevent fraud in the sale of lard, and the body of the Act ought not to be limited to any technical definitions of the word."

See also Commonwealth v. Caulfield, 27 Pa. Super. Ct. Rep. 279.

The Missouri Act of May 11, 1899, was unconstitutional so far as it applied to sellers who are not manufacturers. State v. Great Western, etc., Co., 171 Mo. 634, 71 S. W. 1011, 94 Am. St. 802.

The Nebraska Act, Comp. St. 1901, chap. 33, creating a food commission, is unconstitutional, because it contains more than one subject. Merrill v. State, 65 Neb. 509, 91 N. W. 418. So is the

Pennsylvania Act of June 26, 1895 (P. L. 317), because it does not state the subject of the Act. Commonwealth v. Kebort, 212 Pa. 289, 61 Atl. 895, 26 Pa. Super. Ct. 584.

The Indiana Act, Acts 1899, p. 189, is valid, and embraces only one subject. Isenhour v. State, 157 Ind. 517, 62 N. E. 40, 87 Am. St. 228. For additional cases, see People v. Rotter, 131 Mich. 250, 91 N. W. 167, 9 Detroit L. News 284; Hathaway v. McDonald, 27 Wash. 659, 68 Pac. 376, 91 Am. St. 889; Pratt Food Co. v. Bird, 148 Mich. 631, 112 N. W. 701, 14 Detroit Leg. N. 304, 118 Am. St. 601; Grosvenor v. Duffy, 121 Mich. 220, 80 N. W. 19. 1 State V. Capitol City Dairy Company, 62 Ohio St. 350, 57 N. E. 62, 57 L. R. A. 181.

trarily grant or refuse the license. "If the city had the power to license it could not delegate this power to another body, leaving to that body a discretion in the matter." All applicants for a license must be placed on an equality.1

§ 81. Power of Municipality to Inspect Food-Milk-Inspection of Dairies.

The State may, and often does, delegate to and empower municipalities to inspect food, and especially butter, milk and cheese, or dairy products. It is altogether permissible for the State to do this. So long as the ordinances of a municipality are within the power thus conferred and do not contravene the State's laws or Constitution, or the Federal law or Constitution, they are valid. The city has the power to inspect food, and especially milk, and may not only condemn an impure article, but may destroy it. A city may condemn milk upon the spot (when offered for sale, at least, or when held with intent to sell it), take it into custody, and pour it upon the ground, without violating the constitutional provisions of due process of law. Whether or not the Legislature has given municipalities such powers must, of course, depend upon a construction of their charters or general laws under which they are organized. But the principle remains that they may be endowed with such powers.1 A statute or ordi

1 Bear v. Cedar Rapids, 147 Iowa 341, 126 N. W. 324, 27 L. R. A. (N. S.) 1150; State Center v. Barenstein, 66 Iowa 249, 23 N. W. 652; Cicero Lumber Co. v. Cicero, 176 Ill. 27, 51 N. E. 764, 42 L. R. A. 704, 68 Am. St. 163; Richmond v. Dudley, 129 Ind. 112, 28 N. E. 312, 13 L. R. A. 587, 28 Am. St. 180; Yick Wo v. Hopkins, 118 U. S. 359, 6 Sup. Ct. 1064, 30 L. Ed.

221.

30 Atl. 648, 26 L. R. A. 541, 45 Am. St. 339; St. Louis v. Fischer, 167 Mo. 654, 67 S. W. 872, 64 L. R. A. 679, 99 Am. St. 614, 194 U. S. 361, 24 Sup. Ct. 673, 48 L. Ed. 1018; Kansas City v. Marsh Oil Co., 140 Mo. 458, 41 S. W. 943; St. Louis v. Grafeman Dairy Co., 190 Mo. 507, 89 S. W. 628, 1 L. R. A. (N. S.) 926; State v. Dupaquier, 46 La. 577, 15 So. 502, 49 Am. St. 334, 26 L. R. A. 162; St. Louis v. Weber, 44 Mo. 547; Gundling v. Chicago, 177 U. S. 183, 20 Sup. Ct. 633, 44 L. Ed. 725; Nor

1 St. Louis v. Liessing, 190 Mo. 464, 89 S. W. 611, 1 L. R. A. (N. S.) 918, 109 Am. St. 774; Deems v. Baltimore, 80 Md. 164, folk v. Flynn, 101 Va. 473, 44 S. E.

nance which requires all milk offered to be sold to be first inspected is valid, even as to those bringing milk into the city from the country." "The manifest purpose of the statute," it was said in one case, "under which this ordinance was passed, was to enable the city council to adopt such reasonable notice regulations as would prevent the sale of unwholesome milk within the city, and not merely to prevent the keeping of unhealthy dairy herds within the city limits. It is a matter of common knowledge that much of the milk sold in a city is produced in dairies situated outside the city limits. Any police regulations that did not provide means for insuring the wholesomeness of milk thus brought into the city for sale and consumption would provide very inadequate protection to the lives and health of the citizens. It is also a matter of common knowledge, as well as of proof in this case, that the wholesomeness of milk can not always be determined by an examination of the milk itself. To determine whether it does or does not contain the germs of any contagious or infectious disease it is necessary to inspect the animals which produce it. The inspection of dairies or dairy herds outside the city limits, provided for by this ordinance, applies only to those whose milk product it is proposed to sell in the city. The provisions of the ordinance in that regard go only so far as it is reasonably necessary to prevent the milk of diseased cows being sold within the city. The inspection is wholly voluntary on the part of the owner of the dairy or dairy herd. If he does not choose to submit to such inspection, the result merely is that he, or the one to whom he furnishes milk, can not obtain a license to sell milk within the city. The ordinance has no extra-territorial operation, and there has been no attempt to give it any such effect. The only subject upon which it operates is the sale of milk within the city." Under a charter empowering a munici717, 99 Am. St. 918, 62 L. R. A. 44 S. E. 417, 62 L. R. A. 771, 99 771; Weigand v. District of Co- Am. St. 918. lumbia, 22 App. D. C. 559; St. Louis v. Schuler, 190 Mo. 524, 89 S. W. 621, 1 L. R. A. (N. S.) 928.

2 Norfolk v. Flynn, 101 Va. 473,

3 State v. Nelson, 66 Minn. 166, 68 N. W. 1066, 34 L. R. A. 318, 61 Am. St. 399, quoted in Norfolk v. Flynn, 101 Va. 473, 44 S. E.