§ 5. Legislature's Determination that Certain Articles of Food are Detrimental to Health Not Conclusive. Notwithstanding what has been said about the power of the Legislature to conclusively determine whether an article. of food is detrimental to health of those using it, there is a dissent in high circles from the doctrine thus announced. This is particularly true in New York. In that State the manufacture and sale of the substance known as oleomargarine were prohibited. The statute was almost identical with. that of Pennsylvania. The court construed the statute as a prohibition of the manufacture and sale of any article that could be used as a substitute for butter, however openly and fairly the character of the substance might be avowed and published, and to drive the substituted article from the market and protect those engaged in the manufacture of dairy products against the competition of cheaper substances capable of being applied to the same uses as articles of food. The [the police] power, the extent to which it shall be exercised, and the regulations to effect the desired end, are generally wholly in the discretion of the Legislature." State V. Smith, 58 Minn. 35, 59 N. W. 545, 25 L. R. A. 759; State v. Mrozinski, 59 Minn. 465, 61 N. W. 560, 27 L. R. A. 76; Helena v. Dwyer, 64 Ark. 424, 42 S. W. 1071, 39 L. R. A. 266, 62 Am. St. 206; Borden's Condensed Milk Co. v. Montelair (N. J. L.), 80 Atl. 30. For cases on similar questions see Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643 (Vaccination); Valentine v. Englewood, 76 N. J. L. 509, 71 Atl. 344, 19 L. R. A. (N. S.) 262 (Scarlet fever); Reduction Company V. Sanitary Works, 199 U. S. 306, 26 Sup. Ct. 100, 50 L. Ed. 204 (destroying garbage); Gardner v. Michigan, 199 U. S. 325, 26 Sup. Ct. 106, 27 L. Ed. 1107 (destroying garbage); Laurel Hill Cemetery Co. v. San Francisco, 216 U. S. 358, 30 Sup. Ct. 501, 54 L. Ed. (burial within a city); Atlantic City v. Abbott, 73 N. J. L. 281, 62 Atl. 999. An ordinance prohibiting the sale of domestic fowls which have been in cold storage prior to the removal of the entrails is a valid exercise of the police power, is enacted to promote the public health of the community, and merely regulates the use of property without destroying it. People v. Reicherter, 128 N. Y. App. Div. 675, 112 N. Y. Supp. 936. The Legislature can not establish a standard for food by which its adulteration is conclusively established. People v. Cipperly, 37 Hun 319. ground was taken by the counsel of the accused that if such were the case, the manufacture or sale of any oleaginous compound, however pure and wholesome, as an article of food, if it was designed to take the place of dairy butter, was by the Act made a crime. To this the court said: "The result of the argument is that if, in the progress of science, a process is discovered of preparing beef tallow, lard, or any other oleaginous substance, and communicating to it a palpable flavor, so as to render it serviceable as a substitute for dairy butter, and equally nutritious and valuable, and the article can be produced at a comparatively small cost, which will place it within the reach of those who can not afford to buy dairy butter, the bar of this statute is upon it. Whoever engages in the business of manufacturing or selling the prohibited product is guilty of a crime; the industry must be suppressed; those who could make a livelihood by it are deprived of that privilege; the capital invested in the business must be sacrificed, and such of the people of the State as can not afford to buy dairy butter must eat their bread unbuttered." And after referring to the State Constitution, which provides that no member of the State shall be disfranchised, or be deprived of any of the rights and privileges secured by any of its citizens, unless by the law of the land or the judgment of his peers; and to the clause which declares that no person shall be deprived of life, liberty or property without due process of law; and to the first section of the Fourteenth Amendment of the Federal Constitution, the court said: "These constitutional safeguards have been so thoroughly discussed in recent cases that it would be superfluous to do more than refer to the conclusions which have been reached, bearing upon the question now under consideration. Among these, no proposition is now more firmly settled than that it is one of the fundamental rights and privileges of every American citizen to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit.” And, referring to various decisions concerning the meaning of liberty, among which was one that the right to liberty embraces the right of man "to exercise his faculties and to follow a lawful vocation for the support of life," the court said: "Who will have the temerity to say that these constitutional principles are not violated by an enactment which absolutely prohibits an important branch of industry for the sole reason that it competes with another, and may reduce the price of an article of food for the human race? Measures of this kind are dangerous even to their promoters. If the argument of the respondent in support of the absolute power of the Legislature to prohibit one branch of industry for the purpose of protecting another with which it competes, can be sustained, why could not the oleomargarine manufacturers, should they obtain sufficient power to influence or control the legislative councils, prohibit the manufacture or sale of dairy products? Would arguments then be found wanting to demonstrate the invalidity under the Constitution of such an Act? The principle is the same in both cases. The numbers engaged on each side of the controversy can not influence the question here. Equal rights to all are what are intended to be secured by the establishment of constitutional limits to legislative power and impartia! tribunals to enforce them."" 1 People v. Marx, 99 N. Y. 386, 2 N. E. 29, 52 Am. Rep. 34, reversing 25 Hun 528, 3 N. Y. Cr. Rep. 11; People v. Arenberg, 105 N. Y. 123, 11 N. E. 277, 59 Am. Rep. 483. In the case from which this quotation was made there was evidence introduced, and "it was proved on the part of the defendant by distinguished chemists that oleomargarine was composed of the same elements as dairy butter. That the only difference between them was that it contained a smaller proportion of fatty substance known as butterine. That this butterine exists in dairy butter only in small proportion-from three to six percent. That it ex ists in no other substance than butter made from milk, and it is introduced in oleomargarine butter by adding to oleomargarine stock some milk, cream or butter, and churning, and when this is done it has all the elements of natural butter, but there must always be a smaller percentage of butterine in the manufactured product than in the butter made from milk. The only effect of the butterine is to give flavor to the butter, having nothing to do with its wholesomeness. That the oleaginous substances in the oleomargarine are substantially identical with those produced from milk or cream. Professor Chandler testified that the only difference between the two § 6. Rule Followed by Courts in Determining Whether a Statute Forbidding the Sale of Food is Valid or Invalid. The general rule is that the Legislature can not forbid the sale of wholesome food, but this statement must be examined with caution. The rule with respect to the sale of foods and their prohibition has been stated thus by the Supreme Court of Missouri: "When the courts have come to deal with such municipal regulations, they have announced the rule that, if the article is universally conceded to be so wholesome and innocuous that the court may take judicial notice of it, the Legislature under the Constitution has no right to absolutely prohibit it; but if there is a dispute as to the fact of its unwholesomeness for food or drink, then the Legislature can either regulate or prohibit it. The constitutionality of the law is not to be determined upon a question of fact in each case, but the courts determine for themselves, upon the fundamental principles of our Constitution, that the act of the Legislature or municipal assembly is not to be declared void unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt." "The constitutionality articles was that dairy butter had more butterine. That oleomargarine contained not over one percent of that substance while dairy butter might contain four or five percent and that if four or five percent of butterine were added to the oleomargarine there would be no difference; it would be butter; irrespective of the source, they would be the same substances. According to the testimony of Professor Moore, whose statement was not controverted, oleomargarine, so far from being an article devised for purposes of deception in trade, was devised in 1872 or 1873 by an eminent French scientist, who had been employed by the French government to devise a substitute for butter." (Extract from opinion in People v. Marx.) 1 St. Louis v. Liessing, 190 Mo. 464, 89 S. W. 611, 109 Am. St. 774; State v. Layton, 160 Mo. 468, 61 S. W. 171, 62 L. R. A. 163, 83 Am. St. 487. See also Adams v. Milwaukee, 144 Wis. 371, 129 N. W. 518. When there are conflicting scientific beliefs or theories on the question of danger of infection from bovine tuberculosis and of the efficacy of the tuberculin test, it is for the Legislature to determine upon which theory it will base its police regulations, and unless it is clearly and manifestly wrong the courts will not interfere. Adams v. Milwaukee, 144 Wis. 371, 129 of the law is not to be determined upon the question of fact 87. Power to Define What Shall be Deemed an Adulteration. The Legislature has the power to define what shall constitute an adulteration within the provisions of a statute forbidding the sale of the article of food or the drug in an adulterated condition. But necessarily there must be a limitation N. W. 518; Borden's Condensed Milk Co. v. Montclair (N. J. L.), 80 Atl. 30. 2 State v. Layton, supra; People v. Cipperly, 101 N. Y. 634, 4 N. E. 107, 37 Hun 324; State v. Schlenker, 112 Iowa 642, 84 N. W. 698, 51 L. R. A. 347, 84 Am. St. 360. 1 State v. Weeden, 17 Wyo. 418, 100 Pac. 114; St. Louis v. KlausPURE FOOD-2. meier, 213 Mo. 119, 112 S. W. 516; |