authority to enact the statute under which appellant was convicted." 172

§ 34. Preservative in Milk-Formaldehyde.

The Legislature may enact a statute forbidding the use of any foreign substance in milk, cream or butter offered for sale, even the use of a preservative, whether for the purpose of increasing the quality of the milk or cream or butter or for preserving its condition or sweetness. And a municipality, under its usual powers to protect its inhabitants and protect their health, may adopt an ordinance to that effect. To put formaldehyde in milk, in order to preserve its sweetness, is a violation of such a statute or ordinance, and such a statute or ordinance is constitutional. It was claimed in one case "that because formaldehyde works such a chemical change in the character of milk that it will not sour, and because it is for this reason classed as a preservative, the municipal assembly could not lawfully prohibit its use in milk.""

"The trial court refused to go into the evidence tendered that formaldehyde in proper quantities was not injurious to health. Evidently it can not be said that the effect of formaldehyde in milk is so well known not to be deleterious that the courts must take judicial cognizance of that fact. That its action is such that it changes the chemical properties of the milk so that it will not sour was established and conceded on the trial, and it was for this reason that it was insisted that, as it preserved the milk from souring, it was claimed to be highly beneficial. We can not accept this con

2 Sanders v. Commonwealth, 117 Ky. 1, 25 Ky. L. Rep. 1165, 77 S. W. 358; Condensed Milk Co. V. Montclair (N. J. L.), 80 Atl. 30.

In Johnson v. Simonton, 43 Col. 242, which was an action for libel, the court said: "If indeed it is a fact that the milk of cows fed in whole or in part upon still slops is unwholesome as human food,

then have we no doubt of either the authority or the duty of the board to enact the ordinance in question."

1 If a city be empowered to prevent the sale of adulterated "food," it may prevent the sale of adulterated milk. State v. Stone, 46 La. 147, 15 So. 11.

clusion. It must be recognized that it was a legislative function, in the passage of this ordinance for the preservation of health, to insist that milk should have neither adulterants nor preservatives placed in it, and to inquire as to the effect thereof. The municipal assembly may have investigated and found this very fact, that, when formaldehyde or boracic acid was placed in milk, it would change its chemical properties and prevent its souring, and prevent its going the natural processes of oxidation and decomposition, and that thereby the housewife desiring to have the milk sour for culinary purposes, or the physician administering it as food to children and sick persons, would be misled in his calculations as to its effect on his patients. But, in addition to this, the municipal assembly might well have reasoned that, while one preservative used in carefully prepared proportions might not be injurious to the health of consumers, it would be extremely dangerous to permit the vendors of milk, with little or no scientific knowledge, and less scruples, each to select his own so-called preservative and use it without knowledge as to the quantities which were safe, which would open the door to all sorts of dangerous adulterations, and to the use of highly injurious processes; and that the discovery of such practices might never be made until incalculable injury had occurred; and that the only safe course, considering the nature of the business, was to prevent absolutely the placing of such preservatives in milk having such an effect as was shown in this case. In so doing the municipal assembly in no manner destroyed or affected the defendant's right of property. He had the right to sell pure and unadulterated milk of the standard prescribed by the ordinance, and the purchaser and the consumer of milk had the right to purchase from him pure milk unmixed with any foreign matter added to it, and this was what the ordinance required, no more and no less, and in so doing it infringed no provision of the organic law of this State, or any article of the Federal Constitution."

2 St. Louis v. Schuler, 190 Mo. 524, 89 S. W. 621, 1 L. R. A. (N. S.) 928. The court denied the sound

"That the sale of milk to

ness. People v. Biesecker, 169 N. Y. 53, 61 N. E. 990, 57 L. R. A. 178, 88 Am. St. 534.

which water and boracic acid have been added may amount to a fraud upon the purchaser is evident," said the Supreme Court of Iowa. "He has the right to assume that the milk he buys is unadulterated, and that it will go through the natural processes of oxidation and decomposition. He may wish to use sour milk for culinary purposes, and has the right to assume that nothing has been added to prevent chemical change. . . . It may be conceded that the milk sold by defendant was not harmful to the health of those who used it, but it is certainly dangerous to the public to permit milkmen and those dealing in milk to adulterate it in such manner as to change its constituent properties. The statute does not deprive the defendant of his property, but it does impose upon him the duty of so using it that no injury will result to others most likely to be affected by a disregard on his part of the reasonable health regulations that it enacts." In the case from which this last quotation is made the defendant put boracic acid in the milk which he sold, and testifled that he used it as a preservative, and that its use was necessary to keep the milk from souring; and he introduced experts to show that the quantity of boracic acid used tended to prevent decomposition and would have no deleterious effect on the consumer. The court held that it was not enough to show that the defendant did not intend to defraud, or that the milk he sold was not unwholesome. If that were true, the court observed, almost any law intended to protect the public health and safety might be overthrown; that it was enough that the adulteration such as prescribed by the statute might depend and prove deleterious to the public health or comfort; that the Legislature might well determine that the adulteration of milk tends to facilitate vicious processes, and that it ought to be prohibited.3 An ordinance 3 State v. Schlenker, 112 Iowa 645, 84 N. W. 699, 51 L. R. A. 347, 84 Am. St. 360; State v. Bockstruck, 136 Mo. 336, 38 S. W. 317.

An ordinance prohibiting the sale of milk containing a preservative is valid and is within the PURE FOOD-5.

power to pass ordinances necessary or reasonably appearing to be necessary for the public health, even though a preservative not injurious to health be used. St. Louis V. Schuler, 190 Mo. 524, 89 S. W. 621, 1 L. R. A. (N. S.) 928.

which forbids the sale of milk and cream containing coloring matter is valid, because it prevents deception on the public and unfair advantage over honest competitors.*

§ 35. Preservative in Milk or Butter-Statute Invalid.

A statute of New York forbade the sale of or offer to sell butter or dairy products "containing a preservative," but permitted the use of salt in butter or cheese. It also forbade the advertising for sale "any substance, preparation, or matter for use in violation" of this statute. The defendant was charged with advertising a preservative called "preservaline" for use with butter "which was neither salt used in butter or cheese [nor] sugar to be used in milk," with the intent that the preservative should be used in butter to be offered and exposed for sale. The Court of Appeals held this statute invalid.1

§ 36. Milk, Tuberculin Test.

An ordinance provided that all dairies whose owners sold milk within the limits of the city adopting it should be inspected by the veterinarian of the department of health, to be made of every animal producing milk for sale within the city, belonging to the applicant for a license to sell milk, and then provided that "for the purpose of detecting tuberculosis or other contagious or infectious disease, the veterinarian is authorized in making such inspection to use what is known as the tuberculin test as a diagnostic agency for the detection of tuberculosis in such animal." The court

4 St. Louis v. Polinsky, 190 Mo. 516, 89 S. W. 625. Such an ordinance is authorized by a statute empowering a city to inspect milk, to secure the general health by any necessary measure, and to pass all ordinances expedient in maintaining the health and welfare of the city. St. Louis v. Wortman, 213 Mo. 131, 112 S. W. 20.

1 People v. Biesecker, 169 N. Y. 53, 61 N. E. 990, 57 L. R. A. 178, 88 Am. St. 54. The Supreme Court of Missouri denied the soundness

of this case. (St. Louis v. Schuler, 190 Mo. 524, 89 S. W. 621, 1 L. R. A. (N. S.) 928), and held valid a statute preventing the use of preservative, although it was not injurious to health.

heid that this provision of the ordinance was reasonable and valid.' There being 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 clearly and manifestly is wrong the courts will not interfere.2