where the article was obtained from a retailer, it was held that the certificate was not evidence against the wholesaler from whom the retailer obtained it.29 If the certificate of the analyst, when all the proper steps under the statute have been taken, be not contradicted, it is conclusive of the fact that the food was adulterated food when it is to that effect.30 But if there be conflicting evidence, then the analyst certificate is not conclusive of the fact of adulteration. Thus, where the certificate, after setting out the constituent parts of the sample, stated that, in the analyst's opinion, the milk had been watered, and the seller did not require the analyst to be called, but tendered himself as a witness, and gave evidence to show that the milk had not been watered,31 it was

29 Tyler V. Kingham & Son [1900], 2 Q. B. 413, 64 J. P. 598, 69 L. J. Q. B. 630, 83 L. T. 169, 19 Cox C. C. 547. See also Regina v. Smith [1896], 1 Q. B. 596, 60 J. P. 372, 65 L. J. M. C. 104, 74 L. T. 348, 44 W. R. 492, 18 Cox C. C. 307.

30 Harrison v. Richards, 45 J. P. 552; Elder v. Dryden, 72 J. P. 355, 99 L. T. 20, 6 L. G. R. 786. But see MacLeod v. O'Neil, 9 Rettie (J. C.) 32.

31 Hewitt v. Taylor [1896], 1 Q. B. 287, 60 J. P. 311, 65 L. J. M. C. 68, 74 L. T. 51, 44 W. R. 431, 18 Cox C. C. 226; Fyfe v. Hamilton, 1 Adam 484; Todd v. Cochrane, 3 Adam 357, 38 Sc. L. R. 801.

But it has been held that an analysis of margarine made on the footing that the margarine was sold as butter was not admissible to show what the composition of margarine sold as margarine ought to be. In the case in question the evidence of the analysis was given verbally, but the principle seems

equally applicable to a written certificate. Roberts v. Leeming, 69 J. P. 417, 3 L. G. R. 1031.

It may be doubted if the analyst can by oral evidence supplement a deficiency in the written certificate. Hudson v. Bridge, 67 J. P. 186, 19 T. L. R. 369.

In a suit for a breach of warranty, the certificate of the analyst can not be used. Regina v. Smith [1896], 1 Q. B. 596, 60 J. P. 372, 65 L. J. M. C. 104, 74 L. T. 348, 44 W. R. 492, 18 Cox C. C. 307.

For decisions on obstructing milk inspectors, see Taylor v. Nixon [1910], 2 Ir. Rep. 94; Ford v. Urquhart, 21 Vict. L. R. 690; Roche v. Davis, 29 Vict. L. R. 394; 25 Aust. L. T. 108; 9 Aust. L. R. 205.

To make an obstruction of an officer an offense, the act must be an intentional misconduct involving mens rea. Thus where a serv ant of the defendant deliberately broke a bottle of liquor when a sample was demanded, it was held that such defendant was not liable,

held by the High Court that the magistrates were right in dismissing the case upon the whole of the evidence before them.

§ 524. Inspectors and their Powers.

Statutes very frequently provide for the inspection of foods, and even drugs occasionally, by officers of the State; and those, as we have seen in the chapter on constitutional powers, are valid. The power to require inspection is often conferred upon cities, either by their charters or by general statutes.1 The power of inspectors must be conferred by statutes; and when so conferred must be strictly pursued. Unless a statute authorizes an inspector to do so, he can not inspect by an agent and by such agent demand and take samples.2 Power to appoint inspectors may be conferred upon boards of trade and the like, but in conferring such power the Legislature does not intend that the powers and privileges conferred shall be used for the private gain and profit of such boards. A statute may give the right to demand samples of the food

1 A power "to provide for and regulate the inspection of meat, poultry," etc., and "to do all acts and make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease," confers powers to establish a public slaughter house for the purpose of securing proper inspection of fresh meats. Huesing v. Rock Island, 128 Ill. 465,

21 N. E. 558, 15 Am. St. 129, reversing 25 Ill. App. 600; St. Louis v. Shands, 20 Mo. 149.

2 Commonwealth v. Smith, 141 Mass. 135, 6 N. E. 89. See also East St. Louis Board of Trade v. People, 105 Ill. 382.

3 State v. Casey, 38 Ohio St. 555. 4 Jones v. Board, 52 Kan. 95, 34 Pac. 453.

examined for analysis, and regulate the manner in which it shall be kept.5

§ 525. Reinspection.

An ordinance required that all fresh fish in packages brought into the city enacting it for sale should be inspected and branded. It was held that this did not require packages of fresh fish made up from other inspected and branded. packages should again be inspected or branded. So a statute requiring the inspection of flour intended for export does not require that flour once inspected and shipped, and afterwards damaged in transit, as at sea, shall again be inspected before being exported.2

§ 526. Inspection of Food or Grain in Transit.

1

As a rule, food in transit through a State is not subject to inspection laws. Thus a statute of North Dakota provided that it shall be the duty of every public warehouseman to receive for storage any grain, dry and in a suitable condition; and that such grain in all cases be inspected and graded by duly authorized inspectors. It also prescribed in a separate section that "the charge for the inspection of grain shall be and constitute a lien on the grain so inspected, and when such grain is in transit the charges shall be treated as charges, to be paid by the common carrier in whose possession the same is at the time of inspection." It was held that the words "in transit" did not apply to interstate

5 A State requiring the sample to be "sealed up" and delivered to the defendant or his attorney, requires the wax with which it is sealed to be extended over the mouth of the bottle, when the sample taken is a liquid and put in a bottle, so as to make it air tight. Commonwealth v. Lockhart, 144 Mass. 132, 10 N. E. 511.

As to inspection of export and non-exported articles under various

statutes, see Ex parte Robinson, 29 Tex. App. 186, 15 S. W. 603; Hancock v. Sturges, 13 Johns. 331; Commonwealth v. Riddle, 3 Pa. Law Jur. 487.

1 Chicago v. Hobson, 52 Ill. 482. 2 Griswold v. New York Ins. Co., 1 Johns 205.

1 Georgetown v. Davidson, 6 D. C. 278. But see Commonwealth v. King, 1 Whart. 448, and Nicholls v. Johnston, 2 Harris (Pa.) 279.

commerce shipments, and that inspectors could not require common carriers to open cars containing wheat consigned to other States for inspection at State lines.2

§ 527. Actions to Recover Penalties or Damages.

On a trial for selling food not inspected, when a statute makes it an offense to sell noninspected food, the prosecution must give some evidence in support of the averment of the want of inspection.1 Under a statute requiring flour to be inspected, the "persons injured" by a sale without inspection are not the flour inspectors; and they can not sustain an action on the statute to recover the penalty as inspectors of flour. In an action to recover the penalty prescribed in a statute regulating the inspection of food, for altering the inspector's marks on barrels of flour, it is necessary to set out the marks and how altered."

§ 528. Civil Liability of Inspectors.

An inspector of food is responsible personally for want of ordinary diligence in the discharge of his official duties.1 He is liable in an action for negligence to a person injured by his neglect in the performance of his duty; but he is not liable for an honest mistake-only for a reckless disregard of his duty that results to another.2 But it has been

3 Cloud v. Hewitt, 3 Cranch C. C. 199, Fed. Cas. No. 2904.

Cutting out a brand is an alteration of it, and renders one liable, even though done ignorantly. Smith v. Brown, 1 Wend. 231.

1 Tardos v. Bozant, 1 La. Ann. 199; Hayes v. Porter, 22 Me. 371; Nickerson v. Thompson, 33 Me. 433; Pearson v. Purkett, 15 Pick. 264; Kamman v. Lane, 55 Mich. 426, 21 N. W. 872; McKennan v. Bodine, 6 Phila. 582.

2 McKennan v. Bodine, 6 Phila.