to "mix any article of food with any ingredient or material so as to render the article injurious to health," it is not necessary that the article put into milk should be injurious to the health of everybody. Thus where cream, an article likely to be consumed by infants and invalids, was mixed with boric acid in a proportion harmless to healthy adults but injurious to infants and invalids, it was held that the defendant had been rightly convicted.3

§ 540. Instances of Violations of Statutes Concerning Milk.

A statute relative to the adulteration of milk, that each manufacturer of cheese or butter shall post a copy of the Act in the receiving room of his factory is directory only; and in a prosecution relative to a sale of such milk to a manufactory to be manufactured into cheese, it is no defense that the manufacturer did not post in the receiving room of his factory a copy of such Act. A statute making it unlawful to sell milk until the seller should appear before the clerk of the county court, and take oath not to adulterate with any substance whatever the milk offered for sale, is not complied with by an oath not to adulterate the milk offered for sale with any poisonous substance.2 A statute

Louis v. Wortman, 213 Mo. 131, 112 S. W. 520.

The Rhode Island Gen. Laws, ch. 282, § 1, prohibiting the sale of any kind of diseased, corrupted, adulterated, or unwholesome provisions, whether for meat or drink, has no application to the sale of adulterated milk. State v. Luther, 20 R. I. 472, 40 Atl. 9.

Minnesota statute of 1899, ch. 257 construed in its application. State v. Rumberg, 86 Minn. 399, 90 N. W. 1055.

3 Cullen v. McNair, 72 J. P. 376, 99 L. T. 358, 24 T. L. R. 692, 6 L. G. R. 753.

Where the charge was putting formaldehyde in milk, the exclusion

of evidence that neither the defendant nor any of his family or employes, put in formaldehyde, and that he had none on his premises, and that the milk was delivered just as it came from the cows, was held to constitute reversible error, as such evidence would tend to show that no such addition had in fact been made. People v. Bowen, 182 N. Y. 1, 74 N. E. 489, 97 N. Y. App. Div. 642, 90 N. Y. Supp. 1108.

1 Bainbridge v. State, 30 Ohio St. 264.

2 Hall v. State, 9 Lea 574, a case of mixing and adulterating liq

uors.

The Illinois Act of March 9,

declaring that "no person either by his servant or agent, or as the servant or, agent of another," shall sell adulterated milk does not make it an offense for the principal to sell it.3 A statute making it an offense to have in one's possession with intent to sell "milk" to which a foreign substance has been added, is violated by having in possession cream, with intent to sell it, to which boracic acid has been added; for the word "milk" being used as a general term is broad enough to include cream. If a statute makes it an offense to sell milk to which water or any foreign substance has been added, it is immaterial whether coloring matter put into milk is injurious or not, the addition of the foreign substance being an offense; and under a statute making it an offense to place any foreign substance in food of any kind "in any quantity" for any purpose which is poisonous or injurious to health, it is a violation of the statute to put formaldehyde in milk, though the quantity put in it be so small that it is not sufficient to cause death or injury to health." So to put annatto in milk, though harmless, is a violation of a statute making it an offense to sell milk to which water or any foreign substance has been added, even though the milk colored with it be skimmed A statute providing that no adulterated milk "shall be brought into, held, kept, or offered for sale at any place in the city" does not prohibit the mere possession of milk.

זיי .milk

1869, entitled "An Act to protect butter and cheese manufacturers," applied only to factories conducted upon a joint or co-operative plan. Phillips v. Mead, 75 Ill. 334.

3 State v. Squibb, 170 Ind. 488, 84 N. E. 969.

4 Commonwealth v. Gordon, 159 Mass. 8, 33 N. E. 709.

5 Commonwealth v. Schaffner, 146 Mass. 512, 16 N. E. 280.

6 St. Louis v. Wortman, 213 Mo. 131, 112 S. W. 520; St. Louis v. Polinsky, 190 Mo. 516, 89 S. W. 625; St. Louis v. Jud (Mo.), 139 S. W.

441. The "adding annatto, whether harmful or not, in order to give milk the rich and golden color of milk from cows fed on green food, was a deception and a fraud upon milk users, and on honest competitors." St. Louis v. Jua, supra.

7 Commonwealth V. Wetherbee, 153 Mass. 159, 26 N. E. 414; St. Louis v. Jud (Mo.), 139 S. W. 441. 8 People v. Timmerman, 179 N. Y. 550, 71 N. E. 1136, affirming 79 N. Y. App. Div. 565, 80 N. Y. Supp. 285. See also People v. Wright, 19 N. Y. Misc. Rep. 135,

Where a statute made it an offense for a milk dealer to have in his possession for the purpose of sale any adulterated milk, a dealer was held to have violated its provisions where he had in his possession with such an intent seventeen cans of milk, six of which were below the statutory standard, though the average of the seventeen cans was above the standard.9 An agent selling adulterated milk violates the statute the same as if the milk were his own.10 The possession of adulterated milk by a servant is the possession of the master.11 The owner of a restaurant is liable to a penalty if a waiter therein, in the ordinary course of his business, supplies a customer with a glass of adulterated milk.12 It is as much an offense to sell milk unknowingly and accidentally adulterated as it is to sell milk purposely adulterated by the vendor. 13

43 N. Y. Supp. 290; People v. Kellina, 23 N. Y. Misc. Rep. 134, 50 N. Y. Supp. 653; People v. McDermott-Bulger Dairy Co., 38 N. Y. Misc. Rep. 265, 77 N. Y. Supp. 888. 9 Splinter v. State, 140 Wis. 567, 123 N. W. 97.

10 Meyer v. State (Ohio), 43 N. E. 164.

11 Commonwealth v. Proctor, 165 Mass. 38, 42 N. E. 335; Commonwealth v. Warren, 160 Mass. 533, 36 N. E. 308.

12 Commonwealth v. Vieth, 155 Mass. 442, 29 N. E. 577.

to blue grass and clover, with a sprinkle of buttercups and daisies, not to annatto or any other dye. If such good woman wants annatto in her milk, the policy of the State is to let her put it in herself. Fireside lore and philosophy connect rich yellow milk with the food of the cow, not with an artificial dye like annatto. Witness the chimney corner adages: Barley straw is good fodder when the cow gives water. It is the head of the cow gives milk. The cow gives milk through her mouth (i. e. as she is fed." St. Louis V. Jud (Mo.), 139 S. W. 441.

A complaint for violating a city milk ordinance prohibiting the possession of adulterated milk with intent to sell it, charging that on a specified day and place, the defendant had in his possession, with intent to sell, adulterated milk, is sufficient, under the rule that it is generally sufficient to charge the offense in the language of the ordi

§ 541. Milk in Bottles-Size of Bottles, Designating.

An ordinance requiring dealers selling cream and milk in bottles or glass jars to have the capacity of the bottles or jars permanently indicated on them, and prescribing a penalty for having within their possession bottles or glass jars of a capacity less than that indicated on the outside, or which do not indicate their capacity, is valid, being within. the police power of the city; and it is not invalid as special legislation, since it applies generally to all persons of the class who sell milk in bottles or glass jars in the city. Proof that a cream or milk dealer had in his possession bottles for use in the business, which were of less capacity than that indicated on their outside, is sufficient to show a violation of the ordinance; and it is no defense that the dealer did not have knowledge that his bottles did not meet the requirements of the ordinance.1

§ 542. Dealer in Milk.

A statute providing that no dealer in milk shall sell, ex

nance with such certainty as to time, place, and manner as to reasonably notify the defendant of the charge preferred. St. Louis V. Ameln (Mo.), 139 S. W. 429.

A statute referred to a series of enumerated and interdicted kinds of milk, each connected with the other by the disjunctive conjunction "or," and solely related to the selling, offering, or exposing for sale any milk or cream of the several kinds described, provided that whoever sold or offered or exposed for sale within the State any milk of the kinds specified, or sold or offered for sale, or delivered to another, adulterated or unwholesome milk, should be guilty of a misdemeanor. The phrase "injurious to health" was used in connection with milk sold, offered or

exposed for sale containing foreign substances or preservatives of any kind. Another statute provided that food should be deemed adulterated if any substance was mixed with it, so as to lower or depreciate or injuriously affect its strength, quality, or purity. It was held

that these sections must be read together, and when so read they prohibited the sale of offering for sale within the State of milk, the quality of which had been reduced by adding pure water, and that it was not the policy of the State to permit the sale of watered milk, so long as a specified standard was retained. State v. Ameln (Mo.), 139 S. W. 429.

1 Chicago v. Bowman Dairy Co., 234 Ill. 294, 84 N. E. 913, 123 Am. St. 100, 17 L. R. A. (N. S.) 684.

change, or deliver, or have in his custody or possession with intent to sell, milk from which the cream or any part of it had been removed, unless in a conspicuous place on the vessel from which the milk is sold is placed the words "skimmed milk" distinctly marked, applies to a person who sells milk obtained from his own cows as well as one who buys and sells milk.1

§ 543. Contract for Adulterated Milk.

Where the charge is a sale of adulterated milk, it is no defense for the defendant that he delivered the milk under a special contract to furnish the complainant with milk at the dairy, if, as a matter of fact, the milk was not of the quality required by the statute.1 In an action to recover the price of milk sold, it is no objection that the contract was impaired by a statute declaring it to be unlawful to sell watered or adulterated milk, in that the defendant had an opportunity to examine the milk, and accepted it. In such an instance the defense is based on the rule of law that a person may not found his cause of action on his own violation of a prohibitive statute.2

§ 544.

Conflict between Milk Ordinances and Statute.

A statute provided that whoever sold or offered or exposed for sale within the State any milk, or sold or offered for sale, or delivered to another adulterated or unwholesome milk, should be guilty of a misdemeanor; and an ordinance. of a city of such State provided that no person within such city should have in his possession with intent to sell, any adulterated milk, and prescribed what should constitute adulteration. It was held that as the statute was silent with reference to "possession with intent to sell," which was

1 Guilder v. State, 26 Ohio Cir. Ct. Rep. 221.

A complaint charging a violation of a statute which provides that "no person" shall sell adulterated milk, need not allege that the defendant was a registered milk

dealer. State v. Luther, 20 R. I. 472, 40 Atl. 9.

1 Commonwealth V. Holt, 146 Mass. 38, 14 N. E. 930.

2 Hecht v. Wright, 31 Colo. 117, 72 Pac. 48.