§ 583.

Liability of Hotel, Restaurant or Boarding House
Keeper.

Statutes are frequently so broad as to prohibit a hotel, restaurant or boarding house keeper selling or furnishing his guests with oleomargarine, at least unless licensed and they comply with certain of their provisions. Thus one section (26) of a statute provided that no person should produce or manufacture any compound in imitation of natural butter, or sell any compound produced "in violation of the section whether such compound be made or produced in this State or elsewhere." A subsequent section (28) provided that no keeper of a restaurant should serve therein as food for his customers "any compound made in violation of the provisions of this article." It was held that the phrase "in violation of the provisions of this article" is used in the same sense in both sections, and that the last section prohibited the serving of the condemned compound, whether manufactured in the State or elsewhere.1 So the serving at a public restaurant as a substitute for butter oleomargarine, which though not eaten is paid for as part of the meal, and carried away by the customer constitutes a sale of the article, and comes within the provisions of a statute prohibiting the sale of adulterated food. Even the use of oleomargarine made in imitation of butter for cooking

use, or serve any article or substance resembling butter, as, or for butter. People v. Gottfried (N. Y. App.), 113 N. Y. Supp. 1086.

In an action to recover a penalty prohibiting the sale of oleomargarine "as butter," one witness, who, as inspector, examined the defendant's stock, testified that the defendant told him that he had been selling a substance, found on analysis to be oleomargarine, "for butter," and this was the only evidence that the substance was sold "as butter." It was held that the

defendant was entitled to an instruction that, if the jury did not believe that he made the alleged admission, they should find for the defendant. People v. Bremer, 69 N. Y. App. Div. 1, 74 N. Y. Supp. 570.

1 People v. Fox, 4 N. Y. App. Div. 38, 38 N. Y. Supp. 635.

2 Commonwealth v. Miller, 131 Pa. 118, 18 Atl. 938; Commonwealth v. Hendley, 7 Pa. Super. Ct. 356, 28 Pittsb. L. J. (N. S.) 401; Hancock v. State, 89 Md. 724, 43 Atl. 934.

purposes has been forbidden; and it was held that it was not necessary to allege or prove that the article was kept, used, or served as "butter" by the keeper or proprietor. Where a boarding house keeper violated a statute relating to oleomargarine purchased the oleomargarine which was colored to imitate. butter, in good faith, believing it to be butter, and there were no circumstances which would lead her to believe that it was not butter it was held that the maximum penalty for such violation of the statute should not be imposed. Where a person for the purpose of delivering or selling to others selects food, including oleomargarine, with an opportunity for examination; and thereafter delivers such food to guests or patrons, he "furnishes" a substance so delivered within the provisions of a statute prohibiting the furnishing of oleomargarine to a guest or patron of a restaurant without first notifying him that the substance furnished was not butter. In such an instance a waiter in the restaurant serving the guest is liable to punishment."

§ 584.

Sale of Oleomargarine in Unlicensed Restaurant.

A statute of Pennsylvania made it an offense to sell oleomargarine without a license as an article of food; or to have it in one's possession with intent to sell it. An unlicensed restaurant keeper furnished oleomargarine to some of his

3 People v. Berwind, 38 N. Y. Misc. Rep. 315, 77 N. Y. Supp. 859.

4 People v. Secor (N. Y.), 113 N. Y. Supp. 487.

An Alabama statute provided that no person should manufacture, sell, offer, or expose for sale, "or have in his possession with intent to sell or serve to persons, guests, boarders, or inmates; in any hotel, eating-house, restaurant," etc., imitation butter. It was held that in construing this statute it should be read as if there was a comma

after the words "to sell," and no semi-colon after the words "inmates," thus: "or have in his possession with intent to sell, or serve to persons, guests, boarders, or inmates in any hotel, eating house or restaurant," etc.; and, when so read, it was not open to the construction that it only prohibits the sale or offer to sell in a hotel, eating house, etc. Cook v. State, 110

Ala. 40, 20 So. 360.

5 Welch v. State, 145 Wis. 86, 129 N. W. 656.

patrons in his restaurant as a part of a meal ordered by them. They did not eat it, but carried it away with them. It was held that this was a sale forbidden by the statute. "It is to prevent adulteration of dairy products, and fraud in the sale thereof, and to protect the public health. It is plain that the exact legislative intent was to prevent the sale, and thereby prevent the use of those adulterations and admixtures as articles of food. It was the use, as food, and the frauds perpetrated upon the public in the sale, which was the mischief to be remedied, and the statute, of course, must be construed with reference to the old law, the mischief and the remedy. That the food was furnished to McRay and Spence, or so much of it as they saw fit to appropriate, was sold to them, can not be reasonably questioned; when it was set before them it was theirs to all intents and purposes, to eat all, or a part, as they chose, subject only to the restauranteur's right to receive the price, which it is admitted was promptly paid. They might not eat all of the article set before them, but they had an undoubted right to do so; and even assuming that the meal is the portion of food taken, in the sense stated, the transaction must be regarded as a sale wholly within the purport and meaning of the statute. It is certain that the oleomargarine composed a part of the meal, the price of which was paid, and was embraced in the transaction as an integral part thereof. If an unlicensed keeper of a restaurant may set before his guests a bottle of wine or other intoxicating liquor, charging a regular price for the same, with other articles of food furnished, with liberty to take much or little of the liquor as the guest may choose, or, failing to drink it with his meal, permit him to take it away with him, then the liquor laws of the commonwealth are of no avail, and the license to sell liquor is wholly unnecessary. When the liquor is thus furnished and paid for, it is in legal effect a sale, for the very act has been done which it is the policy of the law to prevent, and which it characterizes as a crime, viz., furnishing intoxicating liquors at a price which is paid. So, in this case, the oleomargarine was furnished to the persons named

PURE FOOD-48.

as food and the price was paid. As the learned judge of the court below well said, it was not given away, and the fact that it was not sold separately, but with other articles for a gross sum, would not make it less a sale. It therefore comes within the letter of the law, and it is also within the spirit. If the use of such articles is injurious, it would seem to be especially within the spirit of the Act to prohibit public caterers from selling them to their guests as part of an ordinary meal." The Legislature has power to make it an offense to furnish a guest oleomargarine without his knowledge.2

§ 585. Disclosing Article Sold is Oleomargarine.

If a statute prohibits the use of coloring matter in oleomargarine so as to make it resemble butter, it is no defense for the sale of an article thus colored that the defendant when he sold it disclosed to the purchaser that the substance. was oleomargarine which had been colored to resemble butter. A statute prohibiting the sale of such a colored article is valid.1 Another New York case was of a different character. Thus an early statute of the State punished the sale of oleomargarine, butterine, suine and other substances which were not butter, the seller representing the article to be butter. A seller sold an article which he represented to be butter, and which on being analyzed was found to contain 75 percent of butter and 25 percent of fatty substances other than butter. The evidence did not disclose that the foreign substance was either oleomargarine, suine, or butterine. The court refused to discharge the seller, holding he was guilty, for the Act prohibited the sale, not only of the various kinds of manufactured butters specified in it, but of any substance not butter, and therefore of any butter adulterated with foreign substance, without regard to the degree of adulteration.2

1 Commonwealth v. Miller, 131 Pa. 220, 18 Atl. 938, 6 L. R. A. 633, note; 17 Am. St. 798.

2 State v. Ball, 70 N. H. 40, 46 Atl. 50.

1 People v. Meyer, 89 N. Y. App. Div. 185, 85 N. Y. Supp. 834.

2 People v. Mahaney, 41 Hun 26.

§ 586.

Oleomargarine Under Fancy Name.

The usual statute concerning oleomargarine does not prevent a sale of oleomargarine under a fancy name, if the law with reference to oleomargarine is fully complied with, and clear notice is given to the purchaser that the article is really oleomargarine. Thus where a statute defined "butter," and then declared that "oleomargarine" should mean "all substances, whether compounds or otherwise, prepared in imitation of butter, and whether mixed with butter or not," it was held that no offense had been committed where an inspector asked for half a pound of "Marvo" (a form of margarine), and was served from a mass labeled "Margarine;" and the half pound handed him was wrapped in a paper labeled "Margarine," and inside the paper was a printed slip: "Marvo, the new butter substitute, equal in flavor to the finest dairy butter; to comply with the provisions of the Food and Drugs Act is sold as margarine."" In another instance the inspector asked for a half pound of "Keeloma," a sort of margarine. He did not see the bulk until it had been wrapped up. It was given him in a plain brown paper wrapper, underneath which was a second wrapper with the word "Margarine," and inside the second wrapper was a printed label: "Keeloma, the only perfect substitute for butter." Inside the shop were exhibited two notices: (1) "If you ask for butter, you will be served with one of our new substitutes." (2) "Only Keeloma and Overweight, the new butter substitutes, sold here, and to comply with the Food and Drugs Act are sold under the name of margarine." It was held that no offense had been committed in selling the packages to the inspector.2

1 Tanner v. Dyball, 70 J. P. 279, 94 L. T. 539, 21 Cox C. C. 123, 4 L. G. R. 506.

2 Keeloma Dairy Co. v. Jones, 70 J. P. 533, 5 L. G. R. 246. See also Pearks, Gunston & Tee v. Houghton, 71 L. J. K. B. 385 [1902], 1 K. B. 889, 66 J. P. 422, 86 L. T. 325, 50 W. R. 605.

Section 10, 7 Edw. 7, ch. 21, provides that "A name shall not be approved by the Board of Agriculture and Fisheries for use in connection with margarine if it refers to or is suggestive of butter or anything connected with the dairy interest, nor shall such name be approved as a name under which