the licensee accepts the license bound by and subject to this condition.

In a number of instances where the statute was silent upon the question of notice, the revocation of a license has been upheld; and in other instances notice has been held necessary.8

§ 47. Destruction of Unwholesome Food Without Notice or Hearing-Right of Action for Value of Food.

Not only may unwholesome or impure food be destroyed by the State or municipal authorities, but it may be destroyed, if the statute or ordinance so provide, without notice or hearing given to the owner. A provision for a hearing before seizure and condemnation and destruction of food which is unwholesome and unfit for use, is not necessary. A right of action against the party destroying it to recover its value is a sufficient remedy for the owner; and does not change the rule "that some value may remain for certain purposes in food that is unfit for human consumption." "The small value that might remain in the food is a mere incident,

6 Commonwealth v. Kinsley, 133 Mass. 578; Sprayberry v. Atlanta, 87 Ga. 120, 13 S. E. 197; Martin v. State, 23 Neb. 371, 36 N. W. 554; affirmed on rehearing in 27 Neb. 325, 43 N. W. 108; Londry's Appeal, 79 Conn. 1, 63 Atl. Rep. 293; State v. Milwaukee, 140 Wis. 38, 121 N. W. 658.

7 Wallace v. Reno, 27 Nev. 71, 73 Pac. 528, 103 Am. St. 747, 63 L. R. A. 337; Child v. Bemus, 17 R. I. 230, 21 Atl. 539, 12 L. R. A. 57; Carr v. Augusta, 124 Ga. 116, 52 S. E. 300; Young v. Blaisdell, 138 Mass. 344; State v. Milwaukee, 140 Wis. 38, 121 N. W. 658.

8 State v. Rahway, 58 N. J. L. 578, 34 Atl. 5; Gaertner v. Fond du Lac, 34 Wis. 497; Oshkosh v. State,

59 Wis. 425, 18 N. W. 324 (by statute); People v. Flynn, 110 N. Y. App. Div. 279, 96 N. Y. Supp. 655; affirmed 184 N. Y. 579, 77 N. E. 1194 (license assignable); In re McGinley's license, 32 Pa. Super. Ct. 324; In re Cullinan, 94 N. Y. App. Div. 445, 88 N. Y. Supp. 164 (license in hands of assignee); Plummer v. Commonwealth, 1 Bush 26 (by statute). Notice to one of two joint licensees is notice to both. Commonwealth v. Bearce, 150 Mass. 389, 23 N. E. 99. Notice to person holding the license as collateral (where it is assignable) is not necessary, if notice be given to the licensee. In re Lyman, 26 N. Y. Misc. 300, 56 N. Y. Supp. 1020.

and furnishes no defense to its destruction when it is plainly kept to be sold at some time as food.”

Complainant, however, contends," said the court, "that there was no emergency requiring speedy action for the destruction of the poultry in order to protect the public health from danger resulting from consumption of such poultry. It is said that the food was in cold storage, and that it would continue in the same condition it then was for three months, if properly stored, and that therefore the defendants had ample time in which to give notice to complainant or the owner and have a hearing of the question as to the condition of the poultry, and as the ordinance provided for no hearing, it was void. But we think this is not required. The power of the Legislature to enact laws in relation to the public. health being conceded, as it must be, it is to a great extent within the legislative discretion as to whether any hearing need be given before the destruction of unwholesome food which is unfit for human consumption. If a hearing were to be always necessary, even under the circumstances of this case, the question at once arises as to what is to be done with the food in the meantime. Is it to remain with the cold storage company, and, if so, under what security that it will not be removed? To be sure that it will not be removed during the time necessary for the hearing, which frequently might be indefinitely prolonged, some guard probably would have to placed over the subject matter of investigation, which would involve expense, and might not even then prove effectual. What is the emergency which would render a hearing unnecessary? We think, when the question is one regarding the destruction of food which is not fit for human use, the emergency must be one which would fairly appeal. to the reasonable discretion of the Legislature as to the necessity for a prior hearing, and in that case its decision would not be a subject for review by the courts. As the owner of the food or its custodian is amply protected against the party seizing the food, who must, in a subsequent action. against him, show as a fact that it was within the statute, we think that due process of law is not denied the owner or

custodian, by the destruction of the food alleged to be unwholesome and unfit for human food, without a preliminary hearing.""

§ 48. Vinegar, Artificially Coloring.

In New York where it is held that the sale of oleomargarine can not be prohibited; and that the sale of milk or butter in which a harmless preservative has been used can not be prevented; although the manufacture and sale of a product so compounded as to imitate butter may be prohibited ;3 and a statute defining what shall be deemed unwholesome or adulterated milk, and prohibiting its sale is valid, it has been held to be a constitutional exercise of power on the part of the Legislature to prohibit the artificial coloring of vinegar so that the public would not be deceived thereby. From these several cases these rules have been deduced by the Court of Appeals of that State: "(1) That the Legislature can not forbid or wholly prevent the sale of a wholesome

1 North American Cold Storage Co. v. Chicago, 211 U. S. 706, 29 Sup. Ct. 101, 53 L. Ed. -; citing Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. —, affirming 119 N. Y. 226, 23 N. E. 878, 16 Am. St. 813; American Print Works v. Lawrence, 21 N. J. L. 248; People v. Board, 140 N. Y. 1, 37 Am. St. 522, 35 N. E. 320, 23 L. R. A. 481; Salem v. Eastern R. Co., 98 Mass. 431, 96 Am. Dec. 650; Miller v. Horton, 152 Mass. 540, 26 N. E. 100, 23 Am. St. 850, 10 L. R. A. 116; Stone v. Heath, 179 Mass. 385, 60 N. E. 975; Lowe v. Conroy, 120 Wis. 151, 97 N. W. 942, 102 Am. St. 983, 66 L. R. A. 907; Pearson v. Zehr, 138 Ill. 48, 29 N. E. 854, 32 Am. St. 113; State v. Main, 69 Conn. 123, 37 N. E. 80, 36 L. R. A. 623, 61 Am. St. 203; Gaines V. Waters, 64

5

Ark. 609, 44 S. W. 353; Withams v. Rivenberg, 129 N. Y. Supp. 473. A statute authorizing the fish commission to seize and sell summarily fish sold and held without a statutory permit is valid. Raymond v. Kibbe, 43 Tex. Civ. App. 209, 95 S. W. 727.

1 People v. Marx, 99 N. Y. 377, 52 Am. Rep. 34, 2 N. E. 29.

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

3 People v. Arensberg, 105 N. Y. 123, 59 Am. Rep. 483, 11 N. E. 277.

4 People v. Kilber, 106 N. Y. 321, 12 N. E. 795.

5 People v. Girard, 145 N. Y. 105, 39 N. E. 823, 45 Am. St. 595, affirming 73 Hun 457, 26 N. Y. Supp. 272, 75 Hun 213, 27 N. Y. Supp. 1118.

article of food. (2) That legislation intended and reasonably adapted to prevent an article being manufactured in imitation or semblance of a well-known article in common use, and thus imposing upon consumers or purchasers, is valid. (3) That, in the interest of public health, the Legislature may declare articles of food not complying with a specified standard unwholesome, and forbid their sale." And the court adds: "Though those principles, like most legal principles, are true only within limits, there would not seem much chance of conflict in their practical application, except between the first and last." So a statute imposing a penalty for the manufacture, marking or sale as cider vinegar of any adulterated vinegar, or any product which is not eider vinegar, was held to prevent cheating and deception, and for the preservation of health, and was valid. But a statute which defines adulterated vinegar as a vinegar containing any proportion of lead, or which has not an acidity equivalent to the presence of at least four and one-half percent, by weight, of absolute acetic acid, yet declaring that eider vinegar made by a farmer within the State, exclusively from apples grown on his own ground, or their equivalent in eider taken in exchange therefor, shall not be deemed adulterated if it contain two percent solids and sufficient alcohol to develop the required amount of acid, is unconstitutional, because it contains an unlawful discrimination in favor of farmers and purchasers of cider vinegar from them.8

6 People v. Biesecker, 169 N. Y. 53, 61 N. E. 990, 57 L. R. A. 178, 88 Am. St. 534; People v. Worden Grocer Co., 118 Mich. 604, 77 N. W. 315.

People v. Niagara Fruit Co., 173 N. Y. 629, 66 N. E. 1114; affirming 75 N. Y. App. Div. 11, 75 N. Y. Supp. 805.

8 People v. Windholz, 92 N. Y. App. Div. 569, 86 N. Y. Supp. 1015. The part invalid, however, was held not to drag down the remaining part of the statute.

This statute is strictly construed, because in derogation of the common law right to have on sale vinegar of any standard the owner pleases, not shown to be detrimental to the public health. People v. Braested, 30 N. Y. App. 401, 51 N. Y. Supp. 824.

The Ohio statute preventing the artificial coloring of vinegar is valid. Weller v. State, 53 Ohio St. 77, 40 N. E. 1001; Williams v. McNeal, 7 Ohio Cir. Ct. Rep. 280. So the Missouri statute, even though

§ 49. Impure Water in the Making of Bread, Prohibiting.

The State may empower a municipality to adopt such ordinances and regulations as shall be necessary or expedient for the protection of health, and to prevent the spread of disease, and to maintain good sanitary conditions in its streets, public places and buildings, and on all private premises, and to prevent the sale of adulterated or decayed food. Under such powers a municipality may prevent the use of unwholesome well water in the making of bread for public distribution and consumption, and, as a means to that end, it may require the filling up of wells on premises where such bread is made. "If bakers, who either do not believe well water to be injurious, or who do not care whether it is injurious or not, have wells upon their premises, they are likely to use it. Such is the actual case of defendant. He has the well, and he uses the water in making his bread. There is no other way of preventing its use so efficient as to suppress the well. Leave the well, and nothing less than the constant presence of a guard would secure any certainty of its nonuse. Fill up the well, and it is very certain that he will not use the water any more. True, he may possibly get equally objectionable water from wells on other premises; but that may be more inconvenient or troublesome than to find a more wholesome water supply. At all events, the filling of the well has a tendency, and is indeed likely, to accomplish the purpose, and is one means appropriate thereto, and without which it certainly could not be surely accomplished. Far from being unwarranted or unnecessary, it is absolutely essential in order to carry out the end designed."

§ 50. Baking Powder, Prohibiting Sale of, when Containing Alum.

It is a dispute among experts whether baking powder containing alum is wholesome or unwholesome; and, therefore,

a label be required on it having on it the word "colored." State v. Earl, 152 Mo. App. 235, 133 S. W. 402.

1 State v. Schlemmer, 42 La. 1166, 8 So. 307, 10 L. R. A. 135.