complete justification to the defendant." A general statute of the State is not exclusive of an ordinance prescribing additional regulations for the same traffic within the local limits. Thus, in Polinsky v. People, there was a statute of the State of New York regulating "the selling and exposing impure or adulterated milk for sale, while the ordinance embraced another and distinct offense, viz., bringing adulterated milk into the city of New York for sale, of which the court says, it might be considered that this deserved severer punishment, than the sale of it by small dealers to whom they furnished it. In People v. Mulholland an ordinance of the city of Syracuse prohibited the peddling or delivery of milk from any vehicle in the streets, and the appellant, an employee of the Onondaga Milk Association, set up the privileges granted by charter to his company, but the court held the ordinance lawful, and that "the corporation was affected by the lawful ordinances of the city, the same as an individual."

This subjection of rights under charters, licenses, patents, and general laws, to the local police power and jurisdiction, is neither peculiar nor recent; and while in the cases previously cited' of the New Orleans Gas Co.; Coates v. Morgan; Stone v. Mississippi; Fertilizing Co. v. Hyde Park; and in Weber v. Virginia, this principle is exhibited, and also that other, that the State does not, and never can, divest itself of the police power, and its duty to protect the public health and safety, the analogy in the rules and practice governing in milk cases and in those relative to "burning oils unsafe for illuminating purposes" is evident.

Here, also, we have local regulations, and standards, and not infrequently a testing machine which will mechanically and unerringly mark the deficiency suspected in inflammable oils. In Patterson v. Kentucky an indictment under a State law for the offense of selling

1 10 Hun, 437; Bouton v. Neilson, 3 Johns. 474; Freeman v. Cornwall, 10 Johns. 470; see opinion of Ruger, Ch. J., 99 N. Y. 241; Health Dept. v. Purdon, McKay v. City of Buffalo, 9 Hun, 401, and cases cited; affirmed, Ct. of Appeals, Oct. 4, 1878; Smith v. City of Rochester, 76 N. Y. 506; Hafford v. City of New Bedford, 82 Mass. 297; Dargon v. Mayor of Mobile, 31 Ala. 469. In respect to health ordinances it has been repeatedly found, in cases arising in the courts of New York city, that they justified the destruction of articles held or offered for sale contrary to their provisions, for which there could be no recovery.

273 N. Y. 70-71; 82 N. Y. 324; Bish. Stat. Cr. §§ 20-23; Dill. Mun. Corp., chap. 12, 304-309; Rogers v. Jones, 1 Wend. 237: Com. v. Kidder, 107 Mass. 188.

115 U. S. 650; 7 Cow. 584; 97 U. S. 659; 101 U. S. 814; Patterson v. Kentucky, 97 U. S. 501.

within the State of Kentucky casks of "Aurora oil" which had been previously branded by a State inspector with the words "unsafe for illuminating purposes," was sustained. Letters-patent had been duly issued for this as "an improved burning oil." Upon the trial it was agreed that the Aurora oil could not, by any chemical combination described in the patent, be made to conform to the standard or test required by the Kentucky statute as a prerequisite to the right, within that State, to sell, or to offer for sale, illuminating oils of the kind designated. The United States Supreme Court held that "the right, conferred upon the patentee and his assigns, to use and vend the corporcal thing or article brought into existence by the application of the patented discovery (of 1887), must be exercised in subordination to the police regulations which the State established by the statute of 1874. If the substance is necessarily and essentially explosive and dangerous, it would, of course, come under the same provisions against dangerous nuisances, which, both by common law and by statutes, authorize indictments. This we have seen in the cases cited at the beginning of the chapter, Heeg v. Licht, Rex v. Taylor, and others, of keeping gunpowder near dwelling-houses, and the statutes relative to dynamite and other explosives. The dangers however in these oils found in their use, are not immediately apparent, but as shown in the appalling statistics of casualties from overflowing and exploding lamps, they are to be prevented only by care in examination, with adequate tests.

The Sanitary Code of New York prescribed a not unusual test as follows: "It shall not evolve an inflammable vapor at a temperature below 100 degrees Fahrenheit thermometer." The control of this matter, however, was taken from the Health Department under the decision in the New York Court of Common Pleas, in Metropolitan Board of Health v. Schmades, where it was held that "the legislature having regulated the standard of petroleum, etc., and the mode of storage thereof, it is not competent for a board of health to impose further restrictions, the jurisdiction of offenses having been conferred upon a co-ordinate department, the Fire Department of the city." This decision, except for the last-mentioned consideration, and also that it was given when there was a change in the charter of the city, would

13 Daly, 282; chap. 292, 1882; see reports and experiments on the Michigan standard of a flash test at 140 degrees Fahrenheit, and also as to the dangers from even high test oil, in cases of unusual exposure and accident, as for instance when the chimney of the lamp itself is broken; Fifth Annual Report Michigan State Board of Health, 1877, pp. 75-77.

have probably been subjected to a review, but it illustrates the difficulties and differences in this class of cases. The prosecution was under the ordinance of the Sanitary Code, established in 1867 pursuant to a law of the legislature of New York State of 1866, and the statute followed by the court is of 1866, and "enacts that no refined petroleum, kerosene, earth, or rock oil, or machinery oil, shall be kept upon sale, or sold within the corporate limits of the city of New York, the fire test of which shall be less than 100 degrees Fahrenheit." This, says the opinion of the court, is another and different test, and implies that petroleum may be sold if it be of that test, while it would be forbidden under the ordinance quoted. This interference of ordinances and general laws is not likely to cease, but it has brought many cases

into court.

In 1882 the legislature of the State of New York passed "An act to regulate the standard of illuminating oils and fluids, for the better protection of life, health and property, and made a standard of inflammable vapor at 100 degrees Fahrenheit for illuminating oils, and 300 degrees for oils and burning fluids used or carried in cars and steamboats, with certain provisoes. It made it the duty of the State Board of Health to recommend and direct the nature of the test and instruments by which the illuminating oils shall be tested," and also to collect and examine suspected samples. Care was taken in this act to prevent its failure by any interference with other or local laws, provided for in its sixth section, and all district attorneys are required to prosecute, in behalf of the people, all cases of offenses arising under the provisions of this act. The State Board recommended and prepared the testing machine, and when in October, 1882, a Mrs. Gay, living in Batavia, N. Y., taking a lighted kerosene lamp, accidentally broke it, and there was such an explosion as to set the house on fire, in which one life was lost, an indictment was sought against Nobles, who had furnished to dealers in Batavia the oil which was the cause of the catastrophe. The indictment' was tried at the Court of Sessions of Genesee county, April 17, 1883, and a conviction had. Experts and inspectors for the people and those employed by the State Board of Health proved the tests, and Professor Lattimer testified that oils of the same sample flashed at 75, 77, 78, 80, 92, 94 degrees.

"The Nobles oil suit was reported at length in the newspapers of the vicinity but was not appealed and did not get into the law reports;" see Spirit of the Times, Batavia, April 21, 1883.

The defense, aided by large dealers and producers of oil, called experts and proved that this oil flashed at 104; that it had passed the fire test approved by officers of the Fire Department of Buffalo and New York and was shipped in a barrel branded as inspected. These tests were shown to be insufficient under the regulations of the State Board of Health and did not avail as a defense. The standards, tests and instruments for enforcing the law vary according to the judgment of the State as expressed in the terms and provisions of the statutes adopted. The United States Supreme Court says of the legislation in Patterson v. Kentucky: "It is in the best sense a mere police regulation, deemed essential for the protection of the lives and property of citizens." It "belongs to each State under its own sense of duty, and in view of the provisions of its own Constitution. Its action in these respects is beyond the corrective power of this court."

CHAPTER VIII.

VITAL STATISTICS.

No longer reserved to the census, or to special inquiries, vital statistics have become a subject of new statutory requirement, as their importance was seen to determine measures of public safety against diseases, pestilence and epidemics. The Massachusetts State Board of Health, in its report of 1877, relates the history of English legislation from the first attempts at registration after the plagues in London in the sixteenth century, the organization of the Poor Law Board and its inquiries, the act of Parliament in 1837, finally the act of 1874. It describes the Massachusetts laws with increasing demands for details of examination and reports, and adds: "It is not too much to say that modern sanitary science owes its existence to the registration of deaths and the localization thereby of unsanitary conditions. It has been very much advanced, too, by the careful enumeration of cases of sickness as well as of deaths, whereby epidemics and locally prevalent diseases have furnished the means of scientific study, from which general laws have been learned, and through which State medicine has become a necessity of modern life." The registration of diseases is an impor tant part of this work, and in 1874 the British Medical Association appointed a committee to consider the best method of acquiring the necessary facts, by whose reply in 1876, the reports from families, friends, kinsmen, householders and others, as occasion arose, were found essential.

In 1872 Holland passed a law upon this subject, and the Imperial Board of Health in Germany, the Local Government Board in England and the New York State Board of Health have published frequent and prompt returns from cities and districts, which give a survey at once of every invasion of disease, and the signs in advance of every approaching pestilence. The English law of 1874 adopted provisions already in force in Scotland, compelling physicians to return certificates of death; and Massachusetts followed this example a few years later;