State v. Smyth.

of creditors, since in asserting their rights to the fund it cannot be supposed that the book would be under their control.

The defendant further contends that the plaintiff, if allowed to prevail, ought not to recover without first tendering to the defendant a bond of indemnity. We see no occasion for such a bond. In Warhus v. Bowery Savings Bank, 21 N. Y. 543, cited above, the tendering of a bond of indemnity does not seem to have been considered necessary to a recovery. In Wall v. Provident Institution for Savings, 6 Allen, 320, also cited above, in which a bond was required as a condition precedent to recovery, the fund was claimed by a third person, not a party to the suit, as her property. The deposit had been made by Michael Wall, the plaintiff's intestate, in trust for Margaret Wall, for the purpose, as found by the court in that suit, of preventing its attachment by creditors. The deposit book issued to him had been given by him to one Powers, with in structions to keep it for him, and if he died, to give it to Margaret Wall, and it had been so given to her after his death. Margaret Wall had produced the book to the defendant and claimed the money as her property. In the present case no claim to the fund has been interposed by any other person, nor has the defendant had notice of the legal or equitable claims of any other person than the plaintiff thereto.

[Omitting a statutory matter.]

Exceptions overruled and judgment of the Court of Common Pleas affirmed, with costs.

STATE V. SMYTH.

14 R. I. 100.)

Exceptions overruled.

Constitutional law

- adulteration

- rule of evidence,

A statute forbade the possession, with intent to sell or exchange, of adulterated milk. A subsequent statute provided that milk should be deemed adulterated if it contained more than eighty-eight per cent of watery fluids, or less than twelve per cent of milk solids, or less than two and a half per cent of milk fats. Held, constitutional. (See note, p. 347.)

COMPLAI

(OMPLAINT for having in possession adulterated milk, with intent to sell. The opinion states the case.

State v. Smyth.

Nicholas Van Slyck, for plaintiff.

Francis W. Miner & Thomas A. Jenckes, for defendant.

MATTESON, J. This is a complaint which charges in substance that the defendant, at Providence, on the 6th day of July, A. D. 1882, did have in his possession adulterated milk, to-wit, milk which contained more than eighty-eight per cent of watery fluids, and less than twelve per cent of milk solids, and less than two and one-half per cent of milk fats, as shown by analysis of said milk, with intent then and there to sell the same against the statute, etc.

Pub. Stat. R. I., chap. 127, § 5, as amended by Pub. Laws R. I., chap. 276, § 1, of March 23, 1882, read as follows:

"No person shall sell or exchange, or have in his possession with intent to sell or exchange, or offer for sale or exchange, adulterated milk or milk to which water or any foreign substance has been added."

Pub. Laws R. I., chap. 276, § 3, of March 23, 1882, is as follows: "In all prosecutions under this act, if the milk shall be shown upon analysis to contain more than eighty-eight per centum of watery fluids, or to contain less than twelve per centum of milk solids, or less than two and one-half per centum of milk fats, it shall be deemed for the purpose of this act to be adulterated."

At the trial in the Justices' Court, the defendant moved to quash the complaint, because section third of the statute quoted above is unconstitutional. The court overruled the motion, and the defendant offering no testimony, convicted him, and certified the case to this court for a decision upon the constitutional question raised.

The defendant contends that the section is unconstitutional, because as he alleges, it establishes a rule of evidence and makes it conclusive of the guilt of the accused. We do not take this view of the section. It does not establish a rule of evidence, but creates, or rather defines, an offense. It was the purpose of the statute to prohibit, not only the dealing in milk which had been adulterated, but also in milk of such inferior quality as to fall below the standard named in section third. It is equally a fraud on the buyer, whether the milk which he buys was originally good and has been deteriorated by the addition of water, or whether in its natural state it is so poor that it contains the same proportion of water as that which has been adulterated.

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State v. Smyth.

Again, since it may sometimes happen, though we presume infrequently, that milk as it comes from the cow is below the standard of quality required by section third, it would manifestly be difficult for the prosecution to prove that its poor quality was due to adulteration, although in a very large majority of cases such would probably be the fact. By putting such milk in the same category with adulterated milk, the prosecution is relieved from the difficulty, and a loophole for the escape of offenders is closed.

The offense consists not in the possession of milk containing more than eighty-eight per cent of watery fluids, or less than twelve per cent of milk solids, or less than two and one-half per cent of milk fats, but in the intent to sell or exchange such milk, etc. The defendant is at liberty to adduce any facts which tend to rebut the charge of such intent, and it is incumbent on the prosecutor to prove such charge beyond reasonable doubt.

The defendant further contends that section third is unconstitu tional, because it is unequal and partial in its operation, in this, that it discriminates, as he claims, in favor of the owners of cows which give rich pure milk, against the owners of cows which give milk of inferior quality, enhancing the value of the former at the expense of the latter. The defendant does not point out to us how the section has this effect, and we fail to perceive that it does. If a cow habitually gives milk of a quality so poor as to come within the statute, or as the defendant puts it in his brief, so poor that as a commercial commodity it is valuable only for the purposes of irrigation, she is of no value as a milk producer, and can have none as such to her owner, unless he can sell her milk to his unsuspecting neighbors for a price greatly in excess of its value, a species of fraud which ought not to be tolerated. The section is but a slight extension of the provision which prohibits the sale of adulterated milk, and like that was designed to protect the public against imposition. We think it is a valid exercise by the legislature of the police power incident to the State. A similar section in the statute of Massachusetts, Stat. 1880, chap. 209, § 7, was held to be constitutional in Commonwealth v. Evans, 132 Mass. 11, 12.

The case is remanded to the Justice Court of Providence for sentence.

Order accordingly.

State v. Smyth.

NOTE BY THE REPORTER.

In Commonwealth v. Evans, 132 Mass. 11, a statute almost exactly similar was held constitutional, the court saying: "This belongs to the class of police regulations designed to prevent frauds and to protect the health of the people, which it is within the constitutional power of the legislature to enact. Bancroft v. Cambridge, 126 Mass. 438, and cases there cited."

In the last-named case the statute enacted that city might require owners of lots to fill them to a certain grade to prevent a nuisance, and in default of obedience, that the city might do it, and that the expense should be a lien on the land. The court said:

"It is entitled an act to provide for the prevention and abatement of nuisances and the preservation of the public health. It was not passed to delegate the right of eminent domain, but under the police power of the Commonwealth. Laws passed in the legitimate exercise of this power are not obnoxious to constitutional provisions, merely because they do not provide compensation to the individual who is inconvenienced by them. He is presumed to be rewarded by the common benefits secured. Instances of its exercise are found in all quarantine and health regulations, and in all laws for the abatement of existing and the prevention of threatened nuisances. It has been many times recognized and applied in the decisions of this court. Commonwealth v. Alger, 7 Cush. 53; Fisher v. McGirr, 1 Gray, 1; Commonwealth v. Tewksbury, 11 Metc. 55; Salem v. Eastern Railroad,, 98 Mass. 431; Watertown v. Mayo, 109 Mass. 315; s. c., 12 Am. Rep. 694; Dingley v. Boston, 100 Mass. 544; Cobb v. Boston, 112 Mass. 181; Commonwealth v. Intoxicating Liquors, 115 Mass. 153; s. c. nom. Beer Co. v. Massachusetts, 97 U. S. 25.

"The legislature is ordinarily the proper judge of the necessity for the exercise of the power, and there is nothing in this case which shows that this act was not required for the preservation of health and protection against a nuisance. The legislature had the right to delegate to the mayor and aldermen the power to order the owner to fill his land; and upon his neglect or refusal, to fill it for him at his expense, and to do all that was reasonably necessary to accomplish it."

In State v. Newton, 45 N. J. Law, 463, an exactly similar statute was held constitutional by the Supreme Court. The court said:

"By the fourth section it is enacted that in all prosecutions under this act, if the milk shall be shown upon analysis by a member of the council of public analysts of this State or the chemist of the State experiment station, to contain more than eighty-eight per cent of watery fluids or to contain less than twelve per cent of milk solids, such milk shall be deemed for the purposes of this act to be adulterated.

The objection raised against this section consists in the force which it is alleged is given to the analysis of the analyst. The contention is that the result reached by the chemist is by force of the act made conclusive evidence of the guilt of the defendant, and that such an exertion of power is beyond the ability of the legislature.

"

In interpreting the significance of this clause, I think it is obvious that its design is to include within the kind of prohibited milk such as shall not pos

State v. Smyth.

sess a certain standard of excellence. I think the standard so fixed was not intended to mark the absolute line between pure and diluted milk. The placing of the standard was to set up a mark to indicate where, in the judgment of the legislature, the salubrity or fair commercial value of milk ceased to exist. The section does not mean that the result of the analysis shall be conclusive evidence that the milk has in fact been adulterated, but it does mean that milk below a certain standard shall not be sold; therefore when analysis discloses that condition, it shall be, for the purpose of the act, considered adulterated, so that by force of the other sections it thereby becomes prohibited.

"In the State of Massachusetts, their act relative to the inspection of milk contains a clause similar to the one now in question, the difference being that ours provides for an analysis by a State officer and theirs does not name the persons who may make the analysis.

"The Supreme Court of that State in the case of Commonwealth v. Evans, 132 Mass. 11, held that this legislation was constitutional and belonged to the class of police regulations designed to prevent frauds and protect the health of the people.

"The clause as contained in the Massachusetts statute is also found in the statutes of Rhode Island. In construing it in the recent case of State v. Smith, 14 R. I. 100, it was held that this clause was not intended as a rule of evidence but defined a new offense.

"It is true that the clause, as it exists in the present act, provides that it shall be shown upon analysis of one of certain persons, while in the clauses in the acts which have been construed, the language is, shall be shown by analysis. "But the fact upon which the prohibition is based is the scientific determination that the milk is below a certain standard of excellence. An analysis is supposed to be a determination arrived at with accuracy because scientific.

The case against the defendant instead of being possibly made by any chemist, as in the other acts, must here be made by some one particular chemist. But it is upon the fact of the analysis that the case rests. An analysis means a scientific and therefore accurate ascertainment of the elements and their proportion contained in the fluid submitted for examination. The fact that a certain man made an examination, disclosing the existence of a certain proportion of solid and fluid elements in the milk amounts to nothing unless it is an analysis; an accurate ascertainment of the elements by chemical processes. The method of making the examination, by what processes the elements were dispersed, with what care weighed, how the tests were guarded, and indeed any circumstance bearing upon the question whether the result reached by the chemist was an analysis, is relevant in the trial of the cause. In this view,

I think the legislation was not opposed to any fundamental or constitutional restriction."

In People v. Cipperly, New York Supreme Court, General Term, September, 1885, a precisely similar statute was pronounced unconstitutional. LANDON, J., said, in the prevailing opinion:

The milk in question was shown to contain 88.096 per centum of water and 2.656 per centum of fat, and as it fell short of the statutory standard it was by force of the statute declared to be adulterated, and the defendant was convicted.