The sale of oleomargarine for and as butter is prohibited under section 5 of the act of 1907.

PURE FOOD AND DRUG LAW-CONSTITUTION OF GENERALLY. Mfarch 14, 1907. Prof. H. E. Barnard, State Food and Drug Commissioner, city: Dear Sir :-I am in receipt of your communication of the 11th inst., in which you ask certain questions regarding the pure food and drug law, approved March 4, 1907. These will be answered in the order in which they were submitted. Question one. "Is the sale of oleomargarine and reno- vated butter, for and as butter, prohibited under section 5 ?" Section 5 of the act of 1907 defines the term "misbranded" to include an article of food "if it be an imitation of, or offered for sale under, the distinctive name of another article." Section 1 of the act makes it unlawful for any person, firm or corporation to sell an article of food which is misbranded within the meaning of the statute. As oleomargarine is not regarded as butter, in either the legal, scientific or popular meaning of that term, my opinion is that the sale of oleomargarine for and as butter is prohibited under sec- tion 5. In the leading case of Powell v. Pennsylvania, 127 U. S. 678, the supreme court Of the United States holds that the sale of oleo- margarine as a substitute for or imitation of butter may be pro- hibited by statute. This is a clear recognition that the two articles are regarded in law as distinct. Renovated butter, .as I understand the phrase, means genuine butter which has been "processed," or treated, by melting, steri- lizing etc. In a pamphlet issued by the Division of Chemistry of the United States Department of Agriculture, in 1901, and known as "Farmers' Bulletin No. 131," speaking of renovated or "pro- cessed" butter, it is said: "By this process, when used upon comparatively fresh, raw material, butters of low grade are materially improved, the fariner's revenue is increased, values are enhanced; in short, a good thing is done. Harm begins only when the renovated is sold for the genuine (that is, the original) arti- cle, for they are not the same thing. While the fats in the two are practically the same chemically, the nitrogenous portions are not. -Moreover, since the article known now and for ages past as butter, is an article, the last step in whose manufacture is the churning of cream, it is evident that the product of an elaborate subsequent process, a process entirely foreign to the manufacture of butter, should be designated by a distinctive name." Assuming that the above quotation is correct in its statement of fact, my opinion is that the prohibition of section 5 would ex- tend to renovated butter, sold as butter. Question Two. "Suppose the consumer asks for one- half pound of dairy butter and is sold a product that looks like butter, but which, when the package is undone is found to be wrapped in a paper bearing on the inside of the wrap- per the word "Oleomargarine"; in such a case is the dealer violating section 5, or any other section of the law!." Section 2 of the act provides that in case of .food products they shall be deemed adulterated "if any substance has been substi- tuted, wholly or in part, for the article." Section 5 states that an article of food is misbranded it if be an imitation of or offered for sale under the distinctive name of an- other article. In the case you put, the article has been sold in response to a demand for a particular kind of food product. While no verbal or written misrepresentation is made, there is a representation by conduct that the article delivered is of the same kind as that called for ; hence the dealer impliedly represents that the article delivered is dairy butter; he substitutes, however, oleomargarine instead. This, it appears to me, violates section 2 above quoted. His act is also a violation of section 5 quoted supra, as the article is offered for sale and sold by an implied representation, under the distinctive name of atiother article. The mere fact that the inside of the wrap- per is labeled "Oleomargarine" does not change the character of the dealer's act, unless the word "Oleomargarine" was plainly visible upon the outside of the package. In the case of Commonwealth v. Crane, 158 Mass. 218 (33 N. E. 388), it was held that a dealer violated a statute which required him to display on both sides of his vehicle a placard stating that he was licensed to sell oleomargarine where he displayed such placard on the inside of his wagon. The court say: "We are of opinion that placing the placards on the in- side of the cover of the wagon was a mere device to evade the manifest intent of the legislature.". The same rule applies to labeling the inside of the package. Question Three. "Suppose after the butter has been bought and paid for and delivered to the purchaser, the dealer, who may suspect his customer to be an inspector, says: 'That is oleomargarine': has he not violated the law just as if he had not made the statement?" Section I of the act reads: "It shall be unlawful for any person '" to * sell * * * any - * t article of food which is adul- terated or misbranded." Section 5 reads: "The term 'misbranded' shall apply * * * in the ease of food ' * if it be an imitation of, or offered for sale under the distinctive name of another ar- ticle. '' The selling or offering for sale of the adulterated or misbranded article is the consummation of the offense. A statement thereafter made that the article is oleomargarine is nothing more than an admission of guilt. It would be as ineffectual in purging the act of its criminal character as would a similar statement made after the article was consumed. Even a return of the money would not change the illegal character of the transaction, so far as the dealer was concerned. Queslion four. "The federal law requires oleomarga- rine to be sold in a marked package, said marking to consist of certain words printed in type of specified size on the out- side of wrapper. If we find that the oleomargarine is sold not marked in accordance with the federal law, can we prosecute under section?" I am not entirely clear as to the meaning of your question. If you intend to ask whether the state courts of Indiana have juris- diction to punish an offense under the federal law, I am clearly of the opinion that no such jurisdiction exists. The federal law must be ernforeed exelusively in the federal emurts. If your question means whether you may prosecute under sec- tion 5 of the pure food and drug act, for violations of such section if such violation also amounts to a violation of the federal law, my opinion is that you may so prosecute. The offenses are against distinct sovereigns, and the conviction or acquittal in the case of a federal prosecution, would not bar a prosecution by the state for a violation of its law. If, by question No. 4 you mean to ask whether it is a violation of section 5 for a dealer to sell oleomargarine in a package un- marked or where the markings do not consist of certain words printed in type of a specified size on the outside of the wrapper, I am of the opinion that there is nothing in section 5 which makes such a sale illegal, provided the article is not sold or offered for sale in imitation of, or under the distinctive name of another article, and provided there is nothing in the label calculated to deceive the purchaser. Question Five. "Section 7 gives the state board of health authority to make investigations and inquiries in ref- erence to the manufacture and sale of foods and drugs, and states that the board shall adopt such rules as may be nec- essary to enforce the law. Is the board given authority to regulate the sanitary condition of grocery stores, restau- rants, meat shops, under these provisions?" Section 3 of the statute forbids the sale, etc., of milk "collected and kept or handled under conditions which are not cleanly and sanitary. " Section 4 of the act provides: 'It shall be unlawful for any person o to sell * or to have in his or their possession to sell o * the carcass or parts of carcasses of any animal which has been slaughtered, prepared, handled, or kept under unsani- tary conditions." Section 7, lines 5 to 10, provides: "The state board of health shall make all necessary in- vestigations and inquiries in reference to the manufacture and sale of foods and drugs. * * * The state board of health shall adopt such rules as may be necessary to enforce this act." The statute does not seem to require the sale of foods to be un- der strictly sanitary conditions, except in the case of milk and meat. As groceries, restaurants and meat shops customarily deal in one or both of these two products, my opinion is that section 7 authorizes the state board of health to regulate the sanitary condi- tion of such groceries, restaurants and meat shops, so far as the same are places where milk or meat, or both, are sold. The rules thus established by the state board of health have the force of statutes, and a law authorizing their adoption is constitutional. See Blue v. Beach, 155 Ind. 121, 130; Isenhour v. State, 157 Ind. 517, 521. It will be noted that section 4 purports to state certain con- ditions which are to be considered unsanitary. It is scarcely pos- sible that the legislature intended this catalogue of unsanitary conditions to be exclusive. There are many situations which might be grossly unsanitary and inimical to health, which are not even suggested by the provisions of section 4. The action of the board in adopting rules and regulations under section 7 was evidently intended to supplement the requirements of section 4 in this regard. Question Six. "Is a restaurant a food producing estab- lishment within the meaning of section 7, Chapter 35, Acts 1901 ?" The act of 1901 is entitled "An Act providing for the sanitation of all food producing establishments," etc. Section I of said statute refers to buildings used "for the man- ufacture for sale of any food product." Section 2 provides for the sanitary condition of places "where food products are. manufactured," and requires impermeable floors for rooms used "for the manufacture of any food products." Section 6 forbids expectoration on the floor of places "where the manufacture of any food product is conducted," and requires notices forbidding expectoration "where food products of any kind are produced." Section 7 reads as follows: "The door and window openings of every food producing establishment, during fly season, shall be fitted with self- closing wire screen doors and top outward-tipping wire win- dow screens." It is probable that the phrases above quoted, including the words "food producing establishments," are used in the same sense. As the purpose of the statute is evidently to secure purity and wholesomeness of articles prepared for human consumption, I think it is clear that a restaurant which is a place where food products are prepared is included within the term "food producing estab- lishment." Question Seven. "Section 3 of the food law defining pure milk, states that milk shall not be sold that is collected and kept or handled under conditions which are not cleanly and sanitary. Does not section 7 give the state board of health the power to determine what conditions shall be con- sidered to be cleanly and sanitary?" The portion of section 7 referred to reads as follows: "The state board of health shall make all necessary inves- tigation and inquiries in reference to the manufacture and sale of food and drugs. , " ' The state board of health shall adopt such rules as may be necessary to enforce this aet." I The pure food and drug law does not define what conditions are to be considered not cleanly and sanitary in the collection, keeping or handling of milk. The legislature intended that these matters should be covered by rules established by the state board of health. While section 4 does define the phrase "unsanitary conditions," such definition is limited to the slaughtering, prepar- ing, handling or keeping of meat. My opinion, therefore, is that section 7 bestows ample author- ity upon the state board of health to determine what conditions are not cleanly and sanitary in the collection, keeping or handling of milk. Question Eight. "The practice of inspectors in some states is to divide the samples collected into three parts, one part to be given to the dealer from whom the purchase was made; another to be reserved for analysis, and the third to be kept sealed for use in case of any dispute as to the proper analysis. Is there anything in the food law or in the usual legal practice in Indiana that would make it necessary or advisable for our il spectors to give the dealer a duplicate sample'?" Section 7 of the pure food and drug law reads in part as fol- lows: "Every person offering or exposing for sale or deliver- ing to a purchaser, any drug or article of food included in the provisions of this act, shall furnish to any inspector, or other officer or agent appointed hereunder, who shall apply to him for the purpose, and shall tender to him the value of the same, a sample sufficient for the purpose of the analysis of any such drug or article of food which is in his posses- sion. 7 7 The law does not require the inspector to furnish the dealer a duplicate sample. In the absence of any express or implied di- rection in this regard it can not be assumed that the legislature de- sired to impose this duty upon the collector. In the case of Commonwealth v. Ryberg, 177 Mass. 67 (58 N. E. 155), the court refused to read into a statute a requirement that the inspector should reserve and seal a portion of a suspected food product before analysis, although such requirement was contained in other laws upon the general subject of food inspection. How- ever, the state board of health, under the authority conferred by section 7 of the Indiana pure food and drug law, mig)it adopt a rule requiring such delivery of duplicate samples to dealers. This authority is contained in the phrase, "the state board of health shall adopt such rules as may be necessary * * * declaring the proper methods of collecting and examining drugs and articles of food." Question Nine. "Is there any provision in the act pro- hibiting the employment of special counsel to assist prose- cutors, if we wish such aid?" Section 8 provides "that the sum of $20,000 is hereby appro- priated * * 0' for the purpose of meeting expenses incurred in enforcement of this act, including * * * aid in prosecuting offenders against this act." As section 8 was originally drawn, it provided for the "em- ployment of legal counsel to prosecute or aid in prosecuting of- fenders against this act." The legislature eliminated this provision so far as it related to the employment of legal counsel. Section 11 of the present act provides: "'Said prosecutors shall prosecute all persons violating any of the provisions of this act." Section 11 as originally drawn contained this additional pro- vision : "When considered necessary the state board of health may employ counsel to conduct prosecutions, or to aid pros- ecutors. " This latter sentence was stricken out before passage. Considering the history of this. bill, both in committee and in the respective houses, and the evident purpose of the amendments above indicated, I do not believe that the phrase, "aid in prosecut- ing offenders against this act," includes legal services of counsel specially employed by the state board of health. It is provided in section 11, as above stated, that the prosecutions shall be conducted by the public prosecutors. It is to be assumed that they will do their duty and that the interests of the public will be properly pro- tected at their hands, without assistance of special counsel. Question Ten. "Chapter 35, Acts 1901, in relation to the sanitation of food-producing establishments is a very strong measure, and is valuable to our food work. Section 3 of the aef confers upon health officers the power of in- spectors. Has the chief inspector authority to extend such power to our food and drug inspectors?" I do not understand that the chief inspector has any such au- thority. His authority, as fixed by statute, *and his right to ap- point deputies is limited by section 7087s, Burns' Statutes 1901. In the absence of any statutory provision covering such a case, the food and drug inspectors could not be deputized by him. Question Eleven. "Are sections 538, 546 and 548, chap- ter 169, Acts 1905, repealed in whole or in part by the passage of the pure food and drug law?" Section 538 reads as follows- "Whoever knowingly sells, or has in his possession with intent to sell, or exposes for sale, any kind of diseased, cor- rupted or unwholesome provisions, whether for meat or drink, or whoever knowingly sells or exposes for sale any article or substance intended to be eaten or drunk, and shall, by label or in any other way, represent it to be other than what it is; or whoever kills, for the purpose of sale, any calf less than four weeks old, or sells, or has in his posses- sion with intent to sell, the meat of any calf which he knows to have been killed when less than four weeks old, shall, on conviction, be fined not less than ten dollars nor more than five hundred dollars, to which may be added imprisonment in the county jail not less than ten days nor more than six months. " So far as this section refers to selling or exposing for sale dis- eased, unwholesome or corrupt provisions, or falsely labeling ar- ticles of food or drink, or mixing, coloring, coating, polishing, powdering or staining food products to conceal damage or inferior- ity, it is fully covered by the pure food and drug law. So far as it relates to having in possession, with intent to sell, such provisions, or representing them to be other than what they are "in any other way" than by label, and so fax as it relates to the killing for purposes of sale or selling the meat of calves, it is not covered by that law. Repeals by implication are not favored in the law; hence, if a portion of a former statute is not clearly repealed by a subsequent one, though certain of its provisions are so repealed, the former portion will stand. See 26 Am. and Eng. Ency. of Law, p. 727; State v. Cooper, 114 Ind. 12, 19; J., M. & I. Rd. Co. v. Dunlap, 112 Ind. 93, 95; Deisner v. Simpson, 72 Ind. 435, 440. My opinion, therefore, is, as to section 1538, that so far as its provisions are covered by the new food and drug law, it is repealed by implication; but insofar as the latter statute fails to include cases mentioned in said section, it stands unaffected. Section 546 reads as follows: "Whoever kills, for the purpose of sale, any sick, dis- eased or injured animal, or sells or has in his possession with the intent to sell, the meat of any such sick or dis- eased or injured animal, shall, on conviction, be fined not less than fifty dollars nor more than five hundred dollars, to which may be added imprisonment in the county jail not more than six months." The offenses covered by this section are not included in the new statute, except as to selling diseased meat; which sales are men- tioned in section 2 of the pure food and drug law, as follows: "An article shall be deemed adulterated * * * in case of food * * * if it consists in any proportion of * * ~diseased * * animal * * substance." So far, therefore, as section 546 is broader in its scope than the act of 1907, it is unrepealed; but to the extent that it relates to the sale of the meat taken from a diseased animal, it is repealed. Section 548 reads as follows: "It shall be unlawful for any person, firm or corpora- tion to sell, or to have in his or its possession for sale, any article of food or food product intended for the use of man, or any compound, substance, preparation or material used as such food or intended to be used as such food as (or) food product, or used or intended to be used as an ingredient of any such food or food product, or used or intended to be used in the preparation of any such food or food product, if any such article; compound, substance, preparation or material contain any arsenic, formaldehyde or antiseptic in- jurious to health. Any person, firm or corporation violat- ing any of the provisions of this section shall, on conviction, be fined not exceeding one hundred dollars for each offense." This section is substantially covered by section 2 of the act of 1907, which reads as follows: "An article shall be deemed adulterated * * * in case of food * * * if it contains any added poisonous or other added deleterious ingredient; if it contains any added antiseptic or preservative substance except common table salt, saltpetre, cane sugar, vinegar, spices, or, in smoked food, the natural products of the smoking process, or other harmless preservatives, whose use is authorized by the state board of health." However, it makes criminal the having in one's possession for sale any of the articles described in said section. This latter pro- vision is not included in the pure food and drug law recently en- acted. To that extent only section 548 is unrepealed. FARMERS' INSTITUTES-ACT MARCH 9, 1907, MAKING PROVISION FOR LOCAL EXPENSES OF March 15, 1907. Hon. W. C. Latta, Superintendent of Farmers' Institutes, Lafay- ette, Indiana: Dear Sir-Your letter of March 13th received, in which you call my attention to the provisions of the act of March 9, 1907, making provision for meeting in part the local epenses of farmers' insti- tutes, more particularly that part of section 5, lines 9 to 11 inclu- sive, of such act, which reads as follows: "Provided that the scheme or plan of such special work