1906-1908 Ind. Op. Att'y Gen. p. 177

Reformatory or the Indiana Girls' School, it is my opinion that the intention of the legislature of 1905, in view of the former acts on the same subject and the purposes to be accomplished, was that they should be included. The act of 1897 naming the Indiana Reformatory and provid- ing what class of convicts should be sent there, and what class should be sent to the Indiana State Prison, did not change the na- ture or.purpose of these institutions, and the term Indiana prison as used in the act in question is broad enough to include both in- stitu'tions, and the same is true of the Women's Prison and In- diana Girls' School. It is, therefore, my opinion that sheriffs are entitled to collect mileage from the state for delivering prisoners td the Indiana Re- formatory at Jeffersonville and also the Indiana Girls' School. STOCK FOODS (CONDIMENTALS AND MEDICATED) GOV- ERNED BY ACT TO REGULATE SALE OF CONCEN- TRATED COMMERCIAL FEEDING STUFFS. May 14, 1907. Mr. Arthur Goss, Director and State Chemist, Lafayette, Indiana: Dear Sir-In answer to yours of the 29th ult., in which you ask whether condimentals and medicated preparations such as Pratt's Stock Food, International Stock Food, Dr. Hess's Stock Food, Rawleigh's Imperial Stock Food, and others of a similar character, when sold under the name, brand or trade mark of stock or poultry foods, are covered by the act to regulate the sale of concentrated commercial feeding stuffs in the state of Indiana, passed by the last general assembly, I beg to advise that in my opinion section 11 of the act referred to covers all classes of stock food other than those excluded from its operation by the following express language of said section, to wit: "But it shall not include straw, whole seeds, unmixed meals made directly from the entire grains of wheat, rye and barley." It will be observed that among other things included in the definition of concentrated commercial feeding stuff in said sec- tion are "condimental feeds, poultry feeds, stock feeds, patent proprietary or trade and market stock and poultry feeds." The word "condiment" is defined in the Standard Dictionary [12-19395] of tlie English language to be a "sauce, relish, spice or the like, used to season or give relish to food." The word "proprietary" is defined in the American and Eng- lish Encyclopedia of Law (2d ed.) as follows: "The word proprietary is defined as belonging to own- ership; pertaining to a proprietor; relating to a certain owner or proprietor." In the case of Ferguson v. Arthur, 117 U. S. 487, the court quotes from Webster's, Worcester's and the Imperial Diction- aries. This case involved the meaning of the term proprietary medicines. In the International Revenue Laws, R. S. U. S., sched- ule a to paragraph 3419, the court declared that any medicinal preparation might be proprietary without being made by a pri- vate formula, or under an exclusive right claimed to the making or preparing it, or under a patent, but by reason alone that it was recommended to the public as a proprietary medicine or as a remedy for disease. You have also submitted to me what I take to be a wrapper for a package of Pratt's Food for Horses and Cattle, which has printed upon it in large, glaring letters, the words, more con- spicuous than anything else appearing upon same, "Pratt's Food for Horses and Cattle; Pratt Food Company," and an apparent trade mark, "Pratt's Food," gotten up in such form as to make predominant over everything else appearing thereon the idea that the package covered by same contained some sort of food. You submit also what I take to be a wrapper for a package of International Stock Food. On this wrapper also appears in glaring letters the words "International Stock Food" in such form as to carry the impression that the package wrapped in same contains some sort of stock food. You also submit what I take to be one side of the box or pack- age in which Rawleigh's Imperial Stock Food is sold. Upon this also appears more conspicuous than anything else the words "Im- perial Stock Food," with nothing thereon to indicate that the box of which same was a part contained anything else but stock food. It is perfectly plain that the manufacturers or dealers referred to are endeavoring to sell this product as a stock food. It is true that upon one of the wrappers referred to, and I refer especially to that of Pratt's Food for Horses and Cattle, the words "A regu- lator not a feed" appear, though in much finer print than the words heretofore referred to, and that the printed matter, which is still much finer, explains that no nutritive properties are claimed for Pratt's Food, and that it is a medicinal tonic and regulator. While it is true, in my opinion, that if such products were properly advertised and sold as a medicine, or as something other than a food, it would remain a question of fact as to whether they come within the letter of this particular act, yet when the proprietors of them advertise them and sell them as a stock food in this state, it is your duty to require them to comply with th4 laws of this state referring to the sale of stock foods in this state, which is the act referred to in your letter. You have also submitted to me the brief of the attorneys for the International Stock Food Company in which it is denied that the International Stock Food comes within the purview of said statute. In this brief counsel ask this question: "Can the legis- lature by merely so stating bring anything within that definition in order to bring it within the scope and operation of a certain act?" And proceeding say, "This act deals only with feed stuffs and does not, either by its title or the body of the act, name any- thing but feed stuffs." The answer to this question, it occurs to me, is that when the manufacturers and proprietors themselves see fit to sell an article as stock food or stock feed, and to so advertise it and put it upon the market, that they are in no position to claim that it is anything else other than that which they advertise it to be. And so long as such articles are sold as stock feeds or stock food, in my opinion, the manufacturers or proprietors selling or offering same for sale must comply with the provisions of the act referred to. This, I believe, answers your first, second and third questions propounded to me, since they all refer to the same subject matter. In answer to your fourth question, "Do bran, shorts and other mill products covered by the law, have to be registered and tagged when delivered to a customer from the common bin in exchange for grain or other products?" it is my opinion that the same requirements are necessary under such circumstances as are necessary in case of a sale.