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added was adulterated milk, within a statute which made it an offense to have in one's possession, with intent to sell, milk to which a foreign substance had been added.

Even upon the assumption that the quantity of boracic acid which was added to or mixed with milk as a preservative worked no fraud and had no deleterious effect in the particular case, it was held in State v. Schlenker (1900) 112 Iowa, 642, 51 L.R.A. 347, 84 Am. St. Rep. 360, 84 N. W. 698, that the sale of the milk so treated constituted a violation of the statute, which prohibited the sale of adulterated milk, and expressly declared the addition to milk of water "or any other substance or thing" to be an adulteration. The court suggested that a purchaser might prefer to have his milk become sour, in order to use it for culinary purposes, and accordingly had the right to assume that nothing had been added to prevent chemical change.

And although the decision did not directly involve a preservative, but rather the presence of a coloring substance in milk (not regarded as, nor claimed to be, a preservative), it may be noted that another statute which was construed in St. Louis v. Jud (1911) 236 Mo. 1, 139 S. W. 441, denounced the presence in milk of "any foreign substance or preservative injurious to health," in further denouncing the dealing in "adulterated or unwholesome milk."

Under a statute providing a fine for whoever fraudulently adulterated, for purposes of sale, bread or other substance intended for food, with any substance injurious to health, or "knowingly . . . has in his possession, with intent to sell, any substance injurious to health," it was held in Isenhour v. State (1901) 157 Ind. 517, 87 Am. St. Rep. 228, 62 N. E. 40, that a conviction might be predicated upon knowingly possessing a pint of milk adulterated with formaldehyde; but it was further held that the accused should have been permitted to introduce evidence tending to overcome the presumption of guilty knowledge, by showing that he did not know that

the substance, a teaspoonful of which he put into 9 gallons of milk, and which was designated as a "preserver," contained formaldehyde, and by showing that a descriptive circular accompanying the preserver referred to it as perfectly harmless, guaranteed to contain no acid or injurious ingredient, and as being "positively not an adulterant."

Without referring to the preservative nature of the formaldehyde, but under a statute declaring that an article of food should be deemed to be adulterated, if any substance should be mixed with it so as to lower or depreciate, or injuriously affect, its quality, strength, or purity, or if it contained any added substance or ingredient which was poisonous or injurious to health, or any deleterious substance not a necessary ingredient, a conviction for putting into milk "milk sweet," which contained formaldehyde, a poison, was upheld in Lansing v. State (1905) 73 Neb. 124," 102 N. W. 254. In this case the court overruled the contention that another clause limited what was contemplated as an adulteration of milk, in declaring that, in the case of milk, adulteration would be deemed to have occurred if it was the produce of a diseased animal, or diluted with an inferior liquid, or mixed with an inferior substance; and also overruled the further contention that the milk was sold as a sample, or as a compound or mixture, within clauses permitting such a sale.

Although the actual decision in St. Louis v. Wortman (1908) 213 Mo. 131, 112 S. W. 520, was that a prosecution under an ordinance which prohibited the placing in milk of any foreign substance or preservative of any kind "for any purpose whatsoever" could not be maintained, since the ordinance, by necessary implication, was repealed by a statute, the court expressed the opinion that the offering for sale of milk in which formaldehyde had been placed would violate the express terms of that statute, which provided that food, in general, should be deemed to be adulterated "if it contain any added substance which is poisonous or injurious to

health." It reasoned that formaldehyde was a well-known poison, that it did not matter that the quantity used might not have been sufficient to cause injury to health, and that the citizens of the state should not be subjected to the dangerous judgment or caprice of any dairyman.

Although the English decisions do not seem to have turned upon the meaning of such a term as "adulterant," attention is called to a few which have held the use of a preservative, such as boric acid in cream, to be injurious to health. See, for example, Cullen v. McNair (1908) 24 Times L. R. (Eng.) 692- Div. Ct.; Batchelour v. Gee [1914] 3 K. B. (Eng.) 242 Div. Ct.; and Haigh v. Aerated Bread Co. [1916] 1 K. B. (Eng.) 878 Div. Ct. But see Williams v. Friend [1912] 2 K. B. (Eng.) 471 Div. Ct.; and Edwards' Creameries v. Smith (1922) 127 L. T. N. S. (Eng.) 549-Div. Ct. Meats.

In State v. Rumberg (1902) 86 Minn. 399, 90 N. W. 1055, construing an act to prevent the use of chemical agents as preservatives in milk and cream "or food products of any sort whatever," as not prohibiting the use of preservatives in meats, but as extending the original prohibition simply to articles which might be made from milk and cream, the court expressed its doubt as to whether the legislature could broadly prohibit the use of all chemical agents in the preservation of articles of food, although it conceded that such preservatives as might prove deleterious and injurious, or which might be used for fraudulent purposes, could be prohibited.

An attorney general's opinion reported in Re Pure Food Law (1902) 11 Pa. Dist. R. 423, and 27 Pa. Co. Ct. 33, as to the right to sell meats in an adulterated or preserved form, disclosing that most of the preserved meats on sale in the state contained borax or boracic acid as a preservative, advised that, if the fact were established that such preservatives were injurious to health, the sale of the meats would violate the statute.

The decision in Vaughn v. State (1919) 86 Tex. Crim. Rep. 255, 219 S.

W. 206, in favor of defendant charged with violating the statute against sale of adulterated food, by selling sausage in which sulphite was found, was not upon the ground that sulphite was not an adulterant, but upon the ground that it did not appear that defendant knew of its presence. That, of course, presents a question beyond the scope of the annotation.

Ketchup.

In view of its being an open question as to whether benzoate of soda was harmless or not, it was held in Curtice Bros. Co. v. Barnard (1913) 126 C. C. A. 411, 209 Fed. 589, that its use in the preparation of such foods. as ketchup might be prohibited under a statute declaring that an article should be deemed adulterated if it contained "any added antiseptic or preservative substance, except

or other harmless preservatives whose use is authorized by the state board of health."

In upholding a conviction for selling ketchup containing salicylic acid, it was said in Bissman v. State (1895) 9 Ohio C. C. 714, 6 Ohio C. D. 712 (motion for leave to file petition in error overruled in (1896) 54 Ohio St. 242, 43 N. E. 164), that the ketchup was adulterated, the acid being "an added substance injurious to health," and not a necessary ingredient in its manufacture.

Canned vegetables.

In the reported case (BARRON COUNTY CANNING & PICKLE Co. v. NIANA PURE FOOD Co. ante, 69) the court relied upon the clause of the Wisconsin statute which declared that food should be deemed to be adulterated "if any inferior or cheaper substance or substances have been substituted wholly or in part for it," in holding that the presence of excessive brine in the peas canned under the contract constituted an adulteration.

Summers v. Grist (1896) 60 J. P. 346, is reported, in 25 Eng. & Emp. Dig. p. 80, to have held that an article of food became "injurious to health," where a bottle of peas contained sulphate of copper, which was inserted for the purpose of preserving,

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any other food product in which the presence of cane sugar as a preservative is unnecessary," a conviction for selling adulterated maple syrup was upheld in Com. v. New England Maple Syrup Co. (1914) 217 Mass. 432, 105 N. E. 453, where the article sold was a compound of maple sugar, granulated sugar, and water,-upon the ground that the effect of the amendment was to prohibit the mixture of cane sugar as a preservative with any of the articles immediately preceding, and that accordingly the article could be sold only in the manner prescribed in the original clause.

In holding that a conviction for selling raspberry syrup containing salicylic acid was warranted under a statute which declared food to be adulterated "if it contains any added substance or ingredient which is poisonous or injurious to health," the court in Com. v. Kevin (1902) 202 Pa. 23, 90 Am. St. Rep. 613, 51 Atl. 594, considered that the amount of poison added made no difference, and observed that the statute did not prohibit the addition of a healthful ingredient as a fruit preservative.

Confections.

Under a statute declaring an article of food to be adulterated if it contained any added sulphur dioxide, or

other acid enumerated, or confectionery, if it contained any such substance, a conviction for selling confectionery which contained sulphur dioxide was sustained in Com. v. Pflaum (1912) 236 Pa. 294, 84 Atl. 842, Ann. Cas. 1913E, 1287, the court adopting the reasoning of the lower court, which referred to preserved fruits as being a confection.

The confiscation of candy containing alcohol was held to be authorized under a statute declaring an article to be adulterated if it contained any added substance or ingredient poisonous or injurious to health, in Hoefler v. Mickle (1915) 78 Or. 399, 153 Pac. 417.

Preserving compounds.

Construing a section of the Illinois Pure Food Act which declared that an article should be deemed to be adulterated if it contained any added poisonous or other added deleterious ingredient which might render the article injurious to health (but excluded food products which were preserved in such a way that the preservative could be removed), and further declared that "formaldehyde, hydrofluoric acid, boric acid, salicylic acid, and all compounds and derivatives thereof," were unwholesome and injurious, with another section of the same act which expressly prohibited the sale of "any unwholesome or injurious preservative or any mixture or compound thereof intended as a preservative of any food," a conviction for selling a canning compound which contained boric acid and was designed "to prevent canned fruits and vegetables from souring and spoiling," was upheld in People v. Price (1913) 257 Ill. 587, 101 N. E. 196, Ann. Cas. 1914A, 1154, upon the ground that the prohibition against boric acid was not limited to foods to which it was an added ingredient, but extended to compounds sold separately as food preservatives. The constitutionality of this statute was sustained by the Illinois court, and likewise upon appeal in (1915) 238 U. S. 446, 59 L. ed. 1400, 35 Sup. Ct. Rep. 892.

In upholding another conviction

for selling some of the same canning compound, under a statute which declared an article of food to be adulterated if it contained any added boric acid, it appeared in Com. v. Fulton (1919) 263 Pa. 332, 106 Atl. 636, that the compound contained almost 95 per cent boric acid and the rest was salt, and the court held that this combination amounted to an adulteration.

And the sale of this canning compound was also held to be prohibited in McCarthy v. State (1920) 170 Wis. 516, 175 N. W. 785, where a statute expressly prohibited the sale of any article of food containing boric acid, "or any other preservatives injurious to health," and defined "food" as including all articles used or intended for use as ingredients in the composition or preparation thereof.

But although the statute in question was not aimed at adulterations (but merely, in effect, prohibited the preservation of dairy products, except by salt in butter and cheese, and sugar in condensed milk), attention is called to some of the language of the court in People v. Biesecker (1901) 169 N. Y. 53, 57 L.R.A. 178, 88 Am. St. Rep. 534, 61 N. E. 990, in holding the statute to be invalid so far as it prohibited the sale of "preservaline," a preservative to be used with butter. The court overruled the state's contention that the statute was a legislative determination that preservatives other than salt and sugar were unwholesome adulterations of dairy products, asserted that the object of this preservative was not to practise any deception, but to prevent decay in a product which, without the presence of some foreign substance, naturally became unfit for use in a very short period, pointed out that the Penal Code simply forbade the sale of adulterated food without disclosing or informing the purchaser of the adulteration, and further declared: "The preservation of food and the arrest of its tendency to decay is certainly a proper and lawful object in itself. . . . There is doubtless in the prosecution of these industries

danger of adulteration, and of the use

of processes injurious to public health. The regulation of these subjects for the protection of the public health and the prevention of imposition on consumers is within the power of the legislature, and the propriety of its exercise cannot be questioned. But, while it may regulate, the legislature may not destroy, the industry; and that is not a valid regulation which, in dealing with the means of .preserving food, makes the preservation of food itself an unlawful act. Ingredients and processes may be prohibited as unwholesome or causing deception, but not solely because they preserve."

In reply to the contention that the sale of patent rights for a fumigating apparatus, with which certain powders were to be used to preserve fruits and vegetables, was void because the use of sulphur, one of the ingredients, was forbidden by statute, it was said in Smith v. Alphin (1909) 150 N. C. 425, 64 S. E. 210, that the pure food law had no application, since it referred only to the adulteration of foods kept for sale.

Rock salt and beet sugar.

The use of rock salt and beet sugar as preservatives was held to be permissible, as being within the meaning of the words "common table salt" and "cane sugar," in the clause excepting these articles from the preservative substances which were deemed under the statute to be adulterated, in Curtice Bros. Co. v. Barnard (1913) 126 C. C. A. 411, 209 Fed. 589.

Miscellaneous.

An Indiana statute, which declared that an article should be deemed as adulterated if it contained "any added antiseptic or preservative substance, except common table salt, saltpeter, cane sugar or other harmless preservatives whose use is authorized by the state board of health," was construed as authorizing the board to ascertain what was a harmless preservative, in Curtice Bros. Co. V. Barnard (Fed.) supra. E. W. H.

(— Or. — 251 Pac. 701.)

STATE OF OREGON, Respt.,

V.

1920 STUDEBAKER TOURING CAR.

NONA B. HEFFLING, Claimant, Appt.

Oregon Supreme Court (In Banc) - December 14, 1926.

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Jury, §§ 12, 45 — forfeiture of vehicle transporting liquor - right to. 1. Authorizing the forfeiture of a vehicle in which intoxicating liquor is alleged to have been unlawfully transported, without trial by jury and without conviction of the one alleged to have been guilty of the offense, violates the constitutional guaranty of right to trial by jury. [See annotation on this question beginning on page 97.] Jury, 3 constitutional right §

scope.

2. The right to trial by jury guaranteed by the Constitution embraces every case where it existed before the adoption of the Constitution, and it is not within the power of the legislature to enact any law which deprives a litigant of that right.

[See 16 R. C. L. 194; 3 R. C. L. Supp. 546; 4 R. C. L. Supp. 1046; 6 R. C. L. Supp. 951.]

Jury, § 3-right to, in matters arising after adoption of Constitution.

3. The constitutional right of trial by jury is not to be narrowly construed, and is not limited strictly to those cases in which it had existed before the adoption of the Constitution, but is to be extended to cases of like nature as they may hereafter arise. [See 16 R. C. L. 195.]

Nuisances, § 57 automobile.

4. An automobile is not a nuisance per se. Forfeiture, § 2 nuisances, § 111 jurisdiction of equity.

5. Equity has jurisdiction to restrain a public nuisance on behalf of the public, but not to enforce a forfeiture.

[See 10 R. C. L. 336; 4 R. C. L. Supp. 662; 5 R. C. L. Supp. 551; 20 R. C. L. 475.] Jury, § 23

in rem.

right to, in proceeding

6. That proceedings to forfeit an automobile seized on land for alleged unlawful transportation of intoxicating liquor are in rem, and not in personam, does not change the character of the suit from that of a common-law action into a suit in equity, nor does it affect the question of the right of the owner to a trial by jury.

[See annotation in 17 A.L.R. 568.]

(Coshow and Brown, JJ., dissent.)

APPEAL by claimant from a decree of the Circuit Court for Jackson County (Thomas, J.) in favor of the state in a proceeding to forfeit an automobile belonging to her. Reversed.

The facts are stated in the opinion Mr. G. M. Roberts, for appellant: Section 29 of the General Laws of Oregon for 1923 is unconstitutional, and should be so declared, because it denies to the claimant of the property sought to be confiscated the right of trial by jury.

Nicklas v. Rathburn, 69 Or. 483, 139 Pac. 567; Siverson v. Clanton, 88 Or. 261, 170 Pac. 933, 171 Pac. 1051; Keeter v. State, 82 Okla. 89, 17 A.L.R. 557, 198 Pac. 866; Hoskins v. State, 82 Okla. 200, 200 Pac. 168; One Paige 50 A.L.R.-6.

of the court.

Touring Car v. State, 83 Okla. 40, 200 Pac. 852; Shawnee Nat. Bank v. United States, 161 C. C. A. 509, 249 Fed. 583; The James W. French (D. C.) 5 Hughes, 429, 13 Fed. 916; Work v. State, 2 Ohio St. 299, 59 Am. Dec. 671; The Sarah, 8 Wheat. 391, 5 L. ed. 644; Garnhart v. United States, 16 Wall. 162, 21 L. ed. 275; 12 R. C. L. 133.

In civil cases the right of trial by jury shall remain inviolate.

Raymond v. Flavel, 27 Or. 219, 40

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