moving the offices last fall, somewhat hampered the routine of the analysis, hearing and preparation for prosecution. With the increased space and better facilities which we now enjoy, I look for increased efficiency of service.

Of the prosecutions which were tried and disposed of during the year, there were more for violations of the dairy and food law than formerly, and not so many for violations of the oleomargarine law. This is due to the stand you have taken, that the food law has been on the statute books long enough for manufacturers and dealers to acquaint themselves with its provisions, and that feigned ignorance thereof will not be accepted as an excuse for failure to comply with the law. The vigorous campaign which was waged in the preceding year against the dealers in oleomargarine who fraudulently sold this article for butter, had a salutary effect. Of late, however, we have noticed some of them are back at their old game, and there are a number of prosecutions pending and in course of preparation for violation of the oleomargarine law.

OLEOMARGARINE.

Every package of oleomargarine sold must be plainly stamped or marked with the word "Oleomargarine" (or other words, as provided in section 3 of the Act); and we have prosecuted all cases where this has not been done. The Federal laws and regulations also require this marking, together with the name of the seller, so that there is no excuse for failure to comply. Some dealers, in order to palm it off as butter, adopt the shift of marking the package on the bottom. In the case of bulk oleomargarine sold in wooden plates, this form of deception is quite common. The plea of these unscrupulous dealers is, that the purchasers know from the price, that they are not getting butter. The number of complaints which come to the commission from people who have been defrauded prove this to be false.

During the past year, a covert, yet insidious, attack was made to nullify the oleomargarine law. In a case brought in the Municipal Court of Chicago on a charge involving the sale of oleomargarine for butter, the defendant contended that the dairy and food law of 1907 was a revision of all laws concerning food, and that the oleomargarine law of 1897 must be construed together with it. The dairy and food law provides that the inspector at the time of taking the sample, must tender a duplicate to the dealer, but there is no such requirement in the oleomargarine law. It was contended that this provision should be held applicable to the latter law. If this contention had been sustained, it would have proved a serious hindrance to the enforcement of the law.

The case was argued before Judge Cottrell and briefs were filed on each side. After a careful consideration of the matter, Judge Cottrell held the oleomargarine law was complete in itself, and was not amended or changed by the dairy and food law; and, hence, no duplicate sample need be given the dealer. I append his decision to my report.

Oleomargarine is conceded to be a wholesome and nutritious substitute for butter, and at the prevailing high prices of the latter, it would seem as though there should be a good market for it under its own name. The

manufacturers are putting up large quantities of it in attractive onepound cartons, marked with their brand and name. They are further carrying on an extensive campaign of advertising without any misrepresentation. However, there seems to be a demand for bulk goods, particularly from the unscrupulous dealers who are able to make an illegitimate profit by selling it for butter.

MANUFACTURER'S PACKAGES.

In my opinion, the enactment by Congress of the proposed legislation requiring all oleomargarine to be put up in packages by the manufacturers, and properly branded, would prevent a great deal of the fraud which we now have to contend with.

CONDEMNATION PROCEEDINGS.

Under the provisions of section ten (10) of the dairy and food law (as amended July 1, 1911) a number of condemnation proceedings were instituted during the latter part of the year. Several hundred barrels of illegal vinegar were destroyed, in addition to a fine being imposed on the defendants. This, I think, will prove a most effective means of enforcing the provisions of the food law. It is particularly applicable to cases where the articles of food are purchased by the dealers from jobbers and manufacturers without the State. It is also applicable to a form of fraud which is being practiced in some parts of the State. Following an advertisement or other form of notice, a man will visit a rural district or small town and solicit orders for lots of groceries at attractive prices. The frugal housewife, seeing an opportunity to stock up the pantry, gives a generous order. Later the goods are shipped C.O.D., or the solicitor, or more often a confederate, arrives with the shipment and delivers the goods and makes collection. When the goods are opened they are found to be inferior, old, or in violation of some of the plain provisions of the law. Several large shipments of this kind were intercepted during the past year by Mr. Newman, and in one case a whole carload of food unfit for consumption was destroyed with the consent of the guilty parties.

CONVENTIONS.

In company with yourself and other officers of the commission, I have attended two annual conventions of the Association of State and National Food and Dairy Officials. The experience and knowledge gained at these meetings has been of great advantage to me in my work, and has enabled me to obtain a broader and more comprehensive view of food control problems than I could otherwise gain. From an educational standpoint, the deliberations of these conventions were most instructive; the several subjects being presented by experts in their respective branches.

I observed, however, that a considerable part of the program was devoted to the discussion of questions involving the application and

construction of food laws. While these discussions were interesting and sometimes novel, they were not always accurate. Many of the food control officials are chemists; and since their duties require a more or less intimate knowledge of the application of the food laws, there has been developed a class of officials who, for want of a better term, might be called "Lawyer chemists." In their zeal some of them are prone to construe the law in the way they think the law should be, instead of as they find it. It is to no purpose to make rulings and regulations if they cannot be sustained under the law.

Food control and regulation is as much a question of law as it is of chemistry. Most of the articles of food which are found to be illegal, are of such a character, that if properly labeled and branded would be perfectly legal. The nature and character of any given article of food having been determined in the laboratory, it then becomes a question of law whether it complies with the provisions of the statute.

I do not want to throw bouquets, but I think you set a valuable precedent in presenting the address on "Original Importers' Packages," at the Duluth convention. It has occurred to me that problems which arise in the various food departments, and which are of sufficient general interest, might be referred to the legal departments, and after due preparation, presented at the conventions in short papers. As the proceedings are published, these papers would be valuable for future reference.

One distinguished food official was recently quoted in the press as saying, "that with the assistance of a stenographer and an attorney, he could efficiently handle all the legal work of the department." While I am not prepared to dispute this assertion, it may be remarked that there is truth in the old adage, "let the shoemaker stick to his last."

Food laws being penal in character, are strictly construed by the courts. In case of prosecution, nothing is taken for granted, and the State must prove every material allegation beyond a reasonable doubt. Not only is the legality of the particular sample in issue, but very often the ownership or responsibility for the article, and the manner of taking the sample likewise.

ATTACK ON FOOD LAWS.

During the past year there seems to have been a disposition on the part of some of the food producing interests, to attack the food laws on constitutional and other grounds. In some of these efforts they have been successful. This may, however, prove to be a rather short sighted policy. Most of the defects which have been found in the laws, can and will be remedied, and in addition more stringent regulations may be enacted.

Many samples of food taken during the past year have been found to be but slightly below standard, and the plea has been made that it was the result of error or inadvertence. If this had happened but once, it might be taken for true, but after repeated violations it looks like design. The standards of minimum strength and quality in Illinois are in

general very conservative, and in most instances below normal, so that when products consistently fall below these standards, it is evidence of an intention to cheat. The possibilities of underselling honest competitors by these practices are manifest.

Food laws and regulations are for the protection of the consuming public, both as to their health and their pocket books, and in the long run the honest manufacturers find it to their advantage to comply with these laws.

At the same time, these laws should not be made a burden upon the manufacturers. In the matter of uniformity of laws and regulations, there is need of coöperation between the various food control officials, to the end that such laws and regulations shall be made more nearly alike in the several states and the United States. Then goods which comply with the laws of the state where they are manufactured, will not be declared illegal when they are taken into another state.

GUARANTY.

The provisions of our food law concerning guarantees do not seem to be generally understood or appreciated. Section thirty-one (31) of the Act, provides in substance, that the dealer shall not be prosecuted for selling an adulterated or misbranded article of food, if the same is found in the original unbroken package in which it is received, and he can establish a written guaranty from the wholesaler, jobber or manufacturer residing in this State that said article is not adulterated or misbranded. This guaranty shall contain the name and address of the party making it.

Wholesalers, jobbers and manufacturers have quite generally taken advantage of the provisions of the law, to protect themselves against the parties from whom they buy goods or materials, but the retail dealers are apparently not awake to the protection they could thus secure. It has been my policy to bring prosecutions, whenever possible, against the parties ultimately responsible for the illegality of the goods, and I would urge the retail dealers to study this provision and take advantage of its protection. Respectfully yours,

CHAS. F. MCKINLEY.

The information contains two counts and charges in the first count that the defendant sold imitation butter without informing the purchaser that the substance sold was imitation butter, and charges in the second count that the defendant sold imitation butter colored to resemble genuine butter.

Defendant moved to quash both counts of information upon the following grounds:

First-That the prosecution is barred by the statute of limitation.

Second-That this prosecution must fail because neither count of the information contains an allegation that the inspector tendered a duplicate sample to the defendant at the time the sample was taken.

To decide the questions thus raised, it will be necessary only to consider briefly two separate actions of the Legislature. The first act is an act entitled, "An Act to regulate the manufacture and sale of substitutes for butter," in force July 1, 1897. This act is referred to in this opinion as the Oleomargarine law. The second act is an act entitled, "An Act to prevent fraud in the sale of dairy products, their imitation or substitutes, to prohibit and prevent the manufacture and sale of unhealthful, adulterated or misbranded foods, liquors or dairy products, to provide for the appointment of a State food commissioner and his assistants, to define their powers and duties, and to repeal all acts relating to the production, manufacture and sale of dairy food products and liquors in conflict herewith," in force July 1, 1907. This act is referred to in this opinion as the Food Law.

Section 9 of the Oleomargarine Law declares that whoever violates any provision of that act shall be guilty of a misdemeanor; the statute having declared the offense when committed a misdemeanor and having provided no limitation on bringing an action for its violation, there was no doubt before the enactment of the Food Law that the statute of limitation relating to misdemeanors obtained; hence, under the Oleomargarine Law, before the enactment of the Food Law, prosecutions might have been brought at any time within eighteen months after the cause of action arose.

Section 4 of the Food Law provides that the inspector at the time of taking samples of food shall tender a duplicate sample to the dealer.

Section 40 of the Food Law provides that no action or prosecution shall be instituted against any person for a violation of the provisions of this act unless the same shall have been commenced within ninety days from the taking of the sample. The defendant claims that the Legislature intended that the last two mentioned sections should be read into the Oleomargarine Law as a part of that law; that these two acts must be construed together; that the latter act was clearly intended as a revision or duplication of the whole subject-a supplement or an addition to the Oleomargarine Law-and that this prosecution must fail because there is no allegation in either count of the information that the inspector tendered a duplicate sample to the defendant at the time the sample was taken, and that the action was not brought within ninety days after the taking of the sample.

The State claims that the purpose of the Oleomargarine Law is the regulation of the Oleomargarine business only; that the Food Law is a general law regulating the manufacture and sale of food. The Food Law does not state that it is a revision of all laws concerning foods; it repeals only those laws which conflict with it.

In Section 43 of the Food Law, the Legislature stated: "All acts and parts of acts inconsistent with this act are hereby repealed, provided that nothing in this act contained shall be construed as repealing an act entitled, 'An Act to regulate the manufacture and sale of substitutes for butter.'"

By the use of the language just quoted, the Legislature declared its intention not to repeal the Oleomargarine Law. Counsel for defendant has not pointed out, and the Court has been unable to find, any provision in the Food Law which indicates an intention of the Legislature to substitute any provision in the Food Law for any provision in the Oleomargarine Law, or read into the Oleomargarine Law any provision contained in the Food Law and not expressly stated in the Oleomargarine Law. In the absence of such an intention of the Legislature expressed or implied the Court has no power to so construe the Oleomargarine Law. There is no provision in the Oleomargarine Law requiring the inspector to give duplicate sample to the defendant; obviously, that statute not having been repealed and being the statute which the information charges that the defendant violated, an allega