
    PURE FOOD LAWS.
    [Lucas (6th) Circuit Court,
    March 16, 1912.]
    Wildman, Kinkade and Richards, JJ.
    George O. Jury v. State of Ohio.
    Statute Regulating Refilling of Milk Bottles Constitutional.
    Section 13169 G. C., relating to the filling and refilling of milk bottles and glass jars, is not repugnant to any constitutional provision and is a valid enactment.
    [Syllabus by the court.]
    Error.
    
      Byron F. Ritchie, for plaintiff in error.
    
      Holland C. Webster and Lawrence F. Conway, for defendant in error.
   RICHARDS, J.

This is a proceeding in error to reverse a judgment of the court of common pleas, affirming a conviction of the plaintiff in error in the police court of the city of Toledo. George O. Jury was charged in the police court with the violation of Sec. 13169 G. C. on June 23, 1910. The only question argued in this court is the constitutionality of the section of the statute to which reference has just been made; it not being contended but that jury was rightly convicted if the statute is constitutional. The section reads as follows:

“Whoever fills or refills with milk; cream or other milk product, a glass jar or bottle having the name of a person, firm or corporation blown therein, with intent to sell such milk, cream or other product, shall be fined not more than one hundred dollars. This section shall not apply to a person, firm or-corporation whose name is blown in such glass jar or bottle or-an authorized agent or employe thereof.”

It will be conducive to a better understanding of the objects and purposes of this statute to refer briefly to its history:. The original statute was enacted on May 9, 1908, and is found!, in 99 O. L. 454; the title of the statute being “An act to regulate the filling and refilling of milk bottles and glass jars.”'' This.act contained three sections; the first section being substantially the same as is now found in Section 13169 G. C. The second section of the act is now See. 12730 G. C. This act was amended, 100 O. L. 17, but only for the purpose of correcting an error in that portion providing a penalty. Under the: classification adopted by the commission to codify the laws;. Secs. 1 and 2 of this act have become widely separated in the' General Code, but the purpose and object of the two sections, was clearly to prevent deception in the sale of milk, and to’ thereby aid in the preservation of the public health, and to-render easier a conviction of those who sell impure milk or milk- or the products thereof placed in bottles which have not been cleansed and sterilized.

Section 12730 G. C. is found under Chap. 6 devoted to offenses against public health; while Sec. 13169 G. C. is found under Chap. 16, which covers the subject of frauds. The species of fraud, however, to which this latter section is referable, is of such a character as relates to the public health and. the detection of offenses against the same.

Counsel for plaintiff in error contend that the section in? question in this case is unconstitutional on authority of State v. Schmuck, 77 Ohio St. 438 [83 N. E. Rep. 797; 14 L. R. A. (N. S.) 1128; 122 Am. St. Rep. 527]. The act which was in review in that case was plainly repugnant to the constitution by reason of provisions which are not found in Sec. 13169. The Supreme Court in the opinion in that ease delivered by Judge Price said page 454:

“It is manifest that-the general public has not been offended by the commission of the acts alleged in the indictment nor does the statute in question make criminal any act in which the general public is concerned.”

The court said further upon the same page:

“The statute is not aimed at the adulteration of any merchandise, food or beverage, nor does it appear from its terms that a compliance with it will tend to prevent adulteration, or secure to the public pure ‘merchandise,’ pure ‘food’ or pure ‘beverages.’ Its sole purpose seems to be the protection of the owners of certain described articles of personal property.”

The differences between the act so under review and the section of the General Code which we are considering are so manifest as to render further reference to this case unnecessary. The statute we have under consideration is more nearly parallel to the one considered by the Supreme Court in State v. Dairy Co. 62 Ohio St. 350 [57 N. E. Rep. 62; 57 L. R. A. 181]. I cite also Walton v. Toledo, 13-23 O. C. C. 547 (3 N. S. 295).

Having no doubt of the constitutionality of the section, the violation of which was charged in the affidavit filed against the plaintiff in error, and being fully convinced that it is a valid and constitutional enactment, the judgment of the court of common pleas will be affirmed.

Wildman and Kinkade, JJ., concur.  