
    Commonwealth vs. Martin E. Evans.
    Suffolk.
    June 27, 1881.
    Jan. 4, 1882.
    Endicott & Allen, JJ., absent-.
    A person may be convicted of selling adulterated milk, upon a complaint under the St. of 1880, c. 209, § 3, without allegation or proof that he knew it to be adulterated.
    The St. of 1880, c. 209, § 7, providing that “ in all prosecutions under this act," for selling adulterated milk, “ if the milk shall be shown upon analysis to contain more than eighty-seven per centum of watery fluid, or to contain less than thirteen per centum of milk solids, it shall be deemed for the purposes of this act to be adulterated,” is constitutional.
   Morton, J.

This is a. complaint under the St. of 1880, c. 209. It alleges that the defendant did “ unlawfully sell to one Patrick Scannell, of Boston, for the sum of thirty-five cents, a quantity, that is to say, eight quarts, of adulterated milk; that is to say, a certain quantity, to wit, six quarts and one pint of milk, to which a certain quantity, that is to say, three pints of water, had been added.” The second count charges possession, with intent to sell, of milk adulterated in the same manner.

At the trial, the defendant asked the court to rule that the government was bound to allege and prove that the defendant had knowledge that the milk was adulterated. The court rightly refused this ruling. This has been directly adjudicated in this Commonwealth. Commomwealth v. Farren, 9 Allen, 489. Commonwealth v. Nichols, 10 Allen, 199. Commonwealth v. Waite, 11 Allen, 264.

The defendant also asked the court to rule that § 7 of c. 209 of the St. of 1880 is unconstitutional. This section provides that “ in all prosecutions under this act, if the milk shall be shown upon analysis to contain more than eighty-seven per centum of watery fluid, or to contain less than thirteen per centum of milk solids, it shall be deemed for the purposes of this act to be adulterated.”

The intention of the Legislature and the practical operation of this section, in connection with the third section, is to provide that it shall be unlawful to sell milk containing less than thirteen per centum of milk solids.

This belongs to the class of police regulations designed to prevent frauds and to protect the health of the people, which it is within the constitutional power of the Legislature to enact. Bancroft v. Cambridge, 126 Mass. 438, and cases cited. We have difficulty in seeing, as the case is presented to us in this hill of exceptions, that this question was material or properly involved in the case, the complaint being not under § 7, but under § 3, for selling milk to which water had been added. Commonwealth v. Luscomb, 130 Mass. 42. But as the question seems to have been distinctly raised and ruled upon at the trial, we have considered it. Exceptions overruled.

J. D. Thomson, for the defendant.

G. Marston, Attorney General, for the Commonwealth.  