
    Commonwealth v. Anderson, Appellant
    Argued October 28, 1946.
    Before Baldrige, P. J., Rhodes, Reno, Ross and Arnold, JJ. (Hirt and Dithrich, JJ., absent).
    
      F. D. Gallup, with him F. G. Potter, W. D. Gallup and Gallup, Potter & Gallup, for appellant.
    
      O. W. Shattuck, District Attorney, for appellee.
    
      December 11, 1946:
   Opinion by

Ross, J.,

In a summary proceeding under the Act of April 6, 1911, P. L. 51, 31 PS 901 as amended, the defendant, E. G. Anderson, was convicted on a charge of selling sausage containing a fat content of 55.10 per cent. An appeal having been taken, the lower court after hearing sustained the conviction and this appeal was taken.

The information charged that the defendant, by selling sausage having a fat content of 55.10 per cent., violated the Act of April 6, 1911, P.L. 51, 31 PS 901, which provides that it shall be unlawful for any person to sell sausage that is adulterated within the meaning of the Act. The Act provides that sausage shall be deemed to be adulterated, inter alia, if it contains excess water, any cereal, vegetable product, or contaminated product. It is silent as to fat content.

Section 5 of the Act as amended provides as follows (31 PS 905) : “The Department of Agriculture of the State shall be charged with the enforcement of the provisions of this act and shall make rules and regulations for the proper enforcement thereof, including rules and regulations setting up definitions and standards for sausage of particular kind, composition or origin within the general definition for sausage in section two hereof and shall cause such rules and regulations to be published in the official bulletin in the issue immediately following the preparation of the same.” Pursuant to the authority conferred by this section, the Department of Agriculture on January 13,1943, issued rules and regulations, of which Rules 34 and 35 are in evidence. Rule 34 provides: “Pork sausage is sausage composed of meat and fat derived solely from pork.” Rule 35 provides: “Bolognas — Jumbo, Strait or Ring: Frankfurters— Franks, Frankfurts, Red Hots, Wieners, Weiners, Hot Dogs, Kuschwurst, Dogs, Wienes, Cocktail Frankfurters shall be made from meat as defined, with or without salt, sodium nitrate, sodium nitrite, potassium nitrate, potassium nitrite, sugar, sirup, honey, spice, subsequently smoked or cooked. Provisions of the Sausage Law apply to these products. They shall not contain excess moisture, preservative, color or any adulterant as outlined under ‘Sausage’. It shall not contain more than fifty per cent. (50%) total fat, and shall be free from gristle, ligaments and excessive connecting tissues. All meat shall be in prime condition at the time of manufacturing.” An agent of the department testified that on October 6, 1943, he purchased from the defendant, a clerk in a store, about one pound of pork sausage which upon analysis was shown to contain 55.10 per cent. fat.

On the record before us, the defendant’s conviction cannot stand. It is evident that Rule 35 does not apply to pork sausage but to two entirely different kinds of meat, to wit, bologna and frankfurters. Not only is that clear from a reading of it but Rule 34 defining pork sausage without reference to its fat content shows that the Department of Agriculture did not intend the provisions of Rule 35 to apply to pork sausage.

Since the defendant’s fifth assignment of error must be sustained, it is not necessary to consider his other assignments.

Judgment is reversed and defendant is discharged.  