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trated commercial feeding stuff, or claimed to be such by complainants in its advertisements of it, and that it falls within the law upon the matter, and it is his duty to publish an analysis of the same, and warn the public against dealing in it, in his annual bulletin, and he proposes to do so.

The act, as before stated, defines concentrated commercial feeding stuffs by naming them, and then ends the definition with the clause determining all condimental stock foods, patented and proprietary stock foods claimed to possess nutritive properties, and all other materials for feeding domestic animals fall within the meaning of concentrated commercial feeding stuffs.

It is not enough under this act to negative that the food contains any of the ingredients defined in the act as concentrated feeding stuffs, it must go beyond this; for, if it is claimed to possess nutritive properties, whether in fact it does or not, it falls within the provisions of the act.

The purpose of the act is to compel the seller to inform the buyer what the stuff sold is, that he may determine its nutritive value, and it is not satisfying the law to say the stuff sold is not to be fed for nutrition, if the claim is made that it has nutritive properties, for this is one of the very things the law was passed to prevent.

To hold Pratt's Food is not a proprietary stock food claimed to possess nutritive properties, would be to ignore the printed claims made by complainant upon each package sold or offered for sale. It is true. that upon the end of the package, but where it is not likely to be seen until about to be opened, there is a statement that "Pratt's Food is a regulator to be used according to directions, and is not sold as a feeding stuff, nor is it to be fed in place of grain or any other feed." But this disclaimer does not do away with the claims made for the food upon the packages in more prominent places.

Has the complainant claimed for this food nutritive properties? If it has then the commissioner is right in his holding that it falls within the law. In conspicuous places upon the packages appear the following claims made by complainant to induce persons to purchase and feed the Pratt Stock Foods:

"Young pigs grow up free from disease and fatten quickly, their meat is juicy and tender when fed Pratt's Food."

"It fattens both cattle and hogs quickly, makes them grow larger and heavier, and makes their meat tender, more juicy and better eating." "What it does for horses: Produces bone, muscle, better staying powers and improves the wind."

And under the head of directions for feeding Pratt's Food and in order to accomplish certain results appear the following directions and results to be expected:

"To fatten and improve horses, mares and stallions and make them robust, etc."

"To fatten and improve cows, bulls, steers and make them robust." "To fatten and improve calves and sheep and make them robust." "To make young pigs grow larger and keep them robust." "Pratt's Poultry Food is a guaranteed egg producer."

If you have stock and want to accomplish the results above mentioned,

you are informed by the claims made by complainant that all you need to do is to feed Pratt's Food with other feed.

Nutriment is defined in the Standard Dictionary as: "That which nourishes; that which promotes the growth or repairs the natural waste of animal organisms; ailment; food."

Nutrition as: "The process by which growth is promoted and waste repaired in live organisms."

Food as: "That which is eaten or drunk for nourishment, any substance that being taken into the body of an animal serves through organic action to build up normal structure or supply the waste of tissue."

Applying these ordinary definitions to the claims made for Pratt's Food on the packages thereof offered for sale, and to induce the sale thereof, there can be but one answer; and that is that the Pratt Foods are claimed to possess nutritive properties. A holding that they do not possess nutritive properties would not help complainant, but only lend a stronger reason for enforcing the law against such advertised foods. If it is not a food for stock, and not now claimed to be such, then the claims made upon the packages ought not to be made and inasmuch as they are made and our statute in such case gives the commissioner power to class the same as stock foods, this court cannot relieve complainant from a situation of its own making.

It is claimed the results accomplished are the results of the medicine contained in the product acting as a tonic or regulator, and that the other ingredients are present only as a filler or carrier for the medicine. Possibly this is so, and it may not be possible to sustain life in the animal by feeding Pratt's Food alone without other substantial food, but unfortunately for the complainant, the claim made upon the packages is more likely to be understood as a claim that Pratt's Food is a concentrated nutritious food than a medicated regulator in a cheap carrier.

Complainant cannot issue the claim it does upon its packages of stock foods and avoid furnishing the analysis or in default thereof having the commissioner publish its failure to comply with the law.

There is, however, another question of great interest involved, and that is whether this court should entertain jurisdiction of this proceeding against an executive officer of the state in relation to a matter of his official duty. The exercise of the police power, its manner of execution and the subject of that power are vested in the legislative branch of the state government. That branch enacts the law upon the subject and the executive branch follows that law and works out the policy as framed by the legislature.

The Dairy and Food Commissioner acting under the Pure Food Law, represents an equal and coordinate branch of the state government; and whenever the law has placed duties upon him in the administration of the affairs of the state, and has reposed in his judgment or discretion the determination of matters relating to the duties of his office, and the law under which he acts is valid, this court has neither the power nor the inclination to usurp the functions of such executive office, or to review his executive acts.

The duties imposed by law upon the Dairy and Food Commissioner are not alone ministerial. They call for the exercise of sound judgment

upon investigation, and this court cannot undertake to review the determination of a state executive officer in the exercise of the duties of his office.

I understand the rule to be that where a State officer is acting upon a matter involving the exercise of judgment or discretion, the matter being one falling within his duties, that no court will attempt to review his acts or determine whether he has erred in judgment or not, for to do so would cause the acts and findings of the officers of the executive department of the state to be subject to the review of the courts.

The commissioner having determined that the claims made by the complainant bring its product within the law, and require an analysis to be furnished under that law, this court will not review such determinations. I have called attention, however, in the opinion, to reasons sustaining the commissioner in his judgment. The bill is dismissed.

Signed, HOWARD WIEST,
Circuit Judge.

It will be seen, upon consideration of the above opinion, that every contention of this Department has been sustained by the court, and although the case has been appealed to the State Supreme Court, the injunction has been removed by the handing down of the above opinion and the Department is now in position to insist upon compliance with the provisions of the law. Notification of the decision in this case was promptly sent to all the manufacturers of similar stock foods, and there seems to be but little disposition, except on the part of the Pratt Food Company and one or two others, to further contest the matter. It is to be hoped that the appealed case may be heard at the January session of the Supreme Court and that the matter will then be speedily and finally determined.

MAPLE SYRUP.

The condition of the Michigan market with reference to the placing on sale of syrup under the name of "Maple Syrup," and not made up of the pure product of the sap of the maple tree, may justly be charged in a measure to the failure of this Department to secure the enforcement of laws already existing upon the statute books. The reasons for this failure of the Department to secure a rigid enforcement of these laws will be better understood by the chemist than by the general public. The statement, however, that the results of chemical analyses with reference to this product have heretofore been somewhat uncertain may in justification be made. Through recent laboratory investigations in Minnesota and Vermont, and which have been verified in this laboratory, the Department feels that it is now prepared, if occasion requires, to make a proper showing in court to convict all who violate this law.

MIXED SYRUPS.

The work of the laboratory of this Department with reference to the mixed syrups has shown that almost without exception the labels on the containing packages claimed a much higher percentage of cane syrup than the analysis would show. Upon taking this matter up with the manufacturers, it was found that they invariably set up the contention that the true percentage of cane syrup was present. This claim was based upon the fact that the so-called cane syrup was introduced in the form of what has come to be known as "commercial" cane syrup. The commercial cane syrup in question is derived as a by-product in the manufacture of cane sugar. The manufacturers in their claim would have the State ignore the fact that this commercial cane syrup contains only a small percentage of actual cane sugar. After having held repeated conferences with these manufacturers and after having fully considered the question from every point of view, the ruling was established that no label upon this class of syrups would be accepted in Michigan, unless laboratory determinations should show at least 60 per cent of actual cane sugar in the amount of claimed cane syrup. That is, if a syrup is labeled 75 per cent corn syrup and 25 per cent cane syrup, laboratory analysis must show present in such syrup 15 per cent actual cane sugar. As a result of this ruling the mixed syrups which were heretofore to be found on the Michigan market labeled from 65 per cent to 80 per cent corn syrup and from 35 per cent to 20 per cent cane syrup, are now found with new labels showing a content of from 90 per cent to 95 per cent corn syrup and from 10 per cent to 5 per cent cane syrup, the amount varying with the amount of actual sucrose or cane sugar present.

OVERRUN.

The following notice has been sent each month to all creameries exhibiting their products at the regular monthly educational scoring contests, whenever said products showed an overrun of 20 per cent or above. It will be noted that the term used is overrun and not moisture content.

"Analysis of your butter sampled at the Educational Scoring Test for the month of . shows that it carries with it an overrun

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"This Department considers it to be its duty to notify the management of a creamery making an overrun of 20 per cent or above that they are encroaching closely upon the law limit of moisture in butter. It is well to know that the U. S. Internal Revenue law considers butter to be adulterated which carries 16 per cent or over of moisture.

"The Department has on hand the overrun test tubes which make it easy for the buttermaker to test each churning of butter before pack

ing for shipment, and hence he should be able at all times to know that his product does not contain an abnormal amount of moisture."

PRESERVATIVES IN FOOD PRODUCTS.

In the March Bulletin of this Department there was printed in full, Act No. 7 of the Public Acts of 1905, entitled "An Act in Relation to the Use of Preservatives in Food Products." This act in brief requires the distinct, conspicuous and legible branding, labeling or marking in plain English letters of each and every food package containing preservatives in the condition in which it is exposed for sale, with the words "Prepared with" followed by the proper English name of any and every preservative used in the food product of which it becomes a part. The act further conforms to previous legislation in that it permits the use of harmless preservatives only. While this act was given immediate effect by the Legislature, this Department, recognizing the practical impossibility of the immediate labeling of all products then on the market, by ruling granted the trade an extension of time to January 1, 1906, in which to comply with its provisions. The trade was promptly notified, in so far as the mailing list of this Department made it possible, both of the passage of the act and of the ruling of the Department with reference to its enforcement. The Department believes it was amply and thoroughly justified in its liberal ruling with reference to the time limit placed upon the provisions of the act. However, this liberality in ruling only made the Department more determined to insist, beginning with January 1, 1906, upon the strict compliance by the trade with every provision in the act, and the trade was given its final warning with reference thereto.

VINEGAR.

The Department is in receipt of many letters of commendation, both from this and other states, regarding its prompt action in removing from the Michigan trade large quantities of adulterated cider vinegar. Those familiar with the processes of vinegar analyses will appreciate the difficulties with which the Department has had to cope. To the State Analyst, Prof. Floyd W. Robison, great credit is due for his original investigations and unquestionable determinations in connection with this work. The best commendation on the work of the State Analyst is found in the fact that none of the manufacturers of the adulterated vinegars which have been condemned by this Department have as yet evinced any disposition to contest the matter in the courts. So strongly fortified is the Department through the splendid work of the State Analyst that there is nothing whatever to fear, were the cases to go into the courts for final determination.

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