Commonwealth v. Hufnal

Opinion by

Mb. Justice Mitchell,

The appellant was indicted under the Act of June 26, 1895, P. L. 317, entitled “an act to provide against the adulteration of food,” etc., and the offense charged was selling as “skimmed milk,” milk from which the cream had been taken by the centrifugal or “ separator ” process. The word adulteration in its ordinary and proper sense means the corruption, debasing or- making impure by the admixture of a foreign or inferior substance or ingredient: Century Dictionary; Oxford New English Diet.; Webster’s International, ed. 1893. It was therefore incumbent on the commonwealth to prove that the word was used in the statute in a sense different from its ordinary meaning, and sufficient to cover the act charged as a violation. This the commonwealth undertook to do by reference to the third subdivision of section 3, as follows : “ Sec. 3. An article shall be deemed to be adulterated within the meaning of this act: (a) In the case of food; . . . . (3) If any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it.” The facts we-re not really in dispute, and showed that there were in common use three methods of separating. the cream from the whole milk, first, the immemorial “ skimming ” by setting the milk in shallow vessels and allowing the cream to rise and then removing it by a sliding motion of a paddle or dipper; secondly, the “Cooley” process of setting the milk in deep vessels, subjecting it to rapid cooling and then drawing off the heavier watery ingredients from the bottom; and thirdly, the centrifugal method by which the milk is subjected to a rotary motion with very high velocity which separates the waterjr ingredients from the cream by reason of their greater specific gravity. All three of these methods ai’e alike in being mechanical only and dependent on the difference in gravity between the cream and the other constituents. It was admitted that the milk sold by the appellant was produced by the third process ; that it was sold under the name of skimmed milk,.plainly so marked; and it was not charged that any other substance was mixed with it. But the commonwealth claimed that by the centrifugal process a much larger proportion of the cream, or butter fat, amounting practically to the whole of that component was removed from the milk, than by the ancient process which alone could rightfully be called skimming, and that therefore the milk was “ adulterated ” in the statutory sense, by having a “ valuable or necessary constituent or ingredient wholly or in part abstracted from it.” The learned judge of the quarter sessions, and the majority of the Superior Court took this view, but we are of opinion that it was erroneous. ■

The act in question deals with the affairs of everyday life, and is highly penal in its provisions. There is therefore double reason why its language should be construed according to its popular practical everyday use among the people. It may be conceded that the word “skim” or “skimming” bas not materially changed from its long established meaning, and that it refers to a process substantially the same, whether performed with a southern plantation gourd, a big New Jersey clam shell, or a modern patent tin skimmer. When, however, we come to name the product, the process becomes a mere incident, and the substantial subject is the difference in qualities between the article in its original and in its subsequent state. The cream does not change its name although under the new process it is more exclusively composed of the butter fat than under the old. So it is with the residuum of skimmed milk. Milk is only one of the thousand tilings that may be skimmed, though it is undoubtedly one of the first and most universal to which the name and the process were applied, and popular use, the “ jus et norma loquendi ” of Horace, has preserved the name of the process even though the implements employed have varied. So the practical commonsense of the people in dealing with the product has looked to substance rather than mere process, and lias called milk from which the cream has been taken, by its ancient name of “skimmed milk,” without regard to whether the cream was “ skimmed ” in the primitive or abstracted in a more modern way. The dictionaries support this definition of the word: “The milk from which the cream is separated is skimmed milk,” Century Diet, sub verb, milk; “skim milk, milk from which the cream bas been taken,” Webster, ed. 1893; “skim milk, milk from which the cream has been removed,” Standard Diet.

We believe this is the popular understanding and use of the term “ skimmed milk,” and we find a notable instance of it in the testimony even of the witnesses for the commonwealth in this case. The chief inspector of milk, strenuous as he was to show that the milk sold by appellant was not “ skimmed ” but “ adulterated,” bas continual recourse to the phrase “ separator-skimmed,” and the chemist, in testifying to the results of analysis, constantly uses the terms “liand-skimmed” and “so-called separator-skimmed.” Nor are we without legislative usage to the same effect. The Act of June 10, 1881, P. L. 116, “to protect the manufacturers of butter and cheese,” makes it a penal offense to sell to any such manufacturer, with intent to defraud, any milk diluted with water, or adulterated, uncleanly or impure milk, or “ any milk from which the cream has been taken, or milk commonly known as skimmed milk.”

We are constrained to hold therefore that skimmed milk is not adulterated milk even within the very broad and peculiar meaning of the word adulterated in the act of 1895. Undoubtedly if sold as “whole milk,” or even as “milk,” without any descriptive epithet, it would be within the statute, as milk from which a valuable constituent had been abstracted. But even though it has lost its most valuable ingredient, skimmed milk is still a useful and important article of consumption and its sale has never been prohibited. When sold candidly under its own name there is nothing legally or morally wrong in the transaction. And “ skimmed milk ” we understand to be the generic term by which is meant milk from which its natural cream has been taken in part or in whole. The process is a mere incident, and the result in the product is a difference only in the proportion of the cream, or fatty constituents left in it, a difference of quality only, and not greater as appears than that in milk skimmed once or skimmed twice in the old-fashioned way, and after twelve hours’ or after twenty-four hours’ setting.

It is conceded that the centrifugal method takes out a larger proportion of the cream than the other processes, and it is suggested that it should properly be called “separator milk,” as in fact it was by some of the witnesses in this case, though the most intelligent or best educated of them used the qualifying phrase “ so-called ” to indicate that it was not a commonly recognized term. There may not improbably come a time when the variations in the quality of skimmed milk shall receive popular recognition and differentiation by name, but whether the product of the old method or the new shall retain the old name is something that neither jurist nor philologist can foretell. This is an age of mechanical and industrial revolution, and all of us who have passed middle life have seen an entire change in the methods and processes of production in nearly everything that we use in our ■ daily life. Nearly everything that in our youth was made singly by the individual mechanic, is made now in thousands or millions by machinery in the factory. In some cases the newcomer has had to take a distinctive title, while in others he has elbowed out his predecessor and appropriated his name. Our fathers’ carpenters made the doors and window sashes for each house separately, and when the new order of wholesale making was introduced it had to call itself “ mill-work.” The latter has certainly come out victor in popular use. Whether it has triumphed also in the’ language I do not know, but I suspect that the citizen who wants a house furnished with doors and sashes made in the old way will have to specify that he wants them “hand made,” and insist pretty strongly before he gets them. His grandfather would have had no such necessity of defining his wants. There may come a time when popular use will differentiate skimmed milk into “separator” and “hand skimmed” or similar terms of classification, but there is no such use now and none can be adopted by anticipation for the construction of a penal statute.

The Act of July 7, 1885, P. L. 260, has no applicability to this case, and the references to it by the expert witnesses were irrelevant and erroneous.

Most of the assignments of error must be overruled, and it is not necessary to discuss them in detail. But the fifteenth, which covers the defendant’s point that the third clause of the third section of the act does not apply to separator skimmed milk when sold as skimmed milk, must be sustained. The point should have been affirmed.

On the undisputed facts of the case the jury should have received a binding direction to find a verdict of not guilty.

Judgment reversed, and appellant is discharged without day,