Omaha daily bee., 1902-12-03
ATTACK ON PURE FOOD LAW
Wholesalers Question Validity Of the Act
on Technical Ground.
CONTEND THAT TITLE is INSUFFICIENT
IL TO Regulate, Manufacture and Sale
of cider and vinegar, but
Its Title Does Not So
Specify.

Before Judge Baxter Of the district bench
Attorney T. J. Mahoney, as counsel for the
Paxton & Gallagher company, yesterday
began what is commonly understood to be
a determined effort to break the pure .ood
law Of Nebraska, such effort being backed
not only by the Paxton & Gallagher com
pany, but by a considerable number Of
vinegar dealers over the state who, for The
purpose, have united with he local whole
sale firm in a sort Of temporary combine.
The case is that Of the State against The
Paxton & Gallagher Company for whole
sailing grain vinegar for a year prior to
last March without a state license. Deputy
County Attorney George Msgney prosecu.-
ing for the state at the instance Of s. G.
Bassett, deputy state food commission sr.
The case was first called before Justice
Bryce Crawford, who found the Paxton &
Gallagher company guilty and imposed a
fine of $40. The suit was appealed ard
called yesterday morning, with jury waived.
Judge Baxter heard the arguments and
took the case under advisement.
DIN Raised by Defense.
Attorney Mahoney has assailed the pure
food law on a technicality, but one that
the Judge considered of sufficient impor-
lance to warrant careful judicial consideTa-
ton, as the case is certain to be appealed
tosthe supreme court whichever way he may
decide.
The pure food act of the Nebraska legis-
lature's creation in 1899 was entitled, IAN
act in the regulation OF the manufacture
and sale of foods, including imitation butter
and imitation cheese and dairy products
But in the body of the act there is added to
these words the further stipulation, "cider
or vinegar" and or this Attorney Mahoney
raises his contention OF the invalidity OF
the act, asserting that the title does not, as
is required by law, comprehend all subjects
included in the body Of the act. In other
words, that the failure Of the Trainer of
the bill to include in the title the words
"cider or vinegar" used in the body of the
act, invalidates the act itself in that par
%ticular, and of course in all particulars.
Prosecuting Attorney Talks.
Deputy County Attorney Magney says: 81
contend that the word foods in the title is
sufficient to cover the cider or vinegar
clause In the body of the act, but the Judge
was not ready to agree with me, and : do
not know how we are coming out in this
court on this contention. But the case is
certain to go higher, as Mr.. Mahoney
brought up other points In his argument
this morning
Under the food commission act of 1899
the governor as state food commissioner is
empowered to appoint a deputy who, in
turn, appoints a number OF clerks or assist
ants. Merrill. a dairyman OF Clay county.
who refused to take out a permit, when
prosecuted fought the case on the ground
that the act was void because It created a
new state office, which the constitution for
bids, and upon the further ground hat In
providing for a commission and an appro-
priation 1t included two matters in one
title, which also is forbidden.
Supreme Court Decision.
o July 10, last, the Nebraska supreme
court sustained the law, Affirming that a
deputy for the food commissioner was not
a new state %of1cer, and that the appropria-
tton was merely to enable the CARRYING out
OF the provisions OF the commission act.
Attorney Mahoney revived these conten-
tions this morning, but Judge Baxter an
nounced that he would follow the decision
OF the supreme court, regardless of his in
dividual opinion.
1t is only the wholesalers who are in
volved. The requirement doesn't apply
to anyone selling less than nifty barrels per
var. AThose selling that number or more
have ' take out a yearly permit, which
costs $50. 1t is, l presume. to avoid future
payments of this amount that the vinegar
wholesalers OF the state have combined
In the present effort to successfully de-
fend Paxton G. Gallagher. II they sue
coed, 1t seems to me the whole pure food