The Birmingham age-herald., 1907-07-27
DARBY GUILTY OF
 SELLING BAD MILK
But Judge Thinks He Should
 Have Been Warned
SAYS OFFICIALS LAID TRAP
Nominal Fine Assessed on Two Counts and Defense Announces Appeal to Higher Courts-Dairymen
 Should Be Aided,

N. (. Darby, who has been on trial be- fore Judge N. B. Feagin for over two weeks on a charge of selling milk of d quality which was "calculated to have been Injurious to the health of citizens was adjudged guilty on the charge yes terday morning at II o'clock and fined S5. MT. Darby is, it will be remembered, the proprietor of the Glen Iris Dairy Depot, which was closed on an order from Mayor Ward on July 12 on account of the high bacteriological counts which tests of the milk showed. Notice of ,ln appeal was given by MT. Darby's coun- sel
 In rendering his opiniong, Judge Tea gin stated that as far as the Glen Iris Dairy Depot having sold milk which was injurious to the general good health of Its patrons was concerned, no evidence was introduced to prove this point. as tests of the milk taken by the city milk inspector did not definitely show that the milk being sold contained pathogenie bae- teria. Hence he Exchanged the defendant on this specific charge of the affidavit
 Judge Feagin also brought out the fa et that Mir. Darby might have been, and probably was, unaware of the fact that he was selling milk which WIS below the standard set by law. He emphasized the fact that 1t required an expert with sclen- tfc tests to ascertain whether or not the milk being sold was up to the standard, and stated that the health department of tho city waited for the people to get caught In a trap by using milk which showed an abnormal meteorological count He added that the department should aid the citizens in conforming to law" instead of letting the matter run on until the place had to be closed up.
 The defendant was found guilty of two counts of the affidavit, and not guilty in one other.
 In handing down his decision, Judge Feagln stated:
 'If the department, after learning that the milk sold by MT. Darby contained a large bacteria count had reported tine matter to him, l believe that remedy would have been applied immediately. It was shown that milk of high bacteria had been sold by the Glen Iris Dairy Dtpol pltNlOuS lO lllt dtllOIl ldhtil dBdlIaSt Mr. Darby by the health department.
 "The warrant against the defendant contains two counts, one for violating sub- division of section 3S5, which reads: No milk shall be sold or offered for sale containing as much as 5O0,000 bacteria per cubic centimeter. According to uncontra- dicted evidence 1t was shown that at one time the milk sold by the defendant con tained as high as 29,OOO.OOO bacteria to the cubic centlmeter. l find the defend- ant guilty on this count.
 "The next count is for violating SOC ton 596 which, reads: No persons or per son shall be allowed to carry on busi- ness which is calculated to injure the health or comfort of the citizens.
 According to the testimony of thiee experts who testified in the case 1t was their belief that milk was the best propa- gator of typhoid fever germs. It was shown that several dry closets were locat- ed near the Glen Iris Dairy Depot, that the cans on one occasion were found to contain some sediment on the bottom and in the jambs. These three experts testi- fled that in their opinion the fever was caused from infected milk.
 "The law contains the word calculated. and 1 think under this section the de- fendant is guilty.
 Ut was shown, however, that fever ex- isted independent of milk contamination. I fine the defendant $25 for this reason. believe tine law holds the dealer In ml.lS up very carefully. The law provides taat the penalty in such cases shall not be less than BIO or more than $l00, and six months hard labor, one or both.
 'If the city health department, whose duty it Is to inquire into such conditions had taken a report of their findings to the defendant the whole matter might have been avoided. The department however waitd for the citizens to get in trap ana then violations were caught. The depart ment should aid citizens in upholding the law Condition of the milk should have been told to the proprietor of the place and he no doubt would have remedicd same"