The Washington herald., 1908-06-04

That the health department OF the Dis
trict has no legal right to examine or
analyze milk for the purpose Of prose-
cution. was the decision rendered in the
Police Court yesterday b. Judge Null
lowry.
The decision came as a surprise 10 the
officials of the health department, who
were assembled to appear against William
f. Burns, charged with selling adulterated
milk. The same charge had been tried
In the Police Court Of the District for
several years, and in each case the de-
PENDANT was sentenced to pay a fine or
forfeit collateral
Yesterday three defendants had for
feited collateral and left the court when
Attorney Charles w. narr. appearing in
defense Of w. F. Burns, advanced an
argument that was well taken by the
judge and incidentally forced him 10 give
a decision that makes the local milk stu
alton peculiarly complex until the case is
settled by higher court.
Acting under the provisions OF an act
OF Congress Of February Il. 1895, which
gives the health department the right 10
prosecute dealers for selling impure food
stuffs. r. l.. Lynch. chemist OF the health
department. appeared against Burns and
charged him with selling impure milk.
Not According to 1906 LAW.
When he had finished his charge. At
torney Darr asked II he had acted in &C
cordance with the pure food law OF June
30. 1906. and submitted the milk pur-
chased from Burns 10 the Agricultural
Department for analysis. Mr. Lynch re-
piled in the negative.
Mr.. Darr then addressed the Judge, and
read Section 4 Of the pure food and
drug" law. which says the Department Of
Agriculture alone has the right to ex-
anime foods or drugs for the purpose of
determining whether they are adulterated.
He contended that the pure food act re-
pealed the act of 1S9S, under which the
health Office has been convicting milk
dealers for several years
In unfolding the point advanced by the
attorney. Judge Mullowny dismissed the
case. and said he would continue 10 dis
miss all similar cases brought by the
health department
Under the pure food act. all prosecu-
must be heard IN the District branch Of
the Supreme Court, and must be brought
by the district attorney. acting under
instructions from the Agricultural De-
partment.
Old Act Invalid, Says Judge.
Il contend that these two acts are 90
antagonistic they cannot stand, and it is
my conviction that Congress intended the
latter act to repeal the act of 1898" said
the judge. Il now instruct the prose
cutting attorney to prepare a bill Of ex-
ceptlons for presentation 20 the Court of
Appeals to decide this matter finally"
When seen last night Judge Mullowny
said he regretted the point was made at
the present time, since the Court of APP
peals will not be able to consider the
case until the fan. thus leaving the way
clear for recalcitrant dealers to avoid
prosecution.
He said the health department and the
Agricultural Department were both striv-
ing for the same end. but the latter was
seriously handicapped, because OF the lit
tie appropriation made by Congress to
carry on the work of inspecting milk
during the summer.
Charles w. Darr last night said his
client had been in the grocery business
more than twelve years, and during that
time had had the milk sold by him ex-
amlned more than 100 times. and in each
case found It 20 be pure Mr. Darr con-
strued the pure fod law TO mean that
the District health officials are incom-
petent 10 analyze food products.