WHAT IS FRESH MILK?

Dominion, Volume 10, Issue 3058, 20 April 1917, Page 10

WHAT IS FRESH MILK?

AN IMPORTANT JUDGMENT MILK-VENDOR'S APPEAU DISMISSED. His Honour Mr. Justice • Chapman delivered an important judgment iu tho Supromo Court yesterday. Tho case was an appeal on a queston of law by Francis Edward Green, a milk vendor, who was convicted by Mr. D. G. A. Cooper, S.M., of an offence against the regulations of March 4,-1913, made mi' dor the Salo of Food and Drugs Act, 1008. The information charged tho appellant witli having' sold to the respondent certain adulterated food, to wit, milk, tho said milk being fresh as required by Regulation 12, Part 11, of tho "Regulations, without fully informing tho purchaser at tho time of tho salo of the nature of tho. adu Iteration. His Honour gave judgment as follows:—It was not suggested that tho milk sold was adulterated in any vicious sense, hut fori this purpose tho inspector (now -respondent) is entitled to rely on Section 15 (d) of tho Act, which treats as adulterated all food which does not comply with the standard ..proscribed, by tho - -Regulations. There was -no: dispute about tho sale, arid the respondent had complied with all the statutory conditions required of an inspector. The'milk, winch must be taken to havo been sold _as fresh milk, had, however, been produced the day before the sale, and, as in tho opinion of tho Magistrate, the word "fresh" as used by the regulations excludes such milk, and describes "mill? lately produced and not deteriorated or changed bv the Inpsoiof time, in other words, not stale," he found as a. fact that taking this interpretation of the regulation ; tho milk in question was not fresh. His interpretation is challenged by counsel for■-tho .appellant. There was a further defence raised, namely, that the appellant's sou, who may bo taken to have renresented appellant,- told the respondent at . tho time of ..tho purchase that the milk had come from Mangaroa. The respondent admitted this, and further admitted, that ho know front this statement that tho milk must havo been milked the previous afternoon. Thero' are therefore three questions for decision. As;to the first, . Mr, Myers, argues that thero cannot he a conviction in the absonce of a ■ regulation prescribing a. standard whereby seller's' may' rcgulato their conduct in selling food. '. ■ Section 27 ■ (1). (a) empowers tho Governor . to' make, regulations inter alia prescribing tho standard of • strength, weight, • quality— here wo only have to do with quality— of any 1 food. T think that tho answer to this, objection, must that the standard has: been., prescribed iu tho definition of milk in.Regulation.No. 12, which professes to. give the t "standard, for milk." This regulation declares that,."Milk shall be the normal, clean, and frcsli'secretion obtained by completely' emptying'.-tho-. udder of the healthy cow properly fed and kept, excluding that got during.seven days immediately following on .'Parturition. It shall contain not less than eight and five-tenths parts, per centum of .milk —solids other than milk-fat. It shall not contain any added water nor. any foreign substance." Hero aro several elements or qualities which have to he present, described' in nopular language. "One of the .au&liticg required of-milk is that'it. shall, be fresh. This .assumes,that sellers know what that

term means witlio'ufc.•'.further proscriptifiii. Several. fttlipr qualities arc expressed or implied in tho 'regulation, quoted. I see no reason to doubt, that those, who drew im .the reEiilatioif put forward-the definition, iri this form because'-, thoy- were lisitiß; lenown terms, and it would have heeu -practically useless to have expressed tho standard in any other- way. ' To have givenJthc numher of hours 'that it took to cause milk.to. pass from' the'Ophditioin to he called fresh to a, condition., that could uot '.properly 'ho called fresh. : might have produced a' hide-hound rule ' working more harm than pood. A popular term is used, and it is a question of fact for a Magistrate whether- tho particular parcel is fresh or not, and T cannot review the Magistrate's, decision ,so far'as it l ;is based,on a question of fact, . Then I af asked -to say : that tho Magistrate has erroneously interpreted tho word "fresh" that it ,is _ not intended to express the antithesis of old or stale, hut that it is used to describe milk which has been altered by somo process' ill thc : paturo of a process of lnamifacture. Counsel in support of'this argument-referred.to various- terms in the regulations such i's "condensed ' or■-..; eoncentrated milk," "skim or separated milk,", "dried inilk,";. as describing, forms of milk,, that is. to say. other kinds of food' derived from milk to bo contrasted with fresh milk. The.'full description of milk given in Bogulation_l2 .appears to mb to negativo . this "suggestion. ■That -description shows', the 'qualities ■ that milk in, the ordinary' senso must have,-, .and ■' it goes, on : to' show, those which•■ it must not ;have. That.: description excludes qualities_ that are given to milk by addition or substraotion in tho'eourso of manufacture not by means of their antithesis to "fresh," but by. means of tho detailed definition itself. 'Fresh then must mean what an ordinary householder would consider that." it nleaut..'lt has no direct connection with the question, whether it is!wholesome,' but, if milk, will ordinarily keep for a,' given/timo, Bay, .twenty hours after milking, it is evident that a person who thinks he is buying fresh milk is not,. front his own point of view, getting what he thinks ho is buying if, by reason of its ago, it will only keep half that time' The one is fresh milk and tho other is not fresh milk, whatever; it may bo called. . I think that the buyer purchasing milk without more at some time of the day between milking hours and knowing that it is understood thatho is to have fresh milk : is entitled to get that morning's milk, othorwiso'.,ho, is given something that he did not intend to buy.

This' decision can harm no one, ;the .dealer-lias only to say: "We'-have'no morning's milk; this-is last night's," and lie will'.l)6 understood. Then it is argued that'tho appellant, through :his son, has complied "with "the requirement of Section 12 in "fully informing tho purchaser, at the time of tho sale of tho nature of the adulteration 1 '; in other -words, informing him that the milk was yesterday's milk. Tim ground for this argument is that ;tho respondent knew where Mangaroa was,- aud.knew how the trains carrying imilk, ran, and,'therefore, was fully in-formed-—it may ho said informed himself that this was uot fresh milk. I cannot assent to this argument. . . . A dozen children might' have come as messengers to huy milk, and have heen told, that it came from Mangaroa, which would have given them no clue to its age, hut this inspector happened to know where Mangaroa wus i and to know further that owing to its position tho milk must havo been produced tho day hoforn. .Tho statute says that the information must como from the seller himself to avail him as a: defence, and I am'obliged, and indood I am quite content, to. rely on tho statute which has made no exception, dependent on tho accidental knowledge or the means of estimating distiinco and time possessed hy the purchaser. ./ ■■■ The appeal is dismissed with costs £6 6s. At the hcarinc of- the appeal. Mr. M. Myers appeared for the appellant, and Mr. A'. Ij. Meredith for the re : , suoiulenl.