Commissioner of Agriculture. 59 



ing the public health in prohibiting the sale of wholesome milk. 

 In that case there was no foreign substance in the dairy prod- 

 uct, it simply fell below the arbitrary standard. The dissenting 

 opinion, which was made the opinion of this court, says: 



" How is unwholesomeness to be determined. The court can- 

 not take judicial notice whether milk below a standard is or is 

 not unwholesome. Is it for the jury? If so the court must charge 

 the jury in each case that if they find milk below that standard 

 to be unwholesome, then the statute is constitutional; if they 

 find it to be wholesome, then the statute is unconstitutional. A 

 constitutional question cannot be settled or rather unsettled in 

 that way. It would vary with the varying judgment of juries." 



" If the Legislature may fix a standard, they must judge 

 whether or not milk below that standard is wholesome. The 

 courts cannot review that judgment." 



" It cannot even be material to the present question whether 

 milk below the standard fixed by the State is or is not whole- 

 some, the question is whether the Legislature can establish a 

 standard of purity." 



Section 13 of the old law being section 20 of the Law of 1893, 



continued in its definitions of what the term adulterated milk 



means down to and inclusive of the following subdivision: 



" Milk which has been diluted with water or any other fluid 

 or to which has been added or into which has been introduced 

 any foreign substance whatever." 



Of this section and of this subdivision this court said in that 

 case: 



" The examination of the present law clearly shows that it 

 relates to and is appropriate to promote the public health. 

 Whether its details are wise we do not know, but its object is 

 evident and is good." 



" There is nothing in the present law which has any other 

 result in view than the public health. No large manufacturers 

 are to be protected against the competition of a single work- 

 man. No other intention can be gathered from the law, plainly 

 none other existed and in view of the difficulties which surround 



