96 Ninth Annual Report of the 



The reason why the fine provided for in the last sentence of 

 section 37 declaring a violation a misdemeanor was larger than 

 the fine provided for in the first sentence, is that the first clause 

 is expressly limited to the fine for each violation; thereafter 

 there is a clause stating that the same act may constitute two or 

 more violations, as, for instance, the manufacture or the sale 

 or exposure for sale for several consecutive days. All of these 

 can be covered in one criminal action, for each of which viola- 

 tions, however, no greater financial penalty can be imposed than 

 the amount prescribed by the first sentence of section 37. 



That it was the intention of the Legislature to make the vio- 

 lations punishable criminally, and not civilly, is further demon- 

 strated by the fact that there is no provision as to who should 

 fix the amount of the penalty. 



That is no unintentional omission for the universal rule in 

 criminal actions as laid down by section 12 of the Penal Code is 

 that the penalty in such actions is to be fixed by the court. As 

 to civil actions there is no such provision. If the court should 

 construe the section as authorizing civil actions, section 37 

 would be entirely ineffective, because there is no machinery of 

 law provided to fix this penalty. There is nothing authorizing 

 either the court or the jury to do so. In this respect the act 

 would be entirely defective and void, because incomplete and 

 unenforcible. 



Finally, it is to be noted that by the amendment of 1901, chap- 

 ter 656, the Legislature has provided the same penalty in the 

 first clause as in the last, and has again made a similar chauge 

 in the first as in the last amendment, showing clearly that it 

 was the intention to make these two portions of the same section 

 co-relative, and to have the first clause prescribe the penalty 

 which might be recovered by the criminal action provided for 

 by the last. 



Xo claim can be made by the learned counsel for the people 

 that section 37 authorizes the people to maintain but one action 

 and to elect whether such action shall be a criminal or a penal 

 one. There is nothing in the act which states that one action 



