254 BOARD OF AGRICULTURE. [Pub. Doc. 



It was a question of fact, then, whether the defendant had in his 

 possession, with intent to sell, packages of oleomargarine not marked 



as required by cur statutes. The exceptions recite that " the tub 

 in question was not on the date of the offence alleged in the com- 

 plaint exposed for sale, nor was it so situated that it could be seen 

 by customers of the defendant ; " and that " it also appeared from 

 the evidence that the defendant had bought said package for the 

 purpose and with the intention of selling the said oleomargarine 

 contained therein at retail in said store, but that he did not intend 

 to sell the oleomargarine contained in this tub, or expose the same 

 for sale until the marks had been examined, and if not marked in 

 accordance with law to mark the tub before opening the same." 

 Taking these facts to be true, we are of opinion that the jury 

 were not warranted in finding the defendant guilty. They show 

 that the defendant had no intention of selling ttfe oleomargarine 

 in the form which it was in, but was storing it with the intention 

 of properly marking the package, if it was not already properly 

 marked, before he offered the oleomargarine for sale or intended 

 to sell it. Under complaints for keeping intoxicating liquor with 

 intent unlawfully to sell it, the intent is a question of fact to be 

 proved (Commonwealth v. Ham, 150 Mass. 122) ; but because of 

 the absolute prohibition against selling without a license, the intent 

 to sell may be often inferred from facts which would not warrant 

 the inference of an intent to sell other merchandise in the form in 

 which it was found, when defendant had a right to sell it if it was 

 properly marked, and had the right to so mark it after receiving it 

 and before he exposed it for sale or intended to sell it. Common- 

 wealth V. Mills, Bristol, ss., November, 1892, 157 Mass. 405.) 



The only contention iiiade in the argument before this court on 

 the motion to quash the complaint is that the complaint should 

 have been made by an inspector of milk or by the treasurer of the 

 town in which the offence was committed. The Legislature has 

 prohibited unqualifiedly the sale, exposing for sale, or having in 

 possession with intent to sell, oleomargarine, except under certain 

 conditions ; and it is to be presumed that it has done this to pro- 

 mote the welfare generally of the inhabitants of the Common- 

 Avealth. (See Statute of 1890, chapter 440, section 57 ; Statute of 

 1890, chapter 416, section 1.) But it is not to be inferred that 

 the Legislature, merely by making it the duty of certain officers, 

 to enforce penal laws of general application, intended that the 

 enforcement should be dependent upon the discretion of these 

 officers. The motion to quash the complaint Avas rightly over- 

 ruled. (Commonwealth v. McDonnell, Bristol, ss., November, 

 1892, 157 Mass. 407.) 



