SENTENCE. 269 



York; that it was ever published as required by law, and that, so 

 far as the indictment is concerned and the proof given thereunder, 

 there are two ordinances bearing upon this question ; one is section 

 45 of the sanitary code, and the other section 186. I think that 

 is all the grounds I desire entered on the record ; also upon the 

 ground I should say this and that presented another question of 

 law that the Board of Health of the Health Department of the 

 city of New York have no power to pass either ordinances section 

 45 or section 186, they being in conflict with the act of 1864. 



The COUKT That is not a ground in moving an arrest of judg- 

 ment, because it does not appear on the face of the indictment ; no 

 matter ; you have got it on the record. 



Mr. WAEHNEB Your Honor denies my motion and note an ex- 

 ception. 



The COUET Yes, sir. 



The defendant was asked the usual questions before sentence 

 was passed. 



Mr. WAEHNEB As far as punishment is concerned, there is 

 nothing vindictive about this. 



The COUBT I do not think it can be said there is any evidence 

 that you knew that the milk that you are charged with keeping as 

 watered milk was watered, but in view of the very great importance 

 of the questions which have been discussed on this trial, which I 

 may say was involved in the question whether you should be con- 

 victed or not, I think, I ought to pass a sentence which would 

 satisfy you and your friends that it is best not to come here to be 

 tried. I never have tried a more important question in the view I 

 take of it than the question of your guilt. It would seem at first, 

 however, it was rather a harsh law that you should be convicted of 

 keeping watered milk when you did not know it was watered, but 

 I can see plainly that unless that law can be enforced I do not see 

 how the Board of Health is going to protect the public against 

 watered milk. The idea, considering the quantity of milk that 

 comes to this city, that they must resort to analysis and have a 

 skillful chemist to analyze the milk would be very impracticable it 

 appears to me. There are any number of acts of Parliament where 

 the British subject is absolutely prohibited from keeping a certain 

 article, and in a case which I read it was very learnedly discussed 



