143 Mass. 418 | Mass. | 1887
The offence of selling, or of having in one’s possession with intent to sell, milk “not of good standard quality” was created by the St. of 1886, c. 818, § 2. The quality required by the statute for the months of May and June is different from that for the rest of the year, and this distinction relates to the time when the milk is sold or kept in possession with intent to sell, and not to the time when the milk is obtained from the cow. As this complaint alleges that, on the first day of July, 1886, the defendant had in his possession “ one pint of milk not of good standard quality, that is to say, milk containing less than thirteen per cent of milk solids, with intent then and there unlawfully to sell the same within this Commonwealth,” it charges an offence within the statute. It is not necessary in the complaint to negative the exception of the months of May and June,
The defendant contends that the St. of 1886, e. 318, § 2, is inoperative, because it purports to be an amendment of the Pub. Sts. e. 57, §§ 5, 9, and he says that said § 9 was repealed by the St. of 1885, e. 352, § 6. The argument is that an amendment of a repealed statute is a nullity. By the St. of 1885, c. 352, § 6, “ Section nine of chapter fifty-seven of the Public Statutes is hereby amended so as to read as follows,” &c.; and by the St. of 1886, e. 318, § 2, “ Section nine of chapter fifty-seven of the Public Statutes is hereby amended so as to read as follows,” &c.; and in each case there follows a sentence which covers the whole subject of the original section and may well be held to have impliedly repealed the preceding provisions. The intention of the Legislature is plain, that, after the St. of 1885, o. 352, took effect, instead of the Pub. Sts. c. 57, § 9, the sixth section of the St. of 1885, o. 352, should be in force; and that, after the St. of 1886, c. 318, took effect, § 2 of this statute should be in force, instead of § 6 of the St. of 1885, e. 352. The sections in each statute are complete in themselves, and, being substitutes for each other, stand like independent enactments. The only defect in the statute is that the St. of 1886, e. 318, § 2, refers to the Pub. Sts. c. 57, § 9, and not to this section as amended; but the intention is evident.
The remaining exception is to the admission of evidence of the analysis of the milk. The objection is, that “the chemist did not reserve a portion of the sample for the defendant, as provided in the St. of 1884, o. 310, § 4, until about two hours after commencing the analysis.” The inspector, at the time he took the sample, delivered to the defendant a portion of the sample taken, in accordance with the St. of 1886, c. 318, §§ 1, 3. We are of opinion that the St. of 1884, e. 310, § 4, is impliedly repealed by the St. of 1886, e. 318, §§ 1, 3. The Pub. Sts. o. 57, § 2, provided for the taking of specimens of milk, the analysis of the milk, and that a certificate of the result sworn to by the analyst should be admissible as evidence, but it did not require that any portion of the sample of milk taken should be delivered to the person from whom it was taken. This section of the Public Statutes was amended by the St. of 1884, c. 310, § 3, which was
Exceptions overruled.