struction of food products or their use for other than food purposes. Statutes intended to encourage food production, or to prevent the limitation of such production, are not within its scope. Nor are fish and game laws establishing closed seasons, or limiting the catch or bag that may be taken, included, even though the basis of such laws may be the preservation of a source of food supply, except so far as they contain provisions forbidding or limiting the use of fish or game taken otherwise than as food. Statutes relating to the pollution of streams or other bodies of water, and the consequent destruction of food fish, are also excluded.

II. In general.

So far as an extended search has revealed, the only recent statute for the prevention of waste of food products in general which has been brought to the attention of the court is the so-called Lever Act (Act of August 10, 1917, amended October 22, 1919), enacted during the World War. Extended annotations of the decisions relating to this act, which of course cover a much broader field than the subject of this annotation, will be found in 11 A.L.R. 1265, and 14 A.L.R. 1059.

Armstrong

In United States V. (1920) 265 Fed. 683, it was held that the provision of the Lever Act making it unlawful for any person wilfully to destroy any necessaries for the purpose of enhancing the price or restricting the supply thereof, or knowingly to commit waste, or wilfully to permit preventable deterioration of any necessaries in or in connection with their production, manufacture, or distribution, and providing that any person carrying on or employed in interstate or foreign commerce in any articles suitable for human food who should destroy or make away with any such article for

the purpose of limiting the supply thereof to the public, or affecting the market price thereof in such commerce, should be deemed guilty of a felony, but exempting farmers, gardeners, co-operative societies, etc., from the operation of these provisions, was held to be in violation of the due process clause of the Federal Constitution, since the classification thus made was arbitrary, and not natural or reasonable. It was further held that the provision in the original statute, making it unlawful to destroy necessaries or commit waste, which did not contain the objectionable exception, but from which any penalty was omitted, could not, on account of such omission, be made the basis of a criminal charge.

In Baird v. United States (1922) 279 Fed. 509, a conviction of a violation of the provision of the Lever Act forbidding the use of foods in the production of distilled spirts was sustained, the court holding that the validity of this provision was not affected by the fact that the United States Supreme Court had previously declared unconstitutional another section of the Lever Act relating to price fixing.

Attention may also be called in this connection to Evansville Brewing Asso. v. Winona Malting Co. (1921) 221 Ill. App. 98, where it was held that the United States Food Administration Act applied to dealings between a maltster and a brewer for the sale and delivery of malt during 1918, while the United States was engaged in the World War, so as to subject it to the rules and regulations. prescribed by the food administrator, which, among other things, prohibited persons licensed to deal in malt from malting after July 1, 1918, any grain produced in 1917.

In Ingram v. State (1864) 39 Ala. 247, 84 Am. Dec. 782, an Alabama statute enacted during the Civil War, providing that, "for the purpose of suppressing the evils resulting from the distillation of grain, as it hath heretofore been carried on, of securing the proper police of the country, and of promoting the common defense and

general welfare, it shall not be lawful for any person, during the existing war, to distill, or convert into spirituous or intoxicating liquor, any grain, or the product of any grain, unless hereafter employed or authorized by the governor to do so;" and further providing that the governor should make rules and regulations, etc., for the making and disposal of such alcohol and spirituous liquors as in his judgment might be consistent with the common defense and general welfare,-was sustained as against the contentions that it deprived the citizen of his property without due course of law, and that it transferred legislative power to the governor. With reference to the first contention, the court said: "The act does not comtemplate a seizure of the property, or any direct appropriation of it, or dispossession of the owner. It does not affect the owner's title, or his right of possession, or even his right to use, except in a particular mode, and for a specified purpose. In every well-ordered state, property is held subject to the tacit condition that it shall not be so used as to injure the equal rights of others or the interest of the community. Such injurious uses of property may be prevented by such regulations and restraints as the legislature may think proper to impose; and, in the establishment of these, the only limits to the legislative authority which we can recognize are those which are declared by the written fundamental law. It seems a solecism to say that a law which prohibits a single specific use of property, because such use is supposed by the lawmaking power to be injurious to the public welfare, but which does not disturb the owner's title to, or possession of, or right to use, such property in any other mode than the single one prohibited, does, in the sense of the Constitution, deprive the owner of his property, without due course of law. It would be singular, indeed, if in a season of general scarcity, or in the midst of a war involving the life of the state, the legislature had no power to prevent or limit the conver

sion of grain, the chief food of man and the domestic animals, into spirituous liquor. In the circumstances supposed, the unlimited right of all persons to make this particular use of the property in question might work incalculable injury to the country, by increasing the scarcity of food among the people, and by diminishing the ability of the government to subsist the armies necessary for successful defense against foreign invasion; to say nothing of the pernicious influence upon public morality and the discipline of armies likely to result from the multiplication of distilleries, and an excessive supply of intoxicating liquors."

Upon the second contention, the court said: "The objection that the act is invalid because it transfers legislative power to the governor is not well taken. The governor is simply the agent appointed by the legislature to carry out the provisions of the law. He is, it is true, intrusted with a large discretion in the exercise of the powers conferred upon him; but we are unable to see upon what principle this feature of the law can be held to invalidate it."

III. Fish.

The California statute designed to prevent the waste of food fish and in particular their use for reduction purposes, except pursuant to and within the limits of a permit issued by the fish and game commission, the constitutionality and construction of of which is considered at length in the reported case (PEOPLE v. MONTEREY FISH PRODUCTS CO. ante. 11861, was also involved in People v. Stafford Packing Co. (1924) 193 Cal. 719. 227 Pac. 485. The constitutionality of the statute does not seem to have been questioned in that case, as it is stated that the appellant conceded that the general right and ownership of fish is in the people of the state, and that the state has the right to regulate and control the taking and disposition thereof. This case was an appes: from an order granting an injunction pendente lite restraining the defendant from using in a reduction plant

for the manufacture of fish meal, fish oil, and fertilizer more than 25 per cent of all sardines received by it while actually engaged in the canning, packing, and preserving of sardines for human consumption; the contention being that the defendant should have been permitted to use in its reduction plant 25 per cent of all the sardines which its plant was capable of canning, packing, or preserving for human food. The statute in question, after forbidding generally the use of fish for human consumption for reduction purposes, provided that the fish and game commission might issue a permit granting the privilege to use in a reduction plant during a calendar month an amount of said fish not to exceed 25 per cent of the amount the applicant could pack or preserve for human food during a calendar month. The court took the view that this provision merely fixed a maximum amount beyond which the commission could not go in granting its permit to use food fish for reduction purposes, but that it was within the discretion of the commission to fix a lesser amount, and in particular to fix such amount at 25 per cent of the sardines actually received as had been done in that case and, therefore, affirmed the order granting the injunction.

Alaska Packers' Asso. v. United States (1917) 157 C. C. A. 158, 244 Fed. 710, involved a statute making it "unlawful for any person, company, or corporation wantonly to waste or destroy salmon or other food fishes taken or caught in any of the waters of Alaska." It was held that the word "wanton" as used in the statute included all wilful acts or conduct which was reckless of the consequences that might ensue therefrom; and the conviction of the plaintiff in error for violation of the statute, upon

proof that it had failed to call for and remove salmon caught by fishermen employed by it, thereby rendering it necessary to dump them, was affirmed. No question seems to have been raised as to the constitutionality of the statute.

In Chambers Bros. v. Church (1884) 14 R. I. 398, 51 Am. Rep. 410, a Virginia statute making unlawful the manufacture of oil and the taking of fish for that purpose by nonresidents in any of the waters of the state was held to be constitutional as against a charge that it was a discrimination against citizens of other states, inasmuch as it deprived them of privileges permitted to citizens of Virginia, the court saying: "The provision relating to the manufacture of fish oil and manure, in this statute, might, if it stood alone, come within the doctrine as to restrictions upon trade and business. But it does not. It is a part of the same section which forbids the taking of fish for the purpose of grinding into oil or manure, and is in aid of the latter provision to prevent its evasion.. It only forbids the grinding of fish taken in the waters of the state. object of the law is not to deprive citizens of other states of the right to do business in Virginia, but to protect the fisheries from depletion. The statute is evidently directed against the conversion of fish into merchandise, to be sent abroad, for other uses than food. For their own agriculture it may be necessary to allow citizens to take fish for manure. Indeed, this very section gives to nonresidents, owning lands in the state, the same rights as residents to take and grind fish 'for improving and manuring their said lands. To allow others, however, to engage in that business, to scatter its products, would be quite a different thing." M. A. L.

The