(concurring specially) : My own present views of the matter are these:
Regulation No. 30 of the board of health is invalid as an attempt to exercise purely legislative power— in effect to amend a statute.
The legislature may forbid the sale of an article of food which falls below a standard to be fixed by the board of health, but it has not done so.
A regulation or order defining milk as an article containing a certain percentage of milk fat is in a sense violated by selling, or producing, or using an article containing a less percentage; but to declare such a definition does not in terms forbid the sale of an article not conforming to it, and does not imply such a prohibition with the clearness to be expected in a law creating a public offense, which must be subjected to some strictness of interpretation. Therefore the statutes and regulations quoted in the opinion of the court do not support the information.
Moreover a statute enacted in 1909 seems to deal directly with the matter, reading thus :
“Whosoever shall sell . . . milk . . . that shall not comply with the standards hereinafter provided, shall be guilty of a misdemeanor.” (Gen. Stat. 1909, § 8743.)
A section of the same act fixes a standard requiring milk to contain three and one-fourth per cent of butter fat. (Gen. Stat. 1909, § 8747.) The information states facts sufficient to constitute an offense under this statute if, as I understand to be the case, the terms “milk fat” and “butter fat” are synonymous.