The subjects of section 5 of the act of May 9, 1902, c. 784, 32 Stat. 196 [U. S. Comp. St. Supp. 1903, p. 269], are clearly “process or renovated butter,” and the marking and branding thereof, prior to transportation. It is equally clear that the purposes of the section are to provide for the sanitary inspection of such butter at the place of manufacture, and to take every precaution in order that none shall be shipped from the factory which can in any way be injurious to the health of the consumer.
The acts of August 30, 1890, and March 3, 1891, cc. 839, 555, 26 Stat. 414, 1089 [U. S. Comp. St. 1901, pp. 3185, 3189], as amended March 2, 1895, c. 169, 28 Stat. 727, so far as they touch upon these subjects and purposes, are ingrafted into section 5 of act of 1902, and all rules and regulations adopted by the Secretary of Agriculture, which are calculated to carry such subjects and purposes into full effect, have all the force of the statute itself. Other portions of the act in question may gain their efficacy from the taxing clause of the Constitution, but section 5 goes to the commerce clause as the fountain whence its vigor springs.
It is idle to discuss whether or not the tub of butter, when it reaches the wholesaler, is still ah article of interstate commerce.
Our crucial question is this: Does a rule or regulation forbidding the obliteration of the brand, as charged, tend in any manner to aid in the enforcement of strict sanitary inspection and care, ■ or, if it pleases the inquirer, in the collection of the tax thereon? It is my opinion that the rule was of no value in either regard; it was, on the contrary, calculated to prevent fraud and subterfuge on the part of the dealer in his relations with the consumer. I do not decide that Congress has no power to take up that matter. I am content to say that in section 5 no such action was taken, nor was any attempt made *627to do so. Beyond all this, if the Congress did intend to take such a step it signally failed in its effort.
It would be necessary to read into section 5, not only the general provisions of the acts relating to the inspection of meats and carcasses, but also the definite penalty inflicted for an infraction of the former laws, in a situation analogous to that which the Secretary of Agriculture attempts to provide for in his rules and regulations under this act. Such action is not permissible, either on strict legal principles • or upon the basis of fair dealing with the individual citizen. It follows from what I have said that the statute in question affords no warrant for the information which the learned District Attorney seeks to found upon it. The demurrer is sustained.
Let the information be dismissed.