THE CASE OF 
 
 STATE 
 
 vs. 
 
 SNYDER 
 
 O 
 
 UPHOLDING THE CONSTITUTIONALITY AND LE- 
 GALITY OF THE PURE FOOD AND DRUG LAW 
 OF THE STATE OF LOUISIANA AND OF THE 
 SANITARY CODE OF THE STATE OF LOUISIANA 
 AS FORMULATED AND PROMULGATED BY THE 
 LOUISIANA STATE BOARD OF HEALTH, BY AND 
 UNDER AUTHORITY OF ARTICLES 296 AND 297 
 OF THE CONSTITUTION OF THE STATE OF LOU- 
 ISIANA AND ACT 192 OF 1898, ACT 44 OF 1900, 
 ACT 150 OF 1902, ACT 184 OF 1904 AND ACT 98 
 OF 1906. 
 
 o 
 
 PUBLISHED BY 
 
 Louisiana State Board of Health 
 
 19 12 
 
Y_^ c 
 
 INDEX. 
 
 Preface 3 
 
 Issues Involved. The Board’s brief in the Supreme Court 
 of Louisiana 5 
 
 The Facts. The Board’s brief in the Criminal District 
 Court, Parish of Orleans 11 
 
 Judge Frank D. Chretien’s opinion and judgment 30 
 
 The Opinion and Decree of the Supreme Court of Louisiana 50 
 
 The Board’s brief on rehearing in the Supreme Court 53 
 
 Rehearing refused 55 
 
 PRINTED FOR THE INFORMATION AND GUIDANCE 
 OF HEALTH OFFICERS AND OTHERS CHARGED 
 WITH THE ENFORCEMENT OF THE HEALTH 
 AND SANITARY LAWS AND FOR THE 
 BENEFIT OF THE GENERAL PUBLIC. 
 
 PUBLISHED BY 
 
 Lomisiana State Board of Health 
 
 19 12 
 
So/„ Ym e$ 
 
 PREFACE. 
 
 The case of State vs. Snyder, in which was involved 
 the constitutionality and legality of the Sanitary Code 
 and of the Pure Food and Drug Law of the State was 
 decided on June 4, 1912, by the Supreme Court of 
 Louisiana. The contentions advanced by the Board 
 of Health of the State of Louisiana were upheld and 
 a rehearing has just been refused. This is the great- 
 est judicial victory ever achieved by any health 
 authority in this country, and the State Board of 
 Health deems it imperative that Health Officers, 
 Boards of Health, those otherwise charged with the 
 enforcement of health, sanitary and hygienic laws, 
 and the public generally, should know the issues in- 
 volved in this case, what the contentions of the State 
 Board were therein and the views taken of the con- 
 troversy by the Criminal District Court for the Par- 
 ish of Orleans and by the Supreme Court of the 
 State of Louisiana. 
 
 The Board of Health of the State of Louisiana de- 
 sires specially to call attention to the fact that every 
 constitutional and legal objection which could pos- 
 c fO sibly have been raised against the Sanitary Code and 
 the Pure Food and Drug Law was pleaded and argued 
 in State vs. Snyder. While the first case of the kind 
 ever to reach the Supreme Court it was not a test 
 case in the sense that there was any agreement be- 
 tween opposing counsel ; the litigation was vigorously 
 fought through three courts by the defendant’s at- 
 torney and the attorney for the State Board of 
 Health and every point that could have been made 
 was strenuously stressed. The State Board of Health 
 welcomed the judicial test of the laws. The culmina- 
 tion of this case is the result of more than three years 
 of effort on the part of the Board’s attorney to have 
 
some one of the numerous prosecutions which the 
 Board has instituted and conducted, carried to the 
 Supreme Court. 
 
 Despite the many criticisms of the Sanitary Code 
 and the Pure Food and Drug Law which have ema- 
 nated from time to time from persons whose inter- 
 ests were affected by these enactments and notwith- 
 standing the sweeping opinions given by certain at- 
 torneys to the effect that the enactments were un- 
 constitutional and illegal, it is most significant that 
 the Board of Health of the State of Louisiana was 
 victorious in all three courts before which the case 
 of State vs. Snyder was tried; therefore, it may be 
 safely asserted, the vindication of these laws has 
 been sweeping and complete and the enactments stand 
 now as the sanitary, health and hygienic laws of the 
 State of Louisiana. 
 
 The Board of Health of the State of Louisiana 
 wants the people of the State of Louisiana to know 
 that the Sanitary Code and the Pure Food and Drug 
 Law as held constitutional and legal in the case of 
 State vs. Snyder , will be enforced throughout the 
 whole State — in the large cities, such as New Or- 
 leans, Shreveport, Monroe, Baton Rouge, Alexan- 
 dria, and Lake Charles, and with equal vigor and im- 
 partiality in the most isolated and remote rural dis- 
 tricts. 
 
 The whole State of Louisiana must lend itself to 
 the obedience of these sanitary and hygienic laws 
 in order that the whole State may enjoy better health, 
 pure food and drugs, and improved living conditions. 
 The tour of the State by the Health Train, the numer- 
 ous lectures given under the auspices of this Board, 
 the constant campaign of education which the Board 
 has maintained persistently during the past few years 
 has, I believe, brought the people of every section of 
 this commonwealth to the point where they realize 
 
as they never did before the necessity for the ob- 
 servance of health regulations. 
 
 The decision in State vs. Snyder puts it within the 
 power of the Board of Health of the State of Louisi- 
 ana to demand and exact the enforcement of health 
 laws and sanitary conditions. 
 
 As the Board desires a full and complete under- 
 standing on the part of those charged with maintain- 
 ing and enforcing the Sanitary Code and Pure Food 
 and Drug Law, and those affected thereby, of what 
 was decided in State vs. Snyder, herein a printed the 
 opinions and decrees of the Criminal District Court 
 for the Parish of Orleans and the Supreme Court of 
 Louisiana and the briefs filed by the attorney of the 
 Board. A reading of the same will allow no room 
 for misunderstanding or misapprehension. 
 
 OSCAR DOWLING, M. D., 
 President Board of Health of the 
 
 State of Louisiana. 
 
 THE ISSUES INVOLVED 
 
 The Board of Health of the State of Louisiana be- 
 lieves that the issues involved in the case are fairly 
 and impartially stated in the briefs filed by the 
 Board's Counsel which here follow. Note that 
 vshile additional authorities were filed in the 
 Supreme Court the brief filed in the Crim- 
 inal District Court was also used in the 
 Supreme Court. 
 
No. 19,418. 
 
 STATE OF LOUISIANA 
 versus 
 
 LARRY H. SNYDER. 
 
 In Re. Larry H. Snyder Applying for Writ of Cer- 
 tiorari, or Review. 
 
 Brief in Behalf of the State, and Filed by the Board 
 of Health of the State of Louisiana. 
 
 May It Please The Court: 
 
 The defendant was convicted of violating Section 
 37 of the Pure Food and Drug Law of the State of 
 Louisiana which reads: 
 
 “The use of saccharin in any food product is 
 prohibited.” 
 
 He appealed from the Second City Criminal Court 
 to the Criminal District Court and, after full argu- 
 ment and the submission of briefs, the conviction and 
 sentence was affirmed by Judge Frank D. Chretien, 
 lengthy written reasons being assigned by Judge 
 Chretien. 
 
 This prosecution was begun and has been forward- 
 ed by the Board of Health of the State of Louisiana 
 and the present attorney for the Board filed with 
 Judge Chretien a brief which he believes effectually 
 disposes of all of the defendant’s contentions, par- 
 ticularly those aimed at the delegation of power to 
 the Board by the Legislature and those directed 
 against the method of publication imposed by the 
 mandate of the Legislature on the Board in the pro- 
 mulgation of the Sanitary Code and Pure Food and 
 Drug Law of Louisiana. 
 
 With the permission of this Court first obtained, 
 counsel for the Board files herewith copies of the 
 
 — 6 — 
 
brief heretofore filed in the Criminal District Court 
 and counsel respectfully urges upon this Court that, 
 in his belief, this brief covers the subject in all of 
 its phases. 
 
 Counsel especially directs this Court’s attention to 
 Caption I of this brief (pages 3 to 11) filed in the 
 District Court as disposing absolutely of the ques- 
 tion of delegated power and as clearly resolving such 
 into an exercise of administrative , or executive power 
 as contradistinguished from legislative power. 
 
 Since the preparation for this Court of the copies 
 of the brief filed in the Criminal District Court, 
 counsel’s attention has been called to several authori- 
 ties not quoted in the Criminal District Court brief 
 and counsel now takes this opportunity of presenting 
 these authorities to this Court. 
 
 In the case of People ex rel. Lieberman vs. Vande- 
 carr, 175 N. Y. 440 (People ex rel. Lieberman vs. 
 Vandecarr, 81 App. Div. 128 , affirmed) after stating 
 the case, the Court said: (page 443.) 
 
 “Provisions regulating the vending of food, in 
 the interest of public health, have been a part of 
 the statute Jaw for a century, or more. 
 
 “The Courts have regarded the principle in- 
 volved as a proper and necessary municipal regu- 
 lation. 
 
 “In Metropolitan Board of Health vs. Heister, 
 (37 N. Y. 661), where the act to establish a metro- 
 politan sanitary district was held to be constitu- 
 tional, the following language was used by the 
 Court, after pointing out various acts from 1784 
 to 1866, enacted in the exercise of the police 
 power for the protection of the public health: 
 
 “ ‘These acts show that, from the earliest or- 
 ganization of the Government, the absolute con- 
 trol over persons and property, so far as the pub- 
 lic health was concerned, was vested in boards or 
 officers, who exercised a summary jurisdiction 
 over the subject, and who were not bound to 
 wait the slow course of the law; and that juries 
 had never been used in this class of cases. The 
 Governor, the Mayor, Health Officers, under 
 various names, were the persons intrusted with 
 the execution of this important function; and 
 
 • 7 — 
 
they were always empowered to act in a sum- 
 mary manner. Scarcely a year passes, or did 
 pass, prior to 1846, in which the Legislature 
 did not charter some city or village, and give to 
 the local powers full authority, by their own 
 action and in their own way, to regulate, abate 
 or remove all trades or manufactures that might 
 be by them deemed injurious to the public health. 
 I have examined the statutes from 1832 onward, 
 and find that scarcely a year passes by in which 
 these powers were not given to many cities or 
 villages by original authority or by amendments 
 to their charters.’ 
 
 “That the Legislature in the exercise of its con- 
 stitutional authority may legally confer on 
 boards of health the power to enact sanitary or- 
 dinances, having the force of law within the dis- 
 tricts over which their jurisdiction extends, is 
 not an open question. This power has been re- 
 peatedly recognized and affirmed” 
 
 Polinsky vs. People, 73 N. Y. 65 (p. 69). 
 Health Department vs. Knoll, 70 N. Y. 530. 
 
 Counsel believes that it has been shown in the 
 brief filed in the Criminal District Court (pp. 15-17), 
 and attached hereto, that the provisions of Art. 42 
 of the Constitution, regarding promulgation, relates 
 exclusively to laws “passed by the General Assem- 
 bly.” Even the Article of the Constitution itself 
 carries an exception as regards a certain class of laws 
 “passed by the General Assembly” and certainly the 
 provision has no application to that large class of 
 rules, ordinances and orders passed and issued by 
 governmental agencies in the exercise of executive 
 or administrative functions. 
 
 There may be various methods of making a law, 
 an ordinance or an order known. The object — the 
 only object — to be subserved is to put citizens on 
 their guard, by making laws known. It is not pre- 
 tended, and could not be successfully, or even rea- 
 sonably, urged, that ‘publication of such regulations 
 as the Santary Code and Pure Food and Drug Law 
 in the State journal’ would be notice to any but a 
 small portion of the citizens of the commonwealth 
 of the action taken by the Board under the several 
 
 - 8 — 
 
acts directing it to prepare a Sanitary Code and 
 Pure Food and Drug Law. 
 
 The Legislature evidently debated the question 
 and concluded, with good reason and sound judg- 
 ment, that the most effective manner of making such 
 sanitary rules and hygienic laws known was to have 
 the Board print them in pamphlet form for free 
 distribution among health officers, the public and 
 those at interest. This was done by the Board I) 
 is not pretended that it was not done. 
 
 In The Queen vs. The Justices of Huntingdon, L. 
 R. 4, Q. B. D. 552, one W. B. Alexander was sum- 
 moned before the Justices of Huntingdon charged 
 with failing to comply with an order of the town 
 council. It was objected by the accused that there 
 had been no sufficient publication of the order he 
 was charged with violating, and upon this objection 
 being overruled, and a conviction following, a writ 
 of certiorari was applied for to bring the conviction 
 up and to quash : 
 
 “Then, although the Statute provides no spe- 
 cific mode of publication, it can not be enough to 
 show. that there has been a casual publication by 
 sticking up a few copies of the notice in some 
 possibly obscure street in the borough.” 
 
 The Court : 
 
 Denman, J. “I am of the opinion that there 
 is no pretense for this application. * * * Then 
 as to the publication, it is not necessary that 
 there should be notice to every individual in 
 the borough.” 
 
 The syllabus of this case reads: 
 
 “In the absence of any special provision for 
 the mode of publication of the order, it is en- 
 ough to show that it has been posted up in five 
 or six places within the borough.” 
 
 In Schweitzer vs. The City of Liberty, 82 Mo. 309 
 (p. 314), it appears that the charter of the City of 
 Liberty (Sec. 37, Missouri Acts of 1874, p. 339), pro- 
 vided that: 
 
 “All ordinances passed by the City Council, 
 within thirty days after they become laws, shall 
 be published, * * * but the failure to publish, 
 * * * shall not render void or affect the valid- 
 
 — 9 — 
 
ity of any such ordinance, unless delay may 
 cause such ordinance to act retrospectively on 
 the rights of individuals.” 
 
 Counsel cites the two cases immediately preceding 
 to show that elsewhere, as in Louisiana, there is no 
 particular method of promulgation for rules and reg- 
 ulations such as those being tested at bar and that 
 such rules and regulations may be made known by 
 any method deemed sufficient by the Legislature to 
 accomplish the purpose desired: i. e., that of giving 
 notice to the public. 
 
 It is urged that the conviction of the accused be 
 sustained. 
 
 Respectfully submitted, 
 
 BENJAMIN T. WALDO, 
 Attorney for Board of Health of the 
 
 State of Louisiana^ 
 
 — 10 — 
 
STATE OF LOUISIANA 
 
 versus 
 
 L. H. SNYDER. 
 
 Appeal from Conviction of Defendant in Second City 
 Criminal Court , Judge A. M. Aucoin. 
 
 BRIEF IN BEHALF OF STATE OF LOUISIANA 
 (Louisiana State Board of Health Prosecuting.) 
 
 THE FACTS. 
 
 The Constitution of Louisiana of the year 1898 
 Arts. 296 and 297) makes it mandatory upon the 
 General Assembly to create “FOR THE STATE,” 
 a Board of Health and to “DEFINE THE DUTIES 
 AND PRESCRIBE THE POWERS THEREOF”; 
 and also to protect “THE PEOPLE AGAINST THE 
 SALE OF INJURIOUS OR ADULTERATED 
 DRUGS, FOOD AND DRINK AND AGAINST 
 ANY AND ALL ADULTERATIONS OF THE 
 GENERAL NECESSITIES OF LIFE OF WHAT- 
 EVER NATURE AND CHARACTER.” 
 
 By Act 192 of 1898 the Legislature undertook to 
 carry out the above constitutional mandates ; Sec. 1 
 of this Act creates the Board of Health of the State 
 of Louisiana; Sec. 2, relates to certain of its officers 
 and Sec. 3, gives to the Board “all powers, authority 
 and jurisdiction now possessed by the (then) existing 
 State Board of Health under the (then) present laws 
 now in force”; except as changed by the (then) pre- 
 sent act; and further provides that the Board SHALL 
 prepare a Sanitary Code for the State and specifies 
 what the scope of the Code shall be. 
 
 This Act 192 of 1898 has been ammended at every 
 session of the Legislature but one, during the past 
 fourteen years; we are presently concerned with but 
 two of these amendments, namely those relative to 
 promulgation and penalty. 
 
 — 11 — 
 
Act 192 of 1898, as a cursory inspection will show, 
 was originally most inartistically drafted; promul- 
 gation was to be by publication “in the official jour- 
 nal of the State Capitol ” The Legislature, however, 
 in 1902 amended this section so as to provide that 
 “on the adoption of said Code by the Board it shall 
 be printed and published in pamphlet form with 
 such number of copies as may be necessary for the 
 distribution for the information of health bodies, 
 health and sanitary officers and the public gener- 
 ally.'*’ 
 
 In 1906 (Act 98) the Legislature, “to further 
 carry into effect Art. 297 of the Constitution of the 
 State of Louisiana and to preserve public health,” 
 gave the State Board of Health power to revise 
 the Sanitary Code provided for in Sec. 3 of Act 192 
 of 1898; and by this Act 98 of 1906 the Act 192 of 
 1898 was further amended BY THE LEGISLA- 
 TURE FIXING THE PENALTY FOR VIOLAT- 
 ING THE PROVISIONS OF THE CODE. 
 
 For the convenience of the Court it is stated that 
 the Santary Code and Pure Food and Drug Law is 
 dealt with in Act 19^ of 1898, Act 44 of 1900, Act 150 
 of 1902, Act 184 of 1904, and Act 98 of 1906; counsel 
 has, he believes, given above the only provisions of 
 these statutes affecting the case at bar. 
 
 It is not contended that there is any fault or omis- 
 sion as to the promulgation of these several acts of 
 the Legislature and it is admitted that not only did 
 the Board promulgate the Sanitary Code and the 
 Pure Food and Drug Law as the Legislature directed 
 this promulgation, but also that the Board went a 
 step further and inserted advertisements in news- 
 papers in Baton Rosage, Shreveport and New Orleans 
 calling the attention of all concerned to the fact that 
 the Board had complied with the legislative mandate, 
 that the Sanitary Code and that the Pure Food and 
 Drug Law had been prepared, and that it was ready 
 for FREE distribution to all who applied for the 
 same. 
 
 For a violation of the regulations made by the 
 Board, as aforesaid, the defendant was charged, 
 tried and convicted. From this conviction he has ap- 
 pealed. He relies on the special demurrer he has 
 
 — 12 - 
 
filed. The FACTS upon which his conviction rests 
 are too plain and too conclusively proven to admit 
 discussion. 
 
 Counsel’s theory of the case at bar differs material- 
 ly from that so ably and forcibly advanced by the 
 learned attorney for the accused. This theory coun- 
 sel will proceed to elucidate to the Court under cap- 
 tion I of this brief before entering into a discussion 
 of the law and the arguments submitted by opponent 
 and which, it will be shown herein, do not apply 
 under the circumstances of the present prosecution. 
 
 Counsel requests the further patient indulgence of 
 the Court and begs the Court to believe that only the 
 vast importance of the issue could induce him to in- 
 flict a brief of the prolixity which the present one 
 is likely to assume. 
 
 I. 
 
 Counsel asks the Court to retrospect a moment 
 upon the developments made in social, business and 
 political life within the past twenty-five years. The 
 multiplication of railways and water-craft has 
 evolved out of a moribund germ the law of carriers ; 
 a few stagnant principles have been stirred and am- 
 plified into the laws of damages with all of their 
 subdivisions and subtle distinctions; the old ide*\s 
 in regard to interest and usury, factorage, broker- 
 age and insurance, have been modified by the exi- 
 gencies of a necessary commerce. But recently has 
 civilization attained its present state of refined com- 
 plexity, whose intricate elaboration of customs, us- 
 ages and laws stands out against the simple, rude 
 and ingenuous past as does some marvelous pattern 
 of Gobelin tapestry contrast the clumsy wicker-work 
 of a painted Celt. 
 
 And the law has met every step and advance made 
 along social, political or economic lines; not with 
 some makeshift framed to suit the expediency of the 
 passing hour, but with a rule of action founded 
 upon immutable principles; and counsel contends 
 and will show that when in a case exactly similar to 
 the one at bar the Supreme Court of Indiana said 
 
 — 13 — 
 
.that a Pure Food and Drug Law, framed with legis- 
 lative sanction by a Board of Health, “is not legisla- 
 tion but merely the exercise of administrative pow- 
 er,” the Indiana Court simply enunciated a principle 
 as old, and as well founded, as any emanating from 
 the exercise of the police power. It must be borne 
 in mind that almost every act of man in his multi- 
 tudinous relations with his fellows, society and the 
 State, is affected, or controlled, or limited, by that 
 indefinable ignis fatuus — the police power. It is 
 ever present. It is ever expanding. Its limitations 
 are ever elusive. The kaleidoscopic changes wrought 
 by time and the advancement of scientific knowledge 
 may easily and readily make not only valid but high- 
 ly desirable to-day regulations which would a decade, 
 a year, or a month ago have been deemed repugnant 
 and reprobated as unconstitutional exercise of gov- 
 ernmental powers. Further, the necessity, both phys- 
 ical and moral, which is ever present when these 
 changes occur may make methods of dealing with 
 new problems, arising under the police power, good 
 and sufficient to-day which were undreamed of yes- 
 terday. For instance, the guarantee of the Magna 
 Charta, stated in the Federal and in all of the State 
 Constitutions, in the words “the right of the people 
 to be secure in their persons, houses, papers and ef- 
 fects against unreasonable searches and seizures,” 
 has a limitation at the present time which did not at- 
 tach to the guarantee in 1215 A. D., or in 1787 A. D.; 
 and it will scarcely be contended seriously that a 
 State (or the State through an agency, such as the 
 State Board of Health) can not enter any house for 
 the mere purpose of sanitary inspection, or seize 
 and destroy any article deleterious to the public 
 health; and it is not that the sacred principles of the 
 law have changed (or been changed), it is merely 
 that the shifting sands of time have wrought devel- 
 opments which the law has had to meet and deal 
 with. 
 
 When the problems of government were less com- 
 plex and when economic questions were few and un- 
 changing there was little need for delegating the 
 power of the State to governmental agencies, but 
 when these problems and questions became many, 
 
 — 14 — 
 
frequent and often demanded instant solution, it was 
 found that the welfare of the State, as well as con- 
 venience, was best subserved by delegating to gov- 
 ernmental agencies (such as municipalities, organized 
 political subdivisions of the commonwealth, boards 
 and commissions) the power to deal with certain lo- 
 calities or territory, or the power to deal with certain 
 definite, specific subjects. 
 
 Nothing can better illustrate this growth of the 
 delegation of administrative power to governmental 
 agencies than the development of the regulation of 
 common carriers by the State. Here is a subject once 
 simple but now complex and ever changing. It 
 would appear, too, that the question of hauling a cer- 
 tain amount of freight a determined distance, or the 
 transportation of passengers a number of miles, 
 could be easily regulated by a simple statute emanat- 
 ing from the legislative power; but, on further con- 
 sideration, it will be observed that climatic, topo- 
 graphical and countless other considerations enter 
 into the matter and that a haul of a hundred miles 
 may be one matter in the eastern part of a State (not 
 to mention the United States) and quite a different 
 matter in the western part. Congress and the several 
 State Legislatures early recognized the absolute fu- 
 tility of dealing with the question by direct legis- 
 lative enactment and, going back to first principles, 
 invoking the Civil Law of administration, delegated 
 to boards and commissions the power to deal with 
 the subject matter. 
 
 The railroad commission, for instance, carefully 
 weighs every fact entering into the affair, views 
 each angle of the situation and fixes the freight rate 
 from one point to another upon cotton, grain or lum- 
 ber at a certain number of cents per hundredweight. 
 Is this not the most absolute control over the largest 
 of America’s vested interests? Again, the same body 
 determines that a given train shall stop at a speci- 
 fied town; is not this approximating the manage- 
 ment of the affairs of the railroad corporation by 
 the State through a board? Both orders are enforce- 
 able civilly and their infractions are punishable crim- 
 inally; yet who would contend, in this day and gen- 
 eration, that the making of these orders are any- 
 
 — 15 — 
 
thing other than administrative acts, or that such acts 
 are unconstitutional. 
 
 It must be remembered, also, in dealing with this 
 illustration of delegated power, that the control ex- 
 ercised by railroad boards and commissions extends 
 to the most minute detail of the railroad’s dealings 
 and relations with the public and the commonwealth 
 — even down to the question of the location and con- 
 struction of depots and other facilities. 
 
 Railroad Commission cases 116 U. S. 307, 29 
 La. Ed. 636 (Counsel particularly directs the 
 Court’s attention to the opinion of Chief Justice 
 Waite in Stone case, ib. 324; Judge John A. 
 Campbell represented the Mobile & Ohio Rail- 
 road Co.) ; Minneapolis Eastern Railway Co. vs. 
 Minnesota, 134 U. S. 467, 33 La. Ed. 985 (in this 
 case rate fixing by commission upheld). This 
 character of citation could be extended almost 
 indefinitely. 
 
 In this State, under Act 240 of 1908 (as, indeed, 
 is universally true as to such orders in almost all of 
 the States) it is a misdemeanor “to disobey or vio- 
 late any of the orders, rules or regulations of the 
 Railroad Commission.” 
 
 See also M. L. & T. R. R. & S. S. Co. vs. R. R. 
 Com. of La., 109 La. 247. (The Court in this case 
 said: “The railroad commission IS AN AD- 
 MINISTRATIVE BOARD created by the State 
 FOR CARRYING INTO EFFECT THE WILL 
 OF THE STATE AS EXPRESSED BY ITS 
 LEGISLATION. Its authority and duty are not 
 limited to matters concerning public safety or 
 health, but extend to matters concerning public 
 comfort and convenience.”) See also La. Ry. 
 & N. Co. vs. Ry. Com. of La., 121 La. 848 (uphold- 
 ing right of Ry. Com. to order building of a 
 depot). In La. State Board of Health vs. Stand- 
 ard Oil Co., 107 La. 713, a view much as in M. L. 
 & T. R. R. & S. S. Co. vs. Ry. Com. was ex- 
 pressed. The Court said: “The functions for 
 the discharge of which the State Board of 
 Health is established are of vital consequence to 
 the whole people of the State, affecting them in 
 the matter of health and safety; and there is no 
 
 — 16 — 
 
reason why a narrower rule of construction 
 should be applied to the power of that board than 
 to those of corporations of comparatively minor 
 importance.” 
 
 Hence we may take it to be a settled principle of 
 law that the State and Federal boards and commis- 
 sions to which are intrusted the control of common 
 carriers PERFORM ADMINISTRATIVE AND 
 NOT LEGISLATIVE ACTS when they make and 
 promulgate rules and regulations governing ALL of 
 the carriers’ relations with the public and for the 
 violation of which rules and regulations a precedent 
 State or Federal statute provies a penalty of fine 
 and imprisonment. 
 
 Allied closely and akin to health legislation is that 
 begun in this State by Act 6 of the Extra Session of 
 1899, commonly known as the Sewerage and Water 
 Board Act. This act provides that the Board “shall 
 have further power to make reasonable rules and 
 regulations for the use and consumption by such pay 
 customers, and by such free consumers of water sup- 
 ply furnished them, and to prevent the “ obstruction 
 of, interference with or damage to the pipes, mains 
 and other appurtenances of the water system ” The 
 penalty for violating these rules, WHICH THE 
 SEWERAGE AND WATER BOARD HAD (then) 
 YET TO MAKE WAS FIXED AT A FINE OF 
 $25 OR IMPRISONMENT FOR THIRTY DAYS, 
 OR BOTH. 
 
 Now the Legislature could just as easily have said: 
 “No one shall obstruct or interfere with, or damage 
 any of the pipes, mains and other appurtenances of 
 the water system under a penalty of $25 fine or 
 thirty days’ imprisonment, or both,” but the Legis- 
 lature in its wisdom and foresight knew that it was 
 far safer and saner to entrust to the Sewerage and 
 Water Board the making of appropriate rules and 
 regulations because the organization and mainte- 
 nance of the system was intrusted to that Board ; it 
 was charged and freighted with the responsibility 
 of the undertaking; the special knowledge of the 
 requirements was in the Board and, in consequence, 
 the Board was better fitted to make these rules than 
 the Legislature. 
 
 — 17 — 
 
In 1908, under Act 270 of that year, the Legisla- 
 ture gave the Sewerage and Water Board the power, 
 and made it the Board’s duty, “BY PROPER ORDI- 
 NANCES AND REGULATION BY IT” to require 
 all inhabited premises in New Orleans to be connect- 
 ed with the water mains and TO FORCE THE PEO- 
 PLE OF NEW ORLEANS TO USE THE PUBLIC 
 WATER SUPPLY IN LIEU OF CISTERNS; 
 again the Legislature left to the Board the determi- 
 nation, “by proper ordinances and regulations by it,” 
 of the method through which this desired result was 
 to be accomplished. These regulations and ordi- 
 nances are merely administrative, just as the prepara- 
 tion of the Sanitary Code and the preparation of the 
 Pure Food and Drug Law were administrative, and 
 not legislative, on the part of the State Board of 
 Health. 
 
 While never the subject of serious judicial test 
 in this State, the delegation to school boards and 
 trustees of various matters incident to school admin- 
 istration has been the prolific source of litigation 
 elsewhere in the Union; almost every delegation of 
 power being questioned upon the ground that it was 
 an attempt to delegate to these boards and trustees the 
 power of legislation. The jurisprudence upon the 
 subject is, however, uniform, it being held that such 
 acts are administrative and not legislative. 
 
 Leeper vs. State, 103 Tenn. 500, 48 L. R. A. 
 167 (it was contended in this case that the stat- 
 ute was unconstitutional, in that it delegated 
 legislative powers to the School Commission; 
 the Court held that it conferred executive or ad- 
 ministrative functions only) ; In re Chapman, 166 
 U. S. 41 La. Ed. 1154; Turner vs. Detroit, 104 
 Mich. 326. 
 
 In so far as the delegation of power to Boards 
 of Health to determine certain facts or conditions 
 upon which legislative statutes are to operate are 
 concerned, the jurisprudence is uniform to the effect 
 that the determination of such facts or conditions by 
 Boards of Health do not constitute legislation by 
 such boards, but are merely administrative or execu- 
 tive. 
 
 Blue vs. Beach, 155 Ind. 121, 56 N. E. 89, 50 
 
 — 18 — 
 
L. R. A. 64. (The Court held that the power 
 granted to ADMINISTRATIVE boards, of the 
 nature of boards of health, etc., to adopt rules, 
 by-laws and regulations reasonably adapted to 
 carry out the purpose or object for which they 
 were created, is not an improper delegation of 
 legislative authority). 4 Am. & Eng. Enc. Law 
 599. (The legislature may, in the exercise of its 
 constitutional authority confer upon boards of 
 health the power to enact rules and ordinances 
 for the promotion of the public health and the 
 abatement and prevention of nuisances, which 
 shall have the force of law within the jurisdic- 
 tion of the several boards; Citing: Slaughter 
 House cases 16 Wall. 36; Livingston vs. Pippin, 
 31 Ala. 542; State vs. Tryon, 39 Conn. 183; Rob- 
 erts vs. Ogle, 30 111. 459; Covington vs. East St. 
 Louis, 78 111., 548; Des Moines Gas Co. vs. Des 
 Moines, 44 Iowa 505 ; Harrison vs. Baltimore, 1 
 Gill (Md.) 264; Salem vs. Eastern Ry., 98 Mass. 
 431; Daigley vs. Boston, 100 Mass. 544; Wre- 
 ford vs. People, 14 Mich. 41 ; Metcalf vs. St. 
 Louis, 11 Mo. 102; St. Louis vs. Bofinger, 19 Mo. 
 13; State vs. Clark, 28 N. H. 176; McDermott 
 vs. Board of Police, 25 Barb. 635; Gregory vs. 
 New York, 40 N. Y. 273; People vs. B. of H., 71 
 Hun. 84; Met. Board vs. Heister, 37 N. Y. 661; 
 Health Dept. vs. Knoll, 70 N. Y. 530; Polinski 
 vs. People, 73 N. Y. 65. 
 
 “The Legislature of a State may delegate the power 
 to determine some fact or state of things upon which 
 a statute makes, or intends to make, or its own action 
 depends.” Elwell vs. Comstock, 9 Am. & Eng. An- 
 notated cases 270. See Digest (1-10) page 180. 
 
 The above case cites State vs. Sullivan, 67 
 Minn. 379, 69 N. W. 1094. (The language of the 
 Minnesota Court is: (p. 1095) “It is well set- 
 tled that it is not always essential that a legis- 
 lative act must in any event take effect as law 
 after it leaves the hand of the legislature. If 
 the law is, in its provisions, a complete statute 
 in other respects when it leaves the legislature, 
 its taking effect may be made conditional upon 
 some subsequent event”; just as in the case at 
 
 — 19 — 
 
bar the taking effect of the Act 192 of 1898, and 
 amendments, was made conditional upon the 
 drafting of the Sanitary Code and the Pure Food 
 and Drug Law by the State Board of Health.) 
 
 Counsel believes that the theory and principle for 
 which he contends is most clearly expressed in Isen- 
 hour vs. State, 62 N. E. 40. This was a Pure Food and 
 Drug Law prosecution made under a Board of Health 
 regulation which had been enacted under circum- 
 stances similar in almost all respects to those under 
 which the Louisiana State Board of Health framed 
 the Sanitary Code and the Pure Food and Drug Law. 
 The Indiana constitution provided restrictions ex- 
 actly similar to the Louisiana constitution and the 
 Indiana Supreme Court said: 
 
 “This class of legislation emanates from an ex- 
 ercise of the police power of the State for the 
 protection of the public health. The power of 
 the legislature and its right to determine for 
 itself when an emergency for such legislation 
 exists, and the means and instrumentalities neces- 
 sary to accomplish the end in view, is no longer 
 a doubtful question. The particular character 
 of the subject (which was a Pure Food and 
 Drug Law) embodying as it does consideration 
 of sanitary science, is something to require for 
 just legal control something more than legis- 
 lative wisdom to accurately designate the sub- 
 jects and instances to be affected. The classifi- 
 cation of these subjects and the prescribing of 
 rules by which they may be determined by a 
 qualified agent, IS NOT LEGISLATION, BUT 
 MERELY THE EXERCISE OF ADMINI- 
 STRATIVE POWER. The law itself is perfect 
 and effective in all its parts. In respect to mat- 
 ters to be determined by the State Board of 
 Health in its execution, it awaits the perform- 
 ance of these duties. When performed the law 
 operates upon the things done by the Board, 
 while unperformed, the law remains ready to be 
 applied whenever the preliminary conditions ex- 
 ist.” 
 
 Had this decision been written for the case at bar 
 
 — 20 — 
 
the language could not have been made more appro- 
 priate. 
 
 In Pierce vs. Doolittle, 106 N. W. 751; 6 L. 
 R. A. (N. S.) 143, the Supreme Court of Iowa 
 said: “A statute prescribing punishment for 
 violation of a regulation of the State Board of 
 Health is not unconstitutional on the theory that 
 legislative power to create crimes is thereby del- 
 egated to the Board.” 
 
 In BRODBINE vs. REVERE, 182 Mass. 598; 
 66 N. E. 607, the Massachusetts Supreme Court 
 said : 
 
 “The validity of these statutes (a law passed by 
 the Board of Health) which has long been recog- 
 nized, stands upon one, or both, of two grounds: 
 They may be considered as being within the prin- 
 ciple permitting local self government as to such 
 matters; the Board of Health being treated as 
 properly representing the inhabitants in making- 
 regulations, which often are needed at short no- 
 tice, and which could not be well made, in all 
 kinds of cases, by the voters in town meeting 
 assembled. Perhaps some of these statutes may 
 also be justified constitutionally on the ground 
 that the work of the Board of Health is only a 
 determination of details in the nature of admin- 
 istration, which may be by a board appointed for 
 that purpose; and that the substantive legislation 
 is that part of the statute which prescribes a 
 penalty for the disobedience of the rules which 
 they make as agents performing executive and 
 administrative duties.” 
 
 Counsel submits that if this Court in its wisdom 
 and discretion sees fit to follow the long line of 
 jurisprudence holding that such enactments as the 
 Sanitary Code and Pure Food and Drug Law are 
 made in an administrative or executive capacity, then, 
 in that event, every contention of opposing counsel 
 fails and the conviction of the accused must stand. 
 There are two great safeguards interposed by the 
 law between the indiscriminate and improvident use 
 of the powers vested in administrative boards and 
 the people; they are: 
 
 - 21 — 
 
First: The regulations enacted must be 
 necessary; 
 
 and 
 
 Second : The regulations must be reasonable. 
 
 Neither the necessity nor the reasonableness of 
 the regulations under which the accused was charged, 
 tried and convicted are questioned, but these safe- 
 guards are always in the hands of the Court ; an im- 
 passable barrier between an accused and oppression 
 and injustice. 
 
 II. 
 
 Counsel for the accused overlooks the peculiar fact 
 that under Act 192 of 1898 the Board of Health is 
 given all of the powers delegated to previous Boards 
 of Health (except those specifically withheld by that 
 act), and that among the powers delegated was that 
 to pass ordinances for the preservation of the health 
 of the people and the sanitary condition of the State. 
 Lying at the gateway of the tropics, it was early rec- 
 ognized by the law-making power that drastic meas- 
 ures were necessary to protect the inhabitants of 
 this section, and the Legislature saw the wis- 
 dom and prudence of entrusting this important func- 
 tion to the State Board of Health and clothed that 
 body with extraordinary powers with which to meet 
 the conditions ever present. (See Act of 1855, Act 14 
 of 1870, and Act 80 of 1877.) All throughout its long 
 and useful existence the State Board of Health has 
 made ordinances and rules which it has enforced and 
 has been upheld in the making and enforcing by the 
 Courts. For instance, in 1901, acting under Act 37 of 
 1877, the Board attempted to enforce its rules rela- 
 tive to oil inspection against the Standard Oil Com- 
 pany and to collect from that corporation a charge, 
 or fee, for inspecting oil. The power of the Board 
 was vigorously resisted and the case was finally 
 taken to the Supreme Court where it was held that 
 the rules and ordinances of the Board were valid. 
 
 LOUISIANA STATE BOARD OF 
 HEALTH vs. STANDARD OIL COMPANY, 
 107 La. 713. (Associate Justice Monroe said: 
 “The rule of construction applicable to the char- 
 ters of municipal corporations is equally appli- 
 cable to the charter of the State Board of Health. 
 
 — 22 — 
 
As to municipal corporations, it is well under- 
 stood that they may exercise not only the powers 
 expressly granted, but those necessarily or fair- 
 ly implied in or incident to the powers express- 
 ly granted, and also those which are essential to 
 the declared objects and purposes of the cor- 
 poration. 
 
 “The functions for the discharge of which 
 the State Board of Health is established are of 
 vital consequence to the whole people of the 
 State, affecting them in the manner of health and 
 safety; and there is no reason why a narrower 
 rule of construction should be applied to the 
 power of that Board than to those of corpora- 
 tions of comparatively minor importance.” 
 
 In another case, one in which the Board attempted 
 to enforce its rules and ordinances relative to quar- 
 antine, these enactments, or rather what was done 
 under them, was upheld by the Supreme Court. 
 
 COMPAGNIE FRANCAISE DE NAVIGA- 
 TION A VAPEUR vs. STATE BOARD OF 
 HEALTH, 51 A. 645, (on page 662-664 new ed.) 
 Chief Justice Nicholls says: “The defendant 
 Board is not an ordinary corporation. It is a 
 ‘body politic’ with corporate powers. It is a 
 governmental, public agency, representing the 
 State in respect to the matters which which it 
 stands intrusted.” 
 
 Counsel has called attention to the above facts 
 and decisions merely for the purpose of illustrating 
 the well-known fact that ordinances and enactments 
 by the State Board of Health are not new to our 
 people and that when the Legislature of 1898, to carry 
 into effect Articles 296 and 297 of the Constitution 
 of that year, delegated to the Board, which it then 
 constituted, the duty and function of preparing a 
 Sanitary Code and Pure Food and Drug Law, the 
 legislation came as in no sense an innovation or as a 
 radical departure from the fixed und consistent pol- 
 icy of this State in dealing with all matters concern- 
 ing the health, sanitation and hygiene of the com- 
 monwealth by and through the State Board of Health. 
 
 Counsel for the accused contends that Arts. 16, 17 
 and 21 of the Constitution of 1898 provides for the 
 
 — 23 — 
 
separate and distinct organizations of the Legisla- 
 tive, Judicial and Executive Departments of our 
 State Government ; and as nearly as counsel can ap- 
 preciate his contention, he argues that NO POWER 
 of any of these departments MAY BE DELE- 
 GATED AT ALL. 
 
 In so far as the police power of a State is con- 
 cerned, counsel states that the common, well settled 
 and thoroughlv established rule is as follows: 
 
 A STATE' MAY DELEGATE ITS POLICE 
 POWER, WHOLLY OR IN PART, TO ONE OR 
 TO NUMEROUS GOVERNMENTAL AGEN- 
 CIES; PROVIDED A STATE MAY NEVER IR- 
 REVOCABLY WHOLLY DELEGATE THIS 
 POWER SO AS TO ENTIRELY DIVEST THE 
 SAME FROM THE STATE. THAT IS, THE PO- 
 LICE POWER OF THE STATE, WHETHER 
 EXPRESSED, OR MANIFESTED, THROUGH 
 THE LEGISLATIVE, JUDICIAL OR EXECU- 
 TIVE BRANCHES OF THE GOVERNMENT, IS 
 ALWAYS SUPERIOR TO ANY DELEGATED 
 POLICE POWER. 
 
 Counsel’s contention was long since disposed of in 
 this State by our Supreme Court, as an inspection of 
 our jurisprudence will show. 
 
 Art. 16 of the Const, of 1898 provides division 
 of government of State into Legislative, Execu- 
 tive and Judicial. Same provision in Const. 1812 
 (Art. 1, Sec. 1); Const. 1845 (Title 1, Art. 1); 
 Const. 1852 (Title 1, Art. 1.) Art. 17, Const, oi 
 1898, provides for non-interference of any of 
 above departments with the other. Same pro- 
 vision in Const, of 1812 (Art. 1, Sec. 2) ; Const, 
 of 1845 (Title 1, Art. 2) ; Const, of 1852 (Title 1, 
 Art. 2); Const. 1864 (Title 11, Art. 4; Const, of 
 1879 (Art. 15,) Art. 21 of 1898 provides that the 
 legislative power of the State shall be vested in 
 a General Assembly, consisting of a Senate and 
 House of Representatives. Same provision in 
 Const, of 1812 (Art. 2, Sec. 1); Const, of 1845 
 (Title 2, Art. 1) ; Const, of 1852 (Title 2, Art. 3) ; 
 Const, of 1864 (Title 2, Art. 5) ; Const. 1879 (Art. 
 19). 
 
 Hence, it will be seen that Articles 16, 17 and 
 
 — 24 — 
 
21 of the present Constitution have always found 
 place in the organic law of Louisiana. As far 
 back as New Orleans vs. Morgan, 7 Martin N. S. 
 5, the Supreme Court held: “The Constitution, 
 in distributing the executive, legislative and ju- 
 dicial powers, has reference to the State at large; 
 and a law granting to corporations the exercise 
 of subordinate legislation within a particular dis- 
 trict over its members, and in regard to their 
 rights and duties as corporators, and a law ren- 
 dering a corporation judge of the validity of the 
 election of its members, and prohibiting courts 
 of justice from interfering, are not unconstitu- 
 tional. ” 
 
 In HUNSICKER vs. BRISCOE. 12 A. 169, the 
 argument of the appellant was : “All legislative 
 power under the constitution of this State, is 
 vested in the Senate and House of Representa- 
 tives, and they have no power to delegate their 
 authority to any other body, for, if the proposi- 
 tion be admitted that the legislature can delegate 
 a part of its powers, the same proposition would 
 hold good as to all powers conferred by the con- 
 stitution. Police Juries are subordinate to the 
 will of the legislature, and whenever they are 
 sustained in the exercise of legislative privileges, 
 they become co-ordinate departments of the gov- 
 ernment, and cease to be subordinate.” 
 
 BUT THE SUPREME COURT TOOK A 
 DIFFERENT VIEW. Chief Justice Merrick 
 said: “The Legislature may constitutionally del- 
 egate to Police Juries authority to pass all such 
 ordinances as they may deem necessary relative 
 to roads and levees,” and also that: “We do not 
 understand by this Article of the Constitution 
 that the General Assembly is required to legislate 
 upon all subjects, whether of a general or local 
 nature, and that it has no power to delegate any 
 legislative authority to municipal and parochial 
 authorities and other inferior jurisdictions. We 
 think it was intended merely to define in what 
 bodies the supreme legislative power should be 
 vested. It was not intended as a restriction upon 
 the sovereignty of these bodies.” 
 
 — 25 — 
 
Having seen that it is clearly settled that a State 
 may delegate its authority to governmental agencies, 
 it is only necessary to point out that in Standard Oil 
 Company vs. Louisiana State Board of Health (107 
 Lo. 713, cited hereinbefore) the Supreme Court has 
 held that the authority could be properly delegated 
 to the Board and that that Board could make rea- 
 sonable ordinances, or rules, to accomplish purposes 
 intrusted to it through the exercise of this delegated 
 legislative power. 
 
 “But,” says counsel for the accused “in Indiana, 
 from whence came the case of Isenhour vs. State, 
 there was a specific act giving authority to the enact- 
 ments of the Indiana State Board of Health. 
 
 See Acts of 1899, State of Indiana, p. 189. “An 
 Act forbidding the manufacture and sale or offer- 
 ing for sale any adulterated foods or drugs.'' 
 This Act makes it an offense for one to have for 
 sale any food adulterated with a substance in- 
 jurious to health and EMPOWERS THE 
 STATE BOARD OF HEALTH TO MAKE 
 REGULATIONS AS TO THE MINIMUM 
 STANDARD OF FOOD AND DRUGS. 
 
 What authority has the Board of Health of the 
 State of Louisiana? 
 
 First: The Constitution of 1898, Articles 296 and 
 297, providing for the creation of a State Board of 
 Health to take the place of the one created under 
 the Constitution of 1879 and making it obligatory 
 and mandatory upon the Legislature to provide for 
 “PROTECTING THE PEOPLE AGAINST THE 
 SALE OF INJURIOUS OR ADULTERATED 
 DRUGS, FOODS AND DRINKS, AND AGAINST 
 ANY AND ALL ADULTERATIONS OF THE 
 GENERAL NECESSARIES OF LIFE OF WHAT- 
 EVER KIND AND CHARACTER.” 
 
 Second : The Act 192 of 1898 (and amendments) 
 which says that the State Board of Health “shall 
 prepare or cause to be prepared a Sanitary Code for 
 the State of Louisiana, which shall contain and pro- 
 vide rules and regulations and ordinances of a gen- 
 eral nature for the improvement and amelioration 
 of the hygienic and sanitary condition of the State 
 * * * and provide for it” — and here follows specific 
 
 — 26 — 
 
and detailed injunctions as to what the Sanitary 
 Code shall contain. 
 
 An amendment in 1902 changed the method of 
 promulgation, and in 1906 (Act 98) the amendment 
 allowing the revision of the Sanitary Code and the 
 Pure Food and Drug Law was passed and it was also 
 provided that the standard of purity and strengths 
 for drugs, chemicals and medicines should be the 
 United States Pharmacopoeia and National Formu- 
 lary. 
 
 The Court will bear in mind that there is no ques- 
 tion or doubt that all of these acts — of 1898, of 1900, 
 of 1902, of 1904 and of 1906 — were properly and 
 regularly promulgated as provided for by the Con- 
 stitution; and, hence, they were binding and valid 
 to all persons. Did not this promulgation serve as 
 all sufficient notice in law and in fact as to all 
 things pertaining to these acts, and was it not per- 
 fectly competent for the Legislature to provide some 
 method other than publication at Baton Rouge, in 
 the official journal of the State, for the making 
 known by the Board of Health of the regulations 
 which that Board drafted under the mandate from 
 the Legislature. 
 
 The Court will see from the acts in question that 
 the matters with which the Board was to deal per- 
 tained to and affected certain definite interests as, 
 for instance, the drug trade or, as in the case at bar, 
 the manufacturer of “soft” drinks. Was it not per- 
 fectly reasonable in the Legislature to assume that 
 which is a fact, i. e., if the Sanitary Code and the 
 Pure Food and Drug Law were so published at 
 Baton Rouge knowledge of their provisions would 
 be very limited; but, on the other hand, it was easier, 
 more preferable and certainly more practical for 
 those at interest to be furnished free with copies of 
 these regulations by the Board. This, counsel takes 
 it, was the reasoning of the Legislature, and counsel 
 does not think that there can be very much doubt that, 
 reasoning in this manner, the Legislature had the 
 constitutional power to order any method of promul- 
 gation, or publication, which the legislative judg- 
 ment deemed sufficient. 
 
 There can be no doubt whatever that Article 42 of 
 
 — 27 — 
 
the Constitution of 1898 applies exclusively to stat- 
 utes enacted by the Legislature. It has no applica- 
 tion to those laws made by governmental agencies 
 such as municipalities, boards and political subdi- 
 visions. For instance, to hold that the Sanitary 
 Code and the Pure Food and Drug Law had not 
 been legally and properly promulgated it would also 
 be necessary to hold that the Legislature IN RE- 
 SPECT TO ENACTMENTS OTHER THAN 
 STATE LAWS was without the authority to pro- 
 vide for any other method of promulgation than that 
 laid down in Art. 42 of the Constitution of 1898; 
 this would mean that the City of New Orleans, the 
 City of Lake Charles, the City of Alexandria, would 
 have to promulgate their ordinances by publishing 
 them at Baton Rouge, and this is an absolute absurd- 
 ity. And it would mean that every ordinance passed r 
 by the Police Juries of this State under Act 315 of 
 1908 was totally invalid and non-enforceable. 
 
 “The promulgation of laws is an executive 
 function whose mode, prescribed by the Legis- 
 lature, differs in different countries and at dif- 
 ferent times; it is the extrinsic act giving a law, 
 perfect in itself, executory force, and from 
 whose date only the law, unless otherwise pro- 
 vided, is presumed executory,” said Judge Spof- 
 ford in State vs. Ellis (12 A. 392). “Promulgate. 
 To publish; to announce officially; to make pub- 
 lic as important or obligatory.” Black’s Law Dic- 
 tionary. 
 
 Unless the Court held that there is no other way 
 than that provided in Art. 42 of the Constitution to 
 promulgate a law the Sanitary Code and Pure Food 
 and Drug Law have been promulgated. 
 
 As the Court says in State vs. Ellis (above), 
 promulgation has varied “in different countries and 
 at different times,” for in this State in early days 
 promulgation was effected by the furnishing to the 
 clerks of the District Courts copies of the law. 
 
 Touching the contention of the counsel for the ac- 
 cused relative to the prohibition of Art. 33 of the 
 Constitution of 1898 against the adoption of a sys- 
 tem or code of laws by reference, counsel would 
 
 — 28 — 
 
suggest that nothing of the kind has been done by 
 the State Board of Health. 
 
 There is apparently but one case on the subject in 
 the State’s jurisprudence: State vs. DeHart, 109 La. 
 570, and it does not apply fully to this case. 
 
 Neither the Legislature nor the board has adopted 
 a code of laws. As was said in ISENHOUR vs. 
 STATE: “The law itself is perfect and effective 
 in all its parts. In respect to matters to be deter- 
 mined by the State Board of Health in its execution, 
 it awaits the performance of these duties.” 
 
 III. 
 
 Counsel for the accused has stressed to the Court, 
 Ex Parte John Cox, 63 Cal. 21, WHICH WAS DE- 
 CIDED THIRTY YEARS AGO. Counsel only de- 
 sires to remark that this case is so obsolete and has 
 been so often contradicted by decisions all over the 
 United States that he is surprised at his learned 
 opponent quoting it. 
 
 IV. 
 
 Counsel submits, in conclusion : 
 
 FIRST: That the framing of the Sanitary Code 
 and the Pure Food and Drug Law was an administra- 
 tive or executive function, and that if this Court so 
 hold every contention of the accused must fall and 
 his conviction stand; 
 
 SECOND: That if the Court hold that the fram- 
 ing of the Sanitary Code and the Pure Food and 
 Drug Law was the exercise of a legislative func- 
 tion, then, even in this event, the conviction must 
 stand, since under the Constitution and jurispru- 
 dence of the State the Legislature had the power to 
 delegate such authority to the State Board of Health. 
 
 THIRD: That if the Board did exercise a legis- 
 lative function, Art. 42 of the Constitution applies 
 only to the promulgation of State statutes, and it was 
 competent for the Legislature to fix some other 
 method for the promulgation of the Sanitary Code 
 and the Pure Food and Drug Law. 
 
 Respectfully submitted, 
 
 BENJAMIN T. WALDO, 
 Attorney for Louisiana State Board of Health 
 
 — 29 — 
 
JUDGE F. D. CHRETIEN’S OPINION. 
 
 The case went on appeal from the Second City Crimi- 
 nal Court of New Orleans to the Criminal Dis- 
 trict Court for the Parish of Orleans and was 
 argued at length orally and by brief before 
 Judge Chretien in the latter Court. Judge 
 Chretien gave full reasons for sustaining 
 the contentions of the Board's attor- 
 torney and Judge Chretien's opinion 
 here follows: 
 
 STATE OF LOUISIANA. 
 
 CRIMINAL DISTRICT COURT FOR THE PAR- 
 ISH OF ORLEANS. 
 
 DIVISION B. 
 
 STATE OF LOUISIANA 
 versus 
 
 LARRY H. SNYDER. 
 
 REASONS FOR OVERRULING DEMURRER 
 AND FOR AFFIRMING JUDGMENT OF 
 LOWER COURT. 
 
 In September, 1911, an affidavit was filed by one 
 J. A. Kane, charging Larry E. Snyder, on the 18th 
 day of September, 1911, with having sold or caused 
 to be sold, with the knowledge and intent that the 
 same should be used as a beverage, or for human 
 consumption, and with the knowledge that the same 
 was sweetened with saccharin, and contained sac- 
 charin, to one Mrs. U. Nuss, a bottled drink, or bev- 
 erage, known as “pop,” or sarsaparilla jumbo, in vio- 
 lation of Regulation 37 of the Pure Food and Drug 
 Law of Louisiana, as promulgated by the Louisiana 
 State Board of Health under and by authority of Act 
 192 of 1898, contrary to the statute, etc. 
 
 — 30 — 
 
Regulation 37 reads as follows: 
 
 “The use of saccharin in any food product is 
 prohibited.” 
 
 To this affidavit a demurrer was filed by defend- 
 ant, alleging as matters of defense: 
 
 (1) “That the said affidavit and charge, and 
 the matters therein contained, fail to set up any 
 acts or things in violation of the criminal laws 
 and statutes of this State.” 
 
 (2) “That Acts 192 of 1898; 150 of 1902; 184 of 
 1904; and 98 of 1906, as well as the Sanitary 
 Code thereunder, and all amendments thereto, 
 as well as all amendments of the acts of the 
 aforementioned acts of the Legislature, and all 
 acts amended thereby are illegal and unconsti- 
 tutional, for the following reasons, amongst 
 others : 
 
 (a) “That the said acts and the Sanitary Code 
 under which this proceeding is brought, violate 
 and are contradictory of the provisions of Ar- 
 ticles 16, 17 and 21 of the Constitution of this 
 State passed and adopted in the year 1898, and 
 that the Legislature is without power in law to 
 delegate its law making power and authority to 
 an individual or body of individuals, whether 
 corporate or incorporate, so as to give the same 
 power to designate and define and determine 
 what are and what are not crimes and misde 
 meanors. 
 
 (b) “That the said acts and said Sanitary Code 
 under which this proceeding is brought violate 
 and are contradictory to the provisions of Ar- 
 ticle 33 of the Constitution of this State for the 
 year 1898, which said article declares that no 
 system or code of laws can be adopted by refer- 
 ence to such system or code of laws. 
 
 (c) “That said acts and said Sanitary Code 
 under which this proceeding is brought violate 
 and are contradictory to the provisions of Ar- 
 ticle 42 of the Constitution of this State for the 
 year 1898, which provided for the promulgation 
 of all laws before the same become effective; 
 that the said Sanitary Code was never promul- 
 gated and even if constitutional, which is denied, 
 
 - 31 — 
 
the same never having been promulgated as pro- 
 vided by law, said acts and said Sanitary Code 
 never became a law, and is now not effective, 
 and the defendant should not be held to answer 
 to the charges made against him.” 
 
 The first ground to be considered is whether by 
 the legislative acts which will hereafter be enumerat- 
 ed, insofar as they apply to this case, the Legislature 
 of the State conferred upon the State Board of Health 
 any of its legislative powers. 
 
 Article 296 of the Constitution of 1898 provides: 
 
 “The General Assembly shall create for the 
 State, and for each parish and municipality there- 
 in, Boards of Health, and shall define their 
 duties, and prescribe the powers thereof. The 
 State Board of Health shall be composed of rep- 
 resentative physicians from the various sections 
 of the State. Until otherwise provided by law, 
 both the President and Secretary of the State 
 Board of Health shall be ex-officio members of 
 the Board of Health of the City of New Orleans, 
 the President of the State Board of Health to be 
 President of the local Board of Health of New 
 Orleans.” 
 
 Article 297 provides: 
 
 “The General Assembly shall provide for the 
 interest of State medicine in all its departments; 
 for the protection of the people from unquali- 
 fied practitioners of medicine, and dentistry; 
 protecting confidential communications made, to 
 medical men by their patients while under pro- 
 fessional treatment ; for the protection of the 
 people against the sale of injurious or adulterated 
 drugs, foods and drinks, and against any and all 
 adulterations of the general necessaries of life 
 of whatever kinds and character.” 
 
 In furtherance of this mandate of the Constitution, 
 the Legislature undertook by Act 192 of 1898, to 
 carry out the above constitutional directions. 
 
 Section one creates the State Board of Health and 
 provides who the members thereof shall be; fixes 
 their qualifications and their pay, and the mileage 
 and per diem. 
 
 Section two provides for the appointment of the 
 
 — 32 — 
 
President of said Board, fixes his salary and his 
 term of office; provides that at its first meeting said 
 Board shall elect a suitable person, other than a mem- 
 ber of the Board, to be secretary and treasurer, and 
 fixes the salary of the said officer. It further de- 
 termines the duties and powers of the president and 
 secretary and treasurer. 
 
 Section three reads as follows: 
 
 “That said Board shall have all the powers, 
 authority and jurisdiction now possessed by the 
 existing State Board of Health under present 
 laws now in force, except in so far as modified 
 and changed by the provisions of this act. It 
 shall have exclusive jurisdiction, control and au- 
 thority over maritime quarantine within the 
 State, as now provided by existing laws of the 
 State. It shall have supervisory power over land 
 quarantine, and over the care and control of in- 
 fectious and contagious diseases within the 
 State in order to accomplish the subsidence and 
 suppression thereof, and to prevent the spread 
 of the same. Such supervision and control shall 
 be exercised in the manner and to the extent 
 hereinafter laid down in this act. It shall pre- 
 pare or cause to he prepared a Sanitary Code for 
 the State of Louisiana , which shall contain and 
 provide rules and regulations and ordinances of 
 a general nature for the improvement and ameli- 
 oration of the hygienic and sanitary condition 
 of the State.. On the adoption of the said code 
 by the Board, it shall be published at length and 
 in full in at least one. newspaper in the City of 
 New Orleans, and in the official journal of the 
 State Capitol, on ten successive and consecutive 
 days, and shall also be printed and published in 
 pamphlet form with such numbers of copies as 
 may be necessary for the distribution for infor- 
 mation of health bodies, health and sanitary of- 
 ficers and the public generally. When so print- 
 ed said code shall cover and provide for, espe- 
 cially, land and maritime quarantine regulations ; 
 the reporting, care and management of cases of 
 infectious and contagious diseases; it shall reg- 
 ulate the manner of keeping and reporting and 
 
 — 33 — 
 
tabulating vital and mortuary statistics; it shall 
 provide for affording facilities for vaccination, 
 provided the same shall not be made compul- 
 sory, except of children attending the public 
 schools ; it shall regulate the carriage and trans- 
 portation of persons, freight and dead bodies 
 brought into the State or transported through or 
 in the State in so far as the same may affect the 
 public health. It shall provide lor the carrying 
 out of the laws of the State in regard to the adul- 
 teration of articles intended for human food or 
 consumption; it shall provide for the inspection 
 of meats, milk, coal oil and other articles affect- 
 ing the public health and safety, where and when 
 the same may be brought into one parish from 
 another, or from outside of the State, leaving to 
 the local boards hereinafter provided, the reg- 
 ulation of the sale or offering for sale of said 
 articles within the parish or municipality to 
 which the same may be brought, and the said code 
 shall contain general rules in regard to such 
 health, sanitary and hygienic subjects, as can- 
 not in the opinion of the State Board of Health 
 be efficiently and effectively regulated by local 
 boards. # * *” 
 
 Sections 1, 3, 4 and 5 of Act 192 of 1898, creating 
 the State Board of Health, were amended by Act 150 
 of the sessions of the Legislature of 1902, but the 
 amendment to section three of said act alone need be 
 considered in this case, and only that portion of it 
 which applies to the Sanitary Code: 
 
 “It shall prepare, or cause to be prepared, a 
 Sanitary Code for the State of Louisiana, which 
 shall contain and provide rules, regulations and 
 ordinances of a general nature for the improve- 
 ment and amelioration of the hygienic and sani- 
 tary condition of the State. On the adoption 
 of said code by the Board it shall be printed and 
 published in pamphlet form with such numbers 
 of copies as may be necessary for distribution 
 for information of health bodies, health and sani- 
 tary officers and the public generally.” 
 
 Under the provisions of Act 98 of 1906, the Legis- 
 lature, in Section one of said act, provided: 
 
 — 34 — 
 
“That the State Board of Health of the State 
 of Louisiana, be, and is hereby authorized and 
 empowered in order to further carry into effect 
 Article 297 of the Constitution of 1898, to revise 
 the sanitary code provided for by Section 3 of 
 Act 192 of 1898, and to incorporate therein rules 
 and regulations governing the manufacture, sale 
 and inspection of foods, liquors, waters and 
 drugs in the State in so far as the same may af- 
 fect the public health; to fix standards of pur- 
 ity; to provide for the collection of samples and 
 the entering of premises for this purpose; to pro- 
 vide for the establishment of a laboratory for 
 the analysis of foods, liquors, drugs and water; 
 to employ an analyst and assistants, and fix and 
 pay their compensation; and to do all other acts 
 as may be requisite and proper to carry this act 
 into effect * * *” 
 
 Section 2. “Be it further enacted, etc., that 
 the power to further revise and amend said Sani- 
 tary Code is hereby conferred on said State 
 Board of Health for the State of Louisiana, pro- 
 vided that any revisions or amendments adopted 
 by said Board, shall, before going into effect, be 
 promulgated in the same manner as is required 
 by existing law for the Sanitary Code.” 
 
 Section three provides: 
 
 “That any person violating any of the pro- 
 visions of said Sanitary Code, shall, on convic- 
 tion by any court of competent jurisdiction, be 
 fined not less than ten nor more than two hun- 
 dred dollars for the first offense, nor less than 
 twenty-five nor more than four hundred dollars 
 for the second offense; nor less than fifty nor 
 more than five hundred dollars, or imprisonment 
 for not less than ten days nor more than six 
 months, or both, in the discretion of the Court, 
 for each subsequent offense.” 
 
 Thus it will be seen that, in furtherance of the 
 constitutional mandate above stated, the Legislature, 
 in 1898, adopted an act creating the State Board of 
 i Health, providing for the qualifications of its mem- 
 bers and defining the duties of said board. 
 
 Under the provisions of Section 3 of said Act, it 
 
 — 35 — 
 
gives the Board the power to prepare or cause to 
 be prepared a Sanitary Code for the State, which shall 
 provide rules, regulations and ordinances of a gen- 
 eral nature for the improvement and amelioration of 
 the hygienic and sanitary condition of the State; it 
 provided for the publication of said code, but omit- 
 ted to provide any penalty for the disobedience of 
 the rules, regulations and ordinances adopted by said 
 Board. 
 
 By Act 150 of 1902, amendatory of said Act of 1898, 
 the mode of publication and promulgation as provid- 
 ed in Act 98, was changed so as to allow the Board 
 of Health to promulgate said code by publishing, or 
 causing to be published in pamphlet form the code 
 thus adopted by said Board, and provided for the 
 manner of distributing the same. 
 
 As will be noticed in Act 192 of 1898, as well as 
 Act 150 of 1902, no penalties were imposed for the 
 violation of the rules, regulations and ordinances of 
 said Board, or for the violation of said health code, 
 and that A^ct 150 of 1904 provided penalties for the 
 violation of any of the rules, regulations and ordi- 
 nances of said Board. 
 
 An examination of these acts clearly demonstrates 
 that as Legislative Acts they were properly promul- 
 gated under and in accordance with the rules and 
 regulations of the Constitution providing for the 
 promulgation of such acts. 
 
 The question then to be determined, on the first 
 part of the demurrer, is whether the constitutional 
 provision relating to the promulgation of acts ap- 
 plied with equal force to rules, regulations and or- 
 dinances, and Health Codes adopted by the Board of 
 Health, and whether the Legislature by Act 192 of 
 1898, and acts amendatory thereof, delegated any 
 legislative powers to the State Board of Health. 
 
 Article 42 of the Constitution reads as follows: 
 
 “No law passed by the General Assembly , ex- 
 cept the General Appropriation Act, or act ap- 
 propriating money for the expenses of the Gen- 
 eral Assembly, shall take effect until promul- 
 gated. Laws shall be considered promulgated 
 at the place where the State Journal is published, 
 the day after the publication of such law in the 
 
 — 36 — 
 
State Journal, and in all other parts of the State 
 twenty days after such publication. The State 
 Journal shall be published at the capital.” 
 
 It will be noticed that this article of the Constitu- 
 tion deals with laws passed by the General Assembly. 
 
 In the case of Isenhour vs. State, from Indiana, 
 reported in the 62nd North-Western Report- 
 er, at page 40, the defendant was charged with hav- 
 ing in his possession with intent to sell the same, one 
 pint of milk adulterated with formaldehyde. A mo- 
 tion to quash was filed, because it was alleged that 
 the act under which the prosecution was had violated 
 the following provisions of the State Constitution 
 of Indiana, viz.: 
 
 “First. Section 21, Article 1, which provides 
 that ‘no man’s property shall be taken by law 
 without just compensation.’ ” 
 
 “Second. Section 25, Article 1, which provides 
 that ‘no law shall be passed, the taking effect of 
 which shall be made to depend upon any author- 
 ity except as provided in the Constitution,’ ” 
 “Third. Section 19, Article 4, which provides 
 that ‘every act shall embrace but one subject and 
 matters properly connected therewith; which 
 subject shall be embraced in the title.’ ” 
 
 The motion to quash was overruled. After elimi- 
 nating the first and third grounds of the motion, as 
 having no application to the case, the Supreme Court 
 of Indiana goes into a full analysis of the second 
 ground, viz. : “That no law shall be passed, the tak- 
 ing effect of which shall be made to depend upon any 
 authority, except as provided in the Constitution.” 
 
 The Legislature of Indiana adopted in 1899 at 
 page 189 of said acts, what is known as the “Pure 
 Food Law.” In it certain duties are imposed on 
 the State Board of Health in which the said Board is 
 given powers, similar in nearly every respect to those 
 given to the State Board of Health in this State; 
 among them the duty of making a Pure Food Code. 
 
 The act provided for the punishment for the vio- 
 lations of its provisions, and that of the code as 
 adopted by the Board of Health. The question in 
 that case, as in this case, was that the ordinances, 
 rules and regulations, and Health Code of the Board 
 
 — 37 — 
 
of Health were adopted and made operative only 
 after the passage of the act of 1899, and could not 
 be covered by that act. That the delegation of power 
 by the Legislature to the Board of Health was legis- 
 lative, and was, therefore, beyond the power of that 
 body to delegate to any other body; that the meas- 
 ures adopted by the Board for the enforcement of 
 the act of 1899 were legislative, and as all legislative 
 powers were, under the Constitution, vested in the 
 State Legislature alone, that the act was unconstitu- 
 tional and ineffective. 
 
 The Court, in passing upon these objections, used 
 the following language, which, in my opinion, is con- 
 clusive of the controversy in the present case: 
 
 “Does the act violate Section 25, Article 21, 
 providing that ‘no law shall be passed, the taking 
 effect of which shall be made to depend upon 
 any authority except as provided in the Consti- 
 tution/ The Pure Food Law provides that 
 ‘within ninety days after the passage of this 
 act the Board of Health shall adopt such meas- 
 ures as may be necessary to facilitate the en- 
 forcement thereof, and shall prepare rules and 
 ordinances where and when necessary regulating 
 minimum standards of foods and drugs, defining 
 specific adulterations, and declaring the proper 
 methods of collecting and examining drugs and 
 articles of food.’ From this provision it is ar- 
 gued that the law could not become effective and 
 ‘could not be violated until the State Board met, 
 within ninety days, prepared its rules and passed 
 its ordinances regulating minimum standards, de- 
 fining adulterations, and declaring the methods 
 of collecting and examining foods,’ and, in sub- 
 stance, an attempted delegation of legislative 
 power to the State Board of Health. The ob- 
 vious purpose of the provision last quoted was 
 to commit to a body of learned and scientific 
 experts the duty of preparing such rules and pre- 
 scribing such tests as may, from time to time, 
 in the enforcement of the law, be found neces- 
 sary in determining what combination of sub- 
 stances are injurious to health, and to what ex- 
 tent, if at all, admixtures or deteriorations of 
 
 — 38 — 
 
foods and drugs may go without injuriously af- 
 fecting the health of the consumer. That which 
 is required of the State Board of Health has no 
 semblance to legislation. It merely relates to a 
 procedure in the law’s execution for a reliable 
 and uniform ascertainment of the subjects upon 
 which the law is intended to operate. Nor does 
 the duty imposed upon the State Board in any 
 sense postpone the taking effect of the law until 
 the duty is performed. Performance can never 
 be said to be complete. The duty is continuing, 
 and will arise at any time when a new food or 
 drug is put forward. Besides, it is paradoxical 
 to say that the law is not effective until the 
 State Board has acted, when it is certain that 
 without the law they could not act at all. And 
 to say that their act puts the law in operation is 
 to excuse them from acting, because no law re- 
 quires it. This class of legislation emanates 
 from an exercise of the police power of the State 
 for the protection of the public health. The pow- 
 er of the Legislature, and its right to determine 
 for itself when an emergency for such legislation 
 exists, and the means and instrumentalities neces- 
 sary to accomplish the end in view, is no longer 
 a doubtful question. The particular character of 
 the subject, embodying as it does considerations 
 of sanitary science, is such as to require for just 
 legal control something more than legislative 
 wisdom to accurately designate the subjects and 
 instances intended to be affected. The classifi- 
 cation of these subjects, and the prescribing of 
 rules by which they may be determined by a 
 qualified agent, is not legislation, but merely the 
 exercise of administrative power. The law itself 
 is perfect and effective in all its parts. In re- 
 spect to the matters to be determined by the 
 State Board of Health in its execution it awaits 
 the performance of these duties. When per- 
 formed, the law operates upon the things done 
 by the Board. While unperformed, the law re- 
 mains ready to be applied whenever the prelimi- 
 nary condition exists. It is said in Blue vs. 
 Beach, 155 Ind. 121, 36 N. E. 89, on page 130, 155 
 
 — 39 — 
 
Ind., and page 92, 56 N. E.: “In order to secure 
 and promote the public health, the State creates 
 boards of health as an instrumentality or agency 
 for that purpose, and invests them with the 
 power to adopt ordinances, by-laws, rules and 
 regulations necessary to secure the objects of 
 their organization. While it is true that the char- 
 acter or nature of such boards is administrative 
 only, still the powers conferred upon them by the 
 Legislature, in view of the great public interest 
 confided to them, have always received from the 
 Courts a liberal construction, and the right of the 
 Legislature to confer upon them the power to 
 make reasonable rules, by-laws and regulations 
 is generally recognized by the authorities.” See, 
 also* Overshiner vs. State, 156 Ind. 187, 59 N. E. 
 468, 51 L. R. A. 748; State vs. Board of Phar- 
 macy, 155 Ind. 414, 58 N. E. 531 ; Groesch vs. 
 State, 42 Ind. 547, 556; Railroad Co. vs. Geiger, 
 34 Ind. 185, 220.” 
 
 In the case of Moses B. Polinski, plaintiff in error, 
 vs. People of New York City, defendants in error; 
 that was an indictment containing three counts. 
 
 The first count charged defendant with exposing 
 for sale in the City of New York impure and un- 
 wholesome milk adulterated with water, against the 
 form of the statute. 
 
 The second count charges that he kept and offered 
 for sale milk in violation of the code and of the stat- 
 ute. 
 
 The third count charged him with bringing it into 
 the City of New York for sale in violation of an or- 
 dinance of the Sanitary Code passed by the Board of 
 Health of the City, February 23rd, 1876, and of which 
 due public notice is alleged, and is set out in the 
 count in full. 
 
 “By section one of chapter 467 of the Laws of 
 New York of 1862, entitled an act to prevent the 
 adulteration of milk, and to prevent the traffic 
 in injurious and unwholesome milk, as amended 
 by Section 1 of Chapter 545 of the laws of 1864, 
 the knowingly selling or exposing for sale im- 
 pure, adulterated or unwholesome milk is made 
 a misdemeanor punishable by a fine of not less 
 
 • 40 — 
 
than fifty dollars, and if the fine is not paid, by 
 imprisonment for not less than thirty days in 
 the penitentiary, or county jail, or until the fine 
 is paid.” 
 
 The statute is of general application throughout 
 the State of New York. 
 
 The Board of Health of the City of New York, Feb- 
 ruary 23rd, 1876, enacted an ordinance and made it 
 part of the Sanitary Code, as follows: 
 
 “No milk which has been watered, adulterated, 
 reduced or changed in any respect by the addi- 
 tion of water or other substance, or by removing 
 of cream, shall be brought into the City of New 
 York, nor shall any one keep or offer for sale 
 any such milk.” 
 
 The ordinance of the Board of Health was attacked 
 on the ground that it was an unconstitutional delega- 
 tion of legislative authority, and that the ordinance 
 of the Board of Health of the City of New York was, 
 for that reason, unconstitutional. 
 
 In passing upon the question, the Supreme Court 
 of New York used the following language : 
 
 “That the Legislature in the exercise of its 
 constitutional authority may lawfully confer on 
 Boards of Health the power to pass sanitary 
 ordinances within which their jurisdiction ex- 
 tends, is not an open question; this power has 
 been repeatedly recognized and affirmed.” 
 
 Quoting many authorities. 
 
 “An ordinance that is designed to prevent the 
 sale of adulterated milk is manifestly within the 
 scope of sanitary regulations.” 
 
 In the case of Edward Leeper vs. State of Tennes- 
 see, 48 Lawyers’ Reports Annotated, page 167, the 
 following occurs : 
 
 “The defendant was convicted of violating the 
 provisions of Act 1899, Chapter 205, commonly 
 known as the uniform textbook act, and sen- 
 tenced to pay a fine of ten dollars and costs, and 
 has appealed.” 
 
 “The caption of the act under which convic- 
 tion is had thus expresses the object and subject 
 matter of the law, to-wit: An act to authorize a 
 Textbook Commission and to procure for use in 
 
 — 41 — 
 
the public schools in this State a uniform system 
 or series of textbooks; to define the duties and 
 powers of said commission, etc., etc.” 
 
 “Under the act a Board was accordingly creat- 
 ed, and to it devolved the duty of selecting and 
 adopting a uniform system or series of textbooks 
 for use in the public schools of the State.” 
 
 All necessary powers are given to the Board to de- 
 termine what books shall be used in the schools, for 
 the advertising for bids for the furnishing of books, 
 authorizing the executive, as soon as the contracts 
 have been entered into, to issue his proclamation an- 
 nouncing such fact to the people of the State, a de- 
 pository to be designated by the commirsion, where 
 a supply of books to meet the immediate demand 
 shall be kept, etc., etc., and the law makes it a misde- 
 meanor for any teacher to use, or permit to be used, 
 in his or her school, any textbooks except those adopt- 
 ed by the commission, and fixes as a punishment for 
 the same, a fine of not less than ten dollars nor more 
 than fifty dollars. 
 
 To the affidavit made against the defendant a de- 
 murrer was filed, in which it is insisted that the act 
 is unconstitutional, because: 
 
 (1) It allows a monopoly. 
 
 (2) It delegates legislative powers. 
 
 (3) It denies local self-government. 
 
 In passing upon the question, the Supreme Court 
 used the following language : 
 
 “The next objection urged is that the act dele- 
 gates legislative powers to the commission, and 
 to the executive of the State. The main pro- 
 visions of the act which bear upon the question 
 are those which provide that the commission may 
 select books, make contracts for obtaining them 
 and perfect the details of the general plan in pro- 
 viding all schools with the books chosen, and ob- 
 tain for the pupils and patrons the lowest price 
 possible.” 
 
 “If we grant that the Legislature has the power 
 to prescribe and enforce the system, since it is 
 one that requires the adjustment of many details, 
 it is evident that such details can only be carried 
 out by a commission. In such cases, the Legis- 
 
 ■ 42 — 
 
lature can only act through Boards or Commis- 
 sions or other agencies, and there can be no val- 
 id objection unless legislative power is conferred 
 upon the Board. * * *” 
 
 “It (the State) does not delegate legislative 
 power ; that is, any power to pass or annul a law. 
 There is a difference between the delegation of 
 power to make laws involving, necessarily, a dis- 
 cretion as to what they shall be, and a grant of 
 authority relating to their execution, though the 
 latter may involve the exercise of discretion to, 
 and in pursuance of the law. (6 Am. and Eng. 
 Ency. of Law, second edition 1029). 
 
 “Merely administrative and executive func- 
 tions may be delegated.” 
 
 Cinn. W. & Z. R. Co. vs. Clinton County Com- 
 mission, 1 Ohio State, 88. 
 
 “The difference between the power to pass a 
 law and the power to adopt rules or regulations 
 to carry into effect a law already passed is ob- 
 vious.” 
 
 Ga. R. R. Co. vs. Smith, 70 Ga. 694. 
 
 “The Legislature cannot delegate its power to 
 make a law, but it can make a law to delegate 
 the power to determine some facts or state of 
 things upon which the law makes, or intends to 
 make, its own action depend.” 
 
 Locke’s Appeal, 72 Pa. 498, 13 Am. Rep. 716. 
 
 In the case of Frank E. Blue vs. Fannie M. Beach; 
 this was an action by the appellant Blue to enjoin 
 Fannie M. Beach and Orville Connor, the former be- 
 ing a teacher, and the other superintendent of the 
 Graded Public Schools in the City of Terre Haute 
 from excluding his son Clay O. Blue from attend- 
 ing such school. 
 
 I gather from the decision the following facts: 
 An act had been adopted by the Legislature of In- 
 diana creating the State Board of Health; giving 
 it practically the same powers as those given to 
 the State Board of Health of this State under Act 
 192 of 1898; amongst others, to use such methods 
 and means as was necessary to prevent the spread- 
 ing of contagious diseases. It is shown by the case 
 that small pox existed to a great extent in the City 
 
 — 43 — 
 
of Terre Haute, and the Board of Health adopted a 
 resolution prohibiting the receiving of pupils in the 
 schools unless properly vaccinated. In obedience to 
 this rule of the Board of Health the school teacher, 
 Fannie M. Beach, and Orville Connor, Superintend- 
 ent of the Graded Public Schools of the City of Terre 
 Haute, refused to accept the son of the said Frank 
 E. Blue into the school because he had not been 
 properly vaccinated as required by the resolution of 
 the Board of Health. 
 
 Blue then proceeded into court for the purpose of 
 forcing the receiving his son. 
 
 “The contention of learned counsel,” says the 
 Judge, “is that each paragraph of the answer is bad 
 and that the state of facts and the matters therein 
 disclosed do not justify the appellees from exclud- 
 ing appellant’s son from the public school. Their 
 resistance may be said to embrace the following 
 propositions” : 
 
 (1) “The exclusion of any pupil from the 
 public schools of this State when he is well and 
 healthy, as the complaint discloses was the con- 
 dition of Clay O. Blue, and where there has 
 been no exposure to the infection of small pox, 
 cannot be sustained merely because such pupil 
 refuses to be vaccinated.” 
 
 (2) “The rights of the appellant’s son under 
 the facts shown by the complaint to attend the 
 public school in question is guaranteed by the 
 Constitution, and the qualifications necessary 
 to exercise this privilege are prescribed by stat- 
 ute, and as there is no statute providing that vac- 
 cination of a pupil shall become precedent to 
 this condition, it is contended that the order of 
 the Board of Health is without authority of law.” 
 
 (3) “It is further insisted that the rules and 
 by-laws, rules and regulations necessary to se- 
 do not have the power of laws within their re- 
 spective jurisdictions, and that the power of the 
 State Board of Health to adopt by-laws and 
 rules of the nature of rule eleven is legislative.” 
 
 “Therefore, under Article 4, Section 1, of the 
 State Constitution, whereby all legislative au- 
 thority is lodged in the General Assembly, the 
 
 — 44 — 
 
power to make such laws cannot be delegated by 
 them to Boards of Health.” 
 
 The Court, in passing upon the question, says: 
 
 “In order to secure and promote the public 
 health, the State creates Boards of Health as in- 
 strumentalities or agencies for that purpose, and 
 invests them with the power to adopt ordinances, 
 by-laws, rules and regeulations necessary to se- 
 cure the object of their organization. While it 
 is true that the character and nature of such 
 Board is administrative only, still the powers 
 conferred upon them by the Legislature, in view 
 of the great public interest confided to them, 
 have always received from the Courts a liberal 
 construction; and the right of the Legisla- 
 ture to confer upon them the power to make rea- 
 sonable rules, by-laws and regulations, is gen- 
 erally recognized by the authorities.” (Citing 
 many authorities). 
 
 “When these Boards duly adopt rules or by- 
 laws by virtue of the legislative authority, such 
 rules and by-laws, within their respective juris- 
 dictions, have the force and effect of a law of 
 the Legislature, and like an ordinance or by-law 
 of a municipal corporation, they may be said to 
 be enforced by authority of the State.” (Quot- 
 ing many authorities.) 
 
 “It cannot be successfully asserted,” says the 
 Court, “that the power of Boards of Health to 
 adopt rules or by-laws, subject to the provisions 
 of the law by which they are created, and at 
 harmony with other statutes in relation to the 
 public health, in order that the ‘outbreak and 
 spread of contagious diseases’ may be prevented, 
 is an improper delegation of legislative author- 
 ity, and a violation of Article 4 of Section 1 of 
 the Constitution. It is true, beyond controversy, 
 that the Legislative Department of the State 
 wherein the Constitution had lodged all legis- 
 lative authority will not be permitted to relieve 
 itself of this power by the. delegation thereof. 
 It cannot confer upon any body or person the 
 power to determine what the law shall be as that 
 power is one that only the Legislature, under 
 
 —45 — 
 
the Constitution, is authorized to exercise; but 
 this constitutional inhibition cannot properly be 
 extended so as to prevent the grant of legislative 
 authority to some administrative boards, or of- 
 ficials, involving the exercise of discretion or 
 judgment, must be considered a delegation of 
 legislative authority. While it is necessary that 
 a law when it comes from the law-making power, 
 should be complete, still there are many matters 
 relating to matters of details which may be, by 
 the Legislature, referred to some ministerial of- 
 ficer or body. All such matters fall within the 
 domain of the right of the Legislature to author- 
 ize an administrative board or body to adopt or- 
 dinances, rules, by-laws and regulations in aid of 
 the successful execution of some statutory pro- 
 vision.” 
 
 “The Legislature cannot delegate its power 
 to make a law, but it can make a law and dele- 
 gate power to determine some fact or state of 
 things upon which the law makes or intends its 
 own action to depend.” 
 
 “To deny this would be to stop the wheels of 
 government.” 
 
 “There are many things upon which a wise and 
 useful legislature must depend, which cannot be 
 known to the law-making power, and must there- 
 fore be subject to inquiry and determination out- 
 side of the halls of legislation. That the power 
 granted to any administrative boards, of the na- 
 ture of the Board of Health, etc., to adopt rules, 
 by-laws and regulations reasonably adapted to 
 carry out the purpose and object for which they 
 were created is not an improper delegation of 
 authority within the meaning of the constitu- 
 tional inhibition in controversy, is no longer an 
 open question and is settled by a long line of au- 
 thorities.” (Quoting many authorities.) 
 
 “It would seem that the power of the Board of 
 Health of this State under the law relative there- 
 to to make and adopt all reasonable by-laws, rules 
 and regulations to carry out and effectuate the 
 great public interest confided to them by the 
 Legislature is so well affirmed by authorities 
 
 — 46 — 
 
that we dismiss that feature of appellant’s con- 
 tention without further consideration.” 
 
 “In the light of the firmly settled principle of 
 law to which we have referred we may proceed 
 to the facts to test thereby the acts of the ap- 
 pellees in excluding Clay O. Blue from school.” 
 
 The same question, as cited in the case of Blue vs. 
 Beach, was raised in the case of Leeper vs. State., and 
 for reasons identical with those in the former case, 
 the proceedings under the arrest made for a viola- 
 tion of the rules of the commission was maintained. 
 
 In the case of Pierce vs. Doolittle, quoted at page 
 751 of the 106 N. W. Rep., an Iowa case, the conten- 
 tion therein raised was similar to those raised in the 
 present case by the appellant. 
 
 The case arose under the Iowa Health Code, sec- 
 tion 2573, which provided that a person who knowing- 
 ly fails, neglects or refuses to comply with and obey 
 any order, rule or regulation of the State Board of 
 Health shall be guilty of a misdemeanor, and punish- 
 able as provided for in Section 4906. 
 
 It was claimed that the power thus given to the 
 Board of Health was unconstitutional because it was 
 delegating legislative power to determine what acts 
 should constitute a punishable offense. 
 
 The Supreme Court of Iowa, in passing upon the 
 question, lays down the rule that the Legislature has 
 the power to provide for the punishment of acts in 
 resistance to and in violation of authority conferred 
 by it upon the State Board of Health to adopt rules 
 and regulations for the benefit of the public health. 
 That such rules or ordinances are not legislative in 
 their nature but administrative; that such rules, reg- 
 ulations and ordinances have the force and effect of 
 a statute of the Legislature, and the opinion of the 
 lower Court was affirmed. 
 
 Thus it becomes evident that the rules, regula- 
 tions, ordinances and health code adopted by the 
 Board of Health in pursuance of the authority vested 
 in said Board by the acts of the Legislature of the 
 State, are not, in the legal meaning of the law, legis- 
 lative; but, that they are designed to carry into ef- 
 fect the necessary sanitary measures to promote pub- 
 lic health. This being true, the powers to adopt and 
 
 — 47 — 
 
enforce those rules, regulations, ordinances and health 
 code are not delegated legislative powers, and the 
 demurrer based upon such a contention must be over- 
 ruled. 
 
 The next constitutional objection aimed at the legal- 
 ity of the acts in question has even less force. It is 
 argued that the State Board of Health of this State, 
 in adopting a health code, did so, in contravention of 
 Article 33 of the Constitution of this State of 1898, 
 which reads as follows: 
 
 “The General Assembly shall never adopt any 
 system or code of laws, but, in all cases shall re- 
 cite at length the several provisions of the laws 
 it may enact/’ 
 
 The health code adopted by the Board consist of 
 rules, regulations and ordinances of said Board, for 
 more compactness and convenience, and is in no sense 
 the adoption of the code of laws. 
 
 The next and last objection is that the health code 
 has never been promulgated as required by law, and 
 that the said code is unconstitutional and ineffective 
 because of the lack of promulgation, and if it ever 
 was promulgated, that it never was promulgated in 
 the manner and form as laid down by Article 42 of 
 the Constitution of the State of 1898. 
 
 It has been shown that these rules, regulations, or- 
 dinances and health codes, are not legislative acts, 
 but executive in their nature, intended solely to more 
 effectively carry out the legislative intent. Article 
 42 of the Constitution provides for the promulgation 
 of State Laws and not of mere rules, regulations, or- 
 dinances and health codes adopted by a corporation 
 created by the State. 
 
 The promulgation of the rules, etc., etc., follow the 
 act of their creation and are to be promulgated as 
 directed by legislative authority. The acts giving 
 life and power to the State Board of Health direct 
 that the publication of the Health Code is to be made 
 by having the same printed in pamphlet form, and 
 in that form distributed. It is not claimed that this 
 form of promulgation has not been followed ; on the 
 contrary, the evidence demonstrates that it has, and 
 I therefore conclude that the rules, regulations, or- 
 
 ... 48 -. 
 
dinances and Health Code of the State Board of 
 Health has been promulgated in a legal manner. 
 
 ON THE MERITS. 
 
 An examination of the testimony in this case shows 
 that “pop,” as described in the affidavit, was sold 
 by the defendant in the case; that it contained sac- 
 charin matter to an amount prohibited by Regulation 
 37 of the Revised Food and Drug Regulations of the 
 Louisiana State Board of Health. 
 
 For the reasons above given the demurrer herein 
 filed is overruled, and the judgment of the Lower 
 Court is affirmed. 
 
 — 49 — 
 
SUPREME COURT DECISION. 
 
 After Judge Chretien had upheld the constitution- 
 ality and legality of the Sanitary Code and Pure 
 Food and Drug Law of Louisiana, the matter was 
 taken to the Supreme Court of Louisiana upon 
 application for writ of certiorari, or review. 
 
 The writ was granted and after having held 
 the matter under advisement for a 
 ' month the following opinion and de- 
 cree was handed down, Mr. Asso- 
 ciate Justice Olivier O. Provosty 
 being the organ of the Court. 
 
 SUPREME COURT OF THE STATE OF 
 LOUISIANA. 
 
 No. 19,418. 
 
 STATE OF LOUISIANA 
 vs. 
 
 LARRY H. SNYDER. 
 
 In re Larry H. Snyder applying for writ of certiorari 
 or review. 
 
 By the Associate Justice Olivier O. Provosty. 
 
 The Legislature having, by Act 98, page 164, of 
 1906, created a State Board of Health, and required 
 to prepare and promulgate a sanitary code and made 
 it a penal offense to violate any of the regulations 
 thus to be made by the said Board, and the said Board 
 having prepared and promulgated a sanitary code 
 and one of the provisions of the said code being that, 
 “Sec. 37. The use of saccharin in any food 
 product is prohibited.” 
 
 The accused was prosecuted and convicted and sen- 
 tenced for a violation of said provision. 
 
 — 50 — 
 
He challenges the constitutionality of said pro- 
 vision on the ground that the Legislature could not 
 validly delegate to the State Board of Health the 
 power to declare and provide what conduct shall 
 constitute a crime; that the power by which conduct 
 otherwise innocent is made criminal, is legislative, 
 and that legislative power for State purposes can be 
 validly exercised only by the Legislature itself, can- 
 not be constitutionally delegated to some subordi- 
 nate functionary. 
 
 The contention would be well founded if it were 
 not for Art. 296 of the Constitution, reading: 
 
 “The General Assembly shall create for the 
 State, and for. each parish and municipality there- 
 in, Boards of Health, and shall define their dut- 
 ies, and prescribe the powers thereof.” 
 
 Here the Legislature is authorized to “prescribe 
 the powers” of the Board of Health. This can only 
 mean to delegate to the Board of Health such powers 
 as may be deemed to be necessary for efficiently car- 
 rying out the purposes for which a Board of Health 
 is created, and the power most obviously necessary in 
 such a case is that to make health regulations that 
 shall have the force of laws. And nothing more than 
 this has been done in the present case. 
 
 The accused also contends that the said sanitary 
 code has never been promulgated. He does not deny 
 that it was promulgated in a manner prescribed by the 
 statute, by being printed in pamphlet form and widely 
 distributed, and does not deny that this mode of 
 promulgation would be sufficient in the absence of 
 anything to the contrary in the Constitution, but con- 
 tends that the Constitution requires statutes to be 
 promulgated by publication in the official journal, 
 and that if these regulations of the Board of Health 
 are to have the force and effect of statutes they 
 ought to be promulgated like statutes. "In answer to 
 this, it suffices to say that the provision of the Con- 
 stitution thus invoked, Art. 42, has reference only to 
 “laws passed by the General Assembly”; and that 
 these regulations of the Board of Health are not 
 “laws passed by the General Assembly.” 
 
 The accused also contends that by thus making it 
 a penal offense to violate any of the regulations 
 
 — 51 — 
 
which the Board of Health may in the future adopt, 
 the Legislature has practically adopted a system or 
 code of laws in violation of Art. 33 of the Constitu- 
 tion, which provides that “the General Assembly 
 shall never adopt any system or code of laws by 
 general reference to such system or codes of laws; 
 but in all cases shall recite at length the several pro- 
 visions of the laws it may enact/’ 
 
 This article has no application to a case like the 
 present, where the Legislature has not adopted a 
 system or code of laws, but has made it a penal of- 
 fense to violate whatever rules necessary for the con- 
 servation of the public health the Board of Health 
 may make. The said article is not aimed at any- 
 thing of that kind. 
 
 Judgment affirmed. 
 
 — 52 — 
 
BRIEF ON RE-HEARING 
 
 The defendant asked for a rehearing after the fore- 
 going decision had been rendered by the Supreme 
 Court. The Board filed the following brief 
 in reply to this application for rehearing: 
 
 No. 19,418. 
 
 SUPREME COURT OF LOUISIANA. 
 
 STATE OF LOUISIANA 
 vs. 
 
 LARRY H. SNYDER. 
 
 May it please Your Honors: 
 
 Counsel for the Board of Health of the State of 
 Louisiana has read carefully the petition for rehear- 
 ing and the brief thereon filed by the defendant, and 
 counsel can find nothing there which was not urged 
 and stressed in the Criminal District Court and be- 
 bore Your Honors heretofore, unless it be the state- 
 ments made in the first three paragraphs of the brief 
 of defendant. 
 
 The Board of Health of the State of Louisiana ad- 
 mits that there have been more than fifty infractions 
 of the Sanitary Code and the Pure Food and Drug 
 Law since this prosecution was instituted in the 
 Second City Criminal Court. If counsel for the de- 
 fendant errs he errs in the number of such infrac- 
 tions ; there have been probably three or four hun- 
 dred such infractions, but counsel for the Board fails 
 to see what bearing this can have upon this case 
 other than to accentuate the necessity for the regula- 
 tions contained in the Pure Food and Drug Law 
 and the Sanitary Code. 
 
 As to the suggestion that the Board is provided 
 with an attorney, and the further suggestion that the 
 Legislature is now in session in Baton Rouge, and 
 the intimation that the attorney for the Board might 
 go to the General Assembly and have the provisions 
 
 — 53 — 
 
of the Sanitary Code and the Pure Food and Drug 
 Law put into the shape of an act of the legislature, 
 counsel for the Board can only reiterate the words of 
 this Court in the present case, in the case of Board of 
 Health vs. Standard Oil Company, in the case of M. 
 L. & T. R. R. & S. S. Co. vs. Railway Commission, 
 and the words of the Supreme Court of Indiana in 
 Isenhour vs. State, to the effect that there are count- 
 less matters of executive and administrative detail 
 which more properly belong, in their execution, to 
 boards and other governmental bodies than to legis- 
 latures ; for the very good reason among others, that 
 they involve the determination of technical matters 
 or scientific facts. 
 
 Counsel for the Board denies the suggestion con- 
 tained in the third paragraph of counsel for defend- 
 ant’s brief. Defendant’s counsel says: “The mere 
 fact of expediency or necessity should not be consid- 
 ered by the Court in passing upon constitutional 
 questions.” The opinion and decree handed down 
 herein on June 4, and of which Mr. Justice Provosty 
 was the organ, was unanimous ; and while “petitioner 
 and other defendants are entitled to the benefits con- 
 ferred upon them by the provision of the constitu- 
 tion,” as counsel for defendant says, there was no de- 
 nial of such right in the opinion and decree in this 
 case. 
 
 Counsel for the Board desires to say that but for 
 the paragraphs above referred to, he would not have 
 imposed this present brief upon the Court. He em- 
 braced the opportunity, however, of reiterating to 
 this Court what was said in the original brief herein; 
 that is, that every single section of the Pure Food 
 and Drug Law and every article of the Sanitary Code 
 is subject to a test which absolutely disposes of the 
 argumentum ad hominem made by opposing counsel. 
 This test is: That every rule and ruling and every 
 regulation made by the Board of Health of the State 
 of Louisiana, or any other governmental agency, must 
 be: 
 
 1st: REASONABLE. 
 
 2nd: NECESSARY. 
 
 If this test is applied, as it must be, in the en* 
 
 - 54 — 
 
forcement of the regulations made under legislative 
 and constitutional mandate by the Board of Health 
 of the State of Louisiana, it is an assurance that 
 the humblest citizen of this State can suffer no in- 
 justice, and counsel suggests that this defendant is 
 the last person to urge such an argument, since the 
 offenses with which he was charged, and which the 
 transcript shows was conclusively pYoven against 
 him personally, was the use of a highly deleterious 
 chemical in the preparation of a drink intended to 
 be sold to the people of this State and which, from 
 its very nature, appealed particularly to women and 
 children. 
 
 Counsel submits that the rehearing herein asked 
 for should be denied. 
 
 Respectfully submitted, 
 
 BENJAMIN T. WALDO, 
 
 Counsel Board of Health of the 
 
 State of Louisiana. 
 
 June 18, 1912. 
 
 The rehearing asked for was refused on June 28th , 
 1912, and the decision of the Supreme Court in the 
 case of State vs. Snyder, upholding the constitution- 
 ality and legality of the Pure Food and Drug Law of 
 Louisiana and of the Sanitary Code of Louisiana, is 
 now f^nal and , the Pure Food and Drug Law and the 
 Sanitary Code are now the paramount sanitary and 
 hygienic laws of Louisiana. 
 
 — 55 — 
 
V