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Mr. FINERTY. May I reach that just a little later on, because it comes more properly in connection with another reason why this bill is unenforceable ?

Senator DENEEN. All right.

Mr. FINERTY. On the other hand, if you consider this as an act of the Congress, and I am trying to bring your thought to that proposition, I think any court would construe this act as it now reads as imposing its liabilities at the time milk and cream cross the border and not the time at which it reaches the port of entry. But if this act should be construed as effective only at the point of entry, then the carrier transporting milk or cream over the border might have had such milk or cream in perfect condition when entering this country, and yet get it to a port of entry only to find it has incurred liability for transporting it as a common carrier; between the time when it reached the border and the time when it reached the port of entry it might have changed its bacterial content or even its temperature.

And even then you do not at all protect this milk, because there is. no provision in this bill that milk must be in any particular condition when it reaches a creamery. As far as this bill is concerned, if the carrier fulfills the requirements of the bill when it reaches the border, or possibly at the time when it reaches a port of entry, for all that the bill provides the milk may be in the rottenest state imaginable at the time it reaches the creamery, but the creamery may accept it under this bill without the slightest liability.

In other words, you are attempting to regulate the importation of milk withou defining the point where the protection begins, and without effectually protecting it because it must be covered at point of importing

The CHAIRMAN. How would you remedy such imperfections in the bill as you say exist?

Mr. FINERTY. That is asking me to hang my clients. I frankly do not believe that there can be any general effectual regulation. I am at one with Senator Lenroot in believing it is impossible to make such provisions as will cover interstate transportation, transportation conditions being as they are now; and I think it is equally impossible to make effectual regulations as to foreign importations. I think, if you want my real view, that the protection of the public must be left where it is now, in the hands of the municipal authorities, where milk and cream are marketed.

What I want more particularly to point out to this committee is that there is no ground for the assumption that apparently is being made in all these hearings, that Canadian milk and cream can now be sold in New York, or can now be sold in Boston, that are in any way inferior to American milk or cream, or in any way violating the health regulations of any of these cities. This legislation, from the point of view of protecting New York or any other city that will protect itself, is utterly unnecessary. And as I am going to proceed

, to point out, this regulation can not protect any city that will not protect itself.

Incidentally, I think Senator Norris called attention to the fact that in order not to interfere with the States it leaves the cities free to provide additional regulations. I do not understand that under the provisions of this bill any city could permit the carriage within its limits from Canada of milk that would violate the provisions of this bill. I do understand that any State may make more stringent regulations than this bill provides.

But, as I have said, this bill is now unnecessary because no Canadian milk does or can move to the city of New York that violates any of the health regulations of the city of New York. There is no difference from that of any milk that moves to New York City from the States of New York, or from Massachusetts, or Vermont, or any other place that it may come from. It has to be sold in the city of New York under the municipal regulations of that city. It has to comply with the municipal regulations of any of the cities to which it goes and can not be sold unless it does comply with such local regulations in every respect. That is true of any milk that comes from Canada, and it is no different from milk produced in this country, and therefore this proposed bill is unnecessary.

Senator RANSDELL. Does what you say about Boston and New York apply to Pittsburgh, Philadelphia, Cleveland, Chicago, and other American cities?

Mr. FINERTY. Yes, sir; it applies to every municipality in America.

Senator KENDRICK. What proportion of Canadian product is sold in the large cities?

Mr. FINERTY. I imagine that a majority of it moves to the larger cities, because it comes in in large part by rail, and naturally goes to the larger cities. You can not-and I think Senator Lenroot is absolutely right in his statement, that you can not-protect the small communities from the production and sale of bad milk unless they will find means to protect themselves; that the machinery will be impossible, as Senator Lenroot pointed out, in Senator Norris's State of Nebraska, to go up and down thousands of miles of State boundary lines and protect the people on either side of that line from interstate transportation, from milk coming from the other side of the line. Municipalities must protect themselves, and it is a misrepresentation to the members of this committee to lead them to believe that any Canadian milk moves to any of our municipalities under


conditions different from what American milk moves to those municipalities.

Now, gentlemen of the committee, on this point on which Senator Deneen has inquired: The provisions of this bill relating to prohibiting the importation into the United States of milk and cream unless the persons by whom such milk or cream is shipped or transported in the United States holds a valid permit from the Secretary of Agriculture. Section 4 of the bill provides that it shall be unlawful for any person in the United States to receive milk or cream imported into the United States unless the importation is in accordance with the provisions of this act.

And section 5 provides that: Any person who knowingly violates any provision of this act shall, in addition to all other penalties prescribed by law, be punished by a fine of not less that $50 nor more than $2,000, or by imprisonment for not more than one year, or both such fine and imprisonment.

Now, I want to point out to you, first, that unless the term person as used in this act includes a corporation, it is not worth the paper it is written on, because my clients, for instance, are a corporation and if the term “


13 does not include a corpora

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tion, they could not be prosecuted under this act, and they would be free from its provisions. If, on the other hand, the term

person does include corporations, then it includes railroad corporations and all other corporations.

Senator DENEEN. I asked the question because it was suggested to me by a member who is not on this committee. But as I understand it, all that is necessary, is to have a permit from the Secretary of Agriculture.

Mr. FINERTY. I think not.

Senator DENEEN. I gather from the first provision that if a railroad sees to it that a permit has been issued, then it is not required of the railroad to examine the milk.

Mr. FINERTY. I take it that under the provisions of this bill, a railroad, or a truckman, or a boatman, as the person actually transporting the milk into the United States, is the importer. Otherwise, who is the importer or transporter? Suppose the milk is refused in the United States by the person to whom shipped, which might very readily occur.

Senator DENEEN. What is prohibited here is the importation of milk without a permit from the Secretary of Agriculture. And if there is a permit, I take it that the railroad transporting the milk or cream is not required to make an examination. Mr. FINERTY. Oh, no. It says here that any person who know

, ingly violates any provision of this act. That is the provision that provides against the importation of milk or cream, or violating any of the provisions of paragraphs 1, 2, 3, 4, and 5 of section 2; that will come under that language. And if they do I think it is safe to say that a railroad will refuse to transport Canadian milk and cream, because to do so would subject them to penalty without the slightest possibility of protecting themselves against it.

And how are you going to inspect at the border for bacterial content, or even for temperature, any milk moving by rail across the border? And if you are to inspect it at the border you will have to inspect by having inspection stations at the border as distinguished from inspection stations at ports of entry.

The CHAIRMAN. Mr. Finerty, do you hope to conclude to-day? While it does not seem important that you do so, yet the members of the committee want to be in the Senate Chamber at 12 o'clock, and it is now about 10 minutes of 12. Or do you want additional time?

Mr. FINERTY. I can conclude in two minutes, Mr. Chairman.
The CHAIRMAN. Very well, proceed.

Mr. FINERTY. If a railroad company is subject to the penalties of this act, and is transporting milk or cream, and it is attempted to inspect that milk or cream at the port of entry, you still may prosecute the railroad company and never be able to obtain a conviction. That is, for the reason I have already stated. If, on the other hand, you attempt to take a sample and afterwards inspect it, then both the railroad and the receiver of the milk under the terms of this act may be liable to prosecution, and the only one who will escape prosecution is the one who ought to be prosecuted, if there is reason for it, and that is the shipper in Canada. So, therefore, I say that this act is unnecessary in that it protects in no way



a public that is not protected now. And further, it is misrepresented as a health measure. And still further, that in the last analysis it is unenforceable because you fail to define the place of importation.

Senator CAPPER. Is not that covered by the provision on the

last page:

The term ' person" means an individual, partnership, association, or corporation.

Mr. FINERTY. Yes; and I see that it does, and that obviously includes a railroad corporation.

Senator CAPPER. How could a railroad escape conviction?
Mr. FINERTY. I do not think a railroad could escape, then.
Senator CAPPER. I thought you said it could.

Mr. FINERTY. I admit that there would be some argument as to whether or not there would be provisions of the bill applied to a railroad corporation, whether it was an importer or transporter under the terms of this act, and the provisions of section 2 of the act. But I dare say there would be a prosecution, and if it were a railroad it would be justified in refusing to transport shipments. ] thank you, gentlemen of the committee.

The CHAIRMAN. Mr. Parker, the other witness you wanted to call, I suppose we can conclude with in the hearing to-morrow morning?

Mr. PARKER. I suppose Mr. Salthe would like to get away.

Mr. SALTHE. I am not representing any dealer, but once was in the health department,

The CHAIRMAN (interposing). Are you Mr. Salthe?
Mr. SALTHE. Yes, sir.

The CHAIRMAN. Could you be here to-morrow moring at 10.30 o'clock?

Mr. SALTHE. I have to be back to-morrow, Mr. Chairman.

The CHAIRMAN. Just give your name and address to the shorthand reporter and state whether you favor or oppose the bill.



Mr. SALTHE. Mr. Chairman and gentlemen of the committee, prior to 1924 I was connected with the health department of New York for a period of 20 years, and had active charge of the enforcement of health regulations.

I have read this bill, and if the bill as it is written were to be enforced it would mean the exclusion of the most of the Canadian milk and cream that now enter New York City, for the reason that the New York regulations do not provide for tuberculin testing of milk intended for Pasteurization. Furthermore, you have the requirement that in the case of raw milk if the number of bacteria per cubic centimeter exceeds 200,000, whereas we provide for 300,000, it can not be admitted. You also have the temperature requirement of 50°, and if it is enforced as the bill is now written it would mean the exclusion of Canadian cream for the reason that the New York health regulations, as has been explained here, permit 60° when the delivery of milk is intended for a creamery. If the milk is in the raw state and the milk can be delivered before 9 a. m., why it does not have to be cooled at all.

With these three provisions in the law as they are now written, it would mean the exclusion of Canadian milk. That would make a hardship on New York City, for the reason that during certain periods of the year Canadian milk and cream is very essential in order to supply the demands that it is necessary to supply.

Senator RANSDELL. And would it increase materially the price you would have to pay for milk?

Mr. SALTHE. Very likely; yes, sir.

The CHAIRMAN. In the bill as it passed the House you will note the statement is made:

In the case of raw milk if the number of bacteria per cubic centimeter exceeds 300,000

Mr. SALTHE. But your bill required 200,000.

The CHAIRMAN. The House bill that we are considering now covers one of the phases of your objection. Another one is if it exceeds 50° F.

Mr. SALTHE. It should be at least 60°.

The CHAIRMAN. Are you in favor of the general purposes of the bill?

Mr. SALTHE. As to its general purposes we would be in favor of it, and with these three conditions in there remedied they could bring milk into New York City.

The CHAIRMAN. You believe that milk should be properly Pasteurized ?

Mr. SALTHE. If milk is properly Pasteurized, and you had a phys cal examination of the cow such as is provided there, it would be acceptable to New York.

The CHAIRMAN. That would be acceptable to New York?
Mr. SALTHE. Yes, sir.

The CHAIRMAN. So that with these changes you would favor the bill?

Mr. SALTHE. With those changes I would; yes, sir.

Senator RANSDELL. Does it strike you that the bill is intended to protect public health, or is in the interest of cutting Canadian importation?

Mr. SALTHE. As it is written now it would appear to me as if it was cutting out importations of milk and cream from Canada.

Senator RANSDELL. To prevent that competition of Canadian milk and cream in the United States?

Mr. SALTHE. As it is written now; yes, sir.

The CHAIRMAN. Does any other member desire to ask any questions? [After a pause.] Senator Lenroot, do you care to ask any questions?

Senator LENROOT. No, I think not.

The CHAIRMAN. We are much obliged to you, Mr. Salthe. Does that conclude the testimony so far as the opposition to this bill is concerned?

Mr. PARKER. Yes, Mr. Chairman.

The CHAIRMAN. Do the gentlemen who are now present and who favor the bill want to appear in favor of it to-morrow?

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