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People v. Cipperly

3 N.Y. Crim. 385 Court Supreme Court—General Term—Third Department. English

Decision Majority — Landon, J. · Dissent — Learned, P. J.—[Dissenting.]

Contents

Majority

p. 385
Supreme Court—General Term—Third Department.
September, 1885.
PEOPLE v. CIPPERLY.

Headnote

Adulteration oe Milk.—L. 1882, ch. 202.
The legislature may prescribe rules for the admission of evidence, but cannot compel the trial court to hold it conclusive of the defendant's guilt without regard to the court’s conviction, or judgment as to its conclusiveness.
Section 18 of L. 1884, ch. 202,—which requires that upon a trial for selling adulterated milk, the milk shall be declared adulterated if it do not contain the percentage of ingredients specified in the statute,—is unconstitutional, because it deprives defendant of the right to have the issues on his trial determined according to the evidence of the fact, and compels him to submit to the statutory declaration thereof without having the truth ascertained.
Appeal by the defendant, Arthur Cipperly, from a judgment of ■ the Court of Special Sessions of Albany, Hon. Anthony Gould Recorder, presiding, of April 23, 1885, convicting him of selling adulterated milk.
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The defendant, Arthur Cipperly, was complained of upon the charge of violating L. 1884, ch. 202, of the State of New York, in having on March 27,1886, at the city of Albany, sold and exchanged, and exposed for sale and exchange, a large quantity of milk, a sample of which, having been obtained and subjected to a chemical analysis, was found to contain more than eighty-eight per centum of water and fluids, to wit, 88.096, and less than twelve per centum of mik solids, to wit, 11.904, of which said milk solids was found to contain less than three per centum of fat, to wit, 2.656, the same being adulterated milk.
That portion of the act material to the question raised is as follows:
§ 1. “Noperson or persons shall sell or exchange or expose for sale or exchange, any.....adulterated .... milk, or .shall offer for sale any article of food made from the same, or of cream from the same. This provision shall not apply to pure skim cheese made from milk which is clean, pure, healthy, wholesome and unadulterated, except by skimming. Whoever violates the provisions of this section is guilty of a misdemeanor and shall be punished by a fine of not less than twenty-five nor more than two hundred dollars, or by imprisonment of not less than one or more than six months, or both such fine and imprisonment for the first offense, and by six months’ imprisonment for each subsequent offense.”
“ § 13. In all prosecutions under this act, relating to the rsale and manufacture of.....adulterated.....milk, if the milk be shown to contain more than eighty-eight per centum of water or fluids, or less than twelve per centum of milk solids, which shall not contain less than three per centum of fat, it shall be declared adulterated .....”
“ § 14. The doing of any thing prohibited being done, and the not doing of any thing directed to be done in this act shall be presumptive evidence of a willful intent to violate the different sections and provisions hereof.”
Upon the trial of defendant at the Albany Special Sessions, the following proceedings took place :
George Fellows, a witness on behalf of the people, testified: “ I reside at Albany, and am connected with the State Dairy Commission ; on March 27,1885, I saw defendant on a wagon ;
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I think on Hamilton street, Albany; I saw him dip milk out of his can on the wTagon and put it into a tin vessel, which was taken into a house ; I then asked him for a sample, and he said I could have one, and gave it to me ; he took it out of the same can, I think, that he had dipped from ; I asked defendant if lie was selling milk out of cans he had on the wagon, and he said he was ; said he was peddling milk for John H. Cipperly.” .
Reuben R. Clark, witness on behalf of the people, testified : “ I reside at No. 65 Grand street, Albany ; my office is at same place; I am a physician and chemist of the State Dairy Department ; I have devoted special study of the subject of milk for the purpose of ascertaining its chemical composition; I know George B. Fellows; I received a sample of milk from him, said to have been obtained from defendant on March 27, 1885 ; samples of other milk were left at the same time; I made an analysis of the Cipperly sample and found it to contain : Water, 88.096 ; milk solids, 11.904 ; fat, 2.656.” Being cross-examined, the witness testified as follows : “ Q. Do yon know the average per cent, of water in milk? A. Different authors who have analyzed give different results; the average per cent, varies with different authors; the main constituent of milk in quantity is water; I cannot say that the average is 87.5 per cent, of water; cannot state any per cent, which authors agree upon as being the average; don’t know whether some authors put it at 87.5 per cent.; have consulted Bythe, Hassall, Wynklyn and Pavy ; don’t know Dr. Nicholas Gerber as an author; I do not know whether any of these authors give 87.5 as the. average per cent, of water; have not consulted Dr. Herman Enderman ; I am aware that recent investigations have materially modified the earlier analyses of milk; have gone further and methods more accurate; they show that the earlier analyses were not strictly correct; the conditions which will affect the quality of milk are : age of the cow, her condition as being healthy, surroundings, sanitary or hygienic conditions, time after calving, weather, season as being warm or cold, feed, race, etc.; some breeds of cows give richer milk than other breeds of cows; some under the same conditions will give higher per cent of fatty substances, and a lower per cent, of water and a higher per cent, of milk solids; these differences
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will all appear under the same conditions, and the milk would all be healthy and natural milk. Q. Is milk that contains eighty-nine per cent, of water and eleven per cent, of milk solids, unhealthy or' unwholesome ? [The' district attorney objected to the question as being incompetent and immaterial, except as being confined to testing the the capacity and experience of the witness as an expert. The court sustained the objection, except so far as the answer to the question might go to test the capacity and experience of the witness, to which ruling defendant’s counsel duly excepted.] A. Fes;' but I want to explain, but cannot answer directly in any other way. Q. Do you mean to say by that that such milk will produce disease to those who use it? [Objected to on same grounds. Overruled.] A. I cannot answer that question yes or no; it may and it may not. Q. When may it not produce disease ? [Objected to on the same grounds, and the court sustained the objection, to which ruling defendant’s counsel duly excepted.] Q. In all cases is milk that contains not more than eighty-eight per cent, of water and twelve per cent, of milk solids drawn from healthy cows wholesome and healthy ? [Objected to. Allowed, to test his knowledge as an expert.] A. No. Q. "Will cows of the same breed fed on nutritious and proper food of the same kind and under the same conditions give milk of different qualities, that is, vary in the per cent, of water, and milk solids? A. Fes, sir; they will. The prosecution here rested.
Mr. Burlingame, counsel for defendant, moved the court to acquit the defendant, on the grounds : First. That the information charges the selling of adulterated milk, under chapter 202 of the Laws of 1884, and the evidence does not show any adulteration, or the commission of any crime or offense under that statute. Second. There is no criminal intent shown. Third. That the statute, chapter 202, Laws of 1884, sections 1, 13 and 14, are unconstitutional and void, for the following.reasons : The statute comes within «the principie and decision of the Court of Appeals in the case of Wynehamer v. People (13 A7". Y. 378), in that it does not discriminate between property owned when the law took effect, and property subsequently acquired; that it is a violation of
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section 6 of article 1 of the Constitution of the State of New York, which provides that “ no person shall . . . be deprived of life, liberty or property without due process of law,” and of the fourteenth amendment to the constitution of the United States, in that (1) it abridges the privileges and immunities of citizens of the United States; (2) it deprives persons of both liberty and property without due process of law ; (3) it denies to persons within the State the equal protection of the laws. The court denied the motion to acquit, whereupon defendant’s counsel duly excepted. Defendant’s counsel thereupon moved the court to discharge the defendant upon the same grounds and for the same reasons stated in the motion to acquit, which motion the court denied. Defendant’s counsel duly excepted.
John II. Cijpperly, a witness on behalf of defendant, testified : “ I am the father of Arthur Cipperly, the defendant; he works for me on my farm in North Greenbush, Rensselaer county, N. Y.; I am a farmer, and have been all my life; always lived and worked on a farm; my age is forty-five or forty-six; I have kept, and do keep, cows for milk and dairy purposes; have kept cows for dairy and milk purposes for the last eleven years, and on the 27tli of March, 1885, kept about eighteen or twenty cows; I am a judge of cows, as to their condition, health, etc.; the defendant sells milk for me in Albany, and did on March 27, 1885 ; the milk is put into cans, which are placed on a wagon, and delivered to customers in* the city; I milked the milk that was put into the cans, and delivered by my son, Arthur, on March 27, 1885 ; the milk was first drawn (March 27) from the cows into tin pails, and then poured through a strainer setting over the cans, into the cans ; these cans, into which the milk was poured, were put on the wagon, and defendant got on the wagon containing these cans, and started for Albany : nothing was put into this milk from the time it was drawn from the cows until it was started away to the city, and nothing was taken out of it—nothing except in straining it, as I have described ; the pails, strainer, cans and vessels in which the milk was held wore clean, and in a proper condition ; my cows, at the time this milk was drawn from them, were in a healthy and good condition; the cows
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were kept part of the time in the barn and stable, and part of the time out-doors—allowed to run out in the yard—open air in the day time part of the time, depending on the weather; my cows go out into the yard, and there have access to running water that is brought from a spring into a large trough in the yard, and can drink at their ¡pleasure; the stable is kept in a clean and proper condition for cows; we use milk drawn from these same cows, under the same circumstances, in my family ; this milk is sold in the Albany market; I supply my customers here with milk, and have done so for a number of years; I am, and Avas, on March 27, 1885, conducting my business in the same general Avay I had for several years past; from the sale of this milk, in this way, I derive an income ; I kept cows on June 1, 1884, and carried on business in the same way; that was then my business; I have no use for the cows, except selling the milk, and they are kept for that purpose ; I have some of the coavs now which I had on June 1, 1884, and which I use in the same business; I am obliged to have teams, horses, wagons and other property in this business."’ Being cross-examined the Avitness testified as folloAvs : “ Milk twice a day; the milk the boy brought over March 27 was not all morning’s milk; I wintered over a number of coavs; in the forepart of winter I had eighteen, can’t say just how many I had in March; I sold two; had four horses all winter.....”
Arthur Gij>j>erly, the defendant, testified in his own behalf: “On this morning of March 27, 1885, father sent me away from home Avith a load of milk to Albany; I was simply delivering milk to his customers around here, to different persons in Albany; Avhat I did Avas for my father, and as his servant; I did not put anything into the milk from the time I took it at home until I delivered the sample to Fellows ; I did nothing to it except to take milk out of the cans as I delivered to those various persons ; nothing was put into the milk and nothing taken out of it; I was in charge of the milk and wagon all the while ; I gave Mr. Fellows a sample; it was that morning’s milk I gave him; there was night’s milk on the wagon, but in another can.....”
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After further testimony on behalf of defendant, the case was closed and defendant’s counsel renewed his motion for an acquittal, and for the discharge of defendant. The motion was denied.
The court then declared defendant guilty, and fined' him twenty-five dollars.
From this conviction the defendant appealed to the General Term of the Supreme Court.
Eugene Burlmgame, for defendant, appellant.
I. Sections 1 and 13 of chapter 202 of the Laws of 1884 are unconstitutional. They prohibit and make penal the sale of property, as well of that existing or owned at the time of the act taking effect (June 1, 1884) as of that subsequently acquired. Such legislation -conflicts with the provision of the constitution that no person shall “ be deprived of life, liberty or property without due process of law.” Art. 1, § 6 ; Wynehamer v. People, 13 N. Y. 378 ; Bertholf v. O’Reilly, 74 N. Y. 509 . Sections 1 and 13 of this act cannot be limited to the sale of milk, or articles of food made therefrom, after the act should have taken effect. The prohibition is in the disjunctive. “ Bo person or persons shall sell or exchange, or expose for sale or exchange . . . or shall offer for sale any article of food made from the same, or of cream from the same.” To insert such a limitation in the act Would be legislation, not construction. It is, therefore, submitted that this case is brought directly within the rule of .construction declared and' affirmed by the Court of Appeals, and that the statute is unconstitutional and void.
II. The broader proposition is that sections 1 and 13 of chapter 202, Laws of 1884, are unconstitutional as to milk sold or exchanged, or exposed for sale or exchange, and as to articles of food made from the same, subsequently as well as prior to the taking effect of the act, where the “ adulteration ” consists only in the fact that the milk as drawn from healthy cows properly cared for, falls below the standard fixed by the Legislature. In other words, the defendant asserts that the Legislature has not the power to prohibit the sale or consumption of milk drawn from healthy cows which, in its natural condition, falls below the arbitrary standard fixed, unless such milk, or
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the article of food made from it, is in fact unwholesome or dangerous to the public health.
III. The “ liberty ” of the constitution is not limited to immunity from actual imprisonment, nor is the “ property ” clause thereof to the physical destruction or annihilation of the substance. Wynehamer v. People, supra; Bartholf v. O’Reilly, supra; People v. Otis, 90 N. Y. 48 ; Matter of Jacobs, 2 N. Y. Crim. 539 ; Pumpelly v. Green Bay Co., 13 Wall. 177 .
IV. The act deprives, and persons by its authority may be deprived of property without “ due process of law.” Westervelt v. Gregg, 12 N. Y. 209 ; Bartholf v. O’Reilly, supra; Stuart v. Palmer, 74 N. Y. 190 ; Murray’s Lessee v. Hoboken Land and Imp. Co., 18 How. ( U. S.) 272.
V. This law, in its provisions, is not a proper exercise of the “ police power ” so called, which inheres in every sovereignty. Thorpe v. R. R. Co., 27 Vt. 140 ; Matter of Jacobs, supra; Town of Lake View v. Rose Hill Cemetery Co., 70 Ill. 191 . The Legislature has no power to adjudge a substance to possess a quality which by nature it does not have. Neither can the Legislature, under the guise of promoting the public health, declare that milk below a certain standard is unwholesome or detrimental to health, unless in fact such is its quality, and such is the result of its use; extensive and final as its authority is in most matters, it will be found impossible for it t-o make a proposition true in law, which is so essentially and palpably untrue in fact. The same principle applied to other articles of food,—flour, sugar, tea, etc.,—would banish all below a certain standard, and the standard might be raised so high as to banish all. The principle extending far enough would exterminate the race. The word “-adulterated ” in the act is not used in its proper sense. If the milk, as in this case, when drawn from healthy cows in good condition properly cared for is below the standard fixed, it is “ adulterated ”—that is to say, because in the healthy processes of nature .096 of one per cent, more water is present than fixed by the Legislature, therefore the milk is “ adulterated,” and the defendant may not sell it. Neither can he set it for cream and make it into butter, nor use it for cheese, nor manufacture it into condensed milk, nor into
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any other article of food, unless he consumes it himself or gives it to another. lie may not offer it for sale. And yet, if any reason exists why it should not be sold, the same reason ought to prohibit its use, by himself, or by allowing others to use it for food purposes, no matter how acquired.
VI. If, under the guise of preventing deception, the Legislature can fix an arbitrary standard, below which milk may not be offered, even though it be (as in this case) within the normal fluctuations of milk produced by the healthy operations of nature, then it may put the standard so high that cows will not and cannot be made to respond and reach it. This would completely and effectively banish milk as an article of food, as well as all articles of food of which it is an ingredient. For if the Legislature has the power at all to thus legislate against natural articles of food, not unwholesome, under the guise of preventing deception, and thereby destroy the property of a citizen, and prevent his following a lawful vocation as a means of livelihood, then the exercise of this power is simply a question of degree, which is necessarily a matter of legislative discretion, with which courts can have nothing to do. For in the language of Chief Justice Habshall, in Brown v. State of Maryland ( 12 Wheat. 419 ), which is frequently quoted with approval: “ Questions of power do not depend upon the degree to which it may be exercised. If it may be exercised at all, it must be exercised at the will of those in whose hands it is placed.”
.J). Cady Herrick, district attorney, for the people, respondent.
I. The evidence shows the sale of milk by the defendant; that a sample taken from the same can of milk he was selling from, upon being tested, was found to contain more than eighty-eight per cent; of water, less than twelve per cent, of milk solids, and less than three per cent, of fat. Tin's clearly comes within what the statute defines to be adulterated milk.
II. It is not necessary to prove any criminal intent on the part of the defendant. The prohibition of the statute is absolute. Commonwealth v. Connell, 91 Mass. 488 ; Same v. Holbrook, 92 Mass. 199 ; Same v. Waite, 93 Mass. 264 ; Halsted v. State, 12 Vroom, 552 ; 32 Am. Rep. 247 .
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III. It is contended that the law is unconstitutional, is in violation of the constitution of the State and of the United States. Every intendment is in favor of the constitutionality of legislative enactments ; and nothing but a clear violation of the constitution will justify a court in overruling the legislative will. Kerrigan v. Force, 9 Hun, 185 ; C. C. R. R. v. Twenty-third Street R. R., 54 How. 180 ; Matter of N. Y. Elevated R. R. Co., 70 N. Y. 342 , 343 ; Leavitt v. Blatchford, 17 N. Y. 549 . The sections of the statute upon which the prosecution rely, are the first and the thirteenth. Whatever objections there may be to other portions of the law, the first and thirteenth sections can be separated from the balance of the statute, and will then constitute in and of themselves a complete law, independent of the other portions of the statute. So that if it should be considered that any portion of the statute is unconstitutional, it will not affect these sections. Because, when one part of a statute is valid and constitutional, and another, part is unconstitutional and void, the courts will enforce the valid part, if the two are distinctly separable so that they can each stand alone. Matter of De Vaucene, 31 How. 289 ; Village of Middleton, Matter of, 82 N. Y. 196 ; Murphy v. Kelly, 76 N. Y. 475 ; People v. Briggs, 50 N. Y. 556 ; Trade-mark Cases, 100 U. S. 92 ; Allen v. Louisiana, 103 U. S. 80 ; Packet Co. v. Keokuk, 95 U. S. 80 . That a statute impairs the value of property does not make it unconstitutional. All property is held subject to the power of the State to regulate or control its use, to secure the general safety and the public welfare. Bertholf v. O’Reilly, 74 N. Y. 509 . The legislature may pass .many laws the effect of which may be to impair or even destroy the right of property. Private interest must yield to public advantage. Phelps v. Racey, 60 N. Y. 10 -14. But in the case at bar it is not even impaired ; he is not prohibited from selling milk from his cows; it is only milk of a certain kind that he is prohibited from selling.
IV. The act is not in violation of section 6 of article 1 of the State Constitution. The defendant is not, as we have seen, deprived of his property. The law forbids the sale of certain kinds of milk,—among others, adulterated milk,—and defines in section 13 what is meant by adulterated milk. This may be
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regarded as a definition, or a rule of evidence. As a rule of evidence, the legislature has the power to establish it. They may make any circumstance or fact evidence. Howard v. Moot, 64 N. Y. 262 . It is a mere regulation of the traffic in milk, it is not a prohibition. And upon the mere reading of it is apparent what the purpose is, to insure a pure and healthy article of food, of a kind in almost universal use, one from its character peculiarity subject to adulteration and to production from corrupt and unhealthy sources, an article of food which science shows is prolific of disease, and a vehicle of communicating it to the human family, (a.) That the State has power to regulate, restrict, and even prohibit, the sale of such articles as may affect the public health, would seem to be abundantly settled by authority, under what is known as the police powers of the State. Slaughter House Cases, 83 U. S. 62 . (b.) All property in civilized communities is held subject to this power. Trade tad commerce are subject to it. Munn v. Illinois, 94 U. S. 113 , 125; Beer Co. v. Massachusetts, 97 U. S. 25 , 33. (c.) Under this power all kinds of burdens and restrictions are imposed. Bartemeyer v. Iowa, 85 U. S. 138 . Trade may be regulated and even prohibited. Board of Excise v. Barrie, 34 N. Y. 666 . Police regulations may forbid such a use, and such modification of private property as would prove injurious to the citizens generally. Laws of this bind are unquestionably within the scope of the legislative power, without impairing any constitutional provision. Wadleigh v. Gilman, 12 Maine, 403 ; S. C., 28 Am. Dec. 188 . (d.) It is not necessary that the legislature should declare it to be a health law, or a police law. The court may judge of that by an inspection of the law itself, and if it appears to be such, then the court can go no further. The legislature is to determine whether the exigencies of the times demand such legislation, and devise such means as they deem proper to accomplish the purpose sought, and their judgment upon these matters is to be inferred from the. provisions of the law itself. Stuyvesant v. Mayor, 7 Cowen, 588. And, again, the purposes to be accomplished by police laws, are to be attained by such means as the legislative discretion may devise. Beer Co. v. Massachusetts, 97 U. S. 25 , 33. The court cannot judge of their expediency. Commonwealth v. Waite, 93 Mass.
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264 ; Matter of Jacobs, 2 N. Y. C. R. 548. In the Jacobs case the court held the act unconstitutional, because it appeared upon its face that it was not passed for the benefit of the public health, but under pretense of a health law, a law was passed in restraint of trade, and arbitrarily interfering with personal liberty and private property. See Matter of Jacobs, su/pra. In the case at bar is it not evident from the statute itself,—that is, from those portions relating to milk,— that it is calculated and intended for the public health and comfort, that it is appropriate to accomplish the purposes for which it was intended % (e.) Under this police power laws have been passed and held constitutional to prohibit absolutely the sale of liquor. Bartemeyer v. Iowa, 85 U. S. 133 . To enforce the observance of the Sabbath. Menendorf v. Duryea, 69 N. Y. 563 . To prohibit the sale or having possession of game during certain seasons'of the year. Phelps v. Racey, 60 N. Y. 10 . Prescribing the weight and price of bread. Mobile v. Yu'ille, 3 Ala. 137 ; S. C., 36 Amer. Dec. 441. In Commonwealth v. Waite, 93 Mass. 264 , a law prohibiting the sale of milk and water mixed, was objected to as in derogation of common right—the contention being that it was innocent and lawful to sell pure milk, and innocent and lawful to sell pure water, and that therefore the legislature had no right to make the sale of the mixture unlawful, unless sold with a fraudulent intent. The law was sustained. See also, Commonwealth v. Connell, 91 Mass. 488 ; Commonwealth v. Holbrook, 92 Mass. 199 . In this State the constitutionality of laws in relation to the sale of milk has been passed upon. People ex rel. Cox v. Special Sessions, 7 Hun, 214 ; Blazier v. Miller, 10 Hun, 435 . It cannot be argued that this case presents the case of the prohibition of the sale of pure and healthy milk taken from a healthy cow. Any one acquainted with the tricks and stratagems to circumvent the law can see at a glance that, for aught that appears in the evidence, the milk may have been mixed with water. Bo question is raised as to improper food, and, so far as the people are concerned, it is not asked that any question be raised as to the food which produced the milk. The legislative right even to prohibit the sale of certain articles of food, or to prescribe the character of that which may be sold, would seem,
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upon principle and authority to be unquestionable. Legislation can only be general in its character; it cannot provide for exceptional cases. And if, in prescribing general rules to prevent evasions of the law, and in making definitions for a general guide, it should possibly happen that, in some exceptional case, an injustice should be worked, the law would not thereby be rendered invalid.
V. The statute in question is not in violation of the fourteenth amendment of the constitution of the United States. The substance of the fourteenth amendment is as follows: 1st, Citizens of the States and of the United States are defined. 2d. It is declared that no State shall by law abridge the privileges or immunities of citizens of the United States. 3d. That no State shall deprive any person, whether citizen or not, of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Dissenting opinion of Field, J., in Slaughter House Cases, 83 U. S. 126 . The amendment was passed primarily to secure an equality of races under the laws, and to protect and guard the rights of colored citizens. Otherwise it did not change the existing powers of States. The recent amendments to the constitution of the United States have not changed or diminished the previously existing power of the State to legislate respecting the public health and public morals. Butchers’ Union Co. v. Crescent City Co., 111 U. S. 746 -754. So long as the law is not unequal, but affects all citizens subject to it alike, it does not come within the constitutional inhibition. And the courts in construing these amendments recognize to their fullest extent the previously existing rights of the State to legislate upon all matters affecting the health, morals, peace and good order of the people. Opinion of Bradley, J., in Bartemeyer v. Iowa, 85 U. S. 136 ; Opinion of Fields, J., Id. 138 .
VI. The law in question is not unequal, it affects all alike. It does not destroy the defendant’s property. It does not prevent him carrying on business. The law on its face shows it to be a health and police regulation ; that the public health is the end actually aimed at; that it is not a law ostensibly for the public health, but really for an ulterior purpose; that it relates to and
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is convenient and appropriate to promote the public health. In addition, the testimony shows that milk below the standard fixed by the statute is detrimental to the public health.

The defendant was convicted under chap. 202, _ Laws 1884, of the offense of selling adulterated milk. It is objected that sections 1 and 13 of the act in question are unconstitutional. The first section of the act provides that, “no person or persons shall sell or exchange, any unclean, impure, unhealthy, adulterated or unwholesome milk.” Assuming that it was within the legislative intention to limit this prohibition to the purposes of food, the legislative power to pass this section, so far as quoted, is a police regulation to protect the public health. This seems to be .well established by authority. Cox v. Special Sessions, 7 Hun, 214 ; Blazier v. Miller, 10 Id. 435 ; Commonwealth v. Waite, 11 Allen, 284 ; Commonwealth v. Farren, 9 Id. 489. Similar statutes have long stood unchallenged. Chap. 4697, Laws 1862; chap. 544, Laws 1864; Polinsky v. People, 73 N. Y. 65 .

The defendant, however, was convicted by the force of the thirteenth section of the statute, which provides that: “ In all prosecutions under this act relating to the sale and manufacture of unclean, impure, unhealthy, adulterated or unwholesome milk, if the milk be shown to contain more than eighty-eight per centum of water or fluids, or less than twelve per centumof milk solids, which shall contain not less than three per centum of fat, it shall be declared adulterated.” The milk in question was shown to contain 88.096 per centum of water and 2.656 per centum of fat, and as it fell short of the statutory standard it was by force of the statute declared to be adulterated, and the defendant was convicted notwithstanding he adduced evidence tending to show that the milk was entirely a natural and wholesome product, and wholly unadulterated or diluted.

If experience has shown that milk which does not possess the ingredients specified in the statutory standard is unwholesome and unfit for food, it may well be within the power of the legislature to prohibit its sale. But such is not this prohibition. The defendant was not charged with selling milk con-

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taming more than eiglity-eight per cent, of water, and less than twelve per cent, of milk solids. He was charged with selling “ impure, unhealthy, adulterated and unwholesome milk.” Upon that charge he was entitled to a fair trial according to the “ due process of law.” “ Due process of law,” says Judge Cooley, quoted with approbation in Bertholf v. O’Reilly ( 74 N. Y. 519 ), “ in each particular case, means such an exertion of the powers of government as the settled maxims of the law sanction, and under safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.” Due process of law gave to the defendant the right to contest the allegation that the milk was adulterated, or impure, or unwholesome. True, he gave his evidence, but the statute silenced its effect. There can be no trial if only one party is permitted to present his proofs, or if the statute requires judgment to be pronounced against the defendant upon proof by the people of some other fact not in' issue. The legislature cannot restrain a party from setting up a good defense to an action against him. Cooley’s Constitutional Limitations, 369.

But it is said the legislature may make and alter rules of evidence. There is no doubt that in civil cases, the legislature can make certain inda prima facie evidence of another fact. Howard v. Moot, 64 N. Y. 262 ; Hand v. Ballon, 12 Id. 543.

And it has been held competent for the legislature to provide that certain facts having a tendency to prove the existence of another fact, shall in criminal cases be prima facie evidence of the other fact. Commonwealth v. Williams, 6 Gray, 1 . But the court was careful to hold that the presumption might be repelled by the circumstances, or by other proofs. Commonwealth v. Wallace, 7 Gray, 337 ; Commonwealth v. Rowe, 14 Id. 47. Here the statute denies the accused that protection. The legislature cannot make certain facts conclusive evidence which in their nature are not so. People v. Lyon, 27 Hun, 180 . Evidence to secure a conviction should be such as to satisfy “the judgment of his peers,” or of whatever tribunal determines the fate of' the accused. The legislature may prescribe rules for the admission of evidence, but cannot compel the trial court to hold it conclusive of the defendant’s guilt,

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without regard to that court’s conviction or judgment as to its conclusiveness. If the legislature can compel the courts to render judgment contrary to their convictions of the truth produced by the evidence, then the legislative power can coerce the judicial powers, a- proposition destructive of the co-ordinate departments of the government.

If the testimony on the part of the defendant was true, his milk was not unhealthy, adulterated, or unwholesome—he was innocent, in fact. Certainly the testimony that tended to show that he was careful, honest and innocent in this- transaction ought to have been considered, and if believed, ought to have resulted in his acquittal. But under this statute, such evidence can have no weight. The statute regards percentages only. Eighty-eight per centum of water is permitted. The evidence of the chemist showed an excess of less than one-tenth of one per centum, and upon that fraction the statute required the defendant’s conviction, right or wrong.

We think that the thirteenth section of the act,—which requires that upon a trial for selling adulterated milk, the milk shall be declared adulterated if it do not contain the percentage of ingredients specified in the statute,—is beyond the legislative power, because it deprives the defendant of his liberty and property without due process of law, in that it deprives him of the right, upon the trial of the charge against him, to have the issue determined according to the evidence of the fact, and compels him to submit to the statutory declaration thereof, without having the truth ascertained.

If the result of the statute is to prohibit the sale of pure and wholesome milk, then within the principle re-affirmed in the recent case of People v. Marx ( 3 N. Y. Crim. Rep. 206 ), that “ it is one of the fundamental rights and privileges of every American citizen to adopt and follow such lawful, industrial pursuit not injurious to the community, as he may see fit,” the prohibition would be beyond the legislative power.

The production and sale of pure and wholesome milk is a lawful industrial pursuit, and is not injurious to the community. This act is not designed to prohibit that. It aims, as it properly may, to suppress the sale of impure and adulterated milk. It prescribes that upon any prosecution for the sale of impure

Dissent

p. 401
or adulterated millc, its percentage of water and milk solids may be shown. This is competent for the legislature to do. But ■wherein it provides that upon the facts being shown, the percentages do not comply with the statutory standard, the milk shall be declared adulterated, it seeks to compel the trial courts to pronounce judgment upon that fact alone, without regard to what the truth may be shown to be, and therein prevents the due process of law.

Conviction reversed, and the defendant discharged.

Bocees, J., concurs.

In Bertholf v. O'Reilly, 74 N. Y. 509 , the Court of Appeals asserted, in the strongest language, that the legislative power has no other limitations than the constitutional restraints and limitations, and that laws cannot be declared void because they are opposed to natural justice.

The principle of the case of Wynehamer v. People, 13 N. Y. 378 , as to the destruction of existing property, is not, in my opinion, applicable to the present case. It would be a greater stretch of that principle to say that the statute in question deprived persons who owned cows at the time of its passage of their property, because it interfered with or even deprived them of the use of'the milk which the cows might yield.

But the defendant takes the broader ground that the legislature cannot, under the constitution, prohibit the sale of milk drawn from healthy cows which, in its natural state, falls below the standard fixed by the acts, unless such milk, or the article made from it, is in fact unwholesome or dangerous to public health. How is that question of fact to be determined % The court cannot take judicial notice whether milk below the standard is, or is not, unwholesome or dangerous to public health. Is that to be a question for the jury ? If so, the court must charge a jury, in each case, that if they find milk below that standard to be umvliolesome, then the statute is constitutional ; if they find it to be unwholesome, then the statute is unconstitutional. Evidently a constitutional question cannot be settled, or rather unsettled, in that way. The constitutionality would vai'y with the varying judgments of juries.

p. 402
Either then the legislature can, under the constitution, forbid the sale of ■ milk below a certain standard, whether such milk be in fact wholesome or not; or else-they cannot do this, whether such milk be in fact wholesome or not. If they may fix a standard, they must judge whether or not milk below that standard is wholesome. The courts cannot review that judgment.

As was said in another ease, “ where there is a general right on the part of the public and a general duty . . on the part of any person to respect that right, we think it is competent for the legislature to prescribe a practical rule for declaring, ■establishing and securing that right.” And it was further said, by way of illustration, that to erect a powder-magazine, or .slaughter-house, so near a village as to be dangerous would be •a nuisance at common law, and that the legislature might establish an authoritative rule determining the distance within which such a structure should not be erected. Commonwealth v. Alger, 7 Cushing, 95. Certainly, if such a law were enacted, .a court could not say that the distance prescribed was too great; ■or leave it to a jury to determine that point, and thereby to ■decide on the constitutionality of the law. It cannot, then, be material to the present question whether milk below the standard fixed by the statute is or is not wholesome. The question must be whether the Legislature can establish a standard of purity.

Courts have choosen to speak of laws of the kind in question, and of similar classes of laws, as passed under “ the police power.” This phrase throws no light on the question of con■stitutionality, but only serves as a classification. Hów very uncertain its limits are may be seen from the fact that Blackstone (cited as authority in Watertown v. Mayo, 109 Mass. 315 ), includes under his head of police power clandestine marriages, bigamy, etc. 4 Bl. Com. 162. The object however, of classing statutes of this kind under the head of police power has been to afford an argument which should except them from the constitutional prohibition against depriving a person of property without due process of law.

How it is very plain that courts have nothing to do with the question of the wisdom, or even according to our courts, with

p. 403
the natural justice of any particular law. Courts cannot say that the legislature has the constitutional power to pass a judicious law to regulate the sale of articles of food, but have no constitutional power to pass an injudicious law on that subject. It has been said with truth that “ under the guise of police regulations, personal rights and private property cannot be arbitrarily invaded ; that the courts are to scrutinize the act and see whether it really relates to and is convenient and appropriate to promote the public health that “ the public health is the end aimed at, and that it is appropriate and adapted to that end. In re Jacobs, 2 N. Y. Crim. Rep. 539 . Now an examination of the present law clearly shows that it relates to, and is appropriate to promote the public health. Whether its details are wise we do not know; but its object is evident and good. Its first' section forbids the sale of unclean, impure, unhealthy, adulterated or unwholesome milk. Then its thirteenth gives a statement of some conditions which are included within the terms adulterated, unclean, impure, unhealthy, and unwholesome milk. There is nothing, as I think, wrong in this mode of legislation. A law may describe an offense by some general word, and may then say that this word shall include such and .such things. This thirteenth section declares that milk drawn from cows within fifteen days before and five days after parturition, shall be declared" unwholesome, etc.; and the same of milk from animals fed on distillery waste, etc.; and that milk below a certain standard shall be declared adulterated. Now, this is equivalent to saying that no person shall sell milk drawn from cows within that time of parturition, or fed on distillery waste, or milk below a certain standard. And the mere circumstance that section 1 contains a general prohibition, and section 13 a particular specification, does not, in my opinion, affect the validity of the statute.

The case of People v. Lyons ( 27 Hun, 180 ), is quite different. There the defendants were indicted for selling liquors, to be drunk, etc. The court charged that if a person was seen to drink in the shop, this was prima facie evidence that the liquor was sold by the occupant with intent that the liquor should be so drunk. The court held that the statute which made the lawful act of a third person, with whom the accused was not con

p. 404
neeted, prima facie evidence of his guilt, deprived him of his right to a trial by jury, and was unconstitutional. The present law only says that a sále of milk below a certain standard is a sale of adulterated milk within the meaning of the law. This is not a rule of evidence, but an explanation of the meaning of the words used in the statute.

This regulation of a certain standard is like the provision referred to in Commonwealth v. Alger (supra), where a law establishes a certain distance from a village, nearer than which a powder-magazine or slaughter-house should not be erected.

But it is urged by the defendant that this statute may prevent the sale of milk which is in fact pure and unmixed with water. What determined the legislature to fix this standard we do not know. But it may be supposed that different kinds of food produce different degrees of richness in milk. And it may be known to the legislature that certain kind's of feed, the softened and innutritions graiir left after the production of ale or grape sugar, will cause a great flow of watery milk. And it may be known to the legislature that this watery milk, supplied as food to children, cheats them with the appearance of nourishment, and deprives them of that nutritious food which they need. It may be known to legislators that milk below the standard which they fix by this law is unsuitable for food, and should not be sold. At any rate, all this is a matter for the legislature. In the case above cited, in re Jacobs, where perhaps the court went as far as is safe in declaring a law unconstitutional, the opinion of the court shows that the decision was based on this view, viz : That the law was on its face, not intended to promote the public health, and would have no such result. As has been said in other cases, it was intended to accomplish other results in the guise of guarding the public health. Bow, there is nothing in the present law which has any other result in view than the public health. Bo large manufacturers are to be protected against the competition of single workmen. The law is general in its scope; not limited to two cities. The only fault to be found is," that it is unwise, as the defendant claims, to make a certain standard the test, and to forbid the sale of milk below that test. Whether that is wise or not, it is not for us to say. It is a provision evidently

p. 405
intended for the pnhlie health. Ho other intention can he gathered from the law. Plainly no other existed, and in view of the difficulties which surround the attempt to secure wholesome milk to the people, it is by no means certain that the establishing of a definite standard is not a judicious provision.

In Wynehamer v. People (supra), the law under consideration prohibited, with certain exceptions, the sale of intoxicating liquors. It will be seen, at page 487 of that case that all the judges were of the opinion that it would be competent for the legislature to pass such an act, provided it wras plainly prospective. In the later case of Metropolitan Board of Excise v. Barrie ( 34 N. Y. 657 ), this right of the legislature to regulate or control the traffic in intoxicating liquors was affirmed. How, if the legislature may control and regulate the sale of intoxicating liquors, why may they not exercise a similar power as to the sale of milk? Their control as to such liquors extends to those which are pure as well as those which are adulterated.

Since the fourteenth amendment was adopted, the constitution of the United States contains a provision similar to that provision of the State constitution under which it is claimed that this law is void. It is settled that that amendment does not impair the so-called police power; and it was decided that under that police power even a municipality might prohibit washing and ironing in public laundries within certain limits and between certain hours. Barbier v. Connolly, 113 U. S. 27 . How, here is a business which is useful and proper. It is what was called in re Jacobs a “ lawful business.” Yet, at certain times, it was absolutely prohibited. The same principle was again laid down in Soon Hing v. Crowley ( 113 U. S. 703 ) ; the court saying that the right of a man to follow his calling “ must be exercised subject to such general rules as are adopted by society for the common welfare.”

In the recent case of People v. Marx, 3 N. Y. Crim. Rep. 200 , the court says that the object of the law then under consideration was “ to drive the substituted article from the market and protect those engaged in the manufacture of dairy products against the competition of cheaper products.”

In other words, the object of the law, like that of a protective tariff, was to protect the home industry of the farmer against

p. 406
the city industry of the manufacturer, and the court held the law to be void, because it prohibits an important branch of industry, for the sole reason that it competes with another and may reduce the price of an article of food. Evidently the present law has no such characteristics. It is not intended to prohibit any branch of industry, or to prevent competition. Its sole object is to regulate and control the quality of a certain article of food in the interest of the health of the people. And if the legislature, knowing the difficulty of guarding against the watering or other adulterations of milk, deem it best to fix a standard of richness, I think this is within their power,—and that, too, irrespective of the question whether the milk is diluted after it is taken from the cow, or whether it is made watery in the animal itself by giving such food as will produce a great flow of what might well be called milk and water.,

I think the judgment should be affirmed.

Judgment reversed.

Note.—See Matter of Jacobs, 2 N. Y. Crim. Rep. 346 ; affirmed, Id. 539; Matter of Paul, Id. 1; People v. McGann, 3 N. Y. Crim. Rep. 1 ; People v. Marx, Id. 11 ; reversed, Id. 200.

Cases cited