99 N.Y. 377, People v. Marx

Citation:99 N.Y. 377
Party Name:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MORRIS MARX, Appellant.
Case Date:June 16, 1885
Court:New York Court of Appeals

Page 377

99 N.Y. 377



MORRIS MARX, Appellant.

New York Court of Appeal

June 16, 1885

Argued April 21, 1885.

Page 378


F. R. Coudert and Wheeler H. Peckham for appellant. Section 6 of chapter 202 of Laws of 1884 is unconstitutional. (Const., art. 1, § 6; Wynehamer v. People, 13 N.Y. 378; Bertholf v. O'Reilly, 74 id. 516; State v. Addington, 12 Mo.App. 214; affirmed, 77 Mo. 110.) Section 6 of said act is unconstitutional as to manufactures, and as to sales of articles manufactured subsequently as well as prior to the taking effect of the act. (In re Jacobs, 98 N.Y. 98.) The act may be maintained for all proper purposes by giving it the construction that it is a fraudulent sale only which is prohibited. (People v. Draper, 15 N.Y. 532; People, ex rel. Starkweather, v. Gaul, 44 Barb. 97; Jones v. Sheldon, 50 N.Y. 477; People, ex rel Cooke, v. Wood, 71 id. 371; Roosevelt v. Godard, 52 Barb. 533; People, ex rel. Bolton, v. Albertson, 55 N.Y. 50.)

Samuel Hand for respondent. The act of 1884 (Chap. 202) is not unconstitutional under section 6, article 1, of the Constitution, providing that 'no person shall be deprived of life, liberty or property without due process of law,' as coming within the principle of People v. Wynehamer (13 N.Y. 378, 438). The legislature has the constitutional right to entirely prohibit the sale of an article. (Metropolitan Board v. Barrie, 34 N.Y. 657; Blazier v. Miller, 10 Hun, 436; In re Brosnahan, 4 McCrary, 1.) Whenever an act of the legislature can be so construed and applied as to avoid conflict with the Constitution and give it the force of law, such construction will be adopted by the courts. Acts of the legislature in terms retrospective and which, literally interpreted, would invalidate

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and destroy vested rights, are upheld by giving them prospective operation only. (Cooley's Const. Lim. [ 4th ed.] 223; Newland v. Marsh, 19 Ill. 384; Bigelow v. W. W. R. R. Co., 27 Wis. 478; Dow v. Norris, 4 N. H. 17; People v. Supervisors of Orange, 17 N.Y. 241; Clarke v. Rochester, 24 Barb. 471.)That construction of a statute, if not the most obvious, will not be adopted by the courts, which will render the act unconstitutional. (French v. Teschmaker, 24 Cal. 518; People v. S. F. R. R. Co., 35 id. 606; Duncombe v. Prindle, 1 Iowa, 1; Colwell v. May Landing, 4 C. E. Green, 245; Roosevelt v. Goddard, 52 Barb. 553.) A statute is never to be construed as having a retrospective effect unless its express letter or clearly manifested intention so requires. (N.Y. & O. M. R. R. Co. v. Van Horn, 57 N.Y. 473.) The act of 1884 as an act prohibiting after the 1st day of June, 1884, the manufacture of any article not from milk or cream, designed to take the place of butter or cheese, or the sale of the same as food, it is an exercise of the police power of the State not prohibited by the Constitution. (Wynehamer v. People, 13 N.Y. 411, 413, 430; Bertholf v. O'Reilly, 74 id. 516; Clark v. Rochester, 3 Abb. 123; Bank of Chenango v. Brown, 26 N.Y. 407; People v. N.Y. C. R. R. Co., 33 Barb. 123; People v. Fisher, 24 Wend. 215; Comm. v. Alger, 7 Cush. 53; Thorpe v. R. & B. R. R. Co., 27 Vt. 149; Cochran v. Van Turlay, 20 Wend. 381; Austin v. State, 10 Mo. 591; Davis v. State, 68 Ala. 58; Cooley on Const. Lim. 201; Potter's Dwarris on Stat. 450; Watertown v. Mayo, 109 Mass. 315; People v. Bolton, 55 N.Y. 54.) The court will not usurp the inquisitorial office of inquiring into the bona fides of the legislature in discharging its duties. (People v. Draper, 15 N.Y. 545; State v. Addington, 77 Mo. 110; Doyle v. Con. L. Ins. Co., 94 U.S. 535; Wright v. Defrees, 8 Ind. 302; Ex parte McCardle, 7 Wall. 514; McCulloch v. State, 11 Ind. 431; Sell v. Corning, 15 N.Y. 303; People v. Supervisors of Orange, 17 id. 235; People v. Albertson, 55 id. 50; People v. Briggs, 50 id. 553; Adams v. Howe, 14 Mass. 340; Van Wormser v. Albany, 15 Wend. 262; Kennedy v. Phelps, 10 La. Ann. 227;

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Metropolitan Board v. Heister, 37 N.Y. 661; Comm. v. Bearse, 132 Mass. 152.)The fact that the act of 1884 may impair the value of the property does not render it unconstitutional. (Phelps v. Racey, 60 N.Y. 14; Hall v. Thompson, 48 Supr. Ct. 481; Bertholf v. O'Reilly, 74 N.Y. 521; Thorpe v. R. & B. R. R. Co., 24 Vt. 140; The Slaughter-house Cases, 16 Wall. 36; Munn v. State, 4 Otto, 114.) The police power includes the power to prohibit the sale or manufacture of any article of food or drink deemed impure, unwholesome or deceptive. (Bertholf v. O'Reilly, 74 N.Y. 520; Blazier v. Miller, 10 Hun, 435; Met. Board v. Barrie, 34 N.Y. 622; State v. Addington, 12 Mo.App. 221; Bartmeyer v. Iowa, 18 Wall. 129; Beer Co. v. Massachusetts, 97 U.S. 25; Thorpe v. R. R. Co., 27 Vt. 149; Cooley on Const. Lim. [ Edm. ed.] 718-721.) The act in question is not repugnant to the provisions of section 1 of the fourteenth amendment to the Constitution of the United States. (Laws of Missouri, 1881, page 181; In re Brosnahan, 4 McCrary, 1.)


The defendant was convicted in the Court of General Sessions of the city and county of New York, of a violation of the sixth section of an act entitled 'An act to prevent deception in sales of dairy products.'(Chap. 202 of the Laws of 1884.) On appeal to the General Term of the Supreme Court in the first department, the conviction was affirmed, and the defendant now appeals to this court from the judgment of affirmance.

The main ground of the appeal is that the section in question is unconstitutional and void.

The section provides as follows:

'§ 6. No person shall manufacture out of any oleaginous substances, or any compound of the same, other than that produced from unadulterated milk or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk or cream of the same, or shall sell or offer to sell the same as an article of food. This provision shall not apply to pure skim milk cheese produced from

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pure skim milk.' The rest of the section subjects to heavy punishments by fine and imprisonment, 'whoever violates the provisions of this section.'

The indictment charged the defendant with having on the 31st of October, 1884, at the city of New York, sold one pound of a certain article manufactured out of divers oleaginous substances and compounds thereof, other than those produced from unadulterated milk, to one J. M., as an article of food, the article so sold being designed to take the place of butter produced from pure unadulterated milk or cream. It is not charged that the article so sold was represented to be butter, or was sold as such, or that there was any intent to deceive or defraud, or that the article was in any respect unwholesome or deleterious, but simply that it was an article designed to take the place of butter made from pure milk or cream.

On the trial the prosecution proved the sale by the defendant of the article known as oleomargarine or oleomargarine butter. That it was sold at about half the price of ordinary dairy butter. The purchaser testified that the sale was made at a kind of factory, having on the outside a large sign 'Oleomargarine.' That he knew he could not get butter there, but knew that oleomargarine was sold there. And the district attorney stated that it would not be claimed that there was any fraudulent intent on the part of the defendant, but that the whole claim on the part of the prosecution was that the sale of oleomargarine as a substitute for dairy butter was prohibited by the statute.

On the part of the defendant it was proved by distinguished chemists that oleomargarine was composed of the same elements as dairy butter. That the only difference between them was that it contained a smaller proportion of a fatty substance known as butterine. That this butterine exists in dairy butter only in a small proportion--from three to six per cent. That it exists in no other substance than butter made...

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