People v. Blesecker

• Decision Date: 10 December 1901
• Citation: 61 N.E. 990,169 N.Y. 53
• Parties: PEOPLE v. BLESECKER.
• Court: New York Court of Appeals Court of Appeals

169 N.Y. 53

61 N.E. 990

PEOPLE

v.BLESECKER.

Court of Appeals of New York.

Dec. 10, 1901.

Appeal from supreme court, appellate division, First department.

Action by the People of the state of New York against John S. Biesecker. From a judgment of the appellate division (68 N. Y. Supp. 1067) affirming a judgment sustaining a demurrer to the complaint, the people appeal. Affirmed.

John C. Davies, Atty. Gen. (Samuel S. Slater, of counsel), for the people.

Herbert R. Limburger, Edward Lauterbach, and Henry L. Scheuerman, for respondent.

CULLEN, J.

This action is brought to recover a penalty for the violation of section 27 of the agricultural law (Laws 1893, c. 338), as amended by chapter 534 of the Laws of 1900. The provisions of that section which it is alleged the defendant violated are as follows: ‘No person shall sell, offer or expose for sale, any butteror other dairy products containing a preservative, but this shall not be construed to prohibit the use of salt in butter or cheese, or spirituous liquors in club or other fancy cheese or sugar in condensed milk. No person or persons, firm, association or corporation shall induce or attempt to induce any person or persons to violate any of the provisions of the agricultural law. Any person, firm, association or corporation selling, offering or advertising for sale any substance, preparation or matter for use in violation of the provisions of the agricultural law shall be guilty of a violation of this act.’ The complaint merely follows the statutes, and alleges that the defendant advertised for sale a preservative called ‘preservaline’ for use with butter, ‘which was neither salt used in butter or cheese, sugar to be used in milk, nor liquor to be used in club or fancy cheese,’ with intent that the said preservative should be used in butter to be offered and exposed for sale. The defendant demurred to the complaint, claiming that the statutory enactment quoted was unconstitutional and void, and in this contention he has been upheld by the special term and the appellate division.

We think the disposition of this case by the courts below was correct. It is not possible to define accurately the limits of the police power, the exercise of which is vested in the legislature; nor have the courts, as a rule, essayed that task, further than to state in very general terms the nature and object of such power. Still, the power has its limitations, and those limitations have been to a large extent determined by the process of exclusion and inclusion, as the courts have upheld particular cases of legislation as valid exercise of the power, and in other cases have declared the legislation void. In People v. Marx, 99 N. Y. 377, 2 N. E. 29, 52 Am. Rep. 34, a statute absolutely prohibiting the manufacture and sale of oleomargarine or any compound as a substitute for butter and cheese was held void. The statute, having been subsequently amended so as to prohibit the manufacture or sale of any article so compounded as to imitate butter, was upheld in People v. Arensberg, 105 N. Y. 123, 11 N. E. 277,59 Am. Rep. 483, as valid legislation to prevent fraud on purchasers and consumers. In People v. Kilber, 106 N. Y. 321, 12 N. E. 795, a statute defining what should be deemed unwholesome or adulterated milk, and prohibiting its sale, was held constitutional. In People v. Girard, 145 N. Y. 105, 39 N. E. 823,45 Am. St. Rep. 595, a statute forbidding the manufacture or sale of vinegar containing any artificial coloring matter was also held valid. From these cases the following propositions may be deduced: (1) That the legislature cannot forbid or wholly prevent the sale of a wholesome article of food. (2) That legislation intended and reasonably adapted to prevent an article being manufactured in imitation or semblance of a well-known article in common use, and thus imposing upon consumers or purchasers, is valid. (3) That, in the interest of public health, the legislature may declare articles of food not complying with a specified standard unwholesome, and forbid their sale. Though these principles, like most legal principles, are true only within limits, there would not seem much chance of conflict in their practical application, except between the first and last. In the first of the Milk Cases (People v. Cipperly, 101 N. Y. 634, 4 N. E. 107, decided upon opinion of Learned, P. J., in 37 Hun, 319) it was held that the statutory declaration of what was wholesome milk was conclusive, and the defendant was not allowed to show in defense that the milk sold by him was in fact unadulterated and not unwholesome. The first Oleomargarine Case can be differentiated from this on the ground that the statute forbade its sale as a substitute to take the place of butter, and not as an unwholesome article of food. Still, that distinction is narrow, and I imagine that the sale and consumption of a well-known article of food, or a product conclusively shown to be wholesome, could not be forbidden by the legislature, even though it assumed to enact the law in the interest of public health. The limits of the police power must necessarily depend in many instances on the common knowledge of the times. An enactment of a standard of purity of an...