People v. Cipperly

• Decision Date: 19 January 1886
• Citation: 101 N.Y. 634,4 N.E. 107
• Parties: PEOPLE v. CIPPERLY.
• Court: New York Court of Appeals Court of Appeals

101 N.Y. 634

4 N.E. 107

PEOPLE

v.CIPPERLY.¹

Court of Appeals of New York.

Filed January 19, 1886.

D. Cady Herrick, Dist. Atty., for the People.

Eugene Burlingame, for respondent, Arthur Cipperly.

PER CURIAM.

Upon the argument of this case, we were of the opinion that the respondent failed to show any ground upon which the judgment appealed from could be supported; but, in view of the importance of the question raised, and difference in the court below concerning it, took further time for its consideration. We still think the judgment wrong, and, for reasons sufficiently stated by Judge LEARNED, who dissented in the general term of the supreme court, (37 Hun, 324,) the judgment of that court should be reversed, and the judgment of the special sessions affirmed.

(All concur, except MILLER, J., absent.)

[NOTE. This case involves so important a principle that we insert the dissenting opinion of the court below, and which is now made the opinion of the court of appeals.-ED.]

The defendant was tried by the court of special sessions of the city of Albany, charged with violating chapter 202 of the laws of 1884. It was shown that the milk he sold contained more than 88 per cent. of water. As a defense, he testified that the milk was in the condition as taken from the cow; that nothing had been taken from it and nothing added to it; and asked for his discharge on the ground that the act was unconstitutional. He was found guilty, and fined $25, and, on appealing to the general term, the judgment, and conviction was reversed. On appeal to this court the above opinion was rendered, and the dissenting opinion of Judge LEARNED adopted, which is as follows:

LEARNED, P. J., ( dissenting.)

In Bertholf v. O'Reilly, 74 N. Y. 509, the court of appeals asserted in the strongest language that the legislative power had no other limitation 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 great stretch of that principle to say that the statute in question deprived persons of their property who owned cows at the time of its passage, 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 act, unless such milk, or the articles made from it, are 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 the standard to be unwholesome, then the statute is constitutional; if they find it wholesome, then the statute is unconstitutional. Evidently a constitutional question cannot be settled, or rather unsettled, in that way. The constitutionality would vary with the varying judgments of juries. 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 that milk be in fact wholesome or not. If they may fix a standard, they must judge whether or not milk below the standard is wholesome. The courts cannot review that judgment.

As was said inanother case: ‘Wherever

As was said in another case: ‘Wherever the public, and a general duty on the part of the land-owner, or any other person, to respect such right, we think it is competent for the legislature, by a specific enactment, to prescribe a precise practical rule for declaring, establishing, and securing such 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. Com. v. Alger, 7 Cush. 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 any standard of purity.

Courts have chosen to speak of laws of the kind in question, and of similar classes of laws as passed under ‘the police power.’ This phase throws no light on the question of constitutionality; but only serves as a classification.

How 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 this head of police power, clandestine marriages, bigamy, etc. (4 Bl. Comm. 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. Now, it is very plain that courts have nothing to do with the question of the wisdom, or even, according to our courts, with the natural justice, of any particular case. Courts cannot say that the legislature has the constitutional power to pass a judicious law to regulate the sale of article 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 courts must be able to see that it has, at least in fact, some relation to 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, 31 Alb. Law J. 85.

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 is 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 the word shall include such and such things. This thirteenth section declares that milk drawn from cows within...