People v. Marx

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

99 N.Y. 377

2 N.E. 29

PEOPLE

v.MARX.¹

Court of Appeals of New York.

Filed June 16, 1885.

Frederick R. Condert and Wheeler H. Peskham, for appellant, Morris marx.

Samuel Hand, for People.

RAPALLO, J.

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.’ Chapter 202, Laws 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: ‘Sec. 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 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 thirty-first 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 olemargarine 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 butyrine; that this butyrine exists in dairy butter only in a small proportion,-from 3 to 6 per cent.; that it exists in no other substance than butter made from milk, and is introduced into oleomargarine butter by adding to the oleomargarine stock some milk, cream, or butter, and churning, and when this is done, it has all the elements of natural butter; but there must always be a smaller per centage of butyrine in the manufactured product than in butter made from milk. The only effect of the butyrine is to give fiavor to the butter, and has nothing to do with its wholesomeness; that the oleaginous substances in the oleomargarine are substantially identical with those produced from milk or cream. Prof. Chandler testified that the only difference between the two articles was that dairy butter had more butyrine; that oleomargarine contained not over 1 per cent. of that substance, while dairy butter might contain 4 or 5 per cent.; and that if 4 or 5 per cent. of butyrine were added to the oleomargarine there would be no difference. It would be butter; irrespective of the sources, they would be the same substances. According to the testimony of Prof. Morton, whose statement was not controverted or questioned, oleomargarine, so far from being an article devised for purposes of deception in trade, was devised in 1872 or 1873 by an eminent French scientist, who had been employed by the French government to devise a substitute for butter.

Further testimony as to the character of the article being offered, the district attorney announced that he did not propose to controvert that already given. Testimony having been given to the effect that oleomargarine butter was precisely as wholesome as dairy butter, it was, on motion of the district attorney, stricken out, and the defendant's counsel excepted.

The broad ground was taken at the trial, and boldly maintained on the argument of this appeal, that the manufacture or sale of any oleaginous compound, however pure and wholesome, as an article of food, if it is designed to take the place of dairy butter, is by this act made a crime. The result of the argument is that if, in the progress of science, a process is discovered of preparing beef tallow, lard, or any other oleaginous substance, and communicating to it a palatable flavor, so as to render it serviceable as a substitute for dairy butter, and equally nutritious and valuable, and the article can be produced at a comparatively small cost, which will place it within the reach of those who cannot afford to buy dairy butter, the bar of this statute is upon it. Whoever engages in the business of manufacturing or selling the prohibited product is guilty of a crime; the industry must be suppressed; those who could make a livelihood by it are deprived of that privilege. The capital invested in the business must be sacrificed, and such of the people of the state as cannot afford to buy dairy butter must eat their bread unbuttered.

The references which have been here made to the testimony on the trial are not with the view of instituting any comparison between the relative merits of oleomargarine and dairy butter, but rather as illustrative of the character and effect of the statute whose validity is in question. The indictment upon which the defendant was convicted does not mention oleomargarine; neither does the section (section 6) of the statute, although the article is mentioned in other statutes which will be referred to. All the witnesses who have testified as to the qualities of oleomargarine may be in error, still that would not change a particle the nature of the question, or the principles by which the validity of the act is to be tested. Section 6 is broad enough in its terms to embrace, not only oleomargarine, but any other compound, however wholesome, valuable, or cheap, which has been or may be discovered or devised for the purpose of being used as a substitute for butter. Every such product is rigidly excluded from manufacture or sale in this state.

One of the learned judges who delivered opinions at the general term endeavored to sustain the act on the ground that it was intended to prohibit the sale of any artificial compound as butter or cheese made from unadulterated milk or cream; that it was that design to deceive which the law rendered criminal. If that were a correct interpretation of the act, we should concur with the learned judge in his conclusion as to its validity, but we could not concur in his further view that such an offense was charged in the indictment or proved upon the trial. The express concessions of the prosecuting officer are to the contrary. We do not think that section 6 is capable of the construction claimed. The prohibition is not of the manufacture or sale of an article designed as an imitation of dairy butter or cheese, or intended to be passed off as such, but of an article designed to take the place of dairy butter or cheese. The artificial product might be green, red, or white, instead of yellow, and totally dissimilar in appearance to ordinary dairy butter, yet it might be designed as a substitute for butter, and if so would fall within the prohibition of the statute. Simulation of butter is not the act prohibited. There are other statutory provisions full covering that subject. Chapter 215, Laws 1882, entitled ‘An act to regulate the manufacture and sale of oleomargarine, or any form of imitation butter and lard, or any form of imitation cheese, for the prevention of fraud, and the better protection of the public health,’ by its first section prohibits the introduction of any substance into imitation butter or cheese for the purpose of imparting thereto a color resembling that of yellow butter or cheese. The second section prohibits the sale of oleomargarine or imitation butter thus colored, and the third section prohibits the sale of any article in semblance of natural cheese not the legitimate product of the dairy, unless plainly marked ‘imitation cheese.’ Chapter 238, Laws 1882, is entitled ‘An act for the protection of dairymen, and to prevent deception in the sales of butter and cheese,’ and provides (section 1) that every person who shall manufacture for sale, or offer for sale, or export any article insemblance of butter or cheese not the legitimate product of the dairy, must distinctly and durably stamp on the side of every cheese, and on the top and side of every tub, firkin, or package, the words ‘oleomargarine butter,’ or, if containing cheese, ‘imitation cheese;’ and chapter 246, Laws 1882, entitled ‘An act to prevent fraud in the sale of oleomargarine, butterine, suine, or other substance not butter,’ makes it a misdemeanor to sell at wholesale or retail any of the above articles, representing them to be butter.

These enactments seem to cover the entire subject of fraudulent imitations of butter, and of sales of other compounds as dairy products, and they are not repealed by the act of 1884, although that...