People v. Spencer

• Decision Date: 14 February 1911
• Citation: 94 N.E. 614,201 N.Y. 105
• Parties: PEOPLE v. SPENCER et al.
• Court: New York Court of Appeals Court of Appeals

201 N.Y. 105

94 N.E. 614

PEOPLE

v.SPENCER et al.

Court of Appeals of New York.

Feb. 14, 1911.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by the People of the State of New York against Nelson E . Spencer, as trustee, and other, for penalties. Judgment for the People, and from an affirmance by the Appellate Division defendants appeal. Affirmed.

James M. E. O'Grady, for appellants.

Thomas C. Burke, for the People.

GRAY, J.

This appeal is from the affirmance by the Appellate Division, in the Fourth Judicial Department, of a judgment entered against the defendants for 15 penalties of $100 each, adjudged to have been incurred by reason of violations of the agricultural law of the state. Laws of 1893, c. 338. The affirmance below was by a divided court; the divergence in opinion being upon the question of the right of the people to recover aggregated, or cumulative, penalties. As to other questions, I think that they have been satisfactorily disposed of in the opinion of the Appellate Division, and that we need only consider the one question of the penalties.

[1] The Albion Cider & Vinegar Company, a domestic corporation,engaged in the manufacture and sale of vinegar, was charged in the complaint, in substance, with having manufactured and sold a compound ‘in imitation and semblance of cider vinegar made exclusively from pure apple juice,’ which was not pure cider vinegar, so made, which was colored ‘to deceptively imitate cider vinegar,’ and which was falsely branded ‘New York State Pure Cider Vinegar.’ It was alleged that 15 separate samples had been taken by the inspectors from separate barrels, so branded, which, after having been chemically analyzed, proved not to be pure cider vinegar, within the provisions of the statute as to that product. The statute, which was thus charged with having been violated, so far as material to be recited here, was as follows: ‘Sec. 50. Definition of adulterated vinegar.-All vinegar which contains any * * * ingredients injurious to health, or any artificial coloring matter * * * shall be deemed adulterated. The term, ‘cider vinegar,’ when used in this article means vinegar made exclusively from pure apple juice.

‘Sec. 51. Mannufacture and sale of adulterated or imitation vinegar prohibited.-No person shall manufacture for sale, keep for sale or offer for sale: (1) Any adulterated vinegar. (2) Any vinegar or product in imitation or semblance of cider vinegar, which is not cider vinegar. * * *

‘Sec. 52. Packages containing cider vinegar to be branded.-Every manufacturer or producer of cider vinegar shall plainly brand on the head of each cask, barrel, keg or other package containing such vinegar, his name and place of business and the words ‘cider vinegar.’ And no person shall mark or brand as or for cider vinegar any package containing that which is not cider vinegar.'

Penalties were imposed for violations, in the following language of section 53: ‘Every person violating the provisions of this article shall forfeit and pay to the people of the state the sum of one hundred dollars for each violation.’

Upon the trial of the action these facts appeared: On September 3, 1901, the assistant commissioner of agriculture, with his agents, went to the company's factory and took 9 samples from different barrels, in a lot of 75 barrels, which were marked with the company's name and with the words ‘New York State Pure Cider Vinegar.’ This lot was about to be shipped to a purchaser in the state of Wisconsin. On the 24th of September, 1901, special agents again visited the factory, and took 6 samples from different barrels, in a lot of 63 barrels, which were standing upon the floor and which were marked similarly to the previous lot. These various samples were taken, and they were subjected to chemical analysis, in accordance with the provisions of the law. The referee, before whom the trial was had, made separate findings as to each barrel, from which there had been taken a sample by the state's agents. Each of these findings was that the ‘defendant kept for sale one certain barrel of adulterated vinegar, as and for cider vinegar, which had been theretofore manufactured for sale by said defendants and which contained artificial coloring matter, was a product in imitation or semblance of cider vinegar, and which was not made exclusively from pure apple juice, and that said defendants marked or branded * * * said certain barrel with the words ‘New York State Pure Cide Vinegar.’' There were 15 of such findings, and they covered the 15 barrels in the 2 lots, from which separate samples had been taken. The referee found as a conclusion of law that the defendants had forfeited to the plaintiff 15 penalties of $100 each and directed judgment accordingly.

There was evidence to support the findings of the referee, and the only question arising upon his determination which will be discussed is whether this was a case in which aggregated penalties could be recovered.

[2] The question of the power of the Legislature to prohibit the artificial coloring of vinegar, and to declare an artificial coloring to be an adulteration, was disposed of in People v. Girard, 145 N. Y. 105, 39 N. E. 823,45 Am. St. Rep. 595. If the judgment for the 15 penalties rested solely upon the findings that the defendants had manufactured for sale these 15 barrels of adulterated vinegar, it would be erroneous.It would be incorrect to hold that the putting up of each barrel, keg, or package of adulterated vinegar had created as many infractions of the statute, for each...