
    United States Condensed Milk Company, Appellant, v. Max Smith and Jacob Smith, Respondents.
    Third Department,
    November 14, 1906.
    Penalty — possession of milk cans — one penalty for each, offense — number of cans held immaterial.
    Under the modern rule, if the Legislature intends to allow cumulative penalties, the statute authorizing the penalty must so state “in-so many words.”
    Hence, as the last amendment to the Domestic Commerce Law (§ 39, as amd. by Laws of 1903, chap. 483), providing a penalty for buying or selling or having' in possession marked milk cans belonging to another, allows a recovery of the penalty “for every such violation” of the statute, only one penalty can be recovered for each violation irrespective of the number- of cans held by the defendant. This, notwithstanding the fact that prior statutes on the subject allowed a penalty for “ each and every milk can ” so held. "
    Appeal by the plaintiff, the United States Condensed Milk Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the ( county of Ulster on the 7th day o.f Hay, 1906, after, a trial at the Ulster Trial Term,
    This action is brought by the plaintiff to recover penalties allowed by the law by reason of the defendants having in their. possession ninety-three milk cans which belonged to the plaintiff and which ■ liad the initials of .the plaintiff thereon. The' jury found the fact for the plaintiff and by agreement of counsel the question as to the extent of the recovery was left with the trial judge thereafter to determine. The. trial judge thereafter determined that the plaintiff was entitled to one penalty only for fifty dollars, and judgment was entered accordingly. From'this judgment the plaintiff has appealed, insisting that it is entitled to the ninety-three penalties by reason-of defendants’ possession of ninety-three of its milk cans.
    
      C. B. Miller and Philip Elting, for the appellant,
    
      Frederick Klein and Edmund Bittiner, for the respondents.
   Smith, J.:

The/original enactment of the Legislature in regard to penalties , for unlawful use .of - milk cans, is found in chapter 295 of the Laws óf 1865. The material part of said, act is as follows: “ Any person offending, against .the provisions ■ hereof shall be liable to a penalty of twenty-five dollars for each and every milk can so taken, tised, sold, disposed of, bought Or trafficked in for the first offense, and fifty dollars for, each and every milk can so used, sold, dis-. posed of, bought or trafficked in. for every subsequent offense; to-be sued for and collected in the name of the people of this State, by - any party aggrieved.” In 1887 chapter 401 was passed, so far as material to this discussion, in the following form: “ Any person or persons who shall, in violation of this act, either use, sell-, dispose of, buy, traffic in or have in his, her or their possession, any such can or cans, * * #. shall be liable to a penalty of ten dollars for any such can either so used, sold, disposed of, bought, trafficked in ' or found in his, her or their possession for the first offense, and twenty dollars for each and every cam, eithep so used, sold, disposed of, bought, trafficked.in, or found in his,/her or their possession for every subsequent offense, to be recovered by proceedings as herein provided and set forth, together with all costs and disbursements of said proceedings.” Chapter 25 of the Laws of 1890 purported, to amend section 4 of chapter 401 of the Laws of 1887 so as to read as follows: “ Any person or persons who shall in violation of this act either nse, sell, dispose of, buy, traffic in, or have in his, her or ' their possession, any such can or cans, * * * shall be liable to a penalty of fifty dollars for any such can either so used, sold, disposed of, bought,' trafficked in, or found in his, her or their possession. Such penalties may be recovered by action in the Supreme ■Court of this State, with costs and disbursements, and the place of ■trial of such actions may be in the county in which the owner or owners, dealer or dealers, shipper or shippers of such can or cans may reside at the commencement of such action.” In 1896 chapter 34 of the General Laws • was passed. This was the Domestic Commerce Law, and was chapter 376 of the laws of that year. In section 29 of that act was found the following provision : “ A person violating any provision of this section shall forfeit to such owner, or dealer or shipper, or his agent, the sum of fifty dollars for every such violation.” Sections 110 and 111 of this ehajiter expressly repeal chapter 295 of the Laws of 1865, chapter 401 of the Laws of 1887, and chapter 25 of the Laws of 1890, to take effect on October 1, 1896. Later in 1896 chapter 977 was passed as an amendment to chapter 401 of the Laws of 1887, to fake effect on May 28, 1896. In section 4 of the act of 1887, as thus amended, it is provided: “ Any person or persons who shall, in violation of this act, either use, sell, dispose .of, buy, traffic in .or have in his, her or their possession any such can or cans, . * * F shall be liable to. a penalty of fifty dollars for each and every offense, and each and any of such can or cans either so used, so ■disposed of, bought, trafficked in or found in his, her or their possession; such penalty may be recovered in an action in "the Supreme Court of -this State, or- any other court of record in this State, with costs and disbursements.” In section 13 of that act, as thus amended, it is provided that “All acts or parts of acts inconsistent with the provisions of this act are hereby repealed.” By chapter 482 of the Laws of 1902, section -29 of the Domestic Commerce Law was amended. The amendment is not material to this question except as the provision is there retained that ■“ Any person violating any provision of this section shall forfeit to such owner of dealer or shipper or his agent the sum of fifty-dollars for every• such violation.” Section 33 of the Statutory Construction Law (Laws of .1892, chap. 677) provides: “¡No provision of any chapter of the revision of the General Laws, of which this chapter is a part, shall supersede or repeal by implication any law passed at the samé session of the. Legislature at which any such chapter was .. enacted, or'passed'after the enactment of any such chapter and ' before it shall have talcen effect; and an. amendatory law passed at such session or at any subsequent session begun before any such chapter takes effect shall not be deemed repealed unless specifically designated in-the repealing schedule of such chapter.”

Section 32 of the same act (as amd. .by Laws of 1894, chap. 448) provides in effect that the provisions of a law repealing á prior law which are substantial re-enactments of the prior law shall be construed as a continuation of the prior law-and notas new enactments. Under this Statute -the rule has been broadly stated, “ That a mere change in the phraseology or in, the arrangement or'division of the sections of an antecedent law will not be construed as a change in the law unless the alteration is such as evidently purports'a legisla^ tive intent to. work such a change.” (Rumsey, J., in McAvoy v. City of New York, 52 App. Div. 488.)

If this then were not a penalty statute the rule of construction would s.eem. to be plain that in the later statute there is no sufficient indication-of an-intention to change-the rule specifically declared, in the fprmer statute that a penalty was incurred for each and every can wJiiph.was thus improperly used. In Griffin v.' Interurban Street R. Co. (179 N. Y. 438), where an action was brought, to recover penalties for refusing to give transfers which the law required, it was held that the defendant was liable but that the penalties were not cumulative, and that but one penalty could be recovered. judge 'Bartlettin writing for a unanimous court said: “ It • j is quite, obvious.that the'legislative intention to permit the recovery of cumulative-'penalties for refusals of the: defendant to comply-with the .provisions óf the ¡Railroad Law in regard to the transfer of passengers-is as clearly manifested as in any of the cases cited.

“¡¡Notwithstanding this fact a majority of my brethren are Of opinion that -while the rule for the recovery of cumulative penal- • ties, as already adverted to, is firmly established by the_ earlier decisions of this court, yet the changed conditions in the modern life of great cities render its modification imperative.

“ There have been presented- at the bar of this court civil and criminal cases where the aggregate penalties sought to be recovered have amounted to enormous and well-nigh appalling sums by reason of plaintiffs permitting a long period to elapse before beginning actions. Actions of this nature have bécome highly speculative and present a phase of litigation that ought not to be encouraged. .

“The court is of opinion that if cumulative recoveries to be permitted the Legislature should state its intention in so many words; that a more definite form of statement be substituted for the words,hitherto deemed sufficient.”

That case was discussed upon reargument in 180 New York, at page 538. If “ the changed conditions in the modern life of great cities ” render imperative a modification of the former rule and a reversal of rulings heretofore made, and if in actions for penalties the Legislature is required if it be intended to allow cumulative penalties to state “ in so many words,” the same underlying principle would require us in construing a penalty statute to be astute to find in a change of phraseology a change of intention on the part of the Legislature as to the allowance of cumulative penalties. The act of 1902 is the last expression of the Legislature upon this question. That provides a penalty for every violation of the act. The possession of one cau or of more than one can might well be held a single violation of the statute. Were it not for the previous legislation upon the subject we would have no difficulty in arriving at the conclusion that a single penalty only had been incurred in the present case. Motwithstanding the previous legislation', however, in view of the strict construction which the law requires to be given to a penalty statute, and especially of a statute which is claimed to authorize cumulative penalties, we think that we are following the direction of the Court of Appeals when we declare that one penalty only is recoverable in the case at bar.

The judgment should, therefore, be affirmed, with costs.

All concurred ; Chester and Kellogg, JJ., in result.

Judgment unanimously affirmed, with costs.  