
    The People, etc., Resp’ts, v. Benjamin J. Hill, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1887.)
    
    •Oleomargarine—Section 8, chap. 188, Laws 1885—Constitutionality op—Power op the legislature.
    The object of the law is to protect the public from any imposition. The effect of the provision making the possession of colored oleomargarine conclusive evidence of an intent to sell it for butter the product of the dairy, is to impose upon the dealer the obligation of ascertaining whether or not it h:is been colored so as to resemble butter, the addition of the coloring matter being in itself an element of fraud and the manufacture therefore when coloring matter is introduced being a fraud per se. When the protection of the public is involved, from a fraud that may be perpetrated, the action of the legislature is discretionary as to the rules by which the mischief may be avoided unless in conflict with some declared and plain provision of the constitution. The law in exacting from the possessor of oleomargarine such scrutiny as to prevent a wrong is neither unjust, oppressive nor unconstitutional.
    Appeal from judgment upon trial at circuit.
    
      Albert Beynaud, for app’lt; William P. Quin and Edward B. Thomas, for resp’ts.
   Brady, J.

This actiop. was brought to recover the penalty provided for in section 19 of chapter 183 of the Laws of 1885. That statute by its eighth section declares that no one shall make or keep with intent to.sell for butter, or sell with like intent any substance resembling butter, unless made from pure unadulterated milk or cream. The penalty imposed is $500. The proof was that the substance sold by the defendant was oleaginous, not produced from milk or cream, but made in whole or in part from animal fats or oils and not produced from unadulterated milk or cream, and was colored so as to resemble butter the product of the dairy.

Section 8 of the act mentioned declares that if any person shall coat, powder or color with annatto, or any coloring matter whatever, butterine or oleomargarine, or any compounds of the same, or any product or manufacture made in whole or in part from animal fats or animal or vegetable oils not produced from unadultered milks or cream, whereby the said product, manufacture or compound shall be made to resemble butter or cheese, the product of the dairy, or shall have the same in his possession,, or shall sell or offer for sale or have in his possession any of the said products which shall be colored or coated in semblance of or to resemble butter or cheese, it shall be conclusive evidence of ah intent to sell the same for butter or cheese, the product of the dairy.

And section 19 provides that for a violation of the section just mentioned he shall, in addition to the fines and penalties prescribed for each offence forfeit and pay a penalty of $500.

The plaintiff established the possession and sale of the prohibited article, and presented a case in all respects in compliance with the statute relating to the subject. The defendant sought to show that he did not know the nature of the product, and did not intend to sell the same for butter; but the court, to use the language of the case, felt bound to hold the color clause and conclusive evidence clause of the section (section 8) to be constitutional and to be conclusive of any question of innocent intent or ignorance of fact on the part of the defendant.

The question presented, therefore, is whether or not the provisions of section 8, by which the possession of the colored substance is made conclusive evidence of an intent to sell the same for butter, is constitutional.

All the propositions submitted on behalf of the defendant, and all the points presented upon the trial and upon the argument lead to this result. The court of appeals have very recently, in fact during the last month, in the case of People v. Arensberg, treating the subject e con-verso, said:

It cannot be claimed that the producers of butter made from animal fats or oils, have any constitutional right to resort to devices for the purpose of making their product resemble in appearance the more expensive article known as dairy butter, or that it is beyond the power of the legisture to enact such laws as they may deem necessary to prevent the simulated article being put upon the market in such a form and manner as to be calculated to deceive.

The coloring of the margarine, so as to resemble butter, the product of the dairy, it was shown upon the trial, was calculated to deceive, and the conclusive evidence clause already referred to must be regarded as designed to prevent such deception. The principle, it may be added, which must govern this case is enumerated in the case of Phelps v. Racey (60 N. Y., 10), in which it is said that the legislature may pass many laws, the effect of which was to impair or even destroy the right of property, and that private interest must yield to the public advantage; and further, that all legislative powers not restrained by express or implied provisions of the constitution may be exercised.. The question involved in that case related to the preservation of game, and it was said that the measures best adapted to that end was for the legislature to determine and courts-would not review its discretion. If the regulations operated, in any respect, unjustly or oppressively, the proper remedy must be applied by that body, and that, although some of the provisions of the act might seem to one unversed in the mysteries of the subject, to be unnecessarily stringent' and severe, the court could not say that those involved in that action were foreign to the object sought to. be attained, or outside of the wide discretion vested in the legislature.

The object in view in passing statutes so stringent in their nature as those in reference to oleomargarine was to protect, by all possible safeguards, any imposition upon the-public by the sale of that manufacture for butter, against which it can readily be understood a multitude of provisions might be enacted affecting the right of property and changing the rules of evidence. The effect of the provision making the possession of colored oleomargarine conclusive-evidence of an intent to sell it for butter, the product of the dairy, is to impose upon the dealer the obligation of ascertaining whether or not it has been colored so as to resemble butter, the addition of the coloring matter being in itself an' element of fraud, and the manufacture therefore when-coloring matter is introduced being a fraud per se. When the protection of the public is involved from a fraud that may be perpetrated, the action of the legislature is discretionary as to the rules by which the mischief may be avoided, unless in conflict with some declared and plain-provision of the constitution. Considered as an abstract proposition it does not seem oppressive to require, from a dealer in an article calculated to deceive, the utmost protection against such a result, and to subject him to penalties for neglect or omission of his duty to this respect. His transactions are with the public and should be at all times marked by good faith, whether connected with oleomargarine or any other subject, and in exacting of him such. scrutiny as to the article of oleomargarine as to prevent a wrong, is neither unjust, oppressive, nor unconstitutional.

For these reasons we think the judgment appealed from should be affirmed.

Van Brunt, P. J., and Daniels, J., concur.  