
    The People of the State of New York, Appellant, v. Louis Windholz, Respondent.
    
      Cider vinegar ■— that part of section 50 of the Agricultural Law fixing the percentage of acetic acid which it shall contain is unconstitutional — the remainder of the section and sections 51, 52 and 53 of the statute are constitutional.
    
    Section 50 of the Agricultural Law (Laws of 1893, chap. 338, as amd. by Laws of 1901, chap,. 308) provides: " All vinegar which contains any proportion of lead, copper, sulphuric acid, or other ingredients injurious to health, or any artificial coloring matter, or which has not an acidity equivalent to the presence of at least four and one-half per centum, by weight, of absolute acetic acid, or cider vinegar which has less than such an amount of acidity, or less . than two per centum of cider vinegar solids on full evaporation over boiling water, shall be deemed adulterated. The term cider vinegar, when used in this article, means vinegarmade exclusively from pure apple juice. Provided, however, that cider vinegar made by a farmer in this State, exclusively from applea grown on hia land, or their equivalent in cider taken in exchange therefor, shall not be deemed: adulterated, if it contain two per centum solids and sufficient alcohol to develop the required amount of acetic acid,”
    
      Said, that the section, in so far as it relates to the percentage of acetic acid which unadulterated cider vinegar shall possess, violates section 6 of article 1 of the, Constitution of the Stale of New York and the 14th amendment of the United .States Constitution, providing that no person shall be deprived of liberty without due process of law, in that it permits, farmers and purchasers from farmers to deal in cider vinegar which does not contain four and a half per cent of acetic acid and prohibits all other persons from manufacturing and dealing in cider vinegar which does not. possess that' percentage of acetic acid;
    That the Temaining portions of section 50 are constitutional, .as are also sections 51 53 and 53 of .the statute, which prohibit the. manufacture and sale of adulterated vinegar, require the branding of packages containing cider vinegar, and impose penalties for violations of the provisions of the statute.
    Per McLenmmt, P. J., and Sbrotg, J..; Hisoock,. J., concurred in result; WiLEiAMsand Stover, JJ., dissented.
    Appeal by the plaintiff, The People of the State of New York, ' from a judgment of the Supreme Court, in. favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 22d day of October, 1903, upon the dismissal of the complaint by direction of the court upon the opening at the Onondaga Trial Term.
    The action was commenced on the 22d day of June, 1903, to recover two penalties of §100 each, because of the alleged violation of the provisions of sections 50, 51,. 52 and. 53 of the Agricultural Law (Laws- of 1893, chap. 338, as amd. by Laws of 1901, chap. 308). The complaint alleged, in substance, as the first cause of action, that between the 1st day of June, 1901,-and the 15tli day of July, 1901,, the defendant, manufactured for sale, kept for sale and offered for sale adulterated vinegar; manufactured, kept and offered for’ sale vinegar which was made in imitation or semblance of cider vinegar; manufactured, kept and offered for sale, as and for cider vinegar, a vinegar or product which was not cider vinegar, as defined by the statute. For a second causé of action it was alleged, in substance, that between: said dates the defendant: manufactured’for sale, offered for sale and sold several barrels or casks of vinegar made in imitation or semblance of pare cider vinegar, and which was not made exclusively from pure apple juice, hut was adulterated, and that said barrels or casks were branded “ Cider "Vinegar; ” that they did not contain cider vinegar, but an adulterated product made by adding substances deleterious to health, and colored so as to give it the semblance or appearance of pure cider vinegar, and was not, in fact, made from pure apple juice. Jndgment for $100 was demanded for the alleged violation of the statute, as set forth in each of said causes of action.
    The defendant alleged in his answer among other things— which is the only defense urged upon this appeal— that section 50 of the Agricultural Law, which defines adulterated vinegar and pure cider vinegar, is unconstitutional and void, and, therefore, that no action predicated upon such section can be maintained. The trial court so held and dismissed the complaint, with costs in favor of the defendant. Judgment was entered accordingly, and from such judgment this appeal is taken.
    
      M. F. Dillon, for the appellant.
    
      Frank Dopkins, for the respondent.
   HoLennan, P. J.:

The only question presented by this appeal is whether or not section 50 of the Agricultural Law is unconstitutional and, therefore, void. The sections involved are as follows :

“ § 50. Definition of adulterated vinegar. All vinegar which contains any proportion of lead, copper, sulphuric acid, or other ingredients injurious to health, or any artificial coloring matter, or which has not an acidity equivalent to the presence of at least four ' and one-half per centum, by weight, of absolute acetic acid, or cider vinegar which has less than such an amount of acidity, or less than two per centum of cider vinegar solids on full evaporation over boiling water, shall be deemed adulterated. The term cider vinegar, when used in this article, means vinegar made exclusively from pure apple juice. Provided, however, that cider vinegar made by a farmer in this State, exclusively from apples grown on his land, or their equivalent in cider taken in exchange therefor, shall not be deemed adulterated, if it contain two per centum-solids and sufficient alcohol to develop the required amount of acetic acid.”' As amended by chapter 308 of the Laws of 1901.

“ § 51. Manufacture and sale of adulterated or imitation vinegar prohibited. Ho 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.
“ 3. As or for cider vinegar, any viñegar or product which is not cider vinegar.
§ 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.
“ § 53. Penalties. 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.” '

It was expressly held by this court that section 50 of the Agricultural Law (as amd. supra) is not violative of the “ commerce clause” of the Constitution of the United States (art. 1, § 8, subd. 3) (People v. Niagara Fruit Co., 75 App. Div. 11; affd., 173 N. Y. 629), and it is not claimed upon this appeal that the section is subject to such criticism. The appellant, however, insists that the section is unconstitutional and void, because in contravention of section 6 of article 1 of the Constitution of the State, and section 1 of the 14th amendment to the Constitution of the United States, both of which' prohibit the State -from depriving any one of liberty without due process of law. It is well settled that a statute which by.discrimination or otherwise prevents an individual’s pursuing a lawful vocation, is a deprivation of liberty within the meaning of both of the constitutional provisions referred to,

' The act in question applies without discrimination to all individuals, except so far as it allows farmers to manufacture, and farmers and purchasers from them to deal in, cider vinegar which does not contain an acidity equivalent to the presence of át.least four and one-half per centum by weight- of absolute acetic acid, .while it prohibits all other persons from manufacturing and dealing in cider vinegar that has not that amount of acidity. This is clearly a discrimination tin favor of the farmer. He is permitted to engage in the manufacture of vinegar from apples raised upon his own land, or to exchange such apples for vinegar manufactured by another, and then to sell the same, even although the product does not contain four and one-half per centum by weight of absolute acetic acid, provided there is present sufficient alcohol to develop such per centum of acidity, but all other persons are prohibited from doing the same thingy Such provision is violative of both the State and United States Constitutions, and to that extent the statute is invalid.

It does not follow, however, that oecause of such unconstitutional provision the entire statute is void. In fact, the case of People v. Niagara Fruit Co. (supra) is necessarily authority for the proposition that the objectionable provision of the statute may be eliminated, and leave the remaining portion valid. Although the precise question was not argued upon the appeal to this court in that case, or in the Court of Appeals, as appears from the record upon appeal, it was necessarily involved, and must have been decided adversely to the respondent’s contention, otherwise the judgment in that case could not have been affirmed. In fact, the question was fully discussed in the opinion of the learned referee before whom that case was tried, which was made a part of the record on appeal, both in this court and the Court of Appeals. The learned referee said :

I conclude, therefore, that the statute is unconstitutional as violating both the State and the United States Constitutions in so far as it permits one class of citizens to engage in the manufacture and sale of cider vinegar complying with a certain standard and prohibits all others from doing the same.

' “ But it does not follow that the entire statute is void. There are certain provisions which are applicable to all classes and subject to no constitutional objections, which are separate and distinct in their nature from the provisions fixing a standard of a certain degree of acidity for cider vinegar. These are the definitions of adulterated vinegar, as that which contains certain specified poisons or other ingredients injurious to health or any artificial coloring matter,’ and of cider vinegar as that which does not contain two per centum of cider vinegar solids, the prohibitions against the manufacture, keeping for sale or ofiering for sale of vinegar in imitation or semblance of eider vinegar which is not cider, vinegar,, and offering for sale, or selling, as cider vinegar that, which is not cider vinegar, the mandates in regard, to- branding eider vinegar packages, .and the, prohibitions against, branding-any package as. ‘ cider vinegar ’ which contains that, which is- not cider vinegar. These provisions, enacted, for the. purpose of preventing fraud, cover subjects distinct, from, those, relating to acidity, and, they create, offenses- accordingly.. Full effect may be given-to -the.-fifty-third article-of the statute: imposing penalties even though those portions of the definition of adulterated vinegar, contained in section fifty which relate to acidity should be -stricken out.”

We. -think -the foregoing correctly interprets- the: meaning and scope of. the statute and is a., correct exposition of the. law At all events we consider that the decision in' the Niagara Fruit Co. Case (supra) .should be-regarded as decisive of the. questions involved upon this appeal. In that. casé, the allegationsin the complaint, which for all practical purposes- were, the same ¡as the, allegations, of the complaint in the case at bar,, were, proven, and it. was held that a recovery of the penalties could be. had. It. follows that: if the facts alleged, in the complaint in this cáse should be-' -proven a recovery could likewise be- had,, In other words, the in. the- case--at-bar .states facts.- sufficient to- entitle, the plaintiff to recover under each alleged cause of action.

The judgmentmust, therefore,.bereversed and.a new trial granted, with costs to the appellant- to abide event. '

Sprbsto, J., concurred ; Hisoock, J., concurred'mresult; Williams and Svover, JJ., dissented.

Judgment, reversed, and -new trial ordered, with costs to the. appellant to abide event. , 
      
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