
    Supreme Court—General Term—Second Department.
    
      December, 1884.
    PEOPLE v. McGANN.
    Constitutional Law.—“ Oleomargarine Act,” L. 1884, oh. 202, is constitutional.
    The prohibition of L. 1884, ch. 202, § 6, against the manufacture and sale of oleaginous substances designed to take the place of butter or cheese as an article of food, is absolute.
    Whether or not a statute is constitutional is a question of power of the Legislature; and if that question be answered in the affirmative, the court can institute no inquiry into the exercise of such power.
    The Legislature may prohibit or suppress any traffic injurious to, or demoralizing either to the public health or public morals, and its decision on the question of fact involved is conclusive.
    The police power is a power vested in the legislature to ordain such laws as shall be deemed essential and necessary to the welfare, health and property of the public.
    The “ Oleomargarine Act ” (L. 1884, ch. 202), is constitutional.
    Appeal by defendant, Patrick H. McGrann, from a judgment of the Court of Special Sessions of Kings county, of July 18, j 1884, affirming a conviction of said defendant, by Hon. An- 1 drew Walsh, Police Justice, on July 9, 1884, at the city of Brooklyn, of a violation of L. 1884, ch. 202 (the Oleomargarine Act. “ An act to prevent deception in the sale of dairy products ”).
    Defendant was convicted, under section 6 of that Act, in that he willfully and unlawfully did manufacture and sell an article of food known as oleomargarine, designed to take the place of butter produced from pure unadulterated milk and the cream of the same ; that said article was manufactured from oleaginous substance other than that produced from unadulterated milk and cream of the same, to wit: from animal oil or fat extracted from the tallow of beef.
    Upon conviction, defendant was sentenced to pay a fine of $100, or to be imprisoned in the Kings county penitentiary for the term of six months.
    The facts fully appear in the opinion of the General Term.
    
      James Troy, for Patrick H. McGann, appellant.
    I. The same objections urged in the appellant’s behalf in State v. Addington, 77 Mo. 110 ; affirming S. C., 12 Mo. App. 214, are valid against the present statute, to wit: a. If the statute is an absolute prohibition of manufacture and sale of the article, "it is unconstitutional, b. It deprives defendant of property without due process of law. o. It is an unreasonable exercise of the police power of the State, d. It is in conflict with the United States Constitution, which vests in congress the- exclusive right to regulate commerce between the states.
    
    II. It is not necessary to establish the unconstitutionality of the act to succeed on this appeal. The act is intended to prohibit the manufacture and sale of artificial butter with intent to deceive. The title of the statute declares that to be the purpose of the Legislature. It is entitled “ An act to prevent deception in the sale of dairy products,” and section 6 is intended to forbid the manufacture of the substances therein designated, with the intention to sell the same for butter, and also to forbid the sale of said substances with intent to deceive the purchaser into believing that he was buying butter made from cream by churning. The law is not hostile to the article, but to the deception. Jerome Park Co. v. Board of Police, 11 Abb. N. C. 342. Resort may be had to the title for purposes of construction. Sedgwick on Statutes, pp. 50, 51, 567, and cases cited.
    III. To give the statute any other meaning, is to declare that the act totally forbids the manufacture for sale of an innocuous nutritious article of food, even if the article is not intended to be sold for other than it really is. Such an interpretation would render the act invalid, for the Legislature would thereby exceed its power, and would sustain a statute forbidding the manufacture or sale of any new article intended to supply the place of a similar article manufactured by an old process. In construing a statute, even when its provisions are clear and unambiguous, the courts may to some extent resort to the title, for the purpose of determining the legislative intent. People ex rel. Westchester Fire Ins. Co. v. Davenport, 91 N. Y. 574, 584, 585 ; Potter's Dwarris on Stat. 121 to 146. Such a construction should be given to a statute if possible, as will make it constitutional. People ex rel. Bolton v. Albertson, 55 N. Y. 50; People ex rel. Ward v. Asten, 6 Daly, 18; 49 How. 405 ; affirmed, 62 N. Y. 623. See also Coyne v. Weaver, 84 N. Y. 386.
    
    IV. There can be no question that if the New York Legislature had the power to make this enactment, it was by virtue of the implied police powers vested in every state Legislature. That position is conceded in Matter of Brosnahan, 4 McCrary, 1, already cited. But this police power, which may be said to be that inherent and plenary power in the state, which enables it to prohibit all things hurtful to the comfort, safety and welfare of society (Town of Lake View v. Rose Hill Cemetery Company, 70 Ill. 191; 22 Am. Rep. 71), has constitutional limits, and the subject of its exercise is clearly a judicial question. Toledo, Wabash & Western R. Co. v. City of Jacksonville, 67 Ill. 37; 16 Am. Rep. 611; Matter of Jacobs, 2 N. Y. Crim. Rep. 346 ; affirmed, Id. 539.
    V. The declaration in Cooley Const. Lim. (5th ed.) 721, followed in State v. Addington, 77 Mo. 110, that objections to the validity of the law should be addressed exclusively to the Legislature, is unsound, is fortified by no citation of authorities, and is in conflict with Railroad Co. v. Husen, 95 U. S. 465, 473.
    VI. It is not necessary in every case, that the courts, before they can set aside a law as invalid, must be able to find in the constitution some specific inhibition which must be disregarded or some express command which has been disobeyed. Cooley Const. Lim. (5th ed.) 208; Wynehamer v. People, 13 N. Y. 390, 391.
    VII. The present statute is to be distinguished from those designed to enforce the liquor laws. The latter have in view the fact that the consumption of intoxicating drinks is detrimental to the public health and destructive to the public peace. Bertholf v. O’Reilly, 74 N. Y. 509. In the oleomargarine act, on the contrary, there is no belief shown that the forbidden article is hurtful.
    
      Jamies W. Ridgeway, district attorney, for people, respondent.
    
      
       A state law prohibiting the manufacture and sale of intoxicating liquors is not repugnant to the Constitution of the United States. Bartemeyer v. Iowa, 18 Wall. 129; Beer Co. v. Massachusetts, 97 U. S. 25; Foster v. Kansas, 112 Id, 201.
    
    
      
       The same rule applies to acts of congress. Parsons v. Bedford, 3 Pet. 433; United States v. Coombs, 12 Id. 72. And all presumptions are in favor of constitutionality. Sarony v. Burrow-Giles Lithographic Co., 17 Fed. Rep. 591.
    
   Dykman, J.

The legislature of this state has enacted a law with a title at its head, indicative of a purpose to prevent deception in sales of dairy products in this State (Chap. 202, Laws of 1884). Section 6 of this law has in it these words: “ No person shall manufacture out of any oleaginous substance or 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 for sale the same as an article of food.” Then the same section specifies the punishment for its violation. This defendant has been convicted of a misdemeanor for violation of this section of the law, on proof that he manufactures what is called oleomargarine from an oleaginous substance other than that produced from milk or cream, namely animal oil, extracted from the tallow of beef; that this article is manufactured for sale, as a substitute for butter; that it resembles butter so much in appearance and taste that it might be taken for butter by any ordinary person ; and that it was designed by the defendant to take the place of butter as an article of food, and a substitute therefor. He, however, manufactures it as, and calls it oleomargarine, and does not pretend or represent that it is butter, but states expressly that it is oleomargarine and not butter, and that it is designed and intended as a substitute therefor; that he has sold about eight pounds of this article as oleomargarine with the design that it should be used for food as a substitute for butter, and that the purchaser knew how it was made, and of what it was composed, and bought it for use as an article of food in the place of butter.

From such conviction the defendant has appealed to this court, on the theory that the section under which his condemnation was secured was intended only to apply to a case of deception in the manufacture and sale of the article specified. The language employed, however, will not admit of that mild interpretation. It prohibits both the manufacture, out of any oleaginous substance, except that produced from milk or cream, of any article designed to take the place of butter or cheese produced from milk or cream, and also the sale or offer for sale of the same, as an article of food. The prohibition, so far as it extends, is absolute, and if the Legislature possessed the power to make the law, it must be respected and enforced.

Under the American system of government, the uncontrolled power of legislation resides in the people themselves, as an aggregate body politic. On the separation of the colonies from the mother country all sovereignty and supremacy devolved upon the people in undiminished plenitude. But they do not exercise sovereign power directly. In the first place all the people of all the states established the general government by the adoption of the constitution of the United States, in which they delegated to the national government certain enumerated powers. Then the people of each state established state governments and invested the same with all the power which they did not expressly withhold.

So that the powers of the general, government are definite and restricted, while the powers of the state governments are general and residuary, and all power not conferred on the general government belongs to the state governments or to the people. The state governments exercise all the powers of sovereignty not conferred on the national government, so far as the people permit them to be exercised at all. Without constitutional limitations, the power of the Legislature to make laws, would be absolute, because the law, making power is intrusted by the people to the legislative branch of the state government.

Whether a statute is constitutional or not is a question of power, and if that question be answered in the affirmative, the courts can institute no inquiry into the proper exercise of the power. They must assume that the power and discretion have been judiciously and wisely exercised, and that tire Legislature had before it, at the time of its action, all requisite evidence to justify the same. But the people have set certain limitations to the law-making power's, some of which are expressed and some are implied; one of the express limitations is, that no person shall be deprived of life, liberty or property, without due process of law.

If, therefore, the law in question falls under the condemnation of the constitution, it is because it offends against this limitation of legislative power.

This constitutional restriction has received exhaustive examination in our Court of Appeals in the cases of Wynehamer v. People (13 N. Y. 378), and Bertholf v. O’Reilly (74 N. Y. 509), and in both of these cases the conclusion was reached that notwithstanding such restriction the legislative power extends to entire prohibition of the traffic in spirituous liquors. This doctrine proceeds on the theory that the legislature may prohibit and suppress any traffic injurious or demoralizing either to the public health or public morals, or, in its tendency or consequences ; and that the conclusion and decision of the legislature on the question of fact involved, is final and conclusive.

The same doctrine was enunciated by the Supreme Court of the United States, in the Slaughter House Cases (15 Wall. 36), where a law of the state of Louisiana, which operated very disastrously on large business interests and materially impaired the value of private property, was held constitutional and valid.

These cases are sufficient to sustain the constitutionality of the law under consideration. It may well be that such legislation requires the highest reasons for its justification, but it is not the province of the courts to inquire into their existence; complaints against such enactment must be carried to the Legislature and not to the courts.

It must be assumed, in the consideration of this statute, that the Legislature ascertained that the use of this prohibited article was injurious and detrimental to the public, and so found it necessary to advance, in respect to the same, beyond the point of regulation, to actual prohibition.

The presumption is that such legislative action was deemed necessary for the welfare of the public, and it cannot be abrogated by the courts. With these necessary assumptions this law falls easily within the police power of the state, which is a power vested in the legislature to ordain such laws and ordinances as shall be deemed essential and necessary for the welfare, health and property of the public. The underlying foundation of the power is the principle that all property must be so used that it shall not become injurious to others. All reasonable restraints may be imposed for the attainment of the end which may be deemed necessary by the law-making power, even though they amount to absolute prohibition, and the propriety of such restriction, is a legislative question entirely free from all judicial control.

The enactment of this law in question was, therefore, within the scope of legislative power as the same has been delegated to the senate and assembly by the people of the state in the fundamental law. It prohibits the manufacture and sale of oleomargarine as an article of food in place of butter, and the defendant has been convicted of a violation of its provisions, and in our view the conviction must be affirmed.

Barnard, P. J., concurs.

Pratt, J.—(Dissenting.)

I am constrained to dissent from the views of a majority of the court in this case upon the following grounds : If section 6 of the act under which defendant was convicted is to be construed as an absolute prohibition of the manufacture of pure and wholesome oleomargarine unconnected with any design to deceive the public or simulate dairy butter, it is unconstitutional as being within the probition of article 1, section 6, of the State Constitution.

There are certain well settled principles to be kept in view in considering this class of questions. Before a statute can be annulled by the courts, its repugnancy to the constitution should be clearly demonstrated. Neither can courts sit in review of the discretion of the legislature, or determine the wisdom or propriety of legislative action, and every intendment is in favor of the validity of statutes.

In Bertholf v. O’Reilly, 74 N. Y. 516, it was held by the Court of Appeals, “ that no law can be pronounced invalid for the reason simply that it violates all notions of justice, is oppressive and unfair in its operation, or because in the opinion of some or all the citizens of the state it is not justified by public necessity or designed to promote the public welfare. We repeat, if it violates no constitutional provision, it is valid and must be obeyed.” It is equally well settled that whether or not an act is obnoxious to the constitution is a question for the courts to pass upon, and for that purpose it is competent for the court to look to the circumstances and purpose under which and for which an act is passed.

That the substance from which oleomargarine is made is property, cannot be disputed. . Neither can it be claimed that this act was passed to protect or preserve the public health, for the reason that it nowhere appears that such was the purpose, and an entirely different purpose does appear in the title. If we are to seek for an expression of the purpose in the act itself, it is plain that its object is to create and protect a monopoly in the manufacture of dairy butter and prevent any successful competition therewith.

In this view, it deprives the owner of the substance from which oleomargarine is made, of the beneficial enjoyment of his property and the fruits of his lawful labor. It was held (In re Peter Jacobs, 2 N. Y. Crim. Rep. 346, 539), that it is not constitutionally competent for the Legislature to deprive, by any arbitrary enactment, a laborer in any lawful vocation of his right of work and of enjoyment of the fruits of his work in his residence or in 1ns own way, except for purposes of police or health regulations. It is true that the statute then under consideration recognized the legality of the labor, and only restricted it to certain places, while this prohibits all the labor or manufacture, if the article is to be used thereafter as a substitute for butter; but the principle is the same. In both cases the citizen is deprived of the beneficial use of his lawful property.

Until the Legislature, in the exercise of its inherent powers to enact police and health laws, prohibits the manufacture of oleomargarine, it seems to me, a citizen has a right to make any pure and wholesome article of food and sell it for what it actually is, and it is immaterial what lawful use shall be made of it afterwards. If a man is too poor to buy good butter, I see no objection to his using oil, cheese or honey or any other substitute for butter. A law prohibiting the making of an iron rake to be used as a substitute for one made entirely of wood could be passed with just the same legal effect as a law providing that oleomargarine should not be made to be used as a substitute for butter. I do not claim that the legislature cannot do all this, but that it can only do it to protect the public health. Assuming, even that it may pass such a law, if in the exercise of its discretion it deems it best for the public health, and that the courts cannot review such an exercise of discretion however unwise it may be, yet this law was not passed under the exercise of any such discretion or for any such purpose, nor can we indulge in the presumption that such was the purpose of the act when we read the title or the act itself.

The whole question as to the constitutionality of this section, therefore turns upon the point, whether, the legislature having passed this statute, the courts can assume that it was passed for the purpose of protecting the public health. In my view, it was not passed for that purpose, and is therefore not to be upheld unless another construction can be placed upon it.

In the title the Legislature announced its purpose to be “ To prevent Deception in the Sale of Dairy Products.” If the title is to be read in construing the sixth section, then it must be held to relate to and prescribe only deceptive simulations and spurious impositions upon the public, or to an article made with design to deceive the public, and cannot be held to include a wholesome and pure article of food, openly and honestly made with a design to sell it for exactly what it is and without any design to deceive the purchaser.

In the latter view an indispensable element in a conviction would be some intent to deceive or some act that might operate as an imposition upon the public as a deception in dairy products.” Merely making pure oleomargarine butter and exposing it for sale as such, without any notice or attempt to pass it off as a genuine dairy product, would not come within the purview of the statute, the purpose of which is to prevent deceptions. The act in the severity of its penalties, in its casting the burden of proof upon the defendant to rebut a presumption of willful guilt arising from the doing of any act prohibited therein, may well be held to impose its penalties only when oleomargarine is manufactured for sale, or sold, or designed to deceive the public.

If the latter is'the correct view, this conviction cannot be upheld, as no such case was made out.

I have not examined or cited authorities, as I have assumed the utmost that can be claimed in favor of the absolute power of the legislature. While the subject is one that has been frequently before the courts and elicited much discussion, it does not seem to me that the present case requires any critical examination to present the legal issues involved.

Whichever construction is placed upon the sixth section of the two herein stated, it is clear the conviction must be set aside.

Judgment of County Court affirming conviction affirmed.

Note. No evidence was offered, either in this case or the succeeding one (People v. Marx), to show that the oleomargarine sold by defendant was manufactured by him before the passage of the prohibitory act. Upon this point a recent decision of the Supreme Court of the United States is instructive.

“If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the Legislature cannot be stayed from providing for its discontinuance, by any incidental inconvenience which individuals or corporations may suffer. All rights are held subject to the police power of the State.”

“ We do not mean to say that property actually in existence and in which the right of the owner has become vested, may be taken for the public good without compensation. But we infer that the liquor in this case as in the case of Bartemeyer v. Iowa (18 Wall. 129), was not in existence when the liquor law of Massachusetts was passed. Had the plaintiff in error relied on the existence of the property prior to the law, it behooved it to show that fact. But no such fact is shown and no such point is taken.” Beer Co. v. Massachusetts, 97 U. S. 25, 82.

In the well known case of Wynehamer v. People, 13 N. Y. 378, the defendant offered to prove that the liquor sold by him was owned by him at the time of the passage of the prohibitory act, and the Court of Appeals held that as the act made no discrimination between liquor-owned when it took effect and that which might afterwards be manufactured or imported, the act was unconstitutional.

In the head-note to State v. Mugler, 44 Amer. Rep. 634 (29 Kans. 252) the decision is said to be “A law prohibiting the brewing and selling of beer applies to beer lawfully brewed before the law took effect but sold thereafter. The opinion shows however (44 Am. Rep. 640) that both the manufacture and sale were after the passage of the prohibitory act. In addition, the circumstances of that case and the provisions of the Kansas statutes distinguish it from the one at bar.

Upon the constitutional questions involved, see Matter of Paul, 2 N. Y. Crim. Rep. 1; Matter of Jacobs, Id. 346, 539.  