
    People of the State of New York, App’lts, v. Hanford West, Respt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed March, 1887.)
    
    1. Criminal law—Adulteration of milk—Form of indictment.
    The indictment charged that at a place named, -and on a certain day named, the defendant "did, wrongfully, unlawfully and knowingly, supply and bring to be manufactured into cheese, to a cheese manufactory then and there situate, a certain quantity of milk, to wir ten gallons, which said milk was then and there diluted with water. The said Han-ford West then and theie bringing the said milk so diluted to the factory for the purpose of having the same manufactured into cheese contrary to the form of the statute, etc. Held, on demurrer that the indictment was good; that it stated all that was necessary to constitute the offense, that it was not necessary to state that the cheese was to be manufactured for market.
    2. Adulteration of milk—Law prohibiting constitutional — Laws 1885, chap. 183.
    For the purpose of preserving the public health, the legislature has power to prevent, by reasonable enactments, the sale or the putting on the market of articles of food which are deleterious to public health by reason of impurity, adulteration or any unwholesome quality or condition Laws 1885, chap 183, to prevent deception in the sale of dairy products, etc., is such an act and is constitutional.
    3. Same—Legislature to decide what injurious to the public health.
    It is for the legislature, and not for the courts, to decide whether the impure oi adulteiatcd aiticle, the sale of which is prohibited, is or is not injurious to the public health.
    4. Same—Dilution of milk prohibited by Laws 1885,®chap. 183
    The dilution of milk with water is an adulteration thereof, and is prohibited also by section 16, chap. 183, Laws 1885
    
      Appeal from a judgment of the court of sessions, Erie county sustaining a demurrer to the indictment therein.
    
      George T. Quimby, district attorney, for appl’ts: A. J. Kniglit, for resp’t.
   Smith, P. J.—The

indictment charges that at the town of Sardinia, Erie county, on the 8th day of July, 1886, the defendant “did wrongfully, unlawfully and knowingly supply and bring to be manufactured into cheese, to a cheese manufactory, then and there situate, a certain quantity of milk, to wit: ten gallons, which said milk was then and there diluted with water; the said Hanford West then and there bringing the said milk so diluted to the factory for the purpose of having the same manufactured into cheese, contrary to the form of the statute,” etc,

The thud section of chapter 202, of the Laws of 1884, entitled “ An act to prevent deception in sales of dairy products,” provides, among other things, that “no person or person shall sell, supply or bring to be manufactured to any butteror cheese manufactory, any milk diluted with water, or any unclean, impure, unhealthy, adultered, or unwholesome milk, etc. And it provides that whoever violates the provisions of said section shall be guilty of a misdemeanor.

The same provisions are contained in the third section of chapter 183 of the Laws of 1885, entitled “ An act to prevent deception in the sale of dairy products, and to preserve the public health, being supplementary to and in aid of” the act first above referred to.

If these statutes are a valid exercise of legislative power, the act charged in the indictment is a misdemeanor. The defendant's counsel contends that the statutes violate the constitutional provision that no person shall be deprived of his property or liberty without due process of law, and are therefoie void. The object of the statutes referred to is to protect the public health. Although that purpose is not specified in the title of the earlier act, it appears very clearly hour many of its provisions, and it is specified in the title to the act of 1885, which is declared to be in aid of the former act, and which re-enacts most of its provisions, in haeo verba, including the section under which the indictment is framed. To that end, the legislature has power to prevent, by reasonable enactments, the sale, or the putting on the market, of articles of food, which are deleterious to public health, by reason of impurity, adulteration, or any unwholesome quality or condition. If is tor the legislature, and not for the courts, to decide whether the impure or adulterated article, the sale of which is prohibited, is or is not injurious to the public health. People v. Cipperly (37 Hun, 319), dissenting opinion of Learned, P. J. (page 327), adopted by the court of appeals (101 N. Y , 634), Powell v. Commonwealth (Sup. Ct. of Pa., 26 Am. L. Reg. [N S.], 83, and note). The dilution of milk with water is an adulteration. One of the definitions of the term “adulterate” given by Worcester, is “To corrupt by some foreign mixture, or by intermixing what is less valuable.” And section 13 of the act of 1884 clearly implies that the law makers regard milk diluted with water as adulterated. Likewise section 16 of the act of 1885. Another object intended to be accomplished by the statutes referred to, as is indicated by the title of each of them, is to prevent deception in sales of dairy products.” Both the objects of the statutes are had in view by the provision prohibiting the selling or furnishing of milk adulterated by dilution with water, to a cheese or butter factory, to be manufactured into cheese or butter. The difficulty of detecting the deception in the manufactured article undoubtedly led to the enactment. The case is not analogous to that of In re Jacob (98 N. Y., 98), cited by the defendant’s counsel, where a statute passed ostensibly for the public health was declared unconstitutional, on the ground that it had no relation to that subject.

In Commonwealth v. Waite (11 Allen, 264), where a similar enactment to the one in hand was upheld, the court said: “It is notorious that the sale of milk, adulterated or mixed with water, is extensively practised with a fraudulent intent. It is for the legislature to judge wfiat reasonable laws ought to be enacted to protect the people against this fraud, and to adapt the protection to the nature of the case.”

Similar statutes, prohibiting the sale of milk reduced below a certain standard or account of the presence of water, was held constitutional in Commonwealth v. Evans (132 Mass., 11,) and State v. Smyth (14 R. I., 100), and see The People v. Cipperly (supra), and People v. Shaeffer (41 Hun, 24; 2 N. Y. State R., 705).

The defendant’s counsel contends that the indictment is demurrable for the reason that for aught that is alleged in it, the factory to which the milk was brought was a private factory, used by the defendant alone, and the cheese was not to be manufactured for the market, and no third per son could be injured by the act charged against the defendant. We are of the opinion that if any of the circumstances suggested exist they are matters of defense. They need not be negatived by the indictment. As that alleges all the facts necessary to constitute the offense, as defined by the statute, it is sufficient. Even if the cases supposed had been excepted from the operation of the statute, by its own terms, it would have been incumbent on the defendant to show that his case is within one of the exceptions. People v. Walbridge, 6 Cow., 513; Fleming v. The People, 27 N. Y., 329.

We think the judgment should be reversed and the case remitted to the court of sessions, with directions to overrule the demurrer and require the defendant to plead to the indictment.

Haight and Bradley, JJ., concur; Barker, J., not voting.

So ordered.  