
    The People of the State of New York, Respondent, v. Henry F. Meyer, Appellant.
    
      Oleomargarine—statute prohibiting the sale of any substance in imitation of butter — it is constitutional — the disclosure at the sale of oleomargarine colored to imitate butter of its true character—qusere, as to the case of its looking like butter in its natural state.
    
    A Federal statute providing for the taxation of persons engaged in the manufacture or sale of oleomargarine does not authorize such manufacture or sale in a State in which either is lawfully forbidden.
    Chapter 385 of the Laws of 1902, which amended section 26 of the Agricultural Law by inserting therein the following provision: “ Any person manufacturing, selling, offering, or exposing for sale any commodity or substance in imitation or semblance of butter, the product of the dairy, shall be deemed guilty of a violation of the Agricultural Law, whether he sells such commodity or substance as, butter,, oleomargarine, or under any other name or designation whatsoever, and. irrespective of any representations he may make relative to such commodity or substance,” is not unconstitutional so far as it prohibits the sale of oleomargarine which has been changed by the, addition of coloring matter from its natural white color to the yellow color of butter, even though the seller discloses the true character of the substance at the time of the sale. Quare, whether the provision quoted would be unconstitutional if oleomargarine in its natural state actually looked like dairy-made butter.
    Appeal by the defendant, Henry F. Meyer, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 22d day of July, 1903.
    The action was.brought to recover a penalty for violations of sections 26 and 27 of the Agricultural Law (Laws of 1893, chap. 338, as amd. by Laws of 1902, chap. 385, and Laws of 1900, chap. 534, respectively).
    
      Maurice Meyer, for the appellant.
    
      Bernard J. York, for the respondent.
   "Willard Bartlett, J. :

. This is an action to recover a penalty for alleged violations of sections 26 and 27 of the Agricultural Law. Section 26 prohibits the manufacture and sale of imitation butter, and section 27.pro-hibits the coloring of butterine or oleomargarine or any compound of the same so as to cause such product to resemble butter or cheese, and also prohibits the sale of such colored compound.

The evidence shows that the defendant sold imitation butter which was colored so as to resemble natural butter, the product of the dairy. At the time of the sale he avowed that the substance sold was butterine. In his answer, however, he alleges that it was oleomargarine, and the evidence shows such to have been the fact. There was testimony given by a chemist employed to make analyses for the Agricultural Department, which the court was entitled to believe, to the effect that the natural color of the oleomargarine sold by the defendant was white, and that it had been made yellow by the addition of an analine dye.

The position of the appellant is that he was justified in selling oleomargarine by virtue of the acts of Congress of the United States imposing an internal revenue tax upon that substance; and also that the legislation • of this State prohibiting the sale of imitation blitter cannot constitutionally be made applicable to the sale of olepmargarine where the seller, at the time of the sale, states to the purchaser the true character of the substance sold.

There is nothing in the first proposition. A Federal statute providing for the taxation of persons engaged in the manufacture or sale of oleomargarine does not authorize such manufacture or sale in a State in which either is lawfully forbidden. (Plumley v. Massachusetts, 155 U. S. 461.)

As to the second proposition, that portion of the Agricultural Law which is now attacked as unconstitutional, is the amendment of section 26 effected by chapter 385 of the Laws of 1902, which inserted into that section these words: “ Any person manufacturing, selling, offering, or exposing for sale any commodity or substance in imitation or semblance of butter, the product of the dairy, shall be deemed guilty of a violation of the Agricultural Law, whether he sells such commodity or substance as butter, oleomargarine, or under any other name or designation whatsoever, and irrespective •of any representations he may make relative to such commodity or substance.” It is contended that this enactment is unconstitutional because it. assumes to forbid the sale of oleomargine, a healthful product, under its own name; and we are referred to the case of People v. Bremer (69 App. Div. 14) where section 26 of the Agricultural Law before the amendment was under consideration, and where Van Brunt, P. J., said: “ There is no prohibition against the manufacture of oleomargarine as such; but when made to imitate natural butter- and sold as such there is a violation of the provision of this section of the Agricultural Law.”

It seems to me that the amendment of 1902 is constitutional in its application to the facts proved in the present case, whatever view we might be required to take if it appeared that no change had been made in the manufactured substance in order to create an appearance resembling that of butter. Here we have distinct proof that coloring matter had been added to the oleomargarine sold by the defendant which had effected a change in its appearance from a white hue to the yellow or yellowish color of butter made from dairy products. The substance sold therefor had been artificially made to resemble butter. I think it is within the power of the Legislature to prohibit the sale even of an artificial product, the appearance of which has thus been altered so as to make it look like another and wholly different substance, although the seller disclose its true character. One of the evils to be guarded against, and which the Legislature may properly guard against by laws of this character, is the deceptive palming off upon the public of one: article for another (People v. Arensberg, 105 N. Y. 123); and perhaps the only way to accomplish this result in the case of a. substance artificially colored so as to resemble butter is to prohibit its sale even under its true name. Otherwise the person who purchases it from the manufacturer or dealer may. subsequently use it-for purposes of deception; as, for example, where a restaurant keeper buys oleomargarine thus colored from his grocer and serves it to the-patrons of his restaurant in the guisé of genuine butter.

Another and different question would arise if it were sought to apply the amendment of 1902, above quoted, to a-case where it-appeared that oleomargarine actually looked just like dairy-made: butter without the addition of any ingredient to effect a change in Its appearance. It will be time enough to decide that question when it is presented. Upon the facts of the case at bar I am of opinion, that the disclosure of the name of the imitation butter sold by the: defendant did not relieve him from the penalty prescribed by the: Agricultural Law.

For these reasons I think the judgment should be affirmed

Woodward, Hirschberg, Jenks and Hooker, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  