
    Monroe Dairy Ass’n v. Stanley.
    
      (Supreme Court, General Term, Second Department.
    
    July 22, 1892.)
    1. Penal Actions—Illegal Possession of Milk Cans—Acts of Servants.
    A person whose servants or employes fail to return a milk can having the name of the owner stamped thereon is amenable to the penalty of Laws 1887, c. 401, § 4, as amended by Laws 1890, making the possession of such can a misdemeanor, and making the fact of possession presumptive evidence of illegal possession, though such person never knew that the can was on his premises.
    2. Same—Recaption—Destruction of Contents—Due Process of Law.
    The act in question, in permitting the recaption of such cans by the owners when found, and allowing .them to empty the contents, if any, into the street, is not in conflict with the provision of the constitution that private property shall not be taken without due process of law and just compensation.
    Appeal from circuit court, Orange county.
    Action by the Monroe Dairy Association against John Stanley to recover a penalty for defendant’s illegal possession of plaintiff’s milk cans. From a judgment for plaintiff, defendant appeals. Affirmed.
    Argued before Dykman and Cullen, JJ.
    
      Richard J. Lewis, (W. H. Regan, of counsel,) for appellant. Eugene D. Stokem, for respondent.
   Dykman, J.

This action was commenced for the recovery of a penalty of $50, under chapter 401 of the Laws of 1887, as amended by chapter 25 of the Laws of 1890, entitled “An act in relation to milk cans. ” The statute, so far as it is invoked for the sustenance of this action, is this: “It is hereby declared unlawful for any person or persons, without the consent of the agent of the owner or owners, or shipper or shippers, to use or dispose of, buy or traffic in, any milk or cream can or cans belonging to any dealer, * * * having the name or initials of the owner * * * stamped, marked, or fastened on such can or cans.” Section 1, Laws 1887. “The fact that any person or persons, without the consent of the agent of the owner, * * * either using, selling, disposing of, buying, or trafficking in, or having in his, her, or -their possession, or under his, her, or their control, any such milk or cream can or cans, is presumptive evidence of the unlawful useors.ale.” Section 2, Laws 1887. “Any person or persons who shall, in violation of this act, either use, sell, dispose of, buy, traffic in, or have in his, her, or their possession, any such can or cans, or who shall willfully mar, erase, or change, by re-marking, or otherwise, the said name or initials of any such owner or owners, dealer or dealers, shipper or shippers, so stamped, marked, or fastened upon said can or cans, as in this act provided, shall be liable to a penalty of fifty dollars for any such can so used, sold, disposed of, bought, trafficked in, or found in his, her, or their possession; such penalties may be recovered by action in the supreme court of this state, with costs and disbursements; and the place of trial of such actions may be in the county in which the owner or owners, dealer or dealers, shipper or shippers, of such can or cans may reside at the commencement of such action.” Section 4, as amended by Laws 1890. Prior to the passage of this law, the farmers of the central, southern, and eastern portions of the state of New York had become largely engaged in the business of producing milk for the Hew York market, by reason of the facilities for the rapid transportation of that article afforded by the different railroads leading to that great mart, of trade. The business required many milk cans, at considerable expense, and the owners found, by experience, that their cans were not returned. Their detention became so frequent and so extensive that it could not be attributed to accident, and was evidently the result of design. In that state of affairs application was made to the legislature for the enactment of a law which would terminate that great and increasing evil, and the statute cited was made for that purpose. It was evidently essential that the law should be stringent and comprehensive in its scope and operation, if it accomplished the purpose for which it was designed. Before the passage of this law it was easy, and comparatively safe, for a dealer in New York city to retain a milk can, even though he did so with a felonious design, for, if he was detected, he could easily attribute its detention to mistake or oversight, and surrender its possession. It was therefore necessary to make the possession or control of cans without consent presumptive evidence of unlawful use in violation of the statute, and it was clearly within the competence of the legislature to make such a rule of evidence. People v. Turner, 117 N. Y. 233, 22 N. E. Rep. 1022; People v. Ryder, 124 N. Y. 504, 26 N. E. Rep. 1040.

Turning now to the record in this case, we find the complaint to aver that one of the milk cans of the plaintiff was found in the possession of the defendant, at his place of business, in the city of New York, on the 10th day of August, 1891, and that such possession was without the consent of the plaintiff or its agent; wherefore judgment was demanded for the sum of $50, with costs. The cause was tried at the circuit before a jury, and the plaintiff introduced testimony tending to establish the allegations of the complaint, and the defendant produced evidence tending to show that the can was not actually in his possession. The trial judge sent the case to the jury under a charge which followed the provisions of the statute and upheld them, and the jury rendered a verdict in favor of the plaintiff. The defendant has appealed from the judgment entered upon that verdict, and thus presented to us questions of law only.

The counsel for the defendant requested the court to charge the jury that, if the defendant never knew that the can was on the premises, he was not liable, to which the court replied: “He is liable if it was in his possession; I do not go further than that, ”—and the defendant’s counsel excepted. As we have already seen, it was the design of the statute to make possession or control presumptive evidence of the unlawful use which brought liability to the penalty, without proof of wrongful or felonious intent. ■ Neither was proof of knowledge of the presence of the can upon the premises of the defendant essential. If it was brought to his place, and used in his business' by his servants, the jury might well find that it was in his actual possession, and then the presumption against him was sufficient evidence of its use. The exception, therefore, presents no error. Neither is there any force in the constitutional objections raised by the defendant against the statute. As we have already seen, this statute was demanded by the exigency which brought it into existence, and it must be permitted the full force of all its provisions. Its operations must not be curtailed by hard cases, and it must be administered without reference to persons. If the defendant finds himself environed by circumstances which constitute him an offender of this statute he must accept the consequences. The plea which would excuse him would permit the escape of many persons whom the law was designed to reach. If he was as innocent as he claims to be, the exercise of proper vigilance would have prevented the introduction of the can upon his premises, and such care on the part of all persons would go far to discourage the wrongful detention of the cans. This statute is designed for the protection of honest men against thieves and wrongdoers, and it is the duty of the courts to enforce it, and not permit its evasion by specious excuses.

The record discloses no error, and the judgment should be affirmed, with costs. 
      
       The constitutional objection was that section 3, providing that “any such can or cans, full or partly full of milk or cream, used in violation of this act, may be emptied into the street, or elsewhere, of their contents by the owner or owners, ,* * * and taken possession of by any of said several parties who shall not be liable for damages therefor, ” was in violation of the constitutional provision that private property shall not be taken without due process "of law and without just compensation.
     