
    The People of the State of New York, Respondent, v. Niagara Fruit Company and Others, Appellants, Impleaded with Another.
    
      ■Cider vinegar —coloring of other vinegar in imitation thereof—the penally imposed therefor by the Agricultural Laxo is inamred although, the vinegar is intended for shipxnent to cxistoxners outside the State — interstate commerce.
    
    A domestic corporation which manufactures and has in its possession in the State of New York vinegar not made exclusively from pure apple juice and, therefore, not cider vinegar, but which, in violation of sections 51 and 52 of the Agricultural Law (Laws of 1893, chap. 338, as amd. by Laws of 1901, chap. 308), has been artificially colored in imitation of that commodity and placed in barrels branded with the words, “ cider vinegar,” is liable for the penalty imposed by section 53 of the Agricultural Law, notwithstanding that the vinegar was intended for shipment and was actually shipped to customers in other States.
    The penalty for a violation of the sections referred to having been incurred by the corporation before the vinegar had been shipped outside of the State of New York, the question whether the sections violated the interstate commerce ' clause of the United States Constitution is not material.
    
      Semble, however, that a State may prohibit the exportation, for sale in other States, of articles of commerce manufactured in the first-mentioned State in imitation or semblance of another article of commerce.
    Appeal by the defendants, the Niagara Fruit Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 31st day of March, 1902, upon the report of a referee, for damages and costs, aiid restraining the defendants from further violation of certain specified sections of the Agricultural Law of the State of New York.
    
      Hiram R. Wood, for the appellants.
    
      Edwin H. Risley, for the respondent.
   Spring, J.:

The appellant fruit company is a domestic corporation while the appellants Hatch and Hartman are respectively the manager and treasurer thereof. Th'e business of the fruit company is the manufacture and sale of cider vinegar with its principal office in the city of Rochester but with a manufacturing plant. at Tonawanda in the county of Erie. This action was commenced to "recover penalties for alleged violations of the Agricultural Law, charging the defendants with manufacturing and selling vinegar below the State standard and simulated cider vinegar for the genuine article and for falsely labeling its barrels as containing cider vinegar. There were two lots of vinegar in the possession of the appellants which were analyzed and tested under the direction of the State Commissioner of Agriculture ; one on September 7, 1901, from an eighty-barrel lot and the vinegar analyzed was taken from two barrels upon one of which had been stenciled in black letters : “New York State Pure Cider Vinegar, Tonawanda,' N. Y., 47 gallons; ” and the other a like marking except that the • quantity was designated as forty-nine gallons. On the 9th day of September, 1901, two other inspectors from the Department of Agriculture took samples from six barrels of this same lot and which were' marked: “ Niagara Fruit Company, New York State Pure Cider Vinegar, Niagara Brand, Tonawanda, N. Y.” This lot of vinegar was shipped by the defendants to Bay City, Mich., on the tenth day of September, and it was on an order received by the appellant fruit company for, and the invoice sent by it designated the shipment as pure cider vinegar.

On September 20, 1901, the defendant fruit company had in its possession at Tonawanda eighty barrels of vinegar. The inspectors of the State department took separate samples from six barrels of this lot, and these .samples with the others were subsequently delivered' to him and analyzed by a chemical expert employed by the State. This lot of seventy barrels was shipped to customers in Wisconsin on the twenty-first' day of September to fill an ordér, and the invoice sent by the defendant fruit company from Rochester states this shipment to be seventy barrels of pure cider vinegar forty grain, and the freight charge of each shipment was paid by the'defendant.

The chemical analysis showed that each sample of vinegar was below the standard fixed by the Legislature of the State of New Y orle in that it contained less than the required quantity of acetic acid, and that it was not the exclusive product of pure apple juice, and that it contained artificial coloring matter which caused a distinct change in its appearance.

Section 50 of the Agricultural Law (Laws of 1893, chap. 338, as amd. by Laws of 1901, chap. 308) provides that vinegar which contains 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 * * * shall be deemed adulterated.” The vinegar referred to did not contain the prescribed acidity, but as that part of the section was held to be unconstitutional by reason of a subsequent clause of the amended section, which created a discrimination in favor of a class of people, and no recovery was permitted for this adulteration, it is unnecessary to discuss or decide questions which might otherwise be important under this section. We will, therefore, pass to a consideration of the other sections of the original statute cited which it is claimed have been violated by the appellants.

The two succeeding sections are as follows :

“ § 51. Manufacture and sale of adulterated or imitation vinegar prohibited.— No 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 vinegar 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.”

Section 53 prescribes a penalty of one hundred dollars for each violation ” of the foregoing provisions to be paid to the People of the State. Cider vinegar is defined in section 50 as “ vinegar made exclusively from pure apple juice.”

The evidence on the trial showed undisputably that the vinegar sold by the defendant fruit company was extracted from apple cores, skins and the small pieces of apples, all of which had been evaporated and were soaked in river water and the vineg'ar was produced by the fermentation of this product. Coloring matter was added to give it the appearance of cider vinegar. It was, therefore, a simulated product sold as the genuine article. If this vinegar was sold within the State of New York clearly it was within the legislative prohibition. The police power has frequently been made the basis of legislation to foster and secure the health of the citizens of the State and prevent deception upon them. Men in their cupidity or from other motives have often sought to adulterate ordinary food products and make a spurious article in resemblance of tbe genuine, and the Legislature in its endeavors to cheek this untoward tendency has been upheld by the courts.

The following instances of legislative control over the food products in aid óf the public health and which were sustained by the-courts are pertinent: The defining of what constituted adulterated milk by arbitrary standards (People v. Cipperly, 101 N. Y. 634, revg. 37 Hun, 319, on dissenting opinion of the General Term); an act (Laws of 1885, chap. 183, § 7) to prevent the. manufacture or sale of a product not made from milk or cream “ in imitation or semblance” of dairy butter and put forth as the real article (People v. Arensberg, 105 N. Y. 123) and the act which is the basis of the sections of the statute under discussion. (People v. Girard, 145 N. Y. 105.) In the latter case the defendant, had sold cider vinegar containing artificial coloring matter, and an action was brought to recover the penalties prescribed by a statute akin to the sections quoted and a recovery was had which was sustained by the Court of Appeals. The adulterated article was wholesome and the coloring matter with which it was impregnated did not impair it as an article of food, but it was passed off for and designated ás genuine cider vinegar, -and that was the vice-which the Legislature had intended to prohibit. The court in the course of its opinion says: “Food should be pure, absolutely and unquestionably pure. No tricks should be played with it. The Legislature- may resolutely protect it. No artificial color can ever be added to distilled vinegar for any good or honest purpose that I can imagine. * * * There is talk here of interference with the vested rights of the individual. Sometimes it is pertinent and weighty, but in this case it is neither. It becomes the assertion of a vested right to color a food product so as to conceal or disguise its true and natural appearance; in plain words, a vested right' to deceive the public. * * * Adding a foreign and artificial ingredient to a food product, even for purposes of color merely, is, in effect, an adulteration, and whether it be so described, or forbidden by more specific terms is not material. The present law does not in the least interfere with the honest manufacture and sale of the distilled vinegar. It simply provides that it shall not be falsely colored. I think the Legislature did not in this case, and under the circumstances existing, exceed its power.”

The appellant’s counsel, upon the assumption that the sales of vinegar were made without the State of New York, argues elaborately that the Legislature, even though it may regulate the manufacture and sale of a wholesome food product among its citizens, may not prevent its exportation to other States for sale, although manufactured in this State. It is claimed that by the Constitution of the United States (Art. 1, § 8, subd. 3) that power is lodged with Congress exclusively, and as cider vinegar is a well-recognized article of commerce the attempt of the State Legislature to prohibit-its manufacture or sale must be confined to the territory over which its authority extends. That may be a correct statement of the limitations of the power of the Legislature, but it has no application to the present case, for the vinegar was not cider vinegar. The decision of the case does not rest upon the restriction or prevention of the manufacture or sale of the vinegar which the fruit, company sold either in this State or beyond its domain. The effect of the judgment is to impose penalties upon the defendants for selling a spurious vinegar as and for cider vinegar. The damages awarded against them are for making an article in semblance of the. unadulterated article and deceiving the public thereby. Legislation restraining that cheat does not interfere with the commerce clause of the Constitution only as every interference with any kind of interstate trade may in a measure affect such traffic. In Plumley v. Massachusetts (155 U. S. 461) the plaintiff sold in the State of Massachusetts oleomargarine without any mark or designation upon the package to distinguish it from butter which, by the addition of coloring matter, it closely resembled. The oleomargarine was manufactured in the city of Chicago, 111., by a firm which was extensively ■engaged in the production of this article and was disposed of in the ■original packages in various States of the Union. In Massachusetts there was a statute in force prohibiting the sale of any oleaginous substance in imitation of yellow butter, but the statute in express terms was.not to be construed to prohibit the sale of oleomargarine if free “ from coloration or ingredient that causes it to look like butter ” and if the consumer was advised of its real character. The act prescribed a fine or imprisonment for its violation, and the plaintiff was convicted pursuant to that statute, which conviction was affirmed by the United States Supreme Court. That court stated the real issue before it in the- following language: “ That question •is, whether, as contended by the petitioner, the statute under 'examination in its application to sales of oleomargarine brought into. Massachusetts from other States is in conflict with the clause of the ‘Constitution of the United States investing Congress with power to regulate commerce among the several States.” After deciding that the Massachusetts statute did not prohibit the sale of oleomargarine; which is a well-defined article of commerce, and hence did not trespass upon the commerce clause of the Constitution, the court thus stated What one is interdicted from doing in the act there under review: “ Pie is only forbidden to practice, in such matters, a fraud upon the general public. The statute seeks to suppress false pretenses, and to promote fair dealing in the sale of an article of food. It compels the sale of oleomargarine for what it really is, by preventing its sale for what it is not. Can it be that the Constitution of the United States secures to anyone the privilege of manufacturing and selling an article of food in such manner as to induce the mass of people to believe that they are buying something which, in fact; is wholly different from that which is offered for sale ? Does the freedom of commerce among the States demand a recognition of the right to practice a deception upon the public in the sale of any articles, even those that may have become the subject of trade in different parts of the country 3 ” The court after an elaborate analysis of many cases thus sums up its conclusions: “We are of opinion that it is within-the power of a State to exclude from its markets any compound manufactured in another State, which has been artificially colored or adulterated so as .to cause it to look like an article of food in general use, and the sale of which may, by reason of such coloration or adulteration, cheat the general public into purchasing that which they may not intend to buy. The Constitution of the United States does not secure to anyone the privilege of defrauding the public. The deception against which the statute of Massachusetts is aimed is an offense against society, and the States are as competent to protect their people against such ■offenses or Avrongs as they are to protect them against crimes or Avrongs of more serious character. And this protection may be given Avithout violating any right secured by the national Constitution, and without infringing the authority of the general government. A State enactment forbidding the sale of deceitful imitations of articles of food in general use' among the people does not abridge any privilege secured to citizens of the United States, nor, in any just sense, interfere Avith the freedom of commerce among the several States. It is legislation Avhich can be most advantageously exercised by the States themselves.’ ” ■

In Powell v. Pennsylvania (127 U. S. 678) the statute of the State of Pennsylvania, up for consideration absolutely prohibited the manufacture or sale of any compound in imitation of butter as an article of food. The validity of this statute was sustained by the court of last resort. It must be borne in mind, liOAvever, that at the time of the decision of this case oleomargarine had not obtained importance as a distinct commercial product, which accounts for a somewhat extended discussion of it in the Echollenberger case which is referred to more at length hereafter.

The contention of the appellants that legislation of this character is an infringement upon the regulation of interstate commerce Avhich is relegated exclusively to the Congress of the United States is without any merit. The restriction or interdiction of the free traffic of any legitimate article of commerce in disregard of any State boundary must not be caused by any State regulation. The judgment in this case does not involve any such interference. The sale of cider vinegar is not prohibited by the statute quoted, nor that of any other vinegar, unless by reason of its likeness to cider vinegar. Cider vinegar not only by statute in the State of New York has a definite meaning, but that definition accords Avith the description of the commodity understood in the trade. All that the act seeks to do so far as applicable to this case is to put its seal of disapproval upon the sending forth to deceive the public of an article which is not what it purports to be. To prevent a fraud the State interferes and nips the cheat in its inception. It is also worthy of note in passing, that in each of the States of Wisconsin and Michigan a similar statute prevails, preventing the sale of imitation cider .vinegar for the genuine commodity and with provisions corresponding to our own as to branding each cask containing this article.

In this case, however, to sustain the judgment we are not called upon to go to the extent of any of the cases adverted to. It will be observed that the statute 'upon which these sections are founded prevents the manufacture for sale, the keeping for salé or the offering for sale of vinegar' in imitation of cider vinegar, and also requires “ every manufacturer or producer ” to brand in the manner stated the package containing cider vinegar, and he is further prohibited from putting that brand upon any cask of counterfeit vinegar. (See Laws of 1889, chap. 515, §§ 2, 5.) The fruit company received two orders, one on the third and the other on the fourth of September, for a certain quantity of cider vinegar, and these orders were shortly after filled. The vinegar was in barrels in the possession of the company in the State of New York at the time the several samples were taken from it. The vinegar was, therefore, within the State .of New Y01'k, not branded as required by the .statute, but with a marking upon it that each barrel contained a specific quantity of pure cider vinegar. The vinegar had been manufactured and was in possession of the manufacturer within the State of New York, ready for shipment as cider vinegar and so designated, although not the real article. It had not then become a matter of commerce outside of the State. Everything done which constitutes the cause of action attached to this product before it left the State and before any title became vested in the citizens of the sister States. The question of the infringement of the commerce clause of the Constitution, consequently is not a" pregnant inquiry. (Capital City Dairy Co. v. Ohio, 183 U. S. 238.)

Assuming that this vinegar was manufactured to-fill the orders mentioned, that circumstance alone does not make it an article of interstate commerce, nor does it rest With the defendants to determine when it passes outside the realm of the State of New Y"orlc and becomes a general commercial commodity. (Kidd v. Pearson, 128 U. S. 1; United States v. E. C. Knight Co., 156 id. 1, 13.)

While not of any great moment, the record in this case does not show that this vinegar was manufactured specially to meet the orders referred to.

In the case of Schollenberger v. Pennsylvania (171 U. S. 1, supra), relied upon by the appellants’ counsel, the commodity assailed was oleomargarine, manufactured in Providence, R. I., and shipped by the manufacturer to its agent in Philadelphia, in the State of Pennsylvania. The original package was properly stamped and labeled as oleomargarine and "was sold as such and in the original package to a customer residing in that city. The United States Supreme Court in reversing the Supreme Court of Pennsylvania held that oleomargarine was a legitimate and recognized article of commerce and was a nutritious and wholesome food product, and when sold as oleomargarine was not subject to regulation or control by State legislation to the extent of preventing its importation within the State. The court, however, was careful not to infringe upon the doctrine of the Plumley case, above referred to, and did not hold that if the commodity was being foisted upon the market as genuine butter that the State Legislature might not prevent its sale, although imported from a sister State. The whole trend of the opinion is in the contrary direction.

The recovery in the present case was based upon the manufacturing and selling of an imitation as and for the real article and for marking the barrels as cider vinegar when they did not contain that commodity. That is, the defendants were practicing deception upon the public and that comprises the nub of the case in distinction from the Sehollenberger case and others relied upon by the counsel for the appellants.

We have not necessarily before us to pass upon the question whether subdivision 2 of section 51 of the statute in controversy is too far-reaching in prohibiting the manufacture or keeping for sale of any vinegar in imitation of cider vinegar, but which is not so in fact. That is, if this article, though an imitation of cider vinegar, , had been branded and put upon the market for precisely what it was, then a different question might be presented. But in construing this statute, as has been seen, by the Court of Appeals in People v. Girard (supra), the court held that the addition of artificial coloring matter, even though innocuous, must be held to be done to perpetrate a cheat upon the public, and hence an adulteration and within the condemnation of the statute. Doubtless if the. only way to prevent the manufacture and sale of tlie spurious product by reason of the closeness of its resemblance to cider vinegar is to strike at the' root of the vice by absolutely prohibiting its sale at all, then the Legislature may do so. As was said in the Schollenberger Case (171 U. S. 30): “ If the Legislature is satisfied that oleomargarine is unwholesome, or that, in the tubs, pots or packages in -which it is commonly offered for sale, it looks so like butter that, the only way to protect the people against injury to health, in the one case, or against fraud or deception in the other, is to absolutely prohibit its sale, it is within the constitutional power of the legislature to do so.”

It is quite common for municipalities and the Legislature within the police power of the State to regulate and control in a measure any local traffic or business, and such regulations are upheld unless, they are unjust or unfair or impair the right of property without due process of law. The possession of this authority is essential to the public health. (See Gundling v. Chicago, 177 U. S. 183, 188.)

The evidence in the record is ample to connect the appellants Hartman and Hatch with the transaction in question.

The judgment should be affirmed, with. costs and disbursements to the respondent. -

Adams, P. J., McLehuan, Williams' and Hisoook, JJ., concurred.

Judgment affirmed, with costs.  