People v. Fox , 38 N.Y.S. 635 ( 1896 )

Barrett, J.:

The question here is as to the meaning of the words “ in violation of the provisions of this article,” contained in section 28 of the Agricultural Law (Laws of 1893, chap. 338). The section, in substance, provides that no restaurant keeper shall serve as food for his customers or use for cooking purposes any article or substance made “ in violation of the provisions of this article,” namely, article 2, relating to dairy products.

The appellant insists that the words in question are limited to a legally punishable violation. The respondent contends that they embrace any article made contrary to the provisions of the act. We agree with the latter construction. The act defines its own intent. Section 26 is prefaced with this head line: “ Manufacture and sale of imitation butter prohibited.” Section 28 commences: “ Prohibited articles not to be furnished.” Section 36 reads as follows: “ Object and intent of this article. This article and each section thereof are declared to be enacted to prevent deception in the sale of dairy products and to preserve the public health which is endangered by the manufacture, sale and use of the articles or substances herein regulated or prohibited.” Thus we have a distinct legislative declaration that the substance in question is deleterious, and that the object of the prohibition is to preserve the public health. The words were meant to cover the intent. “ Hade in violation of the'provisions of■ this article” was simply a concrete expression meaning “ made in the manner condemned by this article.” To limit it to such making as could be punished by the courts would destroy the entire system. “ Such .construction of a statute,” said Earl, J., in Pierson v. The People (79 N. Y. 434), “ should be adopted as appears most reasonable and best suited to accomplish the objects of the statute.”. The appellant, insists upon a construction which would enable the proprietor of every hotel and restaurant- in this State to serve with impunity what the Legislature declares to be a deleterious substance, and thus, according to the legislative judgment, to jeopardize the public health. All the proprietor lias to do, upon that construction, is to secure the condemned article elsewhere. If it is manufactured upon the other side of the boundary line of this State, he can injure the public health here with impunity. This construction is unreasonable. The prohibited article is none the less made in violation of the provisions of the Agricultural Law because made where those provisions have no binding force. Violation here means practical non-conformity as well as punishable transgression.

It is urged that section 26 favors the appellant’s contention because there also the sale of any such article “ made * * * in violation of the provisions of this section ■” is forbidden, while the prohibition is coupled with the phrase (which follows) “ whether such article, substance or compound shall be made or produced in this State or elsewhere.” The appellant contends that the absence of the latter phrase in section 28 is significant. But stilLthe question is as to the meaning, even in section 26, of the words “ made * * * in violation of the provisions of this section.” Unless they mean what we have suggested, namely, non-conformity to the manufacturing"regulations of the section, the words which follow and which are supposed to be significant, have no force and are-simply contradictory. The Legislature surely never meant to embody in a single sentence such a provision as this : That no person shall sell any articlomade in this State in violation of the provision’s of this section, whether such article be made in this State or out of this State. What the Legislature really intended was to accentuate its previous meaning. The purpose was to prohibit the sale of goods of the condemned class. Lest the expression "‘made * * * in violation of the provisions of this section ” should possibly be considered ambiguous, the words of legislative construction “ whether * * * made or produced in this State or elsewhere ” were added. Having used those words, not to amplify or extend the prohibition, but to construe and emphasize it, it was unnecessary to repeat such words of construction in the following 58th section. They, were really unnecessary in section 26. They were equally unnecessary in section 28. Without them'there was no genuine ambiguity. The violation contemplated was clear enough, namely, the production or sale or use of goods which the Legislature deemed deleterious. But whatever possible doubt there might have been was set at rest by the words which we have called words of construction. The expression “ made * * * in violation of the provisions,” etc., has precisely the same meaning in the one section as the other. The words themselves are the same. They mean the same thing without any words of construction, and they mean it none the less with such words of construction.

We have no doubt that the defendant was properly convicted, and that the judgment should be affirmed.

Van Brunt, P. J., Bumsey, O’Brien and Ingraham, JJ., concurred.

Judgment affirmed.