People v. McGann , 41 N.Y. Sup. Ct. 358 ( 1884 )

Dykman, J.

The legislature of this state has enacted a law with a title at its head, indicative of a purpose to prevent deception in sales of dairy products in this State (Chap. 202, Laws of 1884). Section 6 of this law has in it these words: “ No person shall manufacture out of any oleaginous substance or substances, or any compound of the same other than that produced from unadulterated milk or of cream from the same, any article designed- to take the place of butter or cheese, produced from pure unadulterated milk or cream of the same, or shall sell, or offer for sale the same as an article of food.” Then the same section specifies the punishment for its violation. This defendant has been convicted of a misdemeanor for violation of this section of the law, on proof that he manufactures what is called oleomargarine from an oleaginous substance other than that produced from milk or cream, namely animal oil, extracted from the tallow of beef; that this article is manufactured for sale, as a substitute for butter; that it resembles butter so much in appearance and taste that it might be taken for butter by any ordinary person ; and that it was designed by the defendant to take the place of butter as an article of food, and a substitute therefor. He, however, manufactures it as, and calls it oleomargarine, and does not pretend or represent that it is butter, but states expressly that it is oleomargarine and not butter, and that it is designed and intended as a substitute therefor; that he has sold about eight pounds of this article as oleomargarine with the design that it should be used for food as a substitute for butter, and that the purchaser knew how it was made, and of what it was composed, and bought it for use as an article of food in the place of butter.

From such conviction the defendant has appealed to this court, on the theory that the section under which his condemnation was secured was intended only to apply to a case of deception in the manufacture and sale of the article specified. The language employed, however, will not admit of that mild interpretation. It prohibits both the manufacture, out of any oleaginous substance, except that produced from milk or cream, of any article designed to take the place of butter or cheese produced from milk or cream, and also the sale or offer for sale of the same, as an article of food. The prohibition, so far as it extends, is absolute, and if the Legislature possessed the power to make the law, it must be respected and enforced.

Under the American system of government, the uncontrolled power of legislation resides in the people themselves, as an aggregate body politic. On the separation of the colonies from the mother country all sovereignty and supremacy devolved upon the people in undiminished plenitude. But they do not exercise sovereign power directly. In the first place all the people of all the states established the general government by the adoption of the constitution of the United States, in which they delegated to the national government certain enumerated powers. Then the people of each state established state governments and invested the same with all the power which they did not expressly withhold.

So that the powers of the general, government are definite and restricted, while the powers of the state governments are general and residuary, and all power not conferred on the general government belongs to the state governments or to the people. The state governments exercise all the powers of sovereignty not conferred on the national government, so far as the people permit them to be exercised at all. Without constitutional limitations, the power of the Legislature to make laws, would be absolute, because the law, making power is intrusted by the people to the legislative branch of the state government.

Whether a statute is constitutional or not is a question of power, and if that question be answered in the affirmative, the courts can institute no inquiry into the proper exercise of the power. They must assume that the power and discretion have been judiciously and wisely exercised, and that tire Legislature had before it, at the time of its action, all requisite evidence to justify the same. But the people have set certain limitations to the law-making power's, some of which are expressed and some are implied; one of the express limitations is, that no person shall be deprived of life, liberty or property, without due process of law.

If, therefore, the law in question falls under the condemnation of the constitution, it is because it offends against this limitation of legislative power.

This constitutional restriction has received exhaustive examination in our Court of Appeals in the cases of Wynehamer v. People (13 N. Y. 378), and Bertholf v. O’Reilly (74 N. Y. 509), and in both of these cases the conclusion was reached that notwithstanding such restriction the legislative power extends to entire prohibition of the traffic in spirituous liquors. This doctrine proceeds on the theory that the legislature may prohibit and suppress any traffic injurious or demoralizing either to the public health or public morals, or, in its tendency or consequences ; and that the conclusion and decision of the legislature on the question of fact involved, is final and conclusive.

The same doctrine was enunciated by the Supreme Court of the United States, in the Slaughter House Cases (15 Wall. 36), where a law of the state of Louisiana, which operated very disastrously on large business interests and materially impaired the value of private property, was held constitutional and valid.

These cases are sufficient to sustain the constitutionality of the law under consideration. It may well be that such legislation requires the highest reasons for its justification, but it is not the province of the courts to inquire into their existence; complaints against such enactment must be carried to the Legislature and not to the courts.

It must be assumed, in the consideration of this statute, that the Legislature ascertained that the use of this prohibited article was injurious and detrimental to the public, and so found it necessary to advance, in respect to the same, beyond the point of regulation, to actual prohibition.

The presumption is that such legislative action was deemed necessary for the welfare of the public, and it cannot be abrogated by the courts. With these necessary assumptions this law falls easily within the police power of the state, which is a power vested in the legislature to ordain such laws and ordinances as shall be deemed essential and necessary for the welfare, health and property of the public. The underlying foundation of the power is the principle that all property must be so used that it shall not become injurious to others. All reasonable restraints may be imposed for the attainment of the end which may be deemed necessary by the law-making power, even though they amount to absolute prohibition, and the propriety of such restriction, is a legislative question entirely free from all judicial control.

The enactment of this law in question was, therefore, within the scope of legislative power as the same has been delegated to the senate and assembly by the people of the state in the fundamental law. It prohibits the manufacture and sale of oleomargarine as an article of food in place of butter, and the defendant has been convicted of a violation of its provisions, and in our view the conviction must be affirmed.

Barnard, P. J., concurs.