People v. Girard , 73 Hun 457 ( 1893 )

HARDIN, P. J.

Manifestly the legislature of 1889, in the passage of chapter 515 of the Laws of that year, assumed to exercise its police power. The title of the act is as follows: “An act to prevent deception in the sales of vinegar, and charging the Hew York state dairy commissioner with its enforcement.” An evil practice was existing in the state at the time of the adoption of the act, and deleterious substances were being used in the manufacture of vinegar; substances which were detrimental to the health of the people consuming the impure and deleterious article being manufactured and sold and used to the detriment of the health of the citizens of the state. Evidently the intention of the-legislature was, through its police power, to protect the citizens of the state. The act, after containing certain prohibitions and restrictions, in its sixth section contained the following provision:

“Whoever, by himself or another, violates any of the provisions of any of' the foregoing sections shall be guilty of a misdemeanor, and, upon conviction,, shall be punished by a fine of not less than fifty dollars nor more than one.hundred dollars.”

Then follows the seventh section, which provides as follows:

“Sec. 7. If any person, by himself or another, shall violate any of the provisions of sections one, two, three, four or five of this act, he shall, in addition to the fines and penalties herein prescribed for each offense, forfeit and pay a fixed penalty of two hundred dollars for each offense. Such penalties shall be recovered with costs in any court of this state having’jurisdiction thereof, in an action to be prosecuted by the New York state dairy commissioner or any of his assistants in the name of the people of the state of New York."

Then follows an important provision relating to the proceedings in the prosecution or in a suit for penalty, found in section 8 of the act, which is as follows:

“The prosecution shall not be compelled to elect in any trial for the misdemeanors or suits for the penalties for the violations of sections one, two, three, four and five, where the indictment, information or complaint charges a violation of any two or more of such sections, between the charges or counts under such different sections.”

Applying this rule given by the statute, it was not necessary that the plaintiff should elect under which section a recovery of the penalty sought should be had. It was sufficient for the trial, and it is sufficient here, if the case made at the trial presents a violation of any of the provisions found in sections 1, 2, 3, 4, and 5 of the enactment. The learned trial judge rested his conclusion upon the evidence, which, in his opinion, established a violation of section 4 of the act. That section provides that:

“No person shall manufacture, produce, sell, keep for sale or offer for sale any vinegar which shall contain any preparation of lead, copper, sulphuric acid or other ingredients injurious to health, or any artificial coloring matter.”

The evidence produced at the trial quite satisfactorily established the fact that the defendant kept for sale, offered for sale, and sold vinegar, so called, containing “artificial coloring matter.” We think there was no conflict in the evidence upon that subject. Indeed, in the argument of the learned counsel for the appellant it is assumed that the evidence established that fact, and he also assumes that the prohibition “is absolute and without regard to whether it causes the product to resemble cider vinegar or unmistakably distinguishes it from such vinegar.” We think the provision was inserted for the purpose of preventing “deception in sales of vinegar,” and to protect the public health, and that the provision is valid, and is within the police power of the legislature.

In People v. West, 106 N. Y. 296, 12 N. E. 610, Andrews, J., said:

“It is the province of the legislature to determine in the interest of the public what shall be permitted or forbidden, and the statutes contain very many instances of acts prohibited the criminality of which consists solely in the ¡fact that they are prohibited, and not at ail in their intrinsic quality.”

The general scope of the act was “to prevent deception in sales of vinegar,” as appears by the title of the act. We think the provision of section 4, which is relied upon by the people to sustain the recovery, is valid, and that its terms are supported by the principles laid down in People v. West, supra, and in People v. Arensberg, 105 N. Y. 123, 11 N. E. 277.

In People v. Gillson, 109 N. Y. 389, 17 N. E. 343, it was held, viz.:

“While it is for the legislature generally to detérmine what laws and regulations are needed to protect the public health and serve the public comfort and safety, and the exercise of its discretion in this respect is not the subject of judicial review, yet a statute, to be upheld as an exercise of the police power, must have some relation to those ends.”

We think the statute before us very clearly has “some relation to those ends,” and that the statute before us is quite distinguishable from the one under consideration in People v. Gillson, supra. It was for the legislature to say whether the insertion of any "coloring matter” in vinegar was calculated to “baffle -ordinary inspection, or whether it involves such danger to the public health as to require, for the protection of the people,” its entire prohibition; and it was for the legislature to say whether public policy required from it the exercise of its police power. The legislature having determined those questions, and inserted the prohibition found in the last part of section 4 in the exercise of such power, we are inclined to the opinion that the clause of the act under discussion is constitutional and valid. Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 1257.

We think the defendant cannot escape liability for the penalty given by the statute for the reason that the suit was brought against him alone, and not against him and his supposed partner. There was no defense of defect of parties stated in the answer. First. Section 7 provides:

“If any person, by himself or another, shall violate any of the provisions of sections one, two, three, four or five of this act, he shall * * * forfeit and pay a fixed penalty of two hundred dollars for each offense.”

In Palmer v. Conly, 4 Denio, 378, it is said:

“The rule at common law is universal that every crime, as far as respects the guilt and punishment of the parties engaged in the preparation of it, is several; and that, if two or more persons concur in the commission of an offense, each offender is liable to a several punishment. This principle extends to statute offenses as well as to those which áre punishable by the common law; and, in general, there is no distinction in the application of it between the higher kinds of punishment and fines or mere pecuniary penalties.” ■

The foregoing views, if adopted, lead to an affirmance. Judgment -affirmed, with costs.

MERWIN, J. I concur in affirmance.