#### The People of the State of New York ex rel. Archibald McAuley, Appellant, *v.*Charles G. F. Wahle, City Magistrate, and Hugh Gaffney, a Police Officer of the Municipal Police Force of the City of New York, Respondents. The People of the State of New York, Respondent.

First Department,

March 20, 1908.

Food —constitutional law—sale of oleomargarine — Agricultural Daw. — deposition not charging crime—habeas corpus.

Section.26 of the Agricultural Law, if construed'as absolutely prohibiting the manufacture or sale of oleomargarine, is unconstitutional. It only becomes valid when construed as prohibiting the sale of oleomargarine which by artificial means is made to resemble butter in appearance.

A deposition charging a violation of said section, which alleges that the defendant sold “ a small brick of white substance which was wrapped in an oiled paper, which paper was labeled * Oleomargarine/ ” without any statement that it imitated or resembled natural butter, of itself negatives the essential facts necessary to constitute a crime, and .a defendant held under a warrant issued thereon will be discharged on habeas corpus.

Appeal hy the relator, Archibald McAuley, from an order of the Supreme Oourt, made at the New York Special Term and entered in the office of the clerk of the.county of New York on the 6th day of November, 1907, dismissing a writ of habeas corpus.

*William O.*Breed, for the appellant.

*Saul J. Dickheiser, Deputy Attorney-General,*for the respondent, People of the State of New York.

Ingraham, J. :

The relator was arrested on the 30th of October, 1907, by the defendant Gaffney, a police officer, in the city of New York, upon' a warrant issued by the defendant Wahle, city magistrate of the city of New York, charged with a violation of section 26 of article. 2 of the Agricultural Law of the State of New York (Laws of 1893, chap. 338, as amd. by Laws of 1894, chap. 426; Laws of 1897, chap. 768, and Laws of 1902, chap. 385).* The relator claims that *763he was illegally held because the deposition upon which the warrant was issued failed to show that he had violated section 26 of the Agricultural Law and that the warrant was, therefore, null and void. From the return of the police officer it appears that he received a warrant signed by the defendant, a city magistrate, requiring him to arrest the relator; that in pursuance to that command he arrested the relator and before he was arraigned before the magistrate this writ of habeas corpus was served upon him, and in pursuance of the command of this writ he produced the body of the relator before the court. The city magistrate also made a return from which' it appeared that he issued a warrant upon certain depositions which were made a part of the return, charging the relator with a violation of section 26 of article 2 of the Agricultural Law. From these depositions it appeared that the relator at the premises Mo. 502 East Sixteenth street, borough of Manhattan, in Mew York county, did on October 22, 1907, “sell, keep for sale and offer for sale an article, substance and compound, made, manufactured and produced from animal fats and animal or vegetable oils, not produced from unadulterated milk or cream from the same, to wit, the article known as Oleomargarine, in violation of section 26 of the Agricultural Law of the State of Mew York.” That on that day the deponent went to said premises and there met the relator and asked him whether he had any oleomargarine for sale, and the relator stated to the deponent that he had the best quality of oleomargarine, and then and there produced from a case in plain view of the deponent a small brick of' white substance which was wrapped in an oiled paper,' which paper was labeled “ Oleomargarine; ” that the relator stated that he would sell the package so marked for the sum of twenty cents, and the deponent thereupon paid to him the price asked in lawful money of the United States, and the relator thereupon delivered to the deponent the said package which was labeled oleomargarine. There was also submitted a deposition of a chemist from which it appeared that the deponent received from the former deponent, on October 22,1907, a brick of substance wrapped in oiled paper and labeled “ Oleomargarine; ” that said substance was pearl white and without color; that he analyzed the said - substance and found the same to be what is commonly known as “ Oleomargarine; ” that the same *764• .was not natural butter, nor of the color of natural butter produced . from pure unadulterated milk or cream, or both, which has. a yellowish hue.. ' . ■

, . In reply the relator alleged that the facts stated in the. said depositions do not constitute a crime.. By section 20 of the Agricultural Law (Laws, of 1893, chap. 338) oleomargarine is defined to be *“*any article- or substance in the semblance of butter * * * no.t the usual product of the dairy and not made exclusively of pure and unadulterated milk or cream; or any such, article or substance-in to which any oil, lard or fat not produced from milk or cream' enters as a component part,, or into which melted butter or butter in any condition- or state, or any oil thereof, has been introduced to take the place of cream.” Section 26. provides that “'no person by Mm-.self, his agents or employees, shall * * .* . sell, keep for sale or offer for sale.any article, substance, or compound made, manufac.tured or produced in violation of the provisions of this section,, whether such article, substance or compound shall be made or produced in this State' or elsewhere ; ” and “ any person .manufacturing,. selling, offering, or exposing for sale any commodity or substance in imitation or semblance of butter the product of the dairy, shall be deemed guilty of a violation of the Agricultural Law, whether he sells such commodity or substance as. butter, oleomargarine or under any other name or designation whatsoever.” What would seem to be prohibited by this, statute is the manufacture or .sale of an article known as oleomargarine, or any article or product in imitation or semblance of natural. butter, made or manufactured out of or from any animal fat or vegetable oil not. produced, from .unadulterated milk or cream of the. same,

By Section '20 of the act the term. “ oleomargarine ” is defined to be “ any article or substance in the semblance of butter * * * not .the usual product of the-dairy, apd' not made. exclusively of puré and unadulterated milk or cream; or any stick article or substance into which any oil, lard or fat not produced front milk, or cream enters as a component part.”

In *People*v. *Marx*(99 N. *Y. 377)*the Court of Appeals, in construing a statute (Laws of 1884,. chap. 202,.. § 6) which provided .that “no-person shall manufacture out of any oleaginous substance or substances, or any compound of the same, other than that .pro*765duced from unadulterated milk-, or of cream from the same, any article designed to take the place of blitter 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,” held that the prohibition of this statute applied to an article designed to take the place of dairy butter or cheese; that “the object and effect of the enactment under consideration were not to supplement the existing provisions against fraud and deception by means of imitations of dairy butter, but to take a further and bolder step, and by absolutely prohibiting the manufacture or sale of any article which could be used as a substitute for it, however openly and fairly the character of the substitute might be avowed' and published, to drive the substituted article from the market and protect those engaged in the manufacture of dairy products against the competition of cheaper substances, capable of being applied to the same uses, as articles of food ; ” and that this prohibition violated the provisions of article 1, section 1, of the Constitution, which provides that “ no member of this State shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers;” and section 6 of article' 1 of the Constitution, which provides that no person shall be deprived of life, liberty or property without due process of law, and also the provisions of section 1 of the 14tli amendment of the Constitution of the United States; that these constitutional principles were violated by an enactment which absolutely prohibited an important branch of industry for the sole reason that it competes with another, and may reduce the price of an article of food for the human race. So that if this statute is to be construed as prohibiting the manufacture or sale of oleomargarine, it is void as a violation of these constitutional provisions. The learned Deputy Attorney-General, however, insists that these depositions in substance charged the defendant with the sale of an article or substance in imitation or semblance of natural butter, and that, I think, is the only question. From these depositions it appeared that the relator sold an article called “ oleomargarine,” which consisted of “ a small brick of white substance which was wrapped in an oiled paper ” and which was labeled “ Oleomargarine.” There was no statement by the purchaser of this article that it imitated or was in semblance of *766natural butter. The chemist to whom the purchaser of this article delivered it for analysis deposed that he received from the purchasér a brick of substance wrapped in oiled paper and labeled *“*Oleomargarine,” and that such substance was pearl white and without color; that he analyzed the substance and found it to be what was commercially known as *“*Oleomargarine ; ” that the same was not natural butter, nor of the color of natural butter produced from pure- and unadulterated milk or cream, or both, which has a yellowish hue. It seems to me that this deposition negatives the fact that this- substance was an imitation or in semblance of natural butter, but on the contrary that it was just what it purported to be, oleomargarine, and the essential facts necessary to constitute the crime were, therefore, expressly disproved by the deposition. In *People*v. *Arensberg*(105 N. Y. 123) the Court of Appéals by Judge Rapallo, who delivered the opinion in *People*v. *Marx(supra),*on an appeal fromthe conviction of a ■ person who. was indicted for-nnl'awf ully, willfully and knowingly having in his possession for sale, and causing and procuring to be sold to certain persons a number of-pounds of a certain article and product made and manufactured in semblance and imitation of natural butter, under the provisions óf a statute which prohibited the manufacture out of any animal fat or vegetable oils not produced from unadulterated milk or cream- from the same, or any product in imitation or semblance or designed to take the place of natural butter produced from milk, etc., held -that the statute was constitutional; that a person manufacturing- or selling oleomargarine may be legally required to sell it for and as what it actually is, and upon its own merits, and are not entitled to the benefit of any additional market value-which may be imparted to it by resorting to- artificial means to make it resemble dairy butter in appearance; -that the statutory prohibition- is aimed at a designed and intentional imitation of dairy butter and that there was sufficient evidence to authorize the jury to find that the oleomargarine sold by the defendant was by artificial means, not essential or incident to the manufacture of the article, but -resorted to for the mere purpose of imitation, made to resemble dairy butter; and-for that reason the judgment was affirmed.

There is no case cited by the learned- Deputy Attorney-General which holds that. the sale of oleomargarine is or can be prohibited *767by law; and it seems to us that as these depositions expressly negative the fact that this article was actually manufactured “ in imitation or semblance of butter, the product of the dairy,” the relator was entitled to be discharged.

It follows that the order appealed from must be reversed and the relator discharged.

Laughlin, Claeke, Houghton and Soott, JJ,, concurred.

Order reversed and relator discharged. Settle order on notice.

*

By section 87 of the Agricultural Law (as amd. by Laws of 1901, chap, 656), a violation of section 26 of the act is made a misdemeanor.— [Rep.