#### The People of the State of New York, Plaintiff, *v.*John S. Biesecker, Defendant.

(Supreme Court, New York Special Term,

November, 1900.)

Agricultural Law — Unconstitutional, in so far as it forbids the use of preservatives in dairy products — Demurrer to complaint.

The sections of the Agricultural Law (L. 1893, ch. 338, §§ 27, 37, amd. L. 1899, ch. 435; L. 1900, ch. 534) imposing a penalty upon any person who sells dairy products containing any preservative other than certain ones permitted in the case of butter, cheese and condensed milk, is not a health law but is rather directed against fraudulent practices; and therefore a complaint, based upon these sections, is demurrable as they, not appearing to be designed as an exercise of the police power, are unconstitutional in that the prohibition of preservatives is not confined to those containing harmful or adulterative matter but includes the use of any preservative whatever, while the act itself concedes that they are necessary in butter, cheese and condensed milk.

Issues of law upon demurrer to complaint.

Edward Lauterbach, Henry L. Scheuerman and Herbert E. Limburger, for defendant-demurrant.

Leonard D. Baldwin, for plaintiff.

Bischoff, J.

The question raised by this demurrer is confined solely to the constitutionality of sections 27 and 37 of the Agricultural Law (L. 1893, ch. 338), as last amended, respectively, by chapter 534, Laws of 1900, and chapter 435, Laws of 1899. The particular provision of section 27 involved in discussion is as follows: “ Ho person shall sell, offer or expose for sale, any butter or other dairy products containing a preservative, but this shall not be construed to prohibit the use of salt in butter or cheese, or spirituous liquors in club or other fancy cheese or sugar in condensed milk-. Ho person or persons, firm, association or corporation shall induce or attempt to induce any person or persons to violate any of the provisions of the agricultural law. Any person, firm, association or corporation selling, offering or advertising for sale any substance, preparation *36or matter for use in violation of the provisions of the agricultural law shall be guilty of a violation of this act.”

■Section 37 provides the penalty for any violation of these provisions.

There can hardly be room for doubt that, so far as this; law attempts to prohibit the sale of any preservative substance, to be used in connection with dairy products, other than salt, liquor and sugar for use, respectively, in butter, cheese and condensed milk, ah unconstitutional restriction upon the liberty of individuals who might engage in the sale of preservative substances generally, is presented (People v. Gillson, 109 N. Y. 389; Matter of Jacobs 98 id. 98), unless the statute may be upheld as a regulation, for the purpose of promoting the health of the community. When so tested, however, within the rules laid down by the cases, I think that this statute, so far as here considered, must fail of support.

In Matter of Jacobs, *supra,*the rule is stated to be that “ When a health law is challenged in the courts as unconstitutional on the ground that it arbitrarily interferes, with 'personal liberty and private property without due process of law, the courts must be able to see that it has at least in fact some relation to the public health, that the public health is the end actually aimed at, and that it is appropriate and adapted to that end.”

Where it is reasonably apparent that a law deals with a situation involving a question of health, the advisability of the particular restriction is not a matter for the courts to determine, since the Legislature may properly examine into the extent of the danger and devise the remedy, and the necessity for the remedy adopted is to be assumed. People v. Girard, 145 N. Y. 105; People v. Clipperly, 101 id. 634; 37 Hun, 324.

Within this principle, any adulteration of food may be forbidden (People v. Girard, *supra),*and it is suggested for the plaintiff that the act now before me is to be treated as aimed at a condition whereby dairy products are subjected to adulteration. But why? A “ preservative ” cannot harm if it merely preserves; nor can the plaintiff’s argument, that the need of preservation implies impurity, be seriously considered, for the act concedes the necessity for a preservative in butter, cheese and condensed milk.

The act does not prohibit merely the use of preservatives containing harmful matter; it prohibits all varieties of substitutes for salt as a preservative of butter, for liquor in the case of cheese, and *37sugar in condensed milk. It may be that there are chemicals which would preserve butter for the last meal of the consumer, but the availability of poison as a substitute for many household staples could not reasonably be met by a prohibition of the sale of all articles usually purchased for the use of a family.

If it could be seen thát the tendency towards the use of preservatives in dairy products was harmful, the legislative inhibition of preservatives, good and bad, might be within its general powers, and the question of fact, whether the good or the bad predominated, would not be open to inquiry by the courts (People v. Clipperly, *supra),*but the difficulty with the present enactment is that it does not purport to be a health law (the section, as a whole, being directed apparently against fraudulent practices, merely), and the possibility that the Legislature had in mind a condition whereby the health of the community was menaced is supported, at best, by conjecture, and not by reason.

I conclude that the demurrer should be sustained, with costs.

Demurrer sustained, with costs.