201 N.Y. 105 | NY | 1911
This appeal is from the affirmance by the Appellate Division, in the fourth judicial department, of a judgment entered against the defendants for fifteen penalties of $100 each, adjudged to have been incurred by reason of violations of the Agricultural Law of the state. (Laws of 1893, chap. 338.) The affirmance below was by a divided court; the divergence in opinion being upon the question of the right of the People to recover aggregated, or cumulative, penalties. As to other questions, I think that they have been satisfactorily disposed of in the opinion of the Appellate Division and that we need, only, consider the one question of the penalties.
The Albion Cider Vinegar Company, a domestic corporation, *107 engaged in the manufacture and sale of vinegar, was charged in the complaint, in substance, with having manufactured and sold a compound "in imitation and semblance of cider vinegar made exclusively from pure apple juice," which was not pure cider vinegar, so made; which was colored "to deceptively imitate cider vinegar," and which was falsely branded "New York State, Pure Cider Vinegar." It was alleged that fifteen separate samples had been taken by the inspectors from separate barrels, so branded, which, after having been chemically analyzed, proved not to be pure cider vinegar, within the provisions of the statute as to that product. The statute, which was, thus, charged with having been violated, so far as material to be recited here, was as follows: "Section 50. Definition of adulterated vinegar. — All vinegar which contains any * * * ingredients injurious to health, or any artificial coloring matter * * * shall be deemed adulterated. The term, cider vinegar, when used in this article means vinegar made exclusively from pure apple juice. Section 51. Manufacture and sale of adulterated or imitation vinegar prohibited. — No person shall manufacture for sale, keep for sale or offer for sale: 1. Any adulterated vinegar. 2. Any vinegar or product in imitation or semblance of cider vinegar, which is not cider vinegar. * * * Section 52. Packages containing cider vinegar to be branded. — Every manufacturer or producer of cider vinegar shall plainly brand on the head of each cask, barrel, keg or other package containing such vinegar, his name and place of business and the words `cider vinegar.' And no person shall mark or brand as or for cider vinegar any package containing that which is not cider vinegar."
Penalties were imposed for violations, in the following language of section 53: "Every person violating the provisions of this article shall forfeit and pay to the People of the State the sum of one hundred dollars for each violation."
Upon the trial of the action these facts appeared. On September 3, 1901, the assistant commissioner of agriculture, with his agents, went to the company's factory and took nine *108 samples from different barrels, in a lot of seventy-five barrels, which were marked with the company's name and with the words "New York State Pure Cider Vinegar." This lot was about to be shipped to a purchaser in the state of Wisconsin. On the 24th of September, 1901, special agents, again, visited the factory and took six samples from different barrels, in a lot of sixty-three barrels, which were standing upon the floor and which were marked similarly to the previous lot. These various samples were taken and they were subjected to chemical analyses, in accordance with the provisions of the law. The referee, before whom the trial was had, made separate findings as to each barrel, from which there had been taken a sample by the state's agents. Each of these findings was that the "defendant kept for sale one certain barrel of adulterated vinegar, as and for cider vinegar, which had been theretofore manufactured for sale by said defendants and which contained artificial coloring matter, was a product in imitation or semblance of cider vinegar and which was not made exclusively from pure apple juice, and that said defendants marked, or branded * * * said certain barrel with the words `New York State Pure Cider Vinegar.'" There were fifteen of such findings and they covered the fifteen barrels in the two lots, from which separate samples had been taken. The referee found, as a conclusion of law, that the defendants had forfeited to the plaintiff fifteen penalties of $100 each and directed judgment accordingly.
There was evidence to support the findings of the referee and the only question, arising upon his determination, which will be discussed, is whether this was a case in which aggregated penalties could be recovered. The question of the power of the legislature to prohibit the artificial coloring of vinegar, and to declare an artificial coloring to be an adulteration, was disposed of in People v. Girard, (
But it is clear, within the rule, that this judgment can, and should, be upheld upon the ground that there were repeated and distinct violations of the section of the statute which prohibited false marks, or brands. That section requires the manufacturer to plainly brand "each cask, barrel, keg or otherpackage containing cider vinegar" with the words "cider vinegar" and it prohibits any person from falsely marking, or branding, "any package." The language, therefore, of section 53, when imposing a penalty of $100, "for each violation" of the law, while referable to the prohibition against adulteration, in its application to the provisions against false marks, or brands, seems to give, expressly, a right to recover a penalty in each instance that any package of vinegar is falsely marked, or branded. The precise wording of the statute is reason for giving it this strict interpretation and if any other were needed, it might readily be found in the nature and purpose of a law, enacted for the protection of the public health.
For these reasons, I advise that the judgment appealed from should be affirmed, with costs.
CULLEN, Ch. J., HAIGHT, WERNER, WILLARD BARTLETT, CHASE and COLLIN, JJ., concur.
Judgment affirmed.