People v. Bishopp

94 N.Y.S. 773 | N.Y. App. Div. | 1905

Parker, P. J.:

There can be no doubt but that the Legislature was authorized to enact the provisions of section 70e of the Agricultural Law. If is an exercise of the police power in the interests of the public health, and that right has long been recognized by our own and by the Federal courts. Yeal, as an article of food, is deemed by the Legislature to be injurious and unsafe when eaten within four . weeks of its birth, and, for such reason, it is assumed by that section to‘regulate the use and sale of such veal as an article of food. Such right is too plain to be discussed, and the defendant has not, by this demurrer, disputed it.' (People v. Ewer, 141 N. Y. 129; People v. Arensberg, 105 id. 123; People v. Lochner, 177 id. 145, and cases cited.)

Section 70f of such law was evidently passed to secure the enforcement of the provisions of the prior section, and it is against the validity of this section that this demurrer is aimed. This section does not prohibit the shipping or sale of veal. It merely requires. that all veal that is shipped shall have annexed thereto a tag stating the name of the person who raised the calf, the name of the shipper, the "points of shipping and the destination and the age of the calf. Many calves so shipped are over four weeks old; such are a legitimate article of food, but many are under that" age and are, therefore, not a healthful food.nor a legitimate article of commerce for that purpose. Their appearance, however, is substantially the same.. To an uninstructed eye they cannot be distinguished, and, hence, deceit is so easy that it is difficult and practically impossible to enforce the law unless breeders and shippers are required to so mark them that the healthful ones may be distinguished from the unhealthful. To meet this difficulty the section in question was passed. Its provisions are necessary and reasonable to complete the scheme which the Legislature has devised to protect the public from having forced npop its markets a species of food that is notoriously unhealthy and injurious.' The purpose of its provision is as clearly within the police power of the Legislature as are the provisions of section 70e, and the fact that the legitimate article as well as the illegitimate is thereby required to be tagged does not affect its necessity or reasonableness. Neither does the section violate subdivision 3 of section 8 of article 1 of the Federal Constitution, which gives to Congress power to regulate commerce. True, the prohibition against shipping without a tag is broad enough to apply to veal intended to be shipped to another State, but that does not interfere with the regulation of commerce between the States. (Railroad Co. v. Husen, 95 U. S. 465; Kidd v. Pearson, 128 id. 1, 23, 24; People v. Niagara Fruit Co., 75 App. Div. 11; affd., 173 N. Y. 629.) Within the authority of those cases, the exclusive right to regulate commerce, etc., secured to Congress by the Federal Constitution, is not invaded.

The interlocutory judgment appealed from should be affirmed, with costs.

All concurred.

Interlocutory judgment affirmed, with costs, with leave to defendant to answer over within twenty days after service upon him of notice of the entry of this order and upon payment of all costs allowed against him.