18 N.Y.S. 25 | N.Y. Sup. Ct. | 1892
The defendant was tried and convicted of a misdemeanor, before the recorder and a jury, for having in his possession 25 bottles with the following words and figures blown or impressed thereon, to-wit: “A. Liebler Bottling Co. Begistered. 402 and 404 W. 126th St., H. Y.;” and a monogram of the letters “A. L. B. Co.” He was sentenced to pay a fine of $12.50, and to be imprisoned in the penitentiary for a term of 60 days. The indictment under which the defendant was tried and convicted was found under the second section of the act entitled “An act to protect the owners of bottles, boxes, syphons, and kegs used in the sale of soda-water, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, small beer, lager, weiss beer, beer, white beer, or other beverages, ” being chapter 377 ■of the Laws of 1887, as amended by chapter 181 of the Laws of 1888. The first section of the act of 1887, as amended, provides that “any and all persons and corporations engaged in manufacturing, bottling, or selling soda-waters, * * * lager beer, weiss beer,” etc., “in bottles, sy
Upon the trial a stipulation between the people and the defendant was read in evidence, which is as follows: “(1) The defendant, William P. Cannon, now is, and at all the times herein mentioned was, a.dealer in second-hand articles, to-wit, in second-hand bottles, in the city and county of New York. (2) In the month of September, 1887, the A. Liebler Bottling Company was duly organized and incorporated under and by virtue of the laws of the state of New York, to-wit, pursuant to and in conformity with the act of the legislature of the state of New York, passed on the 17th day of February, 1848, entitled ‘An act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes,’ and the several acts of the legislature amendatory thereof; and said corporation was so as-aforesaid organized and incorporated under the corporate name and style, ‘A. Liebler Bottling Company.’ (3) At all the times mentioned herein the said corporation has had, and now has, its principal place of business in the city and county of New York; and at all said times has been, and is now, engaged in bottling, selling, and delivering lager beer, soda-waters, and aerated waters, in bottles with its name and certain marks and devices blown and impressed thereon. (4) Prior to the 1st day of March, 1888, the said corporation did duly file in the office of the clerk of the county of New York, and also in the office of the secretary of state of the state of New York, a description of the
The only other proof presented upon the trial was the evidence of one Linker, a detective, who testified that on the 20th day of September he found in the possession of the defendant 25 bottles, which were then produced, and admitted in evidence. Thereupon the prosecution rested, and the defendant’s counsel moved that the jury be directed to acquit the defendant, on the ground that the facts proved have shown the commission of no crime by the defendant, for the reason that the statute declaring it to be a misdemeanor to use or traffic in bottles so marked as indicated is unconstitutional, and that its provisions are in violation of the provisions of the constitution, which secures to every man the right to his property, the right to keep it, and not to have it taken away from him without due process of law. The defendant’s counsel also asked the court to dismiss the indictment and acquit the defendant on the further ground that the acts under which the defendant is indicted place restrictions upon lawful and legitimate business, and prefer one class of business to another, which is against public policy, and is unconstitutional. He also asked the court to dismiss the indictment and acquit the defendant on the further ground that the acts under which the indictment had been found are unconstitutional in authorizing the searching of defendant’s premises, and the seizure and removal therefrom of said 25 bottles, by virtue of a search-
As long ago as 1847 the legislature passed an act in relation to the sale of bottles used by the manufacturers of mineral waters and others, which, after providing that the descriptions of the bottles should be filed in the office of the secretary of state and of the clerk of any county in which said articles should be bottled or sold, and for the publication in a newspaper of the description of-the name and marks so used and sold, imposed a penalty upon any person who should sell any bottles marked or stamped as in the first section of the act described, and gave a right of action therefor to the person whose mark shall be stamped on the bottles so sold, who should have complied with the provisions of the first section of the act; and any bottle dealer or keeper of a junk-shop, who should purchase such bottle from any person, was made liable to the penalties imposed by the second section. The act of 1847 was amended by chapter 117 of the Laws of 1860, which declared it to be unlawful for any person or persons thereafter, without written consent of the owner thereof, to fill with mineral waters, etc., any such bottle so marked or stamped, or to sell, dispose of, buy, or traffic in any such bottles so marked or stamped, etc., and, in addition to the penalty prescribed by the previous act, it was provided that “ the fact of any person other than the rightful owner thereof, without such written permission, * * * using such bottles for the sale therein of any mineral water or other beverage, shall be presumptive evidence of the unlawful use and purchase of such bottles.” And the section went on to provide that any owner, or agent of such owner, who should make oath or affirmation that he had reason to believe that any of his bottles, stamped and registered as aforesaid, were being unlawfully used by any person or persons selling or manufacturing mineral water, etc., or that any junk dealer or vendor of bottles shall have any of such bottles secreted upon his premises, or in any other place, the magistrate might issue a search-warrant to obtain the same, and should have power in a summary way to bring the person accused before him, and, if the magistrate should find on summary examination that such person had disobeyed or violated any of the provisions of the act, he might proceed to impose a fine, and, if the same be not paid, to commit said person to prison for a term not to exceed 15 days. Under this last act the case of Mullins v. People, 24 N. Y. 399, arose, and the only remark that we find' in regard to the constitutionality of the act under consideration was made by Sellen, C. J., in delivering the opinion of the court, in which, after stating that at common law the presumption, from the facts proved, would clearly be that Mul
It will be observed that this case does not arise under section 4 of the Acts of 1887 and 1888, relating to the proceedings by the magistrate upon the application for the issuance of a search-warrant, and the only question which is presented by the record before us is whether the second section of the act and amendatory act, prohibiting the selling, buying, giving, taking, or trafficking in said bottles without the written consent of the persons from whom they shall have been purchased, is constitutional. Although it may seem harsh that an innocent vendee of bottles, stamped and registered as required by the acts, should be deemed guilty of a misdemeanor, we cannot say that the provisions of the second section are in conflict with the constitution. It does not deprive the defendant of his property without due process of law, because, upon the fair construction of the stipulation upon which this cause was tried, the bottles in question had been the property of the said corporation, which had never given a written or oral consent that any one should sell, buy, etc., the same; nor had said corporation sold or given away any bottles having blown and impressed upon them the names, marks, and devices referred to in the stipulation and in the indictment. The fact that the defendant purchased the property in the due course of his business, and in open market, cannot avail him as a defense in this action, there being no such thing as a market overt in this country. The defendant, therefore, could ob
Mr. Justice Barrett’s opinion in Be GrifEenhagen, (supreme court, special term, New York county,) filed May 26,1S90, is as follows: “The sole question presented by the writs of habeas corpus and certiorari is whether the act to protect the owners of bottles, etc., (Laws 1888, c. 181,) is constitutional. We have nothing to do with the facts of this particular case, and the writs should be dismissed if there could have been a lawful conviction under the act, leaving the relator to his ordinary remedies to review the conviction. I have examined the act in question, and see no reason to doubt the constitutionality of its main provisions. A man may lawfully limit the enjoyment of a right of property in the vehicle used for the sale of a particular product. Where the sole object is to sell the product, and to insure its genuineness, there can be no objection to branding, stamping, or otherwise marking the bottle, keg, or syphon, and forbidding the sale of the bottle, keg, or syphon thus branded, stamped, or marked after the consumption of its contents. Without going over the act minutely, it may safely be asserted that this is what it seeks to enforce. If junk dealers were to be permitted to purchase and sell empty bottles thus marked, it would be very easy to refill them, and then palm them off on the community as the product of the original vendor; thus injuring the latter’s business, as well as defrauding the public. It is suggested that some of these empty bottles may have been purchased before the passage of the act. That, however, was a matter of defense, and the constitutional question as to bottles thus purchased could only be raised by prop Eon that head. The safer way is for the junk dealer to purchase only unstamped and unmarked bottles. If he purchases stamped and marked bottles, he takes the risk of previous registration, and of the penalties of the act. The question was not very fully discussed in Mullins v. People, 24 N. Y. 399, but it was before the court, and the constitutionality of the act was upheld. Interpreting the provisions of an earlier act as meaning what the legislature has more clearly indicated in the act now under consideration, the court said that such provisions were ‘entirely unobjectionable.’ I see no reason for interfering with the execution of this act, and the writs must accordingly be dismissed, and the prisoners remanded. ”