38 N.Y.S. 635 | N.Y. App. Div. | 1896
The question here is as to the meaning of the words “ in violation of the provisions of this article,” contained in section 28 of the Agricultural Law (Laws of 1893, chap. 338). The section, in substance, provides that no restaurant keeper shall serve as food for his customers or use for cooking purposes any article or substance made “ in violation of the provisions of this article,” namely, article 2, relating to dairy products.
The appellant insists that the words in question are limited to a legally punishable violation. The respondent contends that they embrace any article made contrary to the provisions of the act. We agree with the latter construction. The act defines its own intent. Section 26 is prefaced with this head line: “ Manufacture and sale of imitation butter prohibited.” Section 28 commences: “ Prohibited articles not to be furnished.” Section 36 reads as follows: “ Object and intent of this article. This article and each section thereof are declared to be enacted to prevent deception in the sale of dairy products and to preserve the public health which is endangered by the manufacture, sale and use of the articles or substances
It is urged that section 26 favors the appellant’s contention because there also the sale of any such article “ made * * * in violation of the provisions of this section ■” is forbidden, while the prohibition is coupled with the phrase (which follows) “ whether such article, substance or compound shall be made or produced in this State or elsewhere.” The appellant contends that the absence of the latter phrase in section 28 is significant. But stilLthe question is as to the meaning, even in section 26, of the words “ made * * * in violation of the provisions of this section.” Unless they mean what we have suggested, namely, non-conformity to the manufacturing"regulations of the section, the words which follow and which are supposed to be significant, have no force and are-simply contradictory. The Legislature surely never meant to embody in a single sentence such a provision as this : That no person shall sell any articlomade in this State in violation of the provision’s of this section, whether such article be
We have no doubt that the defendant was properly convicted, and that the judgment should be affirmed.
Van Brunt, P. J., Bumsey, O’Brien and Ingraham, JJ., concurred.
Judgment affirmed.