People v. . Bowen

74 N.E. 489, 182 N.Y. 1, 20 Bedell 1, 1905 N.Y. LEXIS 906

Opinions

Vann, J.

The Agricultural Law provides that the term “adulterated milk” means milk containing more than 88'per centum of water or fluids, or less than 12 per centum of milk solids, or less than three per centum of fats, or “ milk which has been diluted with water or any other fluid, or to which has been added or into which has been introduced any foreign substance whatever.” The term also includes milk drawn from cows within a stated period before or after parturition, or from those fed on certain kinds of food, or kept in unhealthy places,, as well as milk from which any part of the cream has been removed. The statute further provides that “ all adulterated. milk shall be deemed unclean, unhealthy, impure and unwholesome; ” and that “ no person shall sell or exchange or offer or expose for sale or exchange any unclean, impure, unhealthy, adulterated or unwholesome milk.” (L. 1893, ch. 338, § 20; L. 1900, ch. 101, § 22.) “ Every person violating any .of the provisions of the Agricultural Law. shall forfeit to the People of the State of New York the sum of not less than fifty dollars nor more than one hundred dollars for the first violation and not less than one hundred dollars or more than two hundred dollars for the second and each subsequent violation.” The violation of the provisions above quoted is also made a misdemeanor, punishable by fine or imprisonment for the first offense and by six months’ imprisonment for the second offense. (L. 1893, ch. 338, § 37; L. 1901, ch. 656.)

Upon the trial evidence was given tending to show that the milk in question, which belonged to the defendant and was offered for sale by him, contained formaldehyde, a foreign substance. The dipper and cup used by the agents of the state in taking samples for analysis had been used the day before to take samples of milk belonging to another person, which, when analyzed, was found to contain formaldehyde. They had also been used for the same purpose eight days before, as well as on other occasions when samples containing formaldehyde were taken. They were kept in a satchel when not in use and were thoroughly cleaned every time they were used, not immediately, but before they were used again. The sample bottles, corks and other articles- used in connection with the dipper and cup were kept in the same satchel, which had been in use for this purpose for a long time.

Formaldehyde is not found in pure milk, but is a foreign substance. It is capable of such minute diffusion that one part in 100,000 parts of water, or one two-hundredths of a drop in an ounce of milk, can be discovered by the color and reduction tests, which were the only tests employed by the chemist who analyzed the defendant’s milk. The quantity of formaldehyde contained in the samples examined was not determined and the most minute particle in a can of milk would permeate the entire mass, so that any portion would respond to the tests which were made and disclose the presence of formaldehyde to the extent found by the chemist. No complete or quantitative analysis was made and no herd sample was taken.

The foregoing facts appeared before the plaintiff rested and thereupon the defendant proved that when the samples in question were taken from his milk, his family consisted of his wife, hired girl and two hired men. By appropriate questions he tried to show that no formaldehyde, preservative or foreign substance had been added to the milk by himself, or any member of his family, including his employees, and that the milk when delivered at the station and exposed for sale was in the same physical condition as when it was drawn from the cows. The objection of the plaintiff, which specified no ground, was sustained and the defendant excepted. The following questions were asked the defendant by his counsel: “ Did you use any preservative, or formaldehyde or any foreign substance in this milk ? Did you at that time, or ever, have any formaldehyde, or preservative of any kind about your premises? Was the milk delivered at Griswold Station on the morning of August 13th, 1902, in the same physical condition that it was when it was drawn from the cows ? ”

One of the defendant’s hired men was called and testified that he helped milk on the evening of August 12th and the morning of August 13th and to put the milk in the cans. In the morning he took the milk to the station'. The following questions were asked him by the defendant’s counsel: “ Did you put any thing into the milk, either the night’s or the morning’s milk at any time ? Did Mr. Bowen or his wife or any of the members of his family, to your knowledge, put any foreign substance into this milk ? So far as you know was the physical condition of this milk the same when it was drawn by you to the platform at Griswold Station on the morning of August 13th as it was when it was drawn from 'the cows ? ”

All these questions were objected to upon general grounds merely, and in each instance the objection was sustained and an exception taken.

The object of the statute is jo promote the health of the public by securing pure milk for its use and to prevent fraud through the offer of impure milk for sale as pure. It seeks to effect these objects by three methods, which we will briefly consider.

1. The first method is by creating a standard of natural component parts, which all milk must reach before it can be sold as pure. It must have certain percentages of fats and solids and must not contain more water than the percentage allowed, and in any action these are the only issuable facts, aside from the sale itself. A penalty is imposed for selling milk that is below the standard, whether anything has been added to or taken from it or not. Although it may be sold just as it came from the cow, if it falls below the standard fixed by law the penalty is incurred, regardless of motive, or of any act except the mere sale. If it has more than 88 per cent of water, the owner has no right'to offer it for sale as pure milk,, even if no water has been added and the fault is wholly owing to the cow. If it contains less than 12 per cent of milk solids, or less than 3 per cent of fats, it cannot be sold as pure milk, even if nothing has been taken from it and it is as rich asthecowgave.it. This penalty may be incurred without furtive intent or moral wrong. The fault is not positive in nature, but negative, -for good faith is no protection, provided the milk is not up to standard. As some cows do not at all times give milk with enough solids and fats in it for wholesome food, especially in the case of young children or persons who are ill, the legislature fixed the quality which, in its judgment, was required by the interests of the, public, and compelled all producers as well as sellers to comply therewith at their peril. They must conform to the standard, or incur the penalty. An illustration of this method, which was attended with some hardship, is seen in the case of People v. Cipperly, where the dissenting opinion in the General Term was adopted as the opinion of this court. (37 Hun, 324; 101 N. Y. 634.) Although it appeared in that case that nothing had been put in the milk and nothing taken from it, the conviction of the defendant was sustained because the legislature had fixed the standard and he had failed to comply with it. The fact that he was careful and honest in the transaction was held to be immaterial, as the controlling fact was that he sold milk which was below the positive standard fixed by law. This case was followed in People v. West (106 N. Y. 293) and People v. Kibler (106 N. Y. 321).

2. The second -method is by creating a standard depending on the condition of the cow and prohibiting the sale of milk drawn from cows affected by parturition, or by unhealthy food, or when kept in a crowded or unhealthy condition. All these are issuable facts, with no direct relation to the component parts of the milk, but to the history of the cows which gave it. Even if the milk conforms to the statutory standard as to water, fats and solids, it may not be sold as pure, provided the cows have been fed or kept in the manner specified.

3. The third is by creating a standard which excludes foreign substances and forbidding the sale of milk from which cream has been removed, or into which any foreign substance has been introduced. This involves taking something out or putting something in. It is not aimed, at.the fault of the cows, but at a misdeed of some one, by which a positive change in the physical condition of the milk is effected. The removal of cream is a fraud which we pass by, as it is not involved in this case. Putting a foreign substance into milk is a physical act and may become an issuable fact under the statute. It is capable of proof by either direct or circumstantial evidence, and this proof may be met by showing that the direct evidence is false, or by breaking the chain of circumstances. Water is a substance not foreign to milk, for it is the chief ingredient of the purest milk and hence the statute deals with it eo nomwie, while all foreign substances are dealt with generally by prohibiting the sale of milk into which they have “ been introduced.” Cows do not give formaldehyde, which, therefore, is a foreign substance, and if any was found in the defendant’s milk it was either put in by design or got in by accident. There was evidence tending to show that a minute portion might have accidentally got in from the means used to take the samplés, and it appeared that a microscopic particle would be enough to account for all the signs said to have been found by the chemist. The defendant had a right to show that the samples were not fair, that the chemist was mistaken in his analysis and that there was no formaldehyde in the samples taken' from his milk.' The evidence excluded bore directly upon the issue as joined by the pleadings, for the plaintiff alleged that the milk “ did contain a foreign substance, to wit, formaldehyde,” and the defendant denied it. There was an offer to show that neither the defendant nor any one employed by him put in formaldehyde; that he had none on his premises and that the milk was delivered at the railroad station just as it came from the cows. This was competent evidence to meet the issue tendered by the complaint and accepted- by the answer, that the milk sold by the defendant contained formaldehyde which was put in after it left the cows. It tended to show that the statute had • not been violated by the sale of milk “ to which has been added or into which has been introduced any foreign substance whatever.” While the sale of milk to which a foreign substance has been added is an offense against the statute, no matter-who put it in, this evidence would have shown that no such addition had in fact been made. The jury might not have believed the defendant and his witnesses in view of the chemical tests made by the state and the failure, after due notice and a fair opportunity, to have similar tests made in his own behalf, but he had an absolute right to introduce the evidence and have it considered by the jury for what it was worth. The object of the statute in providing that the milk inspector shall take duplicate samples, seal them and deliver or tender one to the owner of the milk, with a written statement “ of the cause of the taking of the sample,” obviously was to guard against mistake or fraud by enabling the owner to have an analysis made for himself. (L. 1898, ch. 557, amending section twelve of the Agricultural Law.) Other provisions are equally significant in this connection, to wit, if the producer refuses to allow the examination of the milk produced by his dairy, or to stir it when the sample is taken, he is precluded from offering any evidence tending to show that the sample was not fair or that the milk delivered by him was just as it came from the cow. (Id.) These provisions necessarily imply that the analysis by the state chemist may be attacked as incorrect, but if it can be attacked by showing that the milk, when tested by another chemist, showed no evidence of formaldehyde, it can be attacked by showing that no formaldehyde was put in by any one. (People v. Salisbury, 2 App. Div. 39; 151 N. Y. 663.)

This is not like the Cipperly and kindred cases where we dealt with the portion of the statute which required that two natural elements of milk shall exist in certain quantities and that there shall be no excess of a third natural element. That part of the statute, as we have held, can be violated by selling milk in the same condition as when it left the cow. In those cases the issue was whether the milk contained the requisite component parts, while in this it was whether a foreign substance had been added. They rested upon what was or might have been a negative wrong, but this case rests upon a positive wrong, an act of commission, not of omission. It is founded on the alleged addition by physical action of a substance foreign to milk and which is never found therein unless it is put in by accident or design. The evidence excluded tended to show that no such substance had been put in the milk in question and it should have been received for that purpose. While each of the three methods creates a standard and forbids the sale of milk that does not conform thereto, there is a marked difference in principle between proving the presence or absence of the natural elements which must exist even if nothing has been put in or taken out, and the presence or absence of a foreign substance which can exist only if, in the words of the statute, it “ has been added or * * * introduced.”

The defendant claims that the judgment against him should not only be reversed but that the complaint should be dismissed, because the provisions of the statute upon which it is founded are unconstitutional. We overrule that contention. The courts have not yet held that the legislature has power to prohibit the sale of milk that is wholesome, even if not up to standard, provided it is sold for what it actually is and not as pure milk. If offered for sale as milk simply, the presumption is that it is offered as pure milk, and when so offered, without making it known in any way that it is not pure, the legislature may inflict a penalty and make the sale a crime, unless the milk has such positive and negative qualities as in its judgment pure milk should have. The principles upon which such legislation is held to be constitutional have been so thoroughly discussed that we do not deem it necessary to do anything more at this time than to cite the authorities which uphold it as a proper exercise of the police power in order to prevent fraud and preserve health. (People v. Cipperly, 37 Hun, 324; 101 N. Y. 634; People v. Arensberg, 105 N. Y. 123; People v. West, 106 N. Y. 293; People v. Kibler, 106 N. Y. 321; People v. Girard, 145 N. Y. 105; People v. Biesecker, 169 N. Y. 53, 57; People ex rel. Lieberman v. Vandecarr, 175 N. Y. 440.)

The judgment appealed from should be reversed and a new trial graifted, with costs to abide event.