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oughly convinced of the need of it, they will enforce it; otherwise it will be dead upon the statute book. We see this illustrated almost every day. Where public opinion is strongly in favor of a strong prohibition law, it is enforced; where public opinion is against it, it is not enforced. So with other laws. The people are the government, and have a more direct power in enforcing than in making laws. If public opinion were strongly in favor of the oleomargar. ine laws, those laws would be enforced. But the farmers, to begin with, exhibit no interest in the matter. They are sure of the butter they eat, for they make it themselves; and they fail to see that oleomargarine diminishes the amount realized for their surplus butter. The dairymen are too weak in numbers to enforce the law themselves; they must have the support of farmers, and this they have not. The wise course to pursue is not to clamor for more stringent laws, but to awaken the farmers to the fact that the sale of oleomargarine is inimical to their interests, as well as to the interests of the dairymen. And if the city consumers can be made so thoroughly disgusted with oleomargarine as to join the farmers and dairymen the present oleomargarine laws will be found sufficient.”
THURBER, WHYLAND & CO. ON BOGUS BUTTER. In an interview in June last Mr. James H. Seymour, ex-president of the Butter, Cheese, and Egg Exchange, and one of the leading men in the trade, made public the following letter from Mr. F. B. Thurber, of Thurber, Whyland & Co., which sufficiently indicates the attitude of that great house as regards the illicit traffic in counterfeit butter. It should be mentioned here that Mr. Thurber has long been noted as a determined enemy to anything like deception in trade. The following is his letter :
New YORK, June 18, 1885. James H. Seymour, Esq.-Dear Sir: Referring to our recent conversation, I would say that I have always been opposed to the fraudulent sale of oleomargarine, and have contributed perhaps as much as any one person to compel its honest sale. There has been a great deal of misrepresentation of my position regarding this subject. It has been represented that I was largely interested in oleomargarine patents, and in the manufacture and fraudulent sale of the article, when the fact is I have never had any interest in either. My brother at one time did have an interest in a small oleomargarine factory, and owing to his influence our firm at one time acted as selling agents for the Commercial Company, which was then the largest factory; but we always sold it as oleomargarine, and never in any case as butter. This agency, how. ever, ceased nearly three years ago, and shortly after my brother's retirement from the head of our firm we stopped selling oleomargarine. And now, notwithstanding that the law prohibiting its manufacture and sale has been declared unconstitutional, I wish to say that my firm will never sell it again, unless it should become such an article of commerce, commonly sold on its merits, that we would be compelled to keep it. I do not think it wrong to sell pure oleomargarine for what it is, for I have always taken the ground that I could not see why an article that was as much a farm product as either beef or butter should not be sold for what it is, providing it is wholesome. And of the thousands of pounds consumed I have never heard of any ill effects resulting from its use. But our other business in magnitude is as a thousand to one to any interest we ever had in oleomargarine, and I do not think it is our duty to combat the public prejudice which has been justly evoked by unscrupulous dealers selling it as butter. I have worked long and earnestly to improve the quality and enforce the honest sale of food products. I believe that all articles should be sold for precisely what they are, and I am heartily in accord with you in your opposition to the fraudulent sale of oleomargarine and butterine, which are sold, not on their merits as substitutes for butter, but as butter itself.
Yours, very truly, (Signed)
F. B. THURBER.
CONVICTIONS IN NEW YORK AND BROOKLYN.
N. Y. Star, January 27, 1886. For a long time past the dealers engaged in the illegal sale of spurious butter and the capi. talists interested in its manufacture have found fault with State Dairy Commissioner Brown and his able and energetic assistant in this city and Kings county, Mr. Van Valkenburgh, for not enforcing the provisions of the law of 1885 against manufacturers as well as retailers. The fact that but few of the former were brought to trial was used as a conclusive argument against the constitutionality of the law, so far as the manufacturing of the article was concerned, and was held to be presumptive proof that the Dairy Commissioner considered the act too weak to bear enforcement. Those who deceived themselves with these sophistical arguments were abundantly undeceived yesterday when the case of The People against Lipman Arensberg was called for trial before Judge Moore in the Brooklyn Court of Sessions. Arensberg is a wellknown manufacturer of oleomargarine, and has an extensive factory on Furman Street. He' was represented in court by Messrs. Wheeler H. Peckham and Frederick Coudert, and the former distinguished himself in cross-examining the expert chemists who were called as witnesses on the part of the prosecution.
State Expert Thomas C. DuBois testified that on July 16, 1885, he visited Arensberg's oleomargarine factory, No. 61 Furman Street, and purchased three tubs of oleomargarine. He asked specifically for oleomargarine and not for butter. The substance closely resembled natural butter. The remainder of his testimony related, as is usual in these cases, to what he had done with the goods purchased, and then Dr. Charles L. Stillwell, one of the chemists of the New York Produce Exchange, was placed upon the stand. He testified to the receipt of the sample, and said that upon analysis he found it to be oleomargarine. In the cross-examination of this witness, which was conducted by Mr. Wheeler H. Peckham, the distinction between oleomargarine and natural butter was very clearly described, and though questions cleverly designed to confuse him were rapidly poured forth by Mr. Peckham, the chemist never wavered, but seemed rather more positive than in his direct examination. He, too, described the sample as being colored in imitation and semblance of butter.
Dr. Thomas Gladding, Dr. Stillwell's partner, and also chemist for the Produce Exchange, passed through the ordeal of another searching cross-examination with equal success, and then the defense offered to put Professor Morton, of Stevens College, Hoboken, on the stand, announcing their intention to prove by his testimony that oleomargarine contained precisely the same chemical constituents as natural butter. The introduction of this testimony was objected to by the prosecution, and Judge Moore announced that he should rule out any evidence on this point unless the defense were prepared to prove that the substance sold was made from pure unadulterated milk, or cream from the same. To this Mr. Coudert replied that the defense made no such claim, and the objection was sustained.
The defense next offered to prove that the goods sold were wholesome, and Judge Moore again ruled that such evidence was inadmissible. Their third proposition was to prove that butter could be made from substances not derived from the milk of the cow, and this shared the fate of its predecessor, Judge Moore holding strictly in his ruling to the opinion of the Court of Appeals in the Cipperly case, in which it was held that the courts. have nothing to do with the question of the wisdom or the natural justice of any particular law, and that its power to fix a standard for food products for the protection of the public health could not be questioned. The defense took exceptions to the exclusion of this evidence, and there rested. Then Judge Moore fined the defendant $125 or 125 days' imprisonment, suspending the execution of the judgment pending the decision of the Court of Appeals, and Arensberg and his counsel retired.
“This case is important,” said a leading butter merchant, “ as involving the disputed point as to whether the Legislature has the constitutional right to prohibit the manufacture of any substance in semblance or imitation of butter. The oleomargarine manufacturers have long
boasted that sections 7 and 8 of the law, which cover this subject, would be declared unconstitutional; but Justice Learned's opinion in the Cipperly case, indorsed as it was by the Court of Appeals, will be likely to open their eyes to the fact that their confidence is misplaced. I hope that the Dairy Commissioner will now proceed actively against all classes of violators of the law, irrespective of their wealth or their business standing, and that the minor courts will support him. I am convinced that this conviction will have a more decided and widespread effect than any of those that have preceded it."
Out of eight cases tried in the Court of Special Sessions, New York, January 20, 1886, there were five convictions, two acquittals, and one postponement. This was an encouraging result as compared with former experiences. In nearly all these cases the violators of the law were defended by counsel employed by an association formed especially to protect grocers accused of this crime. Comment is unnecessary. Without going into the details of the trials of these cases, which would not be interesting to the general reader, it may be said that everything that ingenuity could devise was done by counsel to save these men from the punishment they so richly deserved.
THE WORK OF THE DAIRY DEPARTMENT. “The oleomargarine manufacturers, who do not relish the work done by this department," said Assistant Dairy Commissioner Van Valkenburgh yesterday, “assert that the experts we employ are spies, and insinuate that the work we do is not worth the money we get for it, To disprove this I will give you a résumé of the work done by one of our experts in the year that has just closed, and when you hear it, and find that his salary is $80 a month, I think you will frankly acknowledge that his office is no sinecure. You should remember, too, that to be a butter expert requires years of training and experience. This man worked 277 days out of the 365, and in that time bought 1,387 samples in different parts of this city and Brooklyn. Of these he delivered thirty-five, supposed to be spurious, to a chemist for analysis. He appeared in court during the year 179 times, his attendance taking in nearly all the police courts from the Tombs to Harlem and those in Brooklyn, and practically devoted 121 days of the year to prosecuting the frauds he had helped to detect. His purchases of samples were made in the evenings for the reason that retailers would have suspected him had he visited the stores in daylight. Thus you see, what with the purchasing of samples, the attendance in court, and the working up of evidence for prosecutions, his time was well occupied. This expert caused 26 arrests, and paid 1,720 visits to 518 butter and grocery stores. This is a fair sample of the work done by the whole force. My own opinion is that the department should be strengthened so that the whole State could be efficiently covered. As it is, only the salient points, such as New York, Brooklyn, and Buffalo, are provided with inspectors, and in many parts of the State violators of the law can pursue their nefarious traffic without much fear of official interference. Of the hundreds of cases that have come under my personal observation, at least 98 per cent. have been sales of these unwholesome compounds for and as butter. And yet, in a majority of them, the defendants declare under oath, either that they sold the stuff without knowing that it was oleomargarine, or that they told the purchaser what it was. Many of our inspectors reported that on their first visit to a store they failed to obtain the imitation butter, but that on the second or third they seldom failed. We can du nothing with the manufacturers, for while they are morally responsible for the sale of the stuff they evade legal responsibility for selling it for what it is; and if we ever proceed against them, it must be under that clause of the law which forbids the coloring of their food product to simulate dairy butter. We must confine ourselves, therefore, to the retailers."
Since the above interview was printed a manufacturer in Brooklyn has been convicted, the rulings of the Court being based on the decision in the Apperby case (which is duly detailed in the chapter on decisions), and now there is every probability that manufacturers will be vigorously prosecuted, so far as New York is concerned.
IMPORTANT DECISIONS. The following are the most important decisions thus far rendered as to the constitu. tionality of prohibitive laws. The decision in the first case mentioned—that of The People against Morris Marx, was seized upon by the dishonest dealers as a pretext for continuing their swindle, but subsequent action by the Courts convinced them that they had acted pics cipitately and a number of convictions under other sections of the act persuaded them that the law was still in force.
THE MARX CASE.
COURT OF APPEALS.
Appellant. RAPALLO, J.-The defendant was convicted in the Court of General Sessions, of the City and County of New York, of a violation of the Sixth Section of an act entitled, “An Act to prevent deception in sales of dairy products ” (chap. 202 of the Laws of 1884).
On appeal to the General Term of the Supreme Court in the First Department the conviction was affirmed, and the defendant now appeals to this court from the judgment of affirmance.
The main ground of the appeal is that the section in question is unconstitutional and void.
The section provides as follows: “Sec. 6. No person shall manufacture out of any oleag. inous substances, or any compound of the same, other than that produced from unadulterated milk, or of cream from the same, any article designed to take the place of butter or cheese produced from pure or unadulterated milk or cream of the same, or shall sell or offer to sell he same as an article of food. This provision shall not apply to pure skim-milk cheese, produced from pure skim milk.”
The rest of the section subjects to heavy punishments by fine and imprisonment “whoever violates the provisions of this section.”
The indictment charged the defendant with having, on the 31st of October, 1884, at the City of New York, sold one pound of a certain article manufactured out of divers oleaginous substances and compounds thereof, other than those produced from unadulterated milk, to one J. M., as an article of food, the article so sold being designed to take the place of butter produced from pure unadulterated milk or cream, It is not charged that the article so sold was represented to be butter, or was sold as such, or that there was any intent to deceive or defraud, or that the article was in any respect unwholesome or deleterious, but simply that it was an article designed to take the place of butter made from pure milk or cream.
On the trial, the prosecution proved the sale by the defendant of the article known as oleomargarine or oleomargarine butter. That it was sold at about half the price of ordinary dairy butter. The purchaser testified that the sale was made at a kind of factory, having on the outside a large sign,“ oleomargarine.” That he knew he could not get butter there, but knew that oleomargarine was sold there, and the District-Attorney stated that it would not be claimed that there was any fraudulent intent on the part of the defendant, but that the whole claim on the part of the prosecution was that the sale of oleomargarine, as a substitute for dairy butter, was prohibited by the statute.
On the part of the defendant, it was proved by distinguished chemists that oleomargarine was composed of the same elements as dairy butter. That the only difference between them was that it contained a smaller proportion of a fatty substance known as butyrine. That this butyrine exists in dairy butter only in a small proportion from three to six per cent. That it exists in no other substance than butter made from milk, and is introduced into oleomargarine butter by adding to the oleomargarine stock some milk, cream, or butter, and churning, and when this is done it has all the elements of natural butter, but there must always be a smaller percentage of butyrine in the manufactured product than in butter made from milk. The only effect of the butyrine is to give flavor to the butter, and has nothing to do with the wholesomeness. That the oleaginous substances in' the oleomargarine are substantially identical with those produced from milk or cream. Professor Chandler testified that the only difference between the two articles was that dairy butter had more butyrine. That oleomargarine contained not over one per cent. of that substance, while dairy butter might contain four or five per cent.; and that if four or five per cent. of butyrine were added to the oleomargarine, there would be no difference; it would be butter; irrespective of the sources, they would be the same substances. According to the testimony of Professor Morton, whose statement was not controverted or questioned, oleomargarine, so far from being an article devised for purposes of deception in trade, was devised in 1872 or 1873 by an eminent French scientist who had been employed by the French government to devise a substitute for butter.
Further testimony to the character of the article being offered, the District Attorney an'nounced that he did not propose to controvert that already given. Testimony having been given to the effect that oleomargarine butter was precisely as wholesome as dairy butter, it was, on motion of the District Attorney, stricken out, and the defendant's counsel excepted. The broad ground was taken at the trial, and boldly maintained on the argument of this appeal, that the manufacture or sale of any oleaginous compound, however pure and wholesome, as an
article of food, if it is designed to take the place of dairy butter, is by this act made a crime. The result of the argument is that if, in the progress of science, a process is discovered preparing of beef-tallow, lard, or any other oleaginous substance, and communicating to it a palatable flavor so as to render it serviceable as a substitute for dairy butter, and equally nutritious and valuable, and the article can be produced at a comparatively small cost, which will place it within the reach of those who cannot afford to buy dairy butter, the ban of this statute is upon it. Whoever engages in the business of manufacturing or selling the prohibited product is guilty of a crime; the industry must be suppressed; those who could make a livelihood by it are deprived of that privilege The capital invested in the business must be sacrificed, and such of the people of the State as cannot afford to buy dairy butter must eat their bread unbuttered.
The references which have been here made to the testimony on the trial are not with the view of instituting any comparison between the relative merits of oleomargarine and dairy butter, but rather as illustrative of the character and effect of the statute whose validity is in question. The indictment upon which the defendant was convicted does not mention oleomargarine, neither does the section (Sec. 6) of the statute, although the article is mentioned in other statutes which will be referred to. All the witnesses who have testified as to the qualities of oleomargarine may be in error, still that would not change a particle the nature of the question or the principles by which the validity of the act is to be tested.
Section 6 is broad enough in its terms to embrace not only oleomargarine but any other compound, however wholesome, valuable, or cheap, which has been or may be discovered or devised forthe purpose of being used as a substitute for butter. Every such product is rigidly excluded from manufacture or sale in this State.
One of the learned judges who delivered opinions at the General Term endeavored to sustain the act on the ground that it was intended to prohibit the sale of any artificial compound as butter or cheese made from unadulterated milk or cream; that it was that design to deceive which the law rendered criminal. If that were a correct interpretation of the act, we should concur with the learned judge in his conclusion as to its validity, but we could not concur in his further view that sạch an offense was charged in the indictment or proved upon the trial. The express concessions of the prosecuting officer are to the contrary. We do not think that section six is capable of the construction claimed. The prohibition is not of the manufacture or sale of an article designed as an imitation of dairy butter or cheese, or intended to be passed off as such, but of an article designed to take the place of dairy butter or cheese. The artificial product might be green, red or white, instead of yellow, and totally dissimilar in appearance to ordinary dairy butter, yet it might be designed as a substitute for butter, and if so would fall within the prohibition of the statute. Simulation of butter is not the act prohibited. There are other statutory provisions fully covering that subject.
Chapter 215 of he Laws of 1882, entitled “ An act to regulate the manufacture and sale of oleomargarine, or any form of imitation butter and lard, or any form of imitation cheese, for the prevention of fraud and the better protection of the public health,” by its first section prohibits the introduction of any substance into imitation butter or cheese for the purpose of imparting thereto a color resembling that of yellow butter or cheese. The second section prohibits the sale of oleomargarine or imitation butter thus colored, and the third section prohibits the sale of any article in semblance of natural cheese not the legitimate product of the dairy unless plainly marked - imitation cheese.”
Chapter 238 of the Laws of 1882 is entitled “ An Act for the protection of dairymen, and to prevent deception in the sales of butter and cheese," and provides (Sec. I) that every person who shall manufacture for sale, or offer for sale, or export any article in semblance of butter or cheese, not the legitimate product of the dairy, must distinctly and durably stamp on the side of every cheese, or on the top and side of every tub, firkin, or package, the words voleomargarine butter;" or if containing cheese, “ imitation cheese," and Chapter 246 of the Laws of 1882, entitled “ An act to prevent fraud in the sale of oleomargarine, butterine, suine, or other substances not butter," makes it a misdemeanor to sell at wholesale or retail any of the above articles, representing them to be butter.
These enactments seem to cover the entire subject of fraudulent imitations of butter, and of sales of other compounds as dairy products, and they are not repealed by the act of 1884, although that act contains an express repeal of nine other statutes, eight of which are directed against impure or adulterated dairy products, and one against the use of certain coloring matter in oleomargarine. The provisions of this last act are covered by one of the acts of 1882, above cited, and the provisions of the repealed act in relation to dairy products are covered by substituted provisions in the act of 1884, but the statutes directed against fraudulent simulations
of butter, and the sale of any such simulations as dairy butter, are left to stand. Further stat· utes to the same effect were enacted in 1885. Consequently, if the provisions of section six
should be held invalid, there would still be ample protection in the statutes against fraudulent imitations of dairy butter, or sales of such imitations as genuine.