the arguments of counsel seemed to call for a brief expression by us of our view of the principle of state interference.

The order should be affirmed.

All concur.

Order affirmed.

Supreme Court-General Term-Fourth Department.

December, 1893.

PEOPLE v. ANTHONY GIRARD.

(56 St. Rep. 47; 73 Hun, 613).

1. CONSTITUTIONAL LAW-VINEGAR ACT.

The provisions of the vinegar act," chap. 515, Laws of 1889, are within the police power of the legislature, and the act is constitutional. 2. CRIMINAL LAW CONCURRED IN BY MORE THAN ONE, PUNISHABLE SEVERALLY.

The rule at common law that every crime, as far as respects the guilt and punishment of the parties engaged in the perpetration of it is several; and that if two or more persons concur in the commission of an offense, each offender is liable to a several punishment, extends to statute offenses as well as those which are punishable by the common law.

Appeal from a judgment entered upon the verdict for $200 damages and $92.79 costs.

Plaintiff's complaint states that the dairy commissioner prosecutes this action in the name of the People to recover a penalty, in pursuance of the provisions of chapter 515 of the Laws of 1889, entitled "An act to prevent deception in sales of vinegar," and charging the New York state dairy commissioner with its enforcement," passed June 15, 1889. The complaint alleges: "That the defendant, on or about the 17th day of March, 1892, at his store or place of busine-s in the city of Utica, ** did, in violation of sections 1, 2, 3, 4 and 5

*

of the act before referred to, and in contravention of the letter and spirit thereof at the time and place aforesaid, did sell and deliver, keep for sale and delivery, as and for cider vinegar, a

compound or mixture which was not cider vinegar, nor was the same made from pure apple juice, which did not have or contain an acidity equivalent to the presence therein of at least four and one-half percentum, by weight, of absolute acetic acid, and said compound and mixture so sold as and for cider vinegar, as aforesaid, did have and contain less than four and one-half percentum, by weight, of acidity, and did contain less than two percentum, by weight, of cider vinegar solids upon full evaporation over boiling water, and the mixture and compound so sold and delivered, offered for sale and kept for sale by the defendant at the time and place aforesaid, as and for cider vinegar, was made and produced in imitation or resemblance of cider vinegar, but said compound or mixture was not cider vinegar, nor was the same made from pure apple juice; and said mixture and compound so sold and delivered, offered for sale and kept on sale by the defendant at the time and place aforesaid, contained a preparation of sulphuric acid and other deleterious substances injurious to health, with artificial coloring matter to color the same in imitation and resemblance of pure cider vinegar; and the barrel from which the same was drawn, sold and delivered, and in which the compound was kept, stored ready for sale, was branded with the name of 'Williams Bros. & Charbenneau,' doing business at 'Detroit, Michigan,' with the words 'Amber Colored Vinegar, 46 gal.', in contravention of the statute in such case made and provided, and the compound aforesaid was not cider vinegar, nor was the same made from pure apple juice."

The answer of the defendant contained a denial of "each and every allegation in said complaint contained," only. When plaintiff rested the defendant moved for a nonsuit "on the ground that no cause of action has been made out by the evidence." The motion was denied and the defendant excepted. At the close of the evidence plaintiff asked for a direction of a verdict "for one penalty under section 2 and the last clause of section 4 of the Vinegar Act." Defendant moved to dismiss the complaint "on the ground that the facts proved do not establish a cause of action against this defendant, in that, the cause of

action, if any, appears to be against the defendant and John Geronimo jointly, as partners, and cannot be enforced against this defendant individually, until the partnership assets are exhausted." To that motion the court replied, "there is no allegation in the answer of defect of parties. I deny the motion to dismiss the complaint." To that the defendant took an exception. Thereupon the court stated its view of the case and intimated an intention to order a verdict for the people of one penalty for $200. The defendant thereupon took an exception. Then the defendant asked "to go to the jury on the evidence under section 2 of the act, as to whether or not the defendants sold or offered for sale vinegar in imitation or resemblance of cider vinegar, which is not cider vinegar." The request was refused and the defendant took an exception. The defendant then asked the court "to instruct the jury that that part of section 4 relied upon for the direction of a verdict, to wit, the the prohibition of an artificial coloring matter, in that section, is unconstitutional." The court refused and the defendant took an exception. Thereupon the defendant asked "to go to the jury upon all of the evidence in the case as to the liability of the defendant." It was refused and an exception taken.

Miller, Fincke & Brandegee, for appellant.

Risley & Robinson and Henry M. Love, for respondents.

HARDIN, P. J.-Manifestly the legislature of 1889 in the passage of chapter 515 of the laws of that year assumed to exercise its police power. The title of the act is as follows: "An act to prevent deception in the sales of vinegar, and charging the New York State Dairy Commissioner with its enforcement." An evil practice was existing in the state at the time of the adoption of the act and deleterious substances were being used in the manufacture of vinegar; substances which were detrimental to the health of the people consuming the impure and deleterious article being manufactured and sold and used to the detriment of the health of the citizens VOL. IX-2

of the state. Evidently the intention of the legislature was, through its police power, to protect the citizens of the state. The act, after containing certain prohibitions and restrictions, in its sixth section contained the following provision: "Whoever, by himself or another, violates any of the provisions of any of the foregoing sections shall be guilty of a misdemeanor and upon conviction, shall be punished by a fine of not less than fifty dollars nor more than one hundred dollars." Then follows the seventh section, which provides as follows: "Section 7. If any person, by himself or another, shall violate any of the provisions of sections 1, 2, 3, 4 or 5 of this act, he shall, in addition to the fines and penalties herein prescribed for each offense, forfeit and pay a fixed penalty of two hundred dollars for each offense. Such penalties shall be recovered, with costs, in any court of this state having jurisdiction thereof, in an action to be prosecuted by the New York State Dairy Commissioner or any of his assistants in the name of the People of the State of New York." Then follows an important provision relating to the proceedings in the prosecution or in suit for penalty found in section 8 of the act which is as follows: "The prosecution shall not be compelled to elect in any trial for the misdemeanors or suits for the penalties for the violations of sections 1, 2, 3, 4, and 5, where the indictment, information or complaint charges a violation of any two or more of such sections, between the charges or counts under such different sections." Applying this rule given by the statute it was not necessary that the plaintiff should elect under which section a recovery of the penalty sought should be had; it was sufficient for the trial, and it is sufficient here, if the case made at the trial presents a violation of any of the provisions found in sections 1, 2, 3, 4 and 5 of the enactment. The learned trial judge rested his conclusion upon the evidence, which in his opinion, established a violation of section 4 of the act.

That sec

ion provides that: "No person shall manufacture, produce, sell, keep for sale or offer for sale, any vinegar which shall contain any preparation of lead, copper, sulphuric acid or other, ingredients injurious to health, or any artificial coloring matter."

The evidence produced at the trial quite satisfactorily established the fact that the defendant kept for sale, offered for sale and sold vinegar, so called, containing "artificial coloring matter." We think there was no conflict in the evidence upon that subject. Indeed, in the argument of the learned counsel for the appellant, it is assumed that the evidence established that fact; and he also assumes that the prohibition "is absolute and without regard to whether it causes the product to resemble cider vinegar or unmistakably distinguishes it from such vinegar.' We think the provision was inserted for the purpose of preventing "deception in sale of vinegar," and to protect the public health, and that the provision is valid and is within the police power of the legislature.

In People v. West, 106 N. Y. 296; 8 St. Rep. 713, Andrews, J., said: "It is the province of the legislature to determine in the interest of the public what shall be permitted or forbidden, and the statutes contain very many instances of acts prohibited, the criminality of which consists solely in the fact that they are prohibited, and not at all in their intrinsic quality." The general scope of the act was "to prevent deception in sales of vinegar," as appears by the title of the act. We think the provision of section 4, which is relied upon by the People to sustain the recovery, is valid, and that its terms are supported by the principles laid down in People v. West, supra, and in People · v. Arensberg, 105 N. Y. 123; 6 St. Rep. 789.

In People v. Gilson, 109 N. Y. 389; 16 St. Rep. 185, it was held, viz.: "While it is for the legislature generally to determine what laws and regulations are needed to protect the public health and serve the public comfort and safety, and the exercise of its discretion in this respect is not the subject of judicial review, yet a statute, to be upheld as an exercise of the police power, must have some relation to those ends." We think the statute before us very clearly has "some relation to those ends," and that the statute before us is quite distinguishable from the one under consideration in People v. Gilson, supra. It was for the legislature to say whether the insertion of any "coloring matter" in vinegar was calculated to "baffle ordinary in