Commissioner of Agriculture 71 



state, renders this provision of the statute invalid. In this case 

 the contention of the defendant was that that part of the Agricul- 

 tural LaAv forbidding the sale of skimmed milk in New York and 

 Kings counties was unconstitutional or invalid, because the com- 

 modity was recognized by the same law as being a healthful, 

 wholesome article of food by its sale's being permitted in all the 

 other counties of the state, and that such discrimination made 

 it invalid. This contention was not sustained, although the 

 opinion of the Court of Appeals was not unanimous, two of the 

 judges agreeing with that contention, so I hat, as far as the court 

 decisions are concerned, the Agricultural Law relative to the sale 

 of skimmed milk has been sustained and that commodity cannot 

 be sold in New York and Kings counties. The court approved 

 and followed the doctrine laid down in People v. Koster (121 

 A. D. 852), in which case Justice Scott wrote the following 

 opinion: 



Appeal by defendant from a judgment for penalties for selling adulter- 

 ated milk, and from an order denying motion for new trial. 



There is no serious question as to the facts. The defendant is a milk 

 dealer in the city of New York, and lias a creamery and two receiving 

 stations in Delaware County. He collected the milk at his creamery, and 

 had it shipped to New York, where he sold it in cans. It was the habit of 

 his employees, in the morning prior to each shipment, to take from each can 

 at the creamery about two quarts of cream, and then to fill up the can with 

 milk from other cans from which the same quantity of cream had thus 

 been taken. The evidence showed, upon two days, 25 separate and distinct 

 sales to as many individuals, to whom were sold in all 30 separate cans 

 of skimmed milk. Many more violations were charged in the complaint, 

 but only the number above stated were proven. The evidence justified the 

 belief that the defendant knew all about what his employees were doing, and 

 on this appeal he does not claim ignorance of that fact on his part, although 

 he does claim ignorance of the law. 



The defendant's acts were precisely within the letter of the Agricultural 

 Law. Section 22 of that law (Laws of 1893, chapter 338, as amended by 

 Laws of 1905, chapter G02) provides that: "No person shall sell or exchange 

 or offer or expose for sale or exchange, any * * * adulterated or 

 unwholesome milk," etc., and section 20 of the same act provides that: 'The 

 term, adulterated milk, when so used (i. e., in the act) means: * 



"7. Milk from which any part of the cream has been removed. * * * 

 All adulterated milk shall be deemed unclean, unhealthy, impure and 

 unwholesome." 



Thus it clearly appears that the defendant sold milk declared by law 

 to be adulterated and unwholesome. It was testified to by a chemist called 

 by plaintiff that the milk sold by defendant came up in other respects to 



