72 Seventeenth Annual Report of the 



the requirements of the law, that is, that it contained no more than 88 per 

 cent, of water, and the requisite pei'centage of solids and fats, and he also 

 testified that such milk was in fact wholesome, and not deleterious. The 

 appellant claims that in so far as the act prohibits the sale of wholesome 

 milk, mdTely because it has been deprived of sonic of its richness, it is uncon- 

 stitutional and he seizes upon a sentence in the prevailing opinion by Judge 

 Vann in People v. Bowen (182 N. Y. 1, 10), which said: "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 opinion goes on to show that the act is aimed as well at fraud in the 

 sale of milk as at unwholesomeness. Whether the milk after the cream had been 

 taken from it was or was not wholesome, it is evident that the defendant was 

 guilty of fraud towards his customers, for there is nothing to show that he 

 ever sold it as milk from which the cream had been taken, lie says that he 

 sold it as " standard " milk. The statute contains no definition of "standard " 

 milk, and it is evident that all the defendant means is that he sold it as milk 

 having the prescribed percentage of water, solids and fat. The defendant 

 objects that he should not have been subjected to more than one, or at most 

 two penalties, and cites to us Griffin v. Interurban Street R. Co. (179 N. Y. 

 438; 180 id. 538); United States Condensed Milk Co. v. Smith (110 App. 

 Div. 15) and other cases in which a recovery of what are termed cumulative 

 penalties has been disallowed. Each one of these cases has turned in great 

 measure upon the language of the particular act under which the penalties 

 were sought to be recovered, and none of them has gone so far as to say 

 that a judgment for more than one penalty would not be allowed if the 

 Legislature had clearly indicated an intention that such a recovery might 

 be had. The language of section 37 of the Agricultural Law (as amended 

 by Laws of 1901, chapter 656) is very comprehensive and precise, and, in our 

 opinion, expressly provides for the collection of more than one penalty in 

 a single action. It provides that: "Every person violating any of the pro 

 visions of the Agricultural Law shall forfeit to Che people of the State of 

 New York the sum of not less than $50 nor more, than $100 for the first 

 violation, and not less than $100 or more than $200 for the second and 

 each subsequent violation. * * * When the violation consists of the 

 sale * * * of any prohibited article or substance, the sale of each one 

 of several packages shall constitute a separate violation. * * * " The pro- 

 vision for one penalty for a first violation, and for a different penalty for 

 the second and each subsequent violation, coupled with the explicit provision 

 that the sale of each package shall constitute a separate violation, can be 

 construed only as providing that more than one penalty may be collected 

 when the defendant has been guilty of a series of violations. If this was the 

 legislative intent, these accumulated penalties can certainly be enforced in a 

 single action, for to require a separate action for each separate violation 

 would impose upon both the State and the defendant a useless burden of 

 litigation. 



