Commissioner of Agriculture. 49 



product containing a preservative — to be unconstitutional and 

 therefore void. 



The issues of law thus raised by the demurrer were brought 

 on for argument before Justice Bischoff at the October Special 

 Term of the Supreme Court in New York county and that court 

 sustained the demurrer. Judgment dismissing the complaint 

 was entered December 11, 1900. Plaintiff appealed to the Ap- 

 pellate Division of the Supreme Court for the First Department, 

 on December 22, 1900. Said appeal came on for argument on 

 March 8, 1901, and an order of said court affirming the judg- 

 ment at Sperial Term was filed April 16, 1901. Final judgment 

 was entered on the order of the Appellate Division on April 

 18, 1901, from which judgment an appeal to this court was taken 

 May 7, 1901. On October 1. 1901, an order was made by this 

 court placing the appeal upon the present calendar and stipula- 

 tion was filed by the parties hereto fixing the date of the argu- 

 ment for October 29, 1901. 



POINT I. 



The Prohibition Against the Sale of Dairy Products Con- 

 taining a Preservative is Constitutional if Enacted to 

 Protect the Public Health or to Prevent Fraud. 



The defendant advertised for sale a substance known as 

 ■" preservaline," which he said was a " preservative," to be mixed 

 with and put into milk, and by inducing persons to purchase 

 this substance and mix it with milk he became a violator. The 

 contention of defendant is, that the prohibition against selling 

 a dairy product containing a " preservative " is in restraint of 

 liberty, and is the taking of property without due process of 

 law, and that he cannot be held liable for inducing anyone to 

 violate an unconstitutional law. 



"This court has frequently defined liberty in its broad sense 

 as understood in this country to mean, the right, not only of 

 freedom from actual servitude, imprisonment or restraint, but 

 the right of one to use his faculties in all lawful ways, to live 

 and work where he will, to earn his livelihood in anv lawful 

 4 



