Commissioner of Agriculture. oo 



was not thinking of this defendant nor the destruction of his 

 business. Nor was it thinking, as in the case of People v. Marx, 

 99 N. Y., 377, and in re Jacobs, 98 X. Y., 98, of upholding some 

 special industry or class. 



3. Any dairy product containing a preservative is harmful to 

 the public health: 



If a preservative in a dairy product is harmful, even the de- 

 fendant will not deny the power of the Legislature to prohibit 

 its use. The court must not be deceived by the definition of the 

 word into believing that the substance itself, because called by 

 that name, must be harmless. The positive charge is here made 

 and plaintiff could have proven it on trial, that any chemical 

 preservative introduced into and mixed with a dairy product is 

 harmful just because it does preserve. Plaintiff could also have 

 shown that most, if not all, the so-called preservatives have as 

 their main element the chemical called formaldehyde, which is 

 the chief element in the embalming liquors used by undertakers, 

 and which is generally used by photographers to coat their 

 plates with a hard gelatinous surface. 



In re Jacobs this court took judicial notice of the public 

 demand for tobacco, of its nature and its quality. Plaintiff 

 urges that the court now take judicial notice of the fact that 

 dairy products are of a perishable nature tending to fermenta- 

 tion and decay; that digestion and assimilation of dairy prod- 

 ucts in the human body is nothing more or less than hastened 

 fermentation and decay; that any substance introduced into 

 dairy products and mixed with them, which tends to hold to- 

 gether its elements and molecules so as to defeat the natural 

 progress to fermentation and decay would continue to have the 

 same effect when that dairy product had passed into the human 

 stomach. It could not be a preservative unless it resisted the 

 tendencv of the food toward decav; this same resistance would 

 be made against the fermentation and digestion of the food in 

 the human stomach. 



The Legislature examined into the various so-called preserva- 

 tives, as must be evident from the exceptions which it makes 



