Commissioner of Agriculture. 57 



The defendant protests that the Legislature has put a ban on 

 what he would call a harmless preservative as well as on the 

 harmful. He would have the statute limited so as to read: 



'•' No person shall sell any dairy product containing a harm- 

 ful preservative." 



Any such enactment would cover this State with all kinds 

 of food adulterants christened by their makers " harmless pre- 

 servatives." The State would be obliged to pursue every one 

 through all of the courts clear up to this forum before any one 

 of the adulterants would give up the fight and retire from the 

 traffic in the public health. Such an act would be a public 

 announcement to every chemical manufacturer: "Come to New 

 York and adulterate dairy products and take your chances in 

 getting a jury to call you a harmless preservative." Even 

 though the " preservative " might be held to be most harmful 

 he would be doing business for a year behind the law's delays 

 at a profit of such size as to make the expense of litigation very 

 worth while. If the question of harm or not-harm is not to be 

 left to this court, but is to be left to a jury there would be one 

 decision in Buffalo and another in New York city. The entire 

 State would be divided into a camp of juries, a camp of is-it- 

 harmful and a camp of is-it-not-harmful. Under one Appellate 

 Division a preservative would be harmless and sold with im- 

 punity, under another it would be harmful and barred from 

 sale. 



The State simply could not collect evidence and otherwise 

 cope with the army of adulterants. Like a horde of locusts 

 their very numbers would overwhelm opposition. This situa- 

 tion would result just because defendant thinks it better that 

 ninety-nine guilty adulterants should escape rather than that 

 the liberty of one innocent adulterant should be violated. 



In matters of the food of the general public, is it not public 

 policy, is it not legislation for the good of the whole, even at 

 the sufferance of a few, is it not a valid exercise of the police 

 power, that one harmful adulterant — " preservaline," if defend- 

 ant pleases — should suffer in his liberty of manufacture and sale 



