Commissioner of Agriculture. 65 



preservative and allow another preservative to be used. It is 

 general legislation for the whole State. 



In the case of People v. Marx, 99 N. Y., 377, the decision was 

 entirely based upon the fact that the oleomargarine was not 

 sold as butter, but was represented and offered for sale in the 

 place of butter. In that case the court said there was testimony 

 that oleomargarine was harmless. The opinion says: 



" The General Term has interpreted the act to prohibit the 

 sale of an artificial compound as genuine butter. If that is a 

 correct interpretation of the act, we shall concur, but we do 

 not so interpret the act. It is not to prevent the sale in imita- 

 tion, but a sale to take the place of." 



This statute in this case would not be against this defendant 

 if they sold their dairy product containing their " harmless pre- 

 servative " under a new name and in place of the real thing. If 

 it is in fact a harmless preservative, no act could prevent a 

 business in it in place of the real thing. 



The case of People v. Gilson, 109 N. Y., 389, involved the statute 

 making it a misdemeanor for any person to sell food and give 

 away any other thing as a gift as part of the same transaction. 

 The decision was entirely based on the view that the act com- 

 plained of was " Evidently that kind which has been so frequent 

 of late, the kind which is given to protect one class in the com- 

 munity against the fair, free and full competition of some other 

 class." 



The statute in that case had not the slightest tendency to 

 prevent dealing in impure, unwholesome and adulterated food. 



The case of People ex rel. Tyroler v. Warden, 157 N. Y v 116, 

 was decided upon the same reason. 



The statute against the business of cut rate ticket sellers was 

 legislation in favor of one class against another in the com- 

 munity, and having no clear intent to protect either the public 

 health nor indeed to prevent fraud. 



2. Illustrations of valid exercise of police power: 



In the People ex rel. Nechamous v. Warden, 144 N. Y., 529, the 

 court held to be constitutional an act which required a man to 

 5 



