Commissioner of Agriculture. 69 



People v. MeaUm, 133 N. Y., 214, held: " It is well settled that 

 the law may provide for the recovery in a civil action of a 

 penalty and for a criminal proceeding also by indictment for 

 same offense." 



For cases on constitutionality involving police power, see also 

 Powell v. Commonwealth:, (?) U. S., (?); Mazier v. Kansas, 123 U. S., 

 623; Laicion v. Steele, 119 N. Y., 226 and 152 U. S., 133; Schollen- 

 berger v. Pennsylvania; 171, U. S., 1; 74 N. Y., 509; 120 N. Y., 628; 

 110 N. Y., 418; 117 N. Y., 1; 144 N. Y., 529; 149 N. Y., 195; 105 

 N. Y., 123; 106 N. Y., 293; 106 N. Y., 321; 113 U. S., 27. 



The following are the brief and points of the defendants : 



COURT OF APPEALS OF THE STATE OF NEW YORK. 



The People of the State of Netc York, Appellant, against John S. 

 Biesecker, Respondent, No. 728. 



RESPONDENT'S BRIEF. 



Appeal from Judgment and Order of the Appellate Division 

 for the First Judicial Department Unanimously Affirm- 

 ing Final Judgment Sustaining Demurrer to Amended 

 Complaint Entered on Decision of Mr. Justice Bischoff 

 at Special Term. 



Statement. 



This is the first of a large number of actions brought through- 

 out the State to recover $100 penalty which it is claimed has 

 been incurred by various defendants through alleged violation 

 of section 27 of the Agricultural Law as amended by chapter 534 

 of the Laws of 1900. 



The only provision of the law which it is claimed has been 

 violated is as follows, being a portion of section 27, as amended 

 by chapter 534 of the Laws of 1900: 



" No person shall sell, offer or expose for sale, any butter or 

 other dairy products containing a preservative, but this shall 

 not be construed to prohibit the use of salt in butter or cheese, 

 or spirituous liquors in club or other fancy cheese or sugar in 

 condensed milk. No person or persons, firm, association or cor- 



