Commissioner of Agriculture. 71 



Mr. Justice Bischoff at Special Term declared the section 27 

 of the Agricultural Law unconstitutional and accordingly sus- 

 tained the demurrer. 



His opinion (fols. 25, et seq.), contains a clear exposition of the 

 law. 



The plaintiff appealed from the judgment entered upon Mr. 

 Justice Bischoff's decision to the Appellate Division for the First 

 Judicial Department, which unanimously affirmed the judgment 

 below. Mr. Justice McLaughlin's opinion (fols. 49 et seq.), 

 adopted by entire court, contains an exhaustive review of the 

 law. The plaintiff now appeals to this court from the judgment 

 and order of affirmance of the Appellate Division. 



Upon this appeal the defendant raises not only the contention 

 that that portion of section 27 of the Agricultural Law which 

 was added by chapter 534 of the Laws of 1900, is unconstitu- 

 tional, but also the contention that section 37 of the Agricul- 

 tural Law, which fixes the penalty for a violation of this and of 

 other sections of the Agricultural Law T , does not authorize any 

 civil action, but merely a criminal one. The latter point has 

 never been raised in any of the courts in this State, and as it is 

 of importance, because of the large number of actions pending 

 under this and other clauses of the Agricultural Law, we earn- 

 estly request the court to pass upon it. 



FIRST POINT. 



The Complaint Does Not State Facts Sufficient to Consti- 

 tute a Cause of Action Because Section 27 of the Agri- 

 cultural Law is Unconstitutional. 



It is not charged that the defendant sold or offered for sale 

 any butter or dairy product containing a preservative, but it is 

 alleged that the defendant sold a substance or a matter called 

 " Preservaline," which w T as declared and advertised by him to be 

 a preservative of butter or other dairy products and which is a 

 preservative of butter or dairy products. And it is further al- 

 leged that the defendant advertised and offered it for sale with 



