82 Ninth Annual Report of the 



or to that result, the legislation is invalid as plainly violative 

 of the constitutional provision under discussion." 



The court then considers the question of the validity of the 

 act as the exercise of the police power and of the health pro- 

 vision, and states that the law upon this subject is settled con- 

 clusively by /// re Jacobs, supra, and People v. Marx, 99 X. Y., 377 r 

 hereafter to be discussed. 



The case most similar to the one at bar is that of People v. 

 Marx, 99 N. Y., 377. 



The act under consideration in that case provided as follows: 



" § 6. No person shall manufacture out of any oleaginous sub- 

 stances, or any compound of the same, other than that produced 

 from unadulterated milk or of cream from the same, any article 

 designed to take the place of butter or cheese, produced from 

 pure unadulterated milk or cream of the same, or shall sell or 

 offer to sell the same as an article of food. This provision shall 

 not apply to pure skim milk cheese produced from pure skim 

 milk." 



A violation of the above section subjected the violator, under 

 the provisions of the act, to a penalty. It was held (p. 377) that 

 the act was unconstitutional, " inasmuch as the prohibition is 

 not limited to unwholesome or simulated substitutes, but abso- 

 lutely prohibits the manufacture or sale of any compound de- 

 signed to be used as a substitute for butter or cheese, however 

 wholesome, valuable or cheap it may be, and however openly 

 and fairly the character of the substitute may be avowed and 

 published." 



The court, after stating (p. 383) that the act by its terms was 

 " Broad enough in its terms to embrace not only oleomargarine, 

 but any other compound, however wholesome, valuable or cheap, 

 which has been or may be discovered or devised for the purpose 

 of being used as a substitute for butter," continued in the course 

 of its opinion (pp. 385-389): 



"It appears to us quite clear that the object and effect of 

 the enactment under consideration were not to supplement the 

 existing provisions against fraud and deception by means of 



