Commissioner of Agriculture. 91 



brief, and it is fully discussed in the opinions of the Special 

 Term and the Appellate Division. The reference to that portion 

 of section 13 of the old law cited, on the middle of page 16 of the 

 appellant's brief as having been passed upon by the court in the 

 Cipperly case, is entirely misleading. The court never passed on 

 that portion of the law at all, but only upon the portion cited 

 on page 15 of the appellant's brief. 



(d.) The fact that section 36 of the Agricultural Law, which 

 was enacted long prior to the act under consideration herein, 

 states that every section of the Agricultural Law was enacted 

 to prevent deception and for preserving the public health, upon 

 which apparently some stress is laid at pages 7 and 18 of the 

 appellant's brief, is not conclusive upon the question whether as 

 a matter of fact section 27 is a health law and enacted to pre- 

 vent fraud. On the contrary, the court must determine that from 

 the statute itself, and no mere say-so of the Legislature in 

 another portion of the law enacted prior to section 27 can relieve 

 the court from this duty. 



(e.) The argument that this statute was enacted to prevent 

 fraud is entirely without force. The appellant concedes that 

 the statute cannot constitutionally prohibit the sale of matzoon, 

 sparklets, kumyss and other substances (Appellant's Brief, pages. 

 18-19), but seems to contend that the act does prohibit merely 

 the sale of milk containing a preservative " as milk," and ap- 

 parently he seeks to convince the court that the defendant sold 

 this preservative with the intention that the purchaser should 

 mix it with milk and sell the mixture " as milk." Such an argu- 

 ment is its own refutation. The defendant does not care under 

 what name the purchaser from him sells " preservaline " or milk 

 containing " preservaline." He does not care whether it is sold 

 under the name of kumvss or anv other name. All he cares 

 about is to sell " preservaline." 



Under the appellant's own reasoning the judgment must be 

 affirmed because the complaint fails to allege that the defendant 

 intended the purchaser to mix the preservative with milk and to 

 sell it " as milk." Non constat, but that he intended the pur- 



