1)2 Ninth Annual Report of the 



chaser to sell it as kumyss, and under the plaintiff's own admis- 

 sion (pages 18-19), such a sale could not be constitutionally pro- 

 hibited. 



SECOND POINT. 



The Complaint Does Not State Facts Sufficient to Consti- 

 tute a Cause of Action, Because Section 37 of the Agri- 

 cultural Law, Which Prescribes the Penalty for Viola- 

 tion, if Capable of Construction at all, Must be Con- 

 strued to Authorize a Criminal But Not a Civil Action. 



The Agricultural Law is divided into six articles, the first 

 of which is entitled " General Provisions," and contains sections 

 1 to 12; the second in entitled "Dairy Products," and contains 

 sections 20 to 37; the third is entitled "Adulterated Vinegar" 

 and contains sections 50 to 53, and the other articles are respec- 

 tively entitled " Diseases of Domestic Animals," " Miscellaneous 

 Provisions " and " Laws Repealed." 



Section 37 of article II as originally enacted (L. 1893, ch. 338) 

 provided as follows: 



" Every person violating any of the provisions of this article 

 shall forfeit to The People of the State of New York the sum 

 of f 100 for every such violation." 



There was no provision making a violation of these provisions 

 punishable as a misdemeanor. 



It will be noticed that at this time the penalty was made uni- 

 form for each violation. 



At the end of article III there was a similar provision (section 

 53), fixing penalties for violations of provisions of that article 

 and there was a similar one in article IV (section 66). 



Section 37 of the Agricultural Law remained unchanged until 

 1897, when it was amended by chapter 554 of the laws of that 

 year. This act entirely changed the law. 



It amended section 37 to read as follows: 



" Every person violating any of the provisions of this article 

 shall forfeit to the People of the State of New York the sum of 

 not exceeding one hundred dollars for every such violation." 



