100 Ninth Annual Retort of the 



the Federal Courts, which, as we have shown, they are not, this 

 court is bound, since the adoption of the Fourteenth Amend- 

 ment to the Federal Constitution, to follow the decisions of the 

 Federal Courts, but in view of the fact that all of the New York 

 authorities seemingly against our contention are readily dis- 

 tinguishable, it is submitted that the court should certainly 

 follow the spirit of the law and of the constitutional provision 

 which would prohibit two such actions from being maintained. 

 In an} r event the statute should be construed in the spirit of the 

 Federal Constitution. 



It is, therefore, respectfully submitted that section 37 of the 

 Agricultural Law should be construed to authorize a criminal 

 but not a civil action, and that accordingly the complaint failed 

 to state facts sufficient to constitute a cause of action. 



From the foregoing discussion it follows that the judgment 



below should be affirmed, with costs to the respondent. 



New York, October 29, 1901. 



HOADLY, LAUTERBACH & JOHNSON, 



Attorneys for Respondent. 

 Of Counsel, 



Edward Lauterbach, 



Henry L. Scheuermann 



Herbert R. Limburgbr. 



The Court of Appeals rendered judgment for defendant, the 

 opinion of that court being rendered by Mr. Justice Cullen, as 

 follows: 



Cullen, J. This action is brought to recover a penalty for the 

 violation of section 27 of the Agricultural Law, as amended by 

 chapter 534 of the Laws of 1900. The provisions of that section 

 which it is alleged the defendant violated, are as follows: " 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 spir- 

 ituous liquors in club or other fancy cheese or sugar in con- 



