40 OLEOMARGARINE AND BUTTERINE. 



THE MARX CASE. 



COURT OF APPEALS. 

 THE PEOPLE, 



Respondent, 

 agst. 

 MORRIS MARX, 



Appellant. 



RAPALLO, J. The defendant was convicted in the Court of General Sessions, of the City 

 and County of New York, of a violation of the Sixth Section of an act entitled, " An Act to 

 .prevent deception in sales of dairy products " (chap. 202 of the Laws of 1884). 



On appeal to the General Term of the Supreme Court in the First Department the convic- 

 tion was affirmed, and the defendant now appeals to this court from the judgment of affirm- 

 ance. 



The main ground of the appeal is that the section in question is unconstitutional and void. 



The section provides as follows : " Sec. 6. No person shall manufacture out of any oleag- 

 inous substances, or any compound of the same, other than that produced from unadulter- 

 ated milk, or of cream from the same, any article designed to take the place of butter or cheese 

 produced from pure or unadulterated milk or cream of the same, or shall sell or offer to sell 

 he same as an article of food. This provision shall not apply to pure skim-milk cheese, pro- 

 duced from pure skim milk." 



The rest of the section subjects to heavy punishments by fine and imprisonment " who- 

 ever violates the provisions of this section." 



The indictment charged the defendant with having, on the 3ist of October, 1884, at the 

 City of New York, sold one pound of a certain article manufactured out of divers oleaginous 

 substances and compounds thereof, other than those produced from unadulterated milk, to one 

 J. M., as an article of food, the article so sold being designed to take the place of butter pro- 

 duced from pure unadulterated milk or cream, It is not charged that the article so sold was 

 represented to be butter, or was sold as such, or that there was any intent to deceive or de- 

 fraud, or that the article was in any respect unwholesome or deleterious, but simply that it was 

 an article designed to take the place of butter made from pure milk or cream. 



On the trial, the prosecution proved the sale by the defendant of the article known as oleo- 

 margarine or oleomargarine butter. That it was sold at about half the price of ordinary dairy 

 butter. The purchaser testified that the sale was made at a kind of factory, having on the out- 

 side a large sign, " oleomargarine." That he knew he could not get butter there, but knew 

 that oleomargarine was sold there, and the District-Attorney stated that it would not be 

 claimed that there was any fraudulent intent on the part of the defendant, but that the whole 

 claim on the part of the prosecution was that the sale of oleomargarine, as a substitute for dairy 

 butter, was prohibited by the statute. 



On the part of the defendant, it was proved by distinguished chemists that oleomargarine 

 was composed of the same elements as dairy butter. That the only difference between them 

 was that it contained a smaller proportion of a fatty substance known as butyrine. That this 

 butyrine exists in dairy butter only in a small proportion from three to six per cent. That it 

 exists in no other substance than butter made from milk, and is introduced into oleomargarine 

 butter by adding to the oleomargarine stock some milk, cream, or butter, and churning, and 

 when this is done it has all the elements of natural butter, but there must always be a smaller 

 percentage of butyrine in the manufactured product than in butter made from milk. The only 

 effect of the butyrine is to give flavor to the butter, and has nothing to do with the whole- 

 someness. That the oleaginous substances in the oleomargarine are substantially identical 

 with those produced from milk or cream. Professor Chandler testified that the only differ- 

 ence between the two articles was that dairy butter had more butyrine. That oleomargarine 

 contained not over one per cent, of that substance, while dairy butter might contain four or 

 five percent.; and that if four or five percent, of butyrine were added to the oleomargarine, 

 there would be no difference; it would be butter; irrespective of the sources, they would be 

 the same substances. According to the testimony of Professor Morton, whose statement 

 was not controverted or questioned, oleomargarine, so far from being an article devised for 

 purposes of deception in trade, was devised in 1872 or 1873 by an eminent French scientist 

 who had been employed by the French government to devise a substitute for butter. 



Further testimony to the character of the article being offered, the District Attorney an- 

 nounced that he did not propose to controvert that already given. Testimony having been 

 given to the effect that oleomargarine butter was precisely as wholesome as dairy butter, it was, 

 on motion of the District Attorney, stricken out, and the defendant's counsel excepted. The 

 broad ground was taken at the trial, and boldly maintained on the argument of this appeal, 

 that the manufacture or sale of any oleaginous compound, however pure and wholesome, as an 



