OLEOMARGARINE AND BUTTERINE. 41 



.article of food, if it is designed to take the place of dairy butter, is by this act made a crime. 

 The result of the argument is that if, in the progress of science, a process is discovered prepar- 

 ing of beef-tallow, lard, or any other oleaginous substance, and communicating to it a palata- 

 ble flavor so as to render it serviceable as a substitute for dairy butter, and equally nutritious 

 and valuable, and the article can be produced at a comparatively small cost, which will place 

 it within the reach of those who cannot afford to buy dairy butter, the ban of this statute is 

 upon it. Whoever engages in the business of manufacturing or selling the prohibited product 

 is guilty of a crime ; the industry must be suppressed ; those who could make a livelihood by 

 it are deprived of that privilege The capital invested in the business must be sacrificed, and 

 ?uch of the people of the State as cannot afford to buy dairy butter must eat their bread unbut- 

 tered. 



The references which have been here made to the testimony on the trial are not with the 

 view of instituting any comparison between the relative merits of oleomargarine and dairy 

 butter, but rather as illustrative of the character and effect of the statute whose validity is in 

 question. The indictment upon which the defendant was convicted does not mention oleomar- 

 garine, neither does the section (Sec. 6) of the statute, although the article is mentioned in 

 other statutes which will be referred to. All the witnesses who have testified as to the quali- 

 ties of oleomargarine may be in error, still that would not change a particle the nature of the 

 question or the principles by which the validity of the act is to be tested. 



Section 6 is 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 forthe purpose of being used as a substitute for butter. Every such product is rigidly 

 excluded from manufacture or sale in this State. 



One of the learned j udges who delivered opinions at the General Term endeavored to sus- 

 tain the act on the ground that it was intended to prohibit the sale of any artificial compound 

 as butter or cheese made from unadulterated milk or cream ; that it was that design to deceive 

 which the law rendered criminal. If that were a correct interpretation of the act, we should 

 concur with the learned judge in his conclusion as to its validity, but we could not concur in 

 his further view that such an offense was charged in the indictment or proved upon the trial. 

 The express concessions of the prosecuting officer are to the contrary. We do not think that 

 section six is capable of the construction claimed. The prohibition is not of the manufacture 

 or sale of an article designed as an imitation of dairy butter or cheese, or intended to be passed 

 off as such, but of an article designed to take the place of dairy butter or cheese. The artificial 

 product might be green, red or white, instead of yellow, and totally dissimilar in appearance 

 to ordinary dairy butter, yet it might be designed as a substitute for butter, and if so would fall 

 within the prohibition of the statute. Simulation of butter is not the act prohibited. There 

 are other statutory provisions fully covering that subject. 



Chapter 215 of -he Laws of 1882, entitled " An act to regulate the manufacture and sale of 

 oleomargarine, or any form of imitation butter and lard, or any form of imitation cheese, for 

 the prevention of fraud and the better protection of the public health," by its first section pro- 

 hibits the introduction of any substance into imitation butter or cheese for the purpose of im- 

 parting thereto a color resembling that of yellow butter or cheese. The second section pro- 

 "hibits the sale of oleomargarine or imitation butter thus colored, and the third section prohibits 

 the sale of any article in semblance of natural cheese not the legitimate product of the dairy 

 unless plainly marked " imitation cheese." 



Chapter 238 of the Laws of 1882 is entitled " An Act for the protection of dairymen, and to 

 prevent deception in the sales of butter and cheese," and provides (Sec. i) that every person 

 who shall manufacture for sale, or offer for sale, or export any article in semblance of butter or 

 cheese, not the legitimate product of the dairy, must distinctly and durably stamp on the side of 

 very cheese, or on the top and side of every tub, firkin, or package, the words "oleomargarine 

 butter ;" or if containing cheese, " imitation cheese," and Chapter 246 of the Laws of 1882, en- 

 titled "An act to prevent fraud in the sale of oleomargarine, butterine, suine, or other sub- 

 stances not butter," makes it a misdemeanor to sell at wholesale or retail any of the above arti- 

 cles, representing them to be butter. 



These enactments seem to cover the entire subject of fraudulent imitations of butter, and of 

 sales of other compounds as dairy products, and they are not repealed by the act of 1884, 

 although that act contains an express repeal of nine other statutes, eighjt of which are directed 

 against impure or adulterated dairy products, and one against the use of certain coloring matter 

 in oleomargarine. The provisions of this last act are covered by one of the acts of 1882, above 

 cited, and the provisions of the repealed act in relation to dairy products are covered by sub- 

 stituted provisions in the act of 1884, but the statutes directed against fraudulent simulations 

 of butter, and the sale of any such simulations as dairy butter, are left to stand. Further stat- 

 utes to the same effect were enacted in 1885. Consequently, if the provisions of section six 

 should be held invalid, there would still be ample protection in the statutes against fraudulent 

 imitations of dairy butter, or sales of such imitations as genuine. 



