OLEOMARGARINE AND BUTTERINE. 43, 



THE CIPPERLY CASE. 



(AT. Y. Star, January 24, 1886.) 



The news of the reversal by the Court of Appeals of the decision of the Supreme Court in 

 the case of the People against Arthur Cipperly of Albany was received by the oleomargarine- 

 men with dismay and by the advocates of honest butter with unmitigated satisfaction. While 

 the Cipperly case bears on the sale of adulterated milk, the decision is regarded as thoroughly 

 sustaining the constitutionality of the law of 1885, under which the prosecutions of bogus 

 butter dealers have been conducted. In handing down their decision the Court of Appeals 

 used the following words : 



"Upon the argument of this case, we were of the opinion that the respondent failed to 

 show any ground upon which the judgment appealed from could be supported; but, in view of" 

 the importance of the question raised, and difference in the court below concerning it, topic 

 further time for its consideration. We still think the judgment wrong, and, for reasons suffi- 

 ciently stated by Judge Learned, who dissented in the General Term of the Supreme Court,, 

 the judgment of that court should be reversed and the judgment of the Special Sessions 

 affirmed." 



All concurred except Justice Miller, who was absent. Justice Learned's dissenting opin- 

 ion, upon which the decision of the court was based, is a voluminous document, and opens-, 

 with the assertion that the principle of the case of Wyndham vs. People, as to the destruction 

 of existing property, is not, in his opinion, applicable to the present case. It would be a 

 greater stretch of that principle 'to say that the statute in question deprived persons who owned 

 cows at the time of its passage of their property, because it interfered with or even de- 

 prived them of the use of the milk which the cows might yield. The opinion continues : 



"But the defendant takes the broader ground that the Legislature cannot, under the Con- 

 stitution, prohibit the sale of milk drawn from healthy cows which, in its natural state, falls 

 below the standard fixed by the acts, unless such milk, or the article made from it, is in fact 

 unwholesome or dangerous to public health. How is that question of fact to be determined? 

 The Court cannot take judicial notice whether the milk below the standard is or is not whole- 

 some or dangerous to public health. Is that to be a question for the jury? If so, the Court 

 must charge a jury, in each case, that if they find milk below that standard to be unwholesome 

 then the statute is constitutional. If they find it to be unwholesome, than the statute is uncon- 

 stitutional. Evidently a constitutional question cannot be settled, or rather unsettled, in this> 

 way. The constitutionality would vary with the varying judgment of juries. 



" Either then the Legislature can, under the Constitution, forbid the sale of milk below a 

 certain standard, whether such milk be in fact wholesome or not, or else they cannot do this- 

 whether such milk be in fact wholesome or not. If they may fix a standard, they must judge 

 whether or not milk below that standard is wholesome. The courts can not review that 

 judgment. ' * It cannot, then, be material to the present question whether milk below 

 the standard fixed by the statute is or is not wholesome. The question must be whether the 

 Legislature can establish a standard of purity. * * * Now, it is very plain that courts 

 have nothing to do with the question of the wisdom or even, according to our courts, with the 

 natural justice of any particular law. Courts cannot say that the Legislature has the constitu- 

 tional power to pass a judicious law to regulate the sale of articles of food, but have no con- 

 stitutional power to pass an injudicious law on that subject. An examination of the present 

 law plainly shows that it relates to and is appropriate to promote the public health. Whether 

 its details are wise we do not know. But its object is evident and good. * * * What 

 determined the Legislature to fix this standard we do not know. But it may be supposed that 

 different kinds of food produce different degrees of richness in milk. It may be 

 known to the Legislature that this watery milk supplied as food to children, cheats them 

 with the appearance of nourishment, and deprives them of that nutritious food which they 

 need. It may be known to legislators, then, that milk below the standard which they fix by 

 this law is unsuitable for food and should not be sold. At any rate, all this is a matter for 

 the Legislature. * * * The law is general in its scope; not limited to two cities. The 

 only fault to be found is that it may be unwise, as the defendant claims, to make a certain stand- 

 ard the test, and to forbid the sale of milk below that test. Whether that is wise or not, it is- 

 not for us to say. It is a provision evidently intended for the public health. No other in- 

 tention can be gathered from the law. Plainly no other existed, and in view of the difficulties 

 which surround the attempt to secure wholesome milk to the people, it is by no means certain 

 that the establishing of a definite standard is not a judicious provision." 



With regard to the decision of the Court of Appeals in the Marx case, the oleomargarine 

 test suit, the opinion says : 



" In other words, the object of that law, like that of a protective tariff, was to protect the- 

 home industry of the farmer against the city industry of the manufacturer, and the Court held 

 the law to be void, because it prohibits an important branch of industry for the sole reason: 



