OLEOMARGARINE ANI> BUTTERINE. 45 



1 all men are born equally free and independent, and have certain inherent and indefeasible 

 rights, among which are those of enjoying life and liberty, and of acquiring, possessing, and 

 protecting property and reputation, and of pursuing their own happiness,' this has never been 

 construed to be a declaration that these rights are absolute.^ ' Hence, if the act in 



question be legislative in its character, the limitations which it prescribes for the defendant in 

 the acquisition, possession, and use of his property are clearly within the boundary lines drawn 

 by the Constitution, if, in the judgment of the Legislature, these limitations are considered, 

 necessary and expedient for the welfare of the community. And if so, then, in so far as they 

 do, if at all, interfere with the defendant's full enjoyment of his property, this interference re- 

 sults from the law of the land.' " 



Speaking of the decision of the New York Court of Appeals in the Jacobs case, in which a 

 statute prohibiting the making of cigars in tenement houses in certain cases was declared un- 

 constitutional on the ground that it was not a health law, Judge Simonton says: 



" And if we could be satisfied that the object and intent of the act in question here were 

 what the Court of Appeals of New York declared the object and intent of the act before that 

 court to be, we would not hesitate to pronounce it unconstitutional and void. But having in 

 mind the axiom that all the presumptions are in favor of the good faith of a co-ordinate depart- 

 ment of the government, and that to doubt is to be resolved in favor of the validity of its acts, 

 how can we say that it is not the bona fide purpose of this act, as expressed in its title, to pro- 

 tect the public health, and to prevent the adulteration of dairy products and fraud in their sale? 

 And the Legislature having, by passing the act, declared its judgment that the means used are 

 necessary to attain these ends, we cannot review this judgment when exercised in good faith,, 

 for the conclusive reason that it is clearly within the jurisdiction of the Legislature to effect 

 these purposes by appropriate means." 



Here the opinion quotes numerous precedents bearing upon the point, deals with the offer 

 of the defendant to prove by expert witnesses the cleanliness and wholesomeness of the pVod- 

 uct, and his assertion that for its manufacture large investments had been made, this evidence 

 having been excluded, says : " But we are unable to see how the admission of this testimony 

 could have legally changed the result. With respect to the first offer we are by no means 

 prepared to say, even, that an offer to show that oleomargarine butter or butterine is made 

 generally from pure animal fats by a pure and wholesome process, and is as wholesome and 

 nutritious an article of food as genuine butter, would have been relevant. But this we are not 

 now called upon to decide. The offer was made to show merely that the article admitted to 

 have been sold in this case, was such. No one doubts that it might be made as stated in the 

 offer. But it is no less certain that it may be made out ef oleaginous substances that are neither 

 pure nor wholesome. How, then, could evidence that the substance sold in any given case, 

 and admitted to be that proscribed by the act, was pure and wholesome, tend to show that the 

 statute which forbids all sales is unconstitutional?' As well might a defendant who is on trial 

 for selling spirituous liquors in a jurisdiction where all such sales were prohibited, while 

 admitting that he had sold the prohibited article, offer to prove, by way of defense,, that the 

 particular glass of liquor sold was pure and wholesome. Witnesses could be called in almost 

 every case who would be willing so to testify, but no court would admit such testimony for 

 the purpose of showing that a prohibitive statute was unconstitutional. Indeed, the question 

 of'the constitutionality of a statute cannot be determined on the testimony of witnesses, for 

 the very conclusive reason that it is a question of law and not of fact, and must be decided by 

 the Court on quite other grounds than those of the opinions and beliefs of witnesses. We 

 are satisfied that it was not an error to refuse the testimony recited in the first offer. We may 

 here remark that this offer brings into view one of the reasons that impelled the Legislature 

 to pass this act. It states that the amount of butterine in the manufactured article was in- 

 creased by the introduction of milk and cream, and that the only effect of butterine is to give 

 flavor to the butter. Manifestly the purpose was to give this article as nearly as possible 

 the flavor and semblance of butter, so that it might be sold as such by the retailer without de- 

 tection, and no doubt this is the ' fraud in the sale ' which the act was designed to prevent." 



In this case an appeal has been taken to the highest court of the State, and the prediction 

 is hazarded that that court will follow the example of the Court of Appeals of this State in. 

 the Cipperly case, and base its decision upon Judge Simonton's learned opinion. 



EDITORIAL COMMENTS. 



(New York Star, January 5, 1886.) 



The campaign against the bogus butter manufacturers and venders is now pretty certain to> 

 be carried into the Legislatures of several States, if not into Congress itself. Our representa- 

 tives at Washington cannot afford to overlook the great interest that is imperiled by this, 

 traffic that of the dairymen and farmers of the entire country. In 1883 our exports of butter 

 had diminished to 12,348, 640 pounds, which was fully 5, 000,000 pounds less than in the preced.- 



