In that part of the prevailing opinion which upholds the constitutionality of the statute under consideration I concur; from all the rest I respectfully dissent.
Among all the enumerated powers of government none is more important and far reaching than that branch of the police power through the exercise of which the state seeks to restrain and punish the adulteration of foods and foodstuffs. Of superlative importance is the vigilant and fearless exercise of that power in regulating the purveying of milk, which is at once the most natural, the most commonly used and the most easily adulterated of all the foods and beverages of civilized humanity. The crimes of murder and theft in their usual significance might almost be counted as virtues when compared with the poisonous adulteration of foods, for the latter combines the felonious villainy of both the former, not against selected individuals it is true, but against society at large. It is a mean and insidious crime, stealthily committed in the marts of trade by men who masquerade in the garb of good repute, but in whose breasts the qualities of honesty and morality have been stifled by the most despicable form of cupidity. It is the kind of crime upon which the pharisees of commerce wax fat at the expense of their innocent competitors, and of the poor and helpless consumers. No form of food adulteration within the field of criminal chemistry can be more deadly and far reaching in its effects than the adulteration of milk. Other adulterated foods and beverages, which are used by persons whose powers of resistance have been developed by maturity, vary so greatly in the kind and quantity of adulteration that the ill-effects from their use may be considerably minimized or altogether neutralized by regular or frequent change of diet. Not so, however, with the myriads of helpless babes for whom nature's greatest food is transformed into an artificially colored, flavored and preserved fluid, which mocks at the pangs of hunger or defies the powers of digestion; that either cheats them with the appearance of nourishment, and thus deprives them of the nutritious food *Page 12 which they need, or fills their systems with drugs that may entail upon them lifelong weakness and misery. In the presence of such a crime humanity may well assert itself through the voice of its legislatures in the enactment of statutes designed to protect society, and as against such statutes the so-called common-law rights of the individual criminal should not be so zealously hedged about by technical safeguards as to render the state helpless to effectuate a great, just and humanitarian policy.
In 1884 the state of New York entered the list of American commonwealths having laws designed to exterminate the adulteration of foods. Its legislature enacted what is now known as the Agricultural Law (L. 1893, ch. 338) which, among other things, regulates the traffic in dairy products. This law was promptly attacked on the ground that it was an unconstitutional exercise of the legislative power, but its constitutionality was upheld by this court (People v. Cipperly, 101 N.Y. 634;People v. West, 106 N.Y. 293; People v. Kibler, Id. 321), and it is quite within the bounds of judicial restraint to say that no statute in force in this state to-day is exerting a more widespread and beneficent influence. Superficially the questions at bar relate merely to judicial rulings excluding evidence, but the fundamental question before this court upon this appeal is whether this law, in one of its most vital features, shall now be judicially repealed. That is the broad and important question presented, for the reversal of this judgment means nothing less than the repeal of an important part of the statute. In subdivision 8 of section 20 of the Agricultural Law one form of adulteration is defined as follows: "Milk which has been diluted with water or any other fluid, or to which has been added or into which has been introduced any foreign substance whatever." The charge in the case at bar is that the defendant offered for sale certain milk containing formaldehyde, and it is conceded that this is a foreign substance that can only find its way into milk through some human agency. In view of the statement in the prevailing opinion that the record contains neither allegation *Page 13 nor proof that formaldehyde is unwholesome, it may be well to take counsel of a few facts within the circumscribed field of judicial knowledge. Webster's International Dictionary defines formaldehyde as "a colorless, volatile liquid, resembling acetic or ethyl aldehyde and chemically intermediate between methyl alcohol and formic acid." The same lexicographer informs us that methyl alcohol is obtained by the distillation of wood, and this is the "wood alcohol" of commerce which, under our statutes, is required to be labeled as a deadly poison. Professor Reese, in his recent work on medical jurisprudence and toxicology, tells us that formaldehyde is a poison and it is so classified in Glaister's Medical Jurisprudence and Public Health and in Peterson Haines Text Book of Legal Medicine. Having even this slight knowledge of the constituents of formaldehyde, it is not difficult to understand why it is used in embalming fluids, the purpose of which is to arrest decay of the human body after death. It is charged in the complaint that the formaldehyde found in the milk of the defendant was used as a preservative. That is simply another way of saying that this substance was used to prevent or delay chemical change. We know that human digestion consists in the chemical changes of the foods which are eaten, and it requires no stretch of the imagination to conclude that a substance containing the elements of wood alcohol and used in the preservation of dead bodies, cannot be otherwise than unwholesome when employed as a preservative of such food. The same elements that arrest decomposition also retard or prevent digestion. These general observations, thus briefly stated, indicate the point of view from which we should examine the rulings adversely criticised in the prevailing opinion.
This proceeding was initiated in the usual way. An agent of the agricultural department took two samples of milk from the defendant's cans, one of which was delivered to the state chemist and the other to the defendant. The subsequent analysis disclosed formaldehyde. A complaint was served charging that the defendant had used that drug as a milk preservative *Page 14 contrary to the statute, and this charge was met by a general denial which was subsequently modified by a stipulation to the effect that the defendant had offered for sale the milk in question. Upon the trial the charge in the complaint and the analysis of the state chemist were established by evidence that stands uncontradicted and amply supports the directed verdict. When the prosecution had closed its case the defendant was sworn and, in the course of his examination, he was asked if he had used any preservative or formaldehyde, or any other foreign substance in his milk, or if he knew of any of these things having been used. In various forms similar questions were addressed to the defendant's hired man. All these questions were objected to, the objections were sustained and the defendant's counsel excepted. These are the rulings to be reviewed, and upon them depends the fate of this judgment.
The prohibition of the statute is that "no person shall sell or exchange, or offer or expose for sale or exchange, any unclean, impure, unhealthy, adulterated or unwholesome milk," etc., and the violation thereof is punishable by appropriate penalties. In the light of the statutory definition as to what constitutes adulteration, considered in connection with this prohibitory clause, it is obvious that there can be only two issuable facts in such a prosecution. The first is whether the milk is adulterated within the meaning of the statute, and the second is whether it was sold or exchanged, or offered or exposed for sale or exchange, by the person charged. Since the latter fact is admitted by the defendant in the case at bar, the only issuable fact we have to deal with is whether the milk sold by him was adulterated. In this connection it will be noticed that the effort of the defendant at the trial was to prove, not that the chemist's analysis was wrong or false, or that the sample of milk taken by the state agent contained no formaldehyde, but that the defendant and his hired man had put no formaldehyde into it, and that they did not know of any one else who had done so. It may be admitted that if guilty knowledge or intent were an essential *Page 15 ingredient of this statutory offense, such evidence would, of course, be admissible to establish a defense to the charge of its commission. But this court has said "as the law stands, knowledge or intention forms no element of the offense. The act alone, irrespective of its motive, constitutes the crime." (People v.Kibler, supra.) That was the law in 1886 as established inPeople v. Cipperly (supra), and it is the law to-day, for there has been no change in the statutes or in the decisions of this court. Under the statute as construed in the decisions referred to, the "simple omission of things directed and the commission of things prohibited" is conclusive evidence of the violation of the law no matter how innocent of wrongful intent or knowledge the alleged offender may be. The thing prohibited by the clause of the statute above adverted to is the sale or exchange, etc., of adulterated milk; that is the act which, "irrespective of its motive, constitutes the crime." This is obviously a somewhat radical departure from that merciful consideration for the individual evinced by the common law, but it is to be borne in mind that the statute is the protest of organized society against intolerable conditions that demand heroic treatment and respecting which this court has said "it is notorious that the adulteration of food products has grown to proportions so enormous as to menace the safety and health of the people. Ingenuity keeps pace with greed, and the careless and heedless consumers are exposed to increasing perils. To redress such evils is a plain duty but a difficult task. Experience has taught the lesson that repressive measures which depend for their efficiency upon proof of the dealer's knowledge and of his intent to deceive and defraud, are of little use and rarely accomplish their purpose. Such an emergency may justify legislation which throws upon the seller the entire responsibility of the purity and soundness of what he sells and compels him to know and be certain." All this is conceded in the prevailing opinion to be the established law relating to the adulteration of milk by the addition of water, but by a flight of logic that I am utterly unable to follow the majority of my brethren are about to establish a distinction, *Page 16 not to be found in the statute, between adulteration by water and other kinds of adulteration. Although it has been decided that when a man sells milk containing more than the statutory percentage of water, he may not be permitted to show how it happened, it is now to be decided that when a man sells milk containing a poisonous chemical he may be allowed to give evidence that he does not know anything about it. And the reasoning by which this result is reached is that since water is a natural constituent of milk and is sometimes produced by nature in excess of the statutory standard, it is entirely proper to prohibit the luckless vendor from proving that it was the cow and not he who was at fault. But when a foreign and poisonous element is found in milk the vendor should be permitted to show by circumstantial evidence, not that the milk was not thus adulterated, but that one or more individuals of all mankind did not do it. Let me state the proposition even more pointedly. When milk is simply weakened or diluted by water, which when pure is not deleterious, mere proof of that fact is irrebuttable evidence of a violation of the statute against a vendor, but when it is really adulterated by the addition of an unnatural and noxious drug the vendor may show by mere inference or suggestion that some one else not named may be the offender. It is argued in the prevailing opinion that "putting a foreign substance into milk is a physical act and may become an issuable fact under the statute." That "it is capable of proof by either direct or circumstantial evidence, and this proof may be met by showing that the direct evidence is false or by breaking the chain of circumstances." In what portion of the statute do my brethren find the authority for the statement that the physical act of putting a foreign substance into milk may become an issuable fact that can be proved or disproved by circumstantial evidence? The issuable facts that may be litigated under the statute are the adulteration of the milk and the attempt to vend the same. In this case the vending is admitted, and, hence, we are concerned only with the question of adulteration. That can only be *Page 17 proved by direct evidence of a chemical analysis. It may be overthrown by other evidence of the same nature. When the facts of adulteration and vending are established, the particular agency by which adulteration is accomplished is neither issuable nor germane. Under the impending decision herein, convictions for this kind of adulteration will be rendered impossible unless some one is caught in the physical act or admits its commission. We know from experience that both are practically impossible. Where is there anything in the statute declaring that the physical act of adulteration by a foreign substance may become an issuable fact although the physical act of adulteration by water may not even be inquired into? The only issuable facts mentioned in the statute and contemplated by it, are those to which I have called attention, and if another is now added it must be by judicial importation. The fallacy of the argument which seeks to make an issuable fact of the "physical act" is easily illustrated by reference to another phase of the statute. Suppose, for instance, that the charge is that milk has been sold within the period of parturition. Evidence that the sale was not within the prohibited period would, of course, be competent and exculpatory. But would it be competent to show that although the sale was within the period, the owner of the cow or the vendor of the milk did not know that the period had not expired? How much protection would the statute afford the public against the vending of milk of that kind if such evidence could be given? How does that question differ in principle from the one about to be decided? The argument of my brethren is mainly based upon the assumption that the legislature intended to establish three different methods by which to conserve the health of the public in the regulation of the traffic in milk. In my judgment the statute contains no warrant for this assumption. It plainly contemplates only one method as applied to three conditions which produce (1) adulteration by dilution, (2) unwholesomeness because of parturition and other enumerated causes, and (3) adulteration by the addition of any foreign substance. As to this latter *Page 18 branch of the statute it may be said, in passing, that the "foreign substance" complained of in the case at bar does not come within the rule discussed in People v. Marx (99 N.Y. 377) and People v. Biesecker (169 N.Y. 53). I shall not discuss the extent of the alleged adulteration, because that is a question with which we are not concerned. If formaldehyde is capable of such infinitesimal diffusion that its presence may be chemically ascertained where it cannot be physically sensed; and if that is to be regarded as a justification for its use, the legislature is the tribunal to which appeal should be made.
In conclusion, I simply repeat that I can find nothing in the language of the law or in the canons of statutory construction that requires or justifies a rule of proof as to one of the offenses created by this statute that is not applicable to all. Neither is there any principle of logic or justice that can justify the decision about to be made if the Cipperly case and the cases that follow it are to stand as the law of the state.
The judgment herein should be affirmed.
CULLEN, Ch. J., GRAY, O'BRIEN and BARTLETT, JJ., concur with VANN, J.; HAIGHT, J., concurs with WERNER, J.
Judgment reversed, etc.