The determination of the Appellate Division overruling the defendant's demurrer is appealable to this court. (People v.Hammerstein, 211 N.Y. 552.)
Counsel for the appellant contends that the amendment of April 17, 1914, made to section 337 of the Public Health Law does not apply to food in cold storage when the amendment took effect. To give it such application is to make the amendment retrospective in its operation, and that is contrary to the well-settled rule of statutory construction. (Rhodes v. Sperry HutchinsonCo., 193 N.Y. 223.)
As opposed to this contention, the district attorney argues that the defendant's offense, with reference to the amendment, was wholly prospective. It was not unlawful for the defendant to have the pigs' feet in cold storage at the time the amendment took effect, and he did not violate the law until several months thereafter. It was not until the expiration of ten months after November 28, 1913, the date when the defendant first put the pigs, feet in cold storage, that he violated the law. He then became an offender for keeping in cold storage certain articles of food, which had already been in cold storage *Page 263 for ten months. It was not necessary to make out this offense that the antecedent period of ten months' storage, or any part thereof, should have been unlawful.
I think the argument of the district attorney is faulty. The allegations of the information against the defendant are that on the 28th day of November, 1913, he placed the pigs' feet in cold storage and unlawfully kept them there for a longer period of time than ten calendar months. These facts constituted his offense, and their mere statement shows that the district attorney is attempting to enforce the amendment retrospectively.
While placing the food in cold storage on November 28, 1913, was entirely lawful, yet under the amendment, thereafter made to the statute, such storage, continued without any further act on the part of the defendant, became unlawful. It is not correct to say that the defendant's offense was wholly after the amendment. He could not have committed the offense at or near the time the information was filed if he had not had the pigs' feet in cold storage at and prior to the time of the amendment of the statute. Such storage became in the end an integral part of the defendant's offense, as alleged in the information.
The court has said: "It is always to be presumed that a law was intended, as is its legitimate office, to furnish a rule of future action to be applied to cases arising subsequent to its enactment. A law is never to have retroactive effect, unless its express letter or clearly manifested intention requires that it should have such effect. If all its language can be satisfied by giving it prospective operation, it should have such operation only." (N.Y. O.M.R.R. Co. v. Van Horn, 57 N.Y. 473, 477.)
If the legislature had intended that the amendment to section 337 of the Public Health Law should apply to owners having property in cold storage at the time the amendment took effect, it should have so declared and have provided a reasonable time thereafter for compliance *Page 264 with its provisions. (Sohn v. Waterson, 17 Wall. 596;Gilbert v. Ackerman, 159 N.Y. 118; Jaehne v. New York,128 U.S. 189.)
I recommend that the judgment appealed from be reversed, and demurrer to information sustained.
WILLARD BARTLETT, Ch. J., HISCOCK, HOGAN AND POUND, JJ., concur; CHASE and CARDOZO, JJ., dissent.
Judgment reversed, etc.