This action was brought at the instance of the Commissioner of Agriculture to recover a penalty of $10.0 for an alleged violation of section 26 of the Agricultural. Law (Laws of 1893, chap. 338, as amd. by Laws of 1897, chap. 768). That section provides, among other things, as follows: “LTo person, by himself, his agents or employees, shall produce or manufacture out of or from any animal fats, or animal- or vegetable oils not produced from unadulterated milk, or cream from the same, the article known as oleomargarine, or any article or product in imitation or semblance of natural butter produced from pure, unadtilterated milk or cream of the same; * * * nor-sell, keep for sale, or" offer for sale,'any article, substance or compound made, manufactured or' produced in violation of the provisions of this section, whether such article, substance or compound shall be made or produced in this .State or elsewhere.” Upon the trial it appeared that the defendant, who kept a'grocery store in Brooklyn, had sold as butter a substance which was declared to be oleomargarine by-the chemist who was called as a witness for the prosecution. The defendant denied that he knew or believed it to be oleomargarine: and the justice wlio presided at the trial instructed the jury that the. defendant was not liable to the statutory penalty if' he did not know that it was oleomargarine or imitation butter. The jury found a verdict for the defendant.'
This instruction as to the necessity of knowledge on the part of the defendant, in order to charge him with the penalty sought to be recovered in the action, was erroneous. The Legislature having the constitutional power to prohibit the sale of imitation butter, it can-impose a penalty for a violation - of the prohibition, irrespective of the vendor’s, actual knowledge of the, character of the product which he sells, and it,has done so by the provisions of the Agricultural Law under which this action was instituted. The authority of the Legislature in this respect is clearly asserted in the cases of People v. Kibler (106 N. Y. 321) and People v. Girard (145 id. 105).
We should be compelled to grant a new trial on account of this *3erroneous instruction as to the necessity of scienter on the part of the -defendant, were it not the fact that upon all the proof in the case the prosecution failed to establish a cause of action against the defendant. Under these circumstances the error in the charge can have done the plaintiffs no harm, as, in any event, the defendant was entitled to a verdict.
The defect in the plaintiffs’ proof was the omission to show that the appearance of oleomargarine in its natural condition differed from that of the substance which the defendant sold as butter; or, in other words, that the oleomargarine had been changed in some manner so as to-make it look like butter. It is settled that the Legislature cannot constitutionally prohibit the sale of oleomargarine except so far as the product is made to simulate some other substance and thereby deceive the people. (People v. Marx, 99 N. Y. 377; People v. Arensberg, 103 id. 388. See, also, Schollenberger v. Pennsylvania, 171 U. S. 1; Plumley v. Massachusetts, 155 id. 461.) In order, therefore,'that the express prohibition against the manufacture and sale of oleomargarine, now contained in section 26 of the Agricultural Law (but not in that section as originally enacted), shall be deemed constitutional, it is essential to construe that prohibition with the remainder of the section as forbidding only the manufacture and sale of oleomargarine when it is manufactured in imitation or semblance of natural butter. Adopting this construction there was, as has already been said, a failure of proof on the part of the plaintiffs in omitting to give evidence of the imitative character of the substance sold by the defendant. It is impossible to say that the appearance of the oleomargarine had been altered so as to make it resemble natural butter unless we know in the first instance what oleomargarine looks like in its normal condition. There is no testimony in the record ón this subject, and it is not a matter of which the courts can take judicial cognizance. In the case of The People v. Arensberg (supra) there was proof that as to.oleomargarine “in its normal condition and before the addition of ingredients designed to modify its natural taste and color, it was of a pearl-white hue resembling tallow,” but nothing of the sort appeared in the case at bar.
■■ As the verdict for the defendant was right, in this view of the ease, it must be allowed to stand, but under the circumstances the affirm*4anee will be without prejudice to the institution of another suit upon the same cause of action if the Commissioner of Agriculture is so advised.
All concurred.
Judgment affirmed, with costs, hut-without prejudice to the institution of another suit upon the same cause of -action.