(dissenting):
This appeal squarely presents the question : Is the plaintiff entitled to recover cumulative penalties, fifteen in number, of $100 each, for violation of the Agricultural Lawq under the facts and circumstances disclosed by. the evidence in'this case? It is uncontradicted that on the 3d day of September, 1901, the defendants had in their factory or warehouse seventy-five barrels of vinegar, which they had manufactured. Such seventy-five barrels were stored all together as one lot, and on the date aforesaid had all been sold to' the Eimon Mercantile Company, of West Superior, Wis., through an agent of defendants who resided in Detroit, Mich. On the following day (September 4, 1901) all of said seventy-five barrels were shipped to said purchaser. On the 3d day 'of September,. 1901, the agents or inspectors of the.plaintiff went to the factory of the defendants and took samples of. vinegar from each of 'nine barrels, selected at random from said lot of seventy-five barrels, and the ' analysis which was made of the samples taken from each of such nine barrels indicated that the vinegar contained therein was adul- • terated, and it was so found by the learned referee. Each of said seventy-five, barrels, as. well as the nine barrels from which the samples were taken and analyzed, were branded, as found by the referee, “Hew York State Pure Cider Vinegar.”
We will assume that the vinegar contained in the nine barrels from which samples were taken and which were analyzed, as found ■ by the referee, contained adulterated vinegar and it must follow •that the whole of .the seventy-five barrels contained exactly the same "kind of vinegar, because the nine barrels were selected, as before said, at random and to indicate the character of the vinegar, contained in the seventy-five barrels, which constituted a single lot' *871and were stored together and had, ás we have seen, all been sold as one lot to the Wisconsin firm or corporation and were delivered to such concern on the day following the taking of the samples by the agents or inspectors of the plaintiff.
The referee has found that the defendants are liable for apenalty of $100 for each barrel of such vinegar, nine in all, which contained, as found and as we will assume was the fact, adulterated vinegar and was put in such nine barrels, each branded as above stated.
It is also uncontradicted that on the 24th day of September, 1901, the defendants had in their possession and in their factory or warehouse a lot of vinegar, comprising sixty-three barrels, all being stored on the floor together and making a single lot. There is no evidence which tends to show that such lot of sixty-tliree barrels of vinegar had been sold, offered for sale, or even ready for sale except as a single lot. But such sixty-tliree barrels were in the factory or warehouse of the defendants, all together, on the 24th day of September, 1901, and on that day the agents or inspectors of the plaintiff went there and selected from such lot of sixty-tliree barrels samples from six barrels. Upon analysis of such six samples, the referee has found that .each contained adulterated vinegar within the provisions of the Agricultural Law and that each of such barrels were branded as were the others “ Hew York State Pure Cider Vinegar,” and upon those facts the referee awarded to the plaintiff a penalty of $100 each for such six alleged violations, which, together with the nine above referred to, made fifteen penalties of $100 each, aggregating $1,500, the amount of the judgment awarded against the defendants.
I think at the most only two penalties of $100 each should have been recovered by the plaintiff; one because of the seventy-five barrels which it sold to the Wisconsin concern, and one because of the fact that the defendants had a lot comprising sixty-tliree barrels of vinegar in their possession which was adulterated, but which had not been sold or offered for sale.
It seems to me-that the facts relating to the first seventy-five barrels, nine of which were selected to test the quality of the entire seventy-five barrels and which were found to contain adulterated vinegar, only constituted a single transaction and a single violation of the Agricultural Law, and that the same is true of the lot of *872sixty-three barrels, six of which were selected at random by the agents or inspectors of the plaintiff, although such sixty-three barrels had not been sold or offered for sale, so far as appears by the evidence, except as a single lot.
It does not seem possible that it was intended by the Legislature in passing the Agricultural Law that the agents or inspectors of the State should have discretion to impose a single penalty of $1.00 or more upon a manufacturer of vinegar, depending only upon the number of barrels in any lot from which they might determine to take samples for analysis.
In the case at bar there were 138 barrels of vinegar all told. Is it possible that under the provisions of the Agricultural Law the agents of the State might, if so inclined, have taken samples from each barrel, analyzed the same, and if found to be the same as the samples taken which co'ncededly.were adulterated, thus lay the basis for imposing a fine of $13,800 against the defendants'? I do not think that it. was the intention of the1 Legislature to place such discretion in the agents or inspectors of the State employed under such Agricultural Law. Of course, if they were authorized to take samples from and analyze one barrel of vinegar out of the seventy-five, barrels, or one barrel of the sixty-three barrels, and make such analysis the basis of recovery as for a single barrel, they were equally authorized to take such sample from each one of the 138 barrels and make the analysis of them the basis of a penalty of $1.00, which, as We have seen, would in this case amount to $13,800. I think the law was directed against -specific transactions; in other words, to prohibit the manufacturer from selling 'to a purchaser a particular quantity or lot of adulterated vinegar, no matter how the same was put up or branded.
In the first case disclosed by the evidence, the defendants had sold Seventy-five barrels of vinegar. Samples had been'taken from nine barrels, which disclosed, we will assume, that the vinegar contained in such, barrels was adulterated.' Is it possible that the Agricultural Law was framed in such fashion so that if the contents of seventy:five barrels, from which the nine were selected for the purpose of analysis, had been placed in one hogshead or tank and branded, as “Hew York State Pure Cider Vinegar,” only one penalty could be recovered, but that because it was divided up and placed *873in barrels, each of which was so branded, seventy-live penalties coúld be recovered % It seems to me that the proposition is absurd.
The same suggestion is pertinent as to the lot of sixty-three barrels. It all constituted one lot, was in the warehouse or factory together; it was there all alike for the purpose of sale or otherwise. It does not seem to me to be possible that the Legislature intended that the agents of the State should be clothed with the power of determining whether the manufacturer of such vinegar should be liable to a penalty of $100 for each of such barrels, depending only upon their discretion as to how many of the same they should take samples from and analyze. The extreme of the proposition is illustrated by the suggestion that if the defendants had put one hundred and thirty-eight barrels of vinegar in packages containing a gallon each, and the agents of .the State had taken samples from and analyzed each of such packages, we would have a judgment here of over $43,000 against the defendants. I do not believe it was intended by the Legislature to clothe the agents or irispectors of the State, appointed under the Agricultural Law, with such discretion as would enable them to determine whether a manufacturer of vinegar should be liable for one penalty of $100 or of a thousand or more of such penalties, and in such an amount as might mean ruin to any manufacturer of vinegar.
It seems to me that under the fair interpretation of the Agricultural. Law the defendants at most were only liable to two penalties of $100 each, one for having sold the lot of seventy-five barrels to the Wisconsin concern, and the other for having in its possession the sixty-three barrels which had not been sold or offered for sale, and that if a manufacturer makes a quantity of adulterated vinegar in violation of ■ the statute, sells it as one lot and in one transaction, he is only liable for oné penalty, no matter how many barrels or packages he may employ to transport such vinegar to the purchaser, ■and also that if a manufacturer makes a lot of adulterated vinegar and stores it all together, which is conceded to be of the same character, and puts it into sixty-three different barrels for storage, and such barrels falsely indicate that the contents of each is pure cider • vinegar, when in fact it is adulterated, he is not liable for sixty-three distinct penalties because of such transaction. Of course, in such case, if he had sold one of the barrels of vinegar to one party *874and another to another, and still another to a third,' he would be liable for three penalties; but in case lie had sold three barrels to each of such three parties, he would only be liable for three penalties.
I think that the decisions of the courts aré decisive of the question here involved. (Cox v. Paul, 175 N. Y. 328 ; Sturgis v. Spofford, 45 id. 446; Whitaker v. Masterton, 106. id. 277; Washburn v. M'Inroy, 7 Johns. 134; Fisher v. New York, Central & H. R. R. R. Co.., 46 N. Y. 644; United States Condensed Milk Co. v. Smith, 116 App. Div. 15 ; People v. Buell, 85 id. 141, and the noted case of Standard Oil Co. of Indiana v. United States, 164 Fed. Rep. 376.)
The decisions in all of these cases and in others, to which attention might be called, is to the effect that cumulative penalties may not be imposed except the-language of the statute clearly and unmistakably indicates that such was the, intention of the Legislature. The sections of the Agricultural Law (Laws of 1893, chap, 338, § 50, as amd. by Laws of 1901, chap. 308 ; Id. §§ 51, 52) in my opinion, are ndt susceptible of such construction, under facts such ás .are shown to exist in this case. . '
■I, therefore, conclude that the plaintiff was only entitled to recover two penalties, or a judgment for $200, and that, therefore, the judgment appealed from should be reversed and a new trial granted, with costs to appellants to abide event, unless the plaintiff stipulates that the judgment be reduced to $200, in which event the judgment in that amount should be- affirmed, without costs.
Judgment affirmed, with costs..