The defendant has been convicted for selling at one time a pound of oleomargarine as such, and upon request furnishing therewith a package of harmless .coloring matter, which two things, if blended later, as doubtless intended, would tend to give the former the appearance of butter. There, is no evidence that either article was unhealthful, that there was any deception on the sale thereof, or that there was any intention on the part of the vendor or purchaser that the same would or could be used to deceive any person or that the blended arti*891cles would be imposed upon any person as butter. The statute does not forbid a separate sale of the articles, but attempts to forbid a simultaneous sale of the two articles so that they are included in one transaction. The statute in question is section 41 of the Agricultural Law as amended by chapter 857 of the Laws of 1909, which, among other things, provides: “And no person selling any oleaginous substance not made from pure milk or cream of the same as a substitute for butter shall sell, give away or deliver with such substance any coloring matter.” The defendant urges that this prohibition is contrary to article 1, sections 1 and 6, of the Constitution of the State of New York, and to the Fourteenth Amendment to the Federal Constitution. This general subject has during the last thirty years been so repeatedly matter of consideration and decision by the courts in this State that no original' thought can be added' to the discussion. Liberty to contract, to hold and to sell property, to follow lawful occupations, as protected by constitutional guaranties, has been repeatedly asserted, and the same has been subordinated, to a degree, only to the real necessities of protecting the public welfare, in such respect as health and fraudulent practices. The present effort should be to find the scope of the decisions and ascertain whether they denounce the statute in question. The sale of wholesome oleomargarine, without deception, máy be regulated but not prohibited (People v. Marx, 99 N. Y. 377), but the sale of the article so artificially colored as to resemble butter may be prohibited, inasmuch as it in such combination presents opportunities for deception that in the view of the Legislature could be prevented only by the prohibition. (People v. Arensberg, 105 N. Y. 123.) A similar act for the protection in the sale of cider vinegar is valid. (People v. Girard, 145 N. Y. 105.) Therefore, the law is that the defendant may not be forbidden to make separate sale of the oleomargarine and a distinctly separate sale of the coloring matter. But the prohibition is that when the oleomargarine is sold there shall not be coincidentally an accompanying gift of the coloring matter. This in effect is a direction that the two articles shall not be made the subjects of one and the same sale. I find no explanation of the purpose of this prohibition, except the suggestion that it *892aids the general purpose, to prevent deception in the sale and use of oleomargarine. But in what way it will so operate is not stated, and it is certainly beyond conception. There is no purpose in the law to prevent a consumer blending the two substances for his own personal consumption or for that of his family. It is true that oleomargarine and the coloring matter cannot be blended for intended sale, nor can it be used in such . form in hotels, restaurants and other places of public entertainment under section 40 of the Agricultural Law. The prohibition in question does not facilitate the unlawful manufacture, sale or use in-the public places indicated of oleomargarine, nor does it tend to deter such manufacture and sale. What it does do is to compel storekeepers to sell oleomargarine for private consumption at one instant, and coloring matter at another. This is an impairment of the liberty to sell property, a valuable quality of ownership, by attaching a restriction that has no relation to any forbidden or injurious act. It may be argued that the restriction is trifling; that it inconveniences in small degree as it merely dissociates the disposition of two articles. But little property rights are entitled to zealous protection. If the present law is valid, it would be equally so to forbid the sale of flour with a cake of yeast; of articles that the consumer would' combine in the various articles of food for use in the household. The provision is one of those petty annoyances that overzealous and indiscreet men, losing sight of the substantial means of protecting commerce, cause to be enacted inadvertently. There may be a minimum aggression in this, but it is an excess of legislative power which should be checked whenever it appears.
The judgment should be reversed.
Woodward, J., concurred.
Judgment of the Municipal Court affirmed.