I am constrained to dissent from the views of a majority of the court in this case upon the following grounds : If section 6 of the act under which defendant was convicted is to be construed as an absolute prohibition of *8the manufacture of pure and wholesome oleomargarine unconnected with any design to deceive the public or simulate dairy butter, it is unconstitutional as being within the probition of article 1, section 6, of the State Constitution.
There are certain well settled principles to be kept in view in considering this class of questions. Before a statute can be annulled by the courts, its repugnancy to the constitution should be clearly demonstrated. Neither can courts sit in review of the discretion of the legislature, or determine the wisdom or propriety of legislative action, and every intendment is in favor of the validity of statutes.
In Bertholf v. O’Reilly, 74 N. Y. 516, it was held by the Court of Appeals, “ that no law can be pronounced invalid for the reason simply that it violates all notions of justice, is oppressive and unfair in its operation, or because in the opinion of some or all the citizens of the state it is not justified by public necessity or designed to promote the public welfare. We repeat, if it violates no constitutional provision, it is valid and must be obeyed.” It is equally well settled that whether or not an act is obnoxious to the constitution is a question for the courts to pass upon, and for that purpose it is competent for the court to look to the circumstances and purpose under which and for which an act is passed.
That the substance from which oleomargarine is made is property, cannot be disputed. . Neither can it be claimed that this act was passed to protect or preserve the public health, for the reason that it nowhere appears that such was the purpose, and an entirely different purpose does appear in the title. If we are to seek for an expression of the purpose in the act itself, it is plain that its object is to create and protect a monopoly in the manufacture of dairy butter and prevent any successful competition therewith.
In this view, it deprives the owner of the substance from which oleomargarine is made, of the beneficial enjoyment of his property and the fruits of his lawful labor. It was held (In re Peter Jacobs, 2 N. Y. Crim. Rep. 346, 539), that it is not constitutionally competent for the Legislature to deprive, by any arbitrary enactment, a laborer in any lawful vocation of his right of work and of enjoyment of the fruits of his work in *9his residence or in 1ns own way, except for purposes of police or health regulations. It is true that the statute then under consideration recognized the legality of the labor, and only restricted it to certain places, while this prohibits all the labor or manufacture, if the article is to be used thereafter as a substitute for butter; but the principle is the same. In both cases the citizen is deprived of the beneficial use of his lawful property.
Until the Legislature, in the exercise of its inherent powers to enact police and health laws, prohibits the manufacture of oleomargarine, it seems to me, a citizen has a right to make any pure and wholesome article of food and sell it for what it actually is, and it is immaterial what lawful use shall be made of it afterwards. If a man is too poor to buy good butter, I see no objection to his using oil, cheese or honey or any other substitute for butter. A law prohibiting the making of an iron rake to be used as a substitute for one made entirely of wood could be passed with just the same legal effect as a law providing that oleomargarine should not be made to be used as a substitute for butter. I do not claim that the legislature cannot do all this, but that it can only do it to protect the public health. Assuming, even that it may pass such a law, if in the exercise of its discretion it deems it best for the public health, and that the courts cannot review such an exercise of discretion however unwise it may be, yet this law was not passed under the exercise of any such discretion or for any such purpose, nor can we indulge in the presumption that such was the purpose of the act when we read the title or the act itself.
The whole question as to the constitutionality of this section, therefore turns upon the point, whether, the legislature having passed this statute, the courts can assume that it was passed for the purpose of protecting the public health. In my view, it was not passed for that purpose, and is therefore not to be upheld unless another construction can be placed upon it.
In the title the Legislature announced its purpose to be “ To prevent Deception in the Sale of Dairy Products.” If the title is to be read in construing the sixth section, then it must be held to relate to and prescribe only deceptive simulations and spurious impositions upon the public, or to an article made with *10design to deceive the public, and cannot be held to include a wholesome and pure article of food, openly and honestly made with a design to sell it for exactly what it is and without any design to deceive the purchaser.
In the latter view an indispensable element in a conviction would be some intent to deceive or some act that might operate as an imposition upon the public as a “ deception in dairy products.” Merely making pure oleomargarine butter and exposing it for sale as such, without any notice or attempt to pass it off as a genuine dairy product, would not come within the purview of the statute, the purpose of which is to prevent deceptions. The act in the severity of its penalties, in its casting the burden of proof upon the defendant to rebut a presumption of willful guilt arising from the doing of any act prohibited therein, may well be held to impose its penalties only when oleomargarine is manufactured for sale, or sold, or designed to deceive the public.
If the latter is'the correct view, this conviction cannot be upheld, as no such case was made out.
I have not examined or cited authorities, as I have assumed the utmost that can be claimed in favor of the absolute power of the legislature. While the subject is one that has been frequently before the courts and elicited much discussion, it does not seem to me that the present case requires any critical examination to present the legal issues involved.
Whichever construction is placed upon the sixth section of the two herein stated, it is clear the conviction must be set aside.
Judgment of County Court affirming conviction affirmed.
Note. No evidence was offered, either in this case or the succeeding one (People v. Marx), to show that the oleomargarine sold by defendant was manufactured by him before the passage of the prohibitory act. Upon this point a recent decision of the Supreme Court of the United States is instructive.
“If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the Legislature cannot be stayed from providing for its discontinuance, by any incidental inconvenience which individuals or corporations may suffer. All rights are held subject to the police power of the State.”
“ We do not mean to say that property actually in existence and in *11which the right of the owner has become vested, may be taken for the public good without compensation. But we infer that the liquor in this case as in the case of Bartemeyer v. Iowa (18 Wall. 129), was not in existence when the liquor law of Massachusetts was passed. Had the plaintiff in error relied on the existence of the property prior to the law, it behooved it to show that fact. But no such fact is shown and no such point is taken.” Beer Co. v. Massachusetts, 97 U. S. 25, 82.
In the well known case of Wynehamer v. People, 13 N. Y. 378, the defendant offered to prove that the liquor sold by him was owned by him at the time of the passage of the prohibitory act, and the Court of Appeals held that as the act made no discrimination between liquor-owned when it took effect and that which might afterwards be manufactured or imported, the act was unconstitutional.
In the head-note to State v. Mugler, 44 Amer. Rep. 634 (29 Kans. 252) the decision is said to be “A law prohibiting the brewing and selling of beer applies to beer lawfully brewed before the law took effect but sold thereafter. The opinion shows however (44 Am. Rep. 640) that both the manufacture and sale were after the passage of the prohibitory act. In addition, the circumstances of that case and the provisions of the Kansas statutes distinguish it from the one at bar.
Upon the constitutional questions involved, see Matter of Paul, 2 N. Y. Crim. Rep. 1; Matter of Jacobs, Id. 346, 539.