The defendant was convicted under chap. 202, _ Laws 1884, of the offense of selling adulterated milk. It is objected that sections 1 and 13 of the act in question are unconstitutional. The first section of the act provides that, “no person or persons shall sell or exchange, any unclean, impure, unhealthy, adulterated or unwholesome milk.” Assuming that it was within the legislative intention to limit this prohibition to the purposes of food, the legislative power to pass this section, so far as quoted, is a police regulation to protect the public health. This seems to be .well established by authority. Cox v. Special Sessions, 7 Hun, 214; Blazier v. Miller, 10 Id. 435 ; Commonwealth v. Waite, 11 Allen, 284 ; Commonwealth v. Farren, 9 Id. 489. Similar statutes have long stood unchallenged. Chap. 4697, Laws 1862; chap. 544, Laws 1864; Polinsky v. People, 73 N. Y. 65.
The defendant, however, was convicted by the force of the thirteenth section of the statute, which provides that: “ In all prosecutions under this act relating to the sale and manufacture of unclean, impure, unhealthy, adulterated or unwholesome milk, if the milk be shown to contain more than eighty-eight per centum of water or fluids, or less than twelve per centumof milk solids, which shall contain not less than three per centum of fat, it shall be declared adulterated.” The milk in question was shown to contain 88.096 per centum of water and 2.656 per centum of fat, and as it fell short of the statutory standard it was by force of the statute declared to be adulterated, and the defendant was convicted notwithstanding he adduced evidence tending to show that the milk was entirely a natural and wholesome product, and wholly unadulterated or diluted.
If experience has shown that milk which does not possess the ingredients specified in the statutory standard is unwholesome and unfit for food, it may well be within the power of the legislature to prohibit its sale. But such is not this prohibition. The defendant was not charged with selling milk con-*399taming more than eiglity-eight per cent, of water, and less than twelve per cent, of milk solids. He was charged with selling “ impure, unhealthy, adulterated and unwholesome milk.” Upon that charge he was entitled to a fair trial according to the “ due process of law.” “ Due process of law,” says Judge Cooley, quoted with approbation in Bertholf v. O’Reilly (74 N. Y. 519), “ in each particular case, means such an exertion of the powers of government as the settled maxims of the law sanction, and under safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.” Due process of law gave to the defendant the right to contest the allegation that the milk was adulterated, or impure, or unwholesome. True, he gave his evidence, but the statute silenced its effect. There can be no trial if only one party is permitted to present his proofs, or if the statute requires judgment to be pronounced against the defendant upon proof by the people of some other fact not in' issue. The legislature cannot restrain a party from setting up a good defense to an action against him. Cooley’s Constitutional Limitations, 369.
But it is said the legislature may make and alter rules of evidence. There is no doubt that in civil cases, the legislature can make certain inda prima facie evidence of another fact. Howard v. Moot, 64 N. Y. 262 ; Hand v. Ballon, 12 Id. 543.
And it has been held competent for the legislature to provide that certain facts having a tendency to prove the existence of another fact, shall in criminal cases be prima facie evidence of the other fact. Commonwealth v. Williams, 6 Gray, 1. But the court was careful to hold that the presumption might be repelled by the circumstances, or by other proofs. Commonwealth v. Wallace, 7 Gray, 337 ; Commonwealth v. Rowe, 14 Id. 47. Here the statute denies the accused that protection. The legislature cannot make certain facts conclusive evidence which in their nature are not so. People v. Lyon, 27 Hun, 180. Evidence to secure a conviction should be such as to satisfy “the judgment of his peers,” or of whatever tribunal determines the fate of' the accused. The legislature may prescribe rules for the admission of evidence, but cannot compel the trial court to hold it conclusive of the defendant’s guilt, *400without regard to that court’s conviction or judgment as to its conclusiveness. If the legislature can compel the courts to render judgment contrary to their convictions of the truth produced by the evidence, then the legislative power can coerce the judicial powers, a- proposition destructive of the co-ordinate departments of the government.
If the testimony on the part of the defendant was true, his milk was not unhealthy, adulterated, or unwholesome—he was innocent, in fact. Certainly the testimony that tended to show that he was careful, honest and innocent in this- transaction ought to have been considered, and if believed, ought to have resulted in his acquittal. But under this statute, such evidence can have no weight. The statute regards percentages only. Eighty-eight per centum of water is permitted. The evidence of the chemist showed an excess of less than one-tenth of one per centum, and upon that fraction the statute required the defendant’s conviction, right or wrong.
We think that the thirteenth section of the act,—which requires that upon a trial for selling adulterated milk, the milk shall be declared adulterated if it do not contain the percentage of ingredients specified in the statute,—is beyond the legislative power, because it deprives the defendant of his liberty and property without due process of law, in that it deprives him of the right, upon the trial of the charge against him, to have the issue determined according to the evidence of the fact, and compels him to submit to the statutory declaration thereof, without having the truth ascertained.
If the result of the statute is to prohibit the sale of pure and wholesome milk, then within the principle re-affirmed in the recent case of People v. Marx (3 N. Y. Crim. Rep. 206), that “ it is one of the fundamental rights and privileges of every American citizen to adopt and follow such lawful, industrial pursuit not injurious to the community, as he may see fit,” the prohibition would be beyond the legislative power.
The production and sale of pure and wholesome milk is a lawful industrial pursuit, and is not injurious to the community. This act is not designed to prohibit that. It aims, as it properly may, to suppress the sale of impure and adulterated milk. It prescribes that upon any prosecution for the sale of impure *401or adulterated millc, its percentage of water and milk solids may be shown. This is competent for the legislature to do. But ■wherein it provides that upon the facts being shown, the percentages do not comply with the statutory standard, the milk shall be declared adulterated, it seeks to compel the trial courts to pronounce judgment upon that fact alone, without regard to what the truth may be shown to be, and therein prevents the due process of law.
Conviction reversed, and the defendant discharged.
Bocees, J., concurs.