The complaint charges that on the 3'lst day of August, 1914, at the city and county of Hew- York, the Excelsior Bottling Works, a domestic corporation, was a dealer in food and carried on business at Ho. 407 East 1.21st street in the city of Hew York, and, at the time and place aforesaid, did keep and offer for sale as food for man, certain food which was adulterated, to wit: a beverage named and called Strawberry Soda; that the *63said article of food contained saccharin, and that saccharin when mixed with the liquid aforesaid, did injuriously affect its quality; that the said saccharin is a substitute for sugar and is an inferior substance substituted for sugar in the said article offered for sale as aforesaid, that the said ingredient consisting of saccharin is a deleterious ingredient and may render the said article of food injurious to health; all in violation of the Sanitary Code of the Board of Health of the Department of Health of the city of Hew York, at all the times mentioned in the said complaint and then in full force and operation in the city and State of Hew York, county of Hew York, especially in violation of section 68 of said Sanitary Code, subdivisions (b) and (f), under the designation Food, which said section, so far as the same concerns this proceeding, is as follows, to wit:
“ Section 68. Ho person shall have, sell or offer for sale in The City of Hew York any food which is adulterated, or misbranded. The term food as herein used shall include every article of food and every beverage used by man and all confectionery.
Food, as herein defined, shall be deemed adulterated: * * * (b) Tf any inferior or cheaper substances have been substituted wholly or in part for the article. * * *
(f) If it contains any added poisonous ingredient, or any ingredient which may render such article of food injurious to health; or if it contains any antiseptic or preservative not evident and not known to the purchaser or consumer.”
The complaint further charges that the facts set forth are all in violation of a resolution of the Board of Health of the city of Hew York, which resolution was duly passed at a meeting of the said board, held on the 22d day of August, 1911, and which reads as follows:
“ Resolved, that foods, or food products containing saccharin be deemed adulterated under the Sanitary Code.”
Hnder section 1262 of the charter of the city of Hew York *64the Board of Health may, in addition to revising, amending or altering the Sanitary Code, enact regulations for the protection of life and the care, promotion or preservation of the public health. The resolution of the Board of Health above quoted is a regulation under section 68 of the Sanitary Code, declaring saccharin to be an adulterant. The resolution was duly published according to law and defendant had legal notice thereof.
The defendant’s counsel urges that said section 68 of the Sanitary Code and the said resolution of the Board of Health . are obnoxious to both the State and Federal constitutions, as follows: ,
(a) That the prohibition of the sale of bottled soda water containing 1/100 of 1 per cent of saccharin, and disclosing upon the label the use of such saccharin, violates valuable property rights of the defendant, and is in violation of article one, section six, of the Constitution of the State of Hew York and also the Fourteenth Amendment of the Constitution of the United States.
(b) That section 68 of the 'Sanitary Code, if construed to prohibit the use of saccharin in food products as a sweetener or condiment, in the same class as pepper, salt, cinnamon, allspice, ginger or flavoring ingredients, is an unnecessary and unlawful exercise of the police power, and is in violation of article one, section six, of the Constitution of the State of Hew York, and also the Fourteenth Amendment of the Constitution of the United States.
Article one, section six of the Constitution of the State of Hew York provides:
“ Ho person shall be * * * deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation.”
The Fourteenth Amendment to the Constitution of the United States provides, in part: ,
“ Ho state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; *65nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
Every presumption is in favor of the constitutionality and validity of a statutory enactment. (People ex rel. Kemmler v. Durston, 119 N. Y. 569, 577.) “ We cannot overturn a statute because we do not like it, for our likes and dislikes affect us as citizens, not as judges.” (Wright v. Hart, 182 N. Y. 330, 353.)
Before we can pronounce such a statute as that now before us unconstitutional we must be able to see, either that there is no real, substantial evil of public interest to be guarded against, or that there is no reasonable relation between the evil and the proposed cure or prevention offered by the statute. (Booth v. Ill., 184 U. S. 425; Chicago, B & Q. R. R. Co. v. McGuire, 219 U. S. 549.)
Saccharin is a substitute for sugar and itself has no food value. Under the authorities, although as an ingredient of food it may not be deleterious, still its use can be absolutely prohibited. An article may be manufactured in imitation or semblance of a well-known article in common use and consumers or purchasers may be thus imposed upon. Legislation intended to prevent such an article being manufactured has been held valid. (People v. Biesecker, 169 N. Y. 53.)
The Legislature certainly cannot forbid or wholly prevent the sale of a wholesome article of food. But in forbidding the sale and use of saccharin as food no attempt was made to prevent the sale of a wholesome article of food. Saccharin is not a food, but a product of coal-tar, a synthetic substance from a laboratory. The object of such regulation was to prevent imposition and fraud.
It has been held that the police power includes the right to prohibit the sale of any article of food or drink deemed to be deceptive as well as wholesome. (Bartemeyer v. Iowa, 18 Wall. *66129; Beer Co. v. Massachusetts, 97 U. S. 25; People v. Marx, 99 N. Y. 377; People v. Arensberg, 105 N. Y. 123.)
Yor will a suitable label afford a sufficient protection to the public against fraud. The blind and illiterate are entitled to the full protection of the law. Then, too, a certain amount of nourishment will surely be lost if saccharin is permitted to displace sugar as a sweetener.
The adulteration of milk by adding water may be cited as to some extent analogous. Water is not injurious to the human system but on the contrary is absolutely necessary to preserve health. Still this city and every other city in the land has established a standard of quality for milk in order to prevent fraud and loss of nourishment. Most of the authorities cited are oleomargarine cases. Oleomargarine has food value; so the substitution of oleomargarine for butter means the substitution of one food for another food. Similarly the substitution of water for milk means the substitution of one food for another food. But in the case under discussion we have to deal with the substitution of that which has no food value for that which has high food value.
Our attention has been directed to a recent decision of the United States Supreme Court, the bleached flour case, so-called, — as a controlling authority in favor of the defendant. The-Act of Congress, known as the Food and Drugs Act of 1906, forbade adulteration and misbranding of food, and provided' against the addition to pure food of any poisonous or deleterious ingredients which might render the article injurious to health. In that case nitric acid was used in a bleaching process in order to impart to the flour the color of a better grade. The precise language of the act in subdivision five of section seven provided that food shall be deemed adulterated “ if it contain any added poisonous or other added deleterious ingreient which may render such article injumous io health.” This act placed upon the government the burden of establishing that the added substance *67must be such in quantity as may render the article of food injurious to health. No substantial proof was offered at the trial showing that the flour was mixed, colored or stained in a manner whereby damag’e or inferiority were concealed. The conviction was properly reversed for such failure of proof. The adjudication has no controlling authority over the case at bar in the view of the different language used in the Sanitary Code and the resolution of the Board of Health. It is interesting, moreover, to note that learned counsel in the bleached flour case never challenged the constitutionality of the statute on any ground.
The testimony in this case is very voluminous- and covers about 477 pages of stenographic minutes. Eighteen witnesses were examined at length, several of whom are world-famed scientists, and eminent in the medical profession as food experts. This record, at least, shows that there is a difference of opinion among those best qualified to judge respecting saccharin and on the question of excluding saccharin from foods.
We conclude that section 68 of the Sanitary Code and the resolution of the Board of Health to the effect that foods containing saccharin be deemed adulterated, were enacted and passed in good faith to promote the general welfare and safeguard the public health; that they were so passed in pursuance of a reasonable exercise of the public power; and that they are not obnoxious, in any respect, to the provisions of the Constitution of the United States, or the Constitution of the State of New York. The motions made on behalf of defendant to dismiss the complaint, and in arrest of judgment are denied. The defendant is adjudged guilty.
O’Keefe, J., concurs in the result.
O’Keefe, J.:The ordinance in question is enacted by reason of power conferred upon the health department of the city of New York and *68in this city has the force of statute. If it be a valid exercise of the police power and in the interest of the health of the city of Hew York, then, in this instance, it has been violated. If it be oppressive and unjust, then it should not be supported 'by a judgment of conviction. I believe the ordinance in question to be a valid exercise of police, power and in the interest of the health of the people of .the city of Hew York.
Some argument has been made that labeling or branding articles for human consumption would apprise the intending consumer that saccharin entered into it as an ingredient. How little we all know about saccharin, was demonstrated when we listened to the very interesting testimony given by the witnesses produced on both sides, men, chemists, physicians and scientists of world-wide reputation.
I vote for the denial of the motions made by the defense and for the conviction of the defendant.