(dissenting). It seems to me that the decision of this court in the case of People v. Wiard, 61 App. Div. 612, 69 N. Y. Supp. 1142, affirmed in 170 N. Y. 590, 63 N. E. 1120, furnishes the rule of law applicable to the case at bar, and should be regarded as controlling upon this court, and as decisive of this case. The rule laid down in the Wiard Case, supra, was stated in the following language, namely:
“Held, that the analysis of a sample of mlllr taken from only part of the product delivered by the producer at any one time to a single purchaser will not afford a basis for an action for a penalty under the agricultural law (Laws 1893, c. 338).”
The statement of the rule is clear and unambiguous, and its meaning ought not to be doubtful, yet when the facts of the Wiard Case and the questions which were there involved are recalled, perhaps the exact meaning of the decision is made even more apparent. In the Wiard Case the defendant, on the 8th day of June, 1899, delivered eight cans of milk, produced upon his farm, at the railroad station in Markham, in the county of Monroe. One of the inspectors in the employ of the agricultural department of the state, after thoroughly stirring the contents of a single can of milk, took two samples from such can, one of which he delivered to the defendant and the other to a chemist for analysis. Samples were also taken from the other cans, but, so far as appears, were not delivered to the chemist or analyzed. The chemist analyzed the sample delivered to him, and found the percentage of water by weight to be 88.15 Per cent., total solids 11.85 per cent., fat 2.94 per cent. On the 13th day of June, 1899, the inspectors went to the barn of the defendant, and took a sample of the milk of his entire herd, after it had been thoroughly mixed, and such sample was delivered to the chemist. Upon analysis it was found to contain 87.94 per cent, water, total solids 12.06, fat 3.14 per cent; so that it will be seen that the sample taken at the railroad station contained 21/ioo more water, 21/ioo less solids, and 20/ioo less fat than the sample of milk taken at Wiard’s barn. In that case it was not contended that the analysis was not properly made; that the samples were not taken in all respects as required by law, except that the sample taken at the railroad station was not taken from the entire quantity of milk delivered, after it had been mixed. Upon that state of facts, and passing upon that single question, this court held—which decision was unanimously affirmed by the court of appeals—that the *476analysis of the sample taken at the railroad station, although showing such an inferior quality of milk as compared with the sample taken at defendant’s barn, was not proper to be even considered as a basis for a recovery against the defendant under the agricultural law, for the sole reason that the sample had not been taken from the entire quantity of milk after the contents of the eight cans had been mixed, and it was held that the plaintiff’s complaint in that case was properly dismissed by the learned trial court. A minority of the court at the appellate division, as appears by the decision, was of the opinion, that under all the circumstances it was a question of fact for the jury whether or not the sample taken at the railroad station was a fair sample, and that, if found to be a fair sample, it could be considered by the jury in determining whether the defendant in that case had adulterated and offered for sale adulterated milk; but such view was not thought to be tenable by a majority of the court, or by the court of appeals.
In the case at bar the defendant, through his hired man or agent, was, on the 13th day of September, 1900, engaged in selling milk in the city of Rochester. He had upon the wagon two cans of milk, one a 32 gallon can and the other a 10-quart can, which, at the time in question, contained 3 or 4 quarts of milk. As the defendant’s agent came out of a restaurant or saloon in which he had been delivering milk out of the smaller can, an inspector of the agricultural department, after stirring the milk in the small can, took two samples of milk from it, sealed them, delivered one to the defendant's agent and the other to Mr. Latimer, the chemist. The chemist analyzed the sample delivered to him, and found that it contained 88.56 per cent, water, 11.44 solids, and 3.04 fat; showing that the milk was at least as good as the milk taken at the railroad station in the Wiard Case. It appears that the three or four quarts of milk from which the sample was taken were not sold to or intended for a single purchaser, if that may be considered material. But in the Wiard Case it in no manner appeared that the eight cans of milk were sold and delivered to or intended for a single purchaser. In fact, it was alleged in the complaint in that case, was admitted in the answer, and was in no manner controverted by the evidence, that the defendant was engaged at the time in question in selling and delivering milk to various dealers in the city of Rochester. In this case we simply have the analysis of the chemist of the sample taken from one of two cans upon defendant’s wagon, which can contained about three quarts of milk, from which the defendant’s agent had been selling from time to time; yet it is held, in substance, in the prevailing opinion, that upon such analysis alone the defendant shall be held, as matter of law, guilty of a violation .of the agricultural law, and liable for the penalty imposed, notwithstanding it appears by the uncontradicted evidence that unadulterated milk, in the condition in which it comes from the cows, may fall below the standard prescribed by the state, and notwithstanding it further appears that in milk which has been permitted to stand, as the milk in question had stood, the fats rise to the top, and thus it would naturally be first removed from the can. Whatever our individual views may have been prior to the decision of this court and the court of appeals in the Wiard Case, it seems to me that it ought now to be regarded as settled that *477an analysis of a sample of milk taken as was the one in question cannot be made the basis of a recovery against a defendant charged with selling adulterated milk. The suggestion that such holding will render the law difficult of enforcement, or, in effect, nugatory, ought not to be regarded as of importance, when the statute, as interpreted by the court of last resort, is plain and unambiguous. The legislature is charged with the duty of formulating a statute that is practical and enforceable, and not the court. In the Wiard Case it was held that it would not answer to take a sample of milk for analysis from one of eight cans, notwithstanding the fact that such analysis was corroborated by the analysis of another sample taken from the milk of the entire herd. We therefore are unable to see how it will answer to say in this case that the analysis of a sample taken from one of two cans will serve such purpose, and that it may be made the basis of a recovery against the defendant.
There is nothing in the case at bar to show that the milk which was being offered for sale by the defendant was not in precisely the same condition as it was when it came from the cows, and we think, until evidence is produced tending to show that the defendant’s milk was adulterated, he ought not to be held liable for the penalty prescribed by the statute. It was for the very purpose of avoiding such a condition of things in the case of a producer of milk that the further provision was added to the statute requiring the milk of the herd to be examined, so that it might be determined whether or not it had been adulterated. It cannot be possible the statute means, when properly interpreted, that if the farmer who produced the milk in question had sold it all to the defendant, the analysis, as made in this case, could not form the basis of an action against the farmer; but that, as against the defendant, the purchaser of the milk, who was engaged in selling it in precisely the same condition as it was when received, such analysis, as matter of law, entitles the plaintiff to ■ recover. Yet such is the precise effect of the two decisions. A farmer, a producer of milk, sells and is about to deliver eight cans of milk at one time to a single purchaser. A sample is taken by an inspector from one of the cans, who procures it to be analyzed, and it is found to be below the standard prescribed by the state. Clearly, under the decision in the Wiard Case, such a decision cannot form the basis of an action against the farmer, solely because the contents of the eight cans were not mixed and the analysis was not of a sample of the mixed product. Under the decision of the court in the case at bar, if the purchaser of the eight cans of milk attempts to sell it to the inhabitants of a city, a like sample may be taken from the same can, the same analysis made showing the same result, and such analysis, as matter of law, is sufficient to entitle the people to recover from the purchaser of the eight cans of milk the full penalty prescribed by the statute. In other words, a farmer may sell with impunity milk below the standard, where and when he pleases, and wholly without reference to what its analysis may show, provided only it is of a quality which his cows actually give when not improperly fed. But a person who may buy the same milk, and attempt *478to resell it, if an analysis shows it is below the prescribed standard, is, as matter of law, liable for the penalty named in the statute. Presumably, the statute was enacted for the protection of the consumers of milk, and not for the purpose of enabling the state to punish one class of its citizens for selling a quality of milk which another class may perchance sell without restraint. If the decision in this case and in the Wiard Case correctly interpret the statute, there is much force in the contention of defendant’s counsel that the act is unconstitutional, for the reason that it discriminates in favor of venders of milk produced by them as against' sellers of milk which is purchased and is not produced by such sellers. To prove that such discrimination may exist under the statute as interpreted, no more apt illustration can be made than that suggested by defendant’s counsel. A farmer milks from his. cows milk which is below the standard,—say 40 gallons of it. All is thoroughly mixed, and is of precisely the same quality. He takes it to the city to sell, and at a certain street corner he sells 20 gallons to a milk peddler, who immediately goes along the street from house to house selling the milk which he has purchased. The farmer goes in the opposite direction, also going from house to house, selling the remaining 20 gallons of mille. A sample of the milk being sold by each is taken by the state’s inspectors. The analysis of each sample is identical, and shows that both are below the standard. The farmer cannot be prosecuted, notwithstanding the analysis, because the quality of the milk is exactly the same as when it came from- his cows. The milk peddler, on the other hand, would be liable, as matter of law, under the decision in this case, solely because the analysis of the sample of the milk taken from him showed it to be below the standard. However, in this case it is only necessary to hold that whether or not the sample taken from the defendant was a fair sample is a question of fact for the jury.
The learned county judge allowed the certificate of the chemist to be received in evidence, and he submitted to the jury the single question whether, under the circumstances disclosed by the evidence, the sample taken was a fair sample, stating to the jury that, if they found it was, then the plaintiff could recover, but that if they found it was not a fair sample, their verdict should be for the defendant. We think the instruction was as favorable to the plaintiff as it was entitled to. The jury, by its verdict in this case, found that the agent of the agricultural department did not take a fair sample when he took it from what remained in the bottom of the 10-quart can, when there was a 32-gallon can of milk upon the same wagon, and we think the verdict was amply supported by the evidence.
These views lead me to conclude that the judgment and order appealed from should be affirmed, with costs, upon the authority of People v. Wiard, 61 App. Div. 618, 69 N. Y. Supp. 1142, affirmed in 170 N. Y. 590, 63 N. E. 1120.