The People of the State of New York, Respondent, v. Burdett Bishopp, Appellant

The People of the State of New York, Respondent, v. Burdett Bishopp, Appellant. The prohibition in the Agricultural Lorn against the sale of real unless four weeks of age, and against its shipment unless a certain tag is attached thereto is constitutional— it does not conflict with the interstate commerce' clause of the United States'Constitution. Section 70e of the Agricultural Law (Laws of 1893, chap, 338, added by Laws of 1902, chap. 30), which provides, in substance, that no calf shall be sold for veal “unless it is in good healthy condition and was at least four weeks of age ■ at the time of killing,” and Which authorizes the seizure and destruction - of . veal “from a calf killed under four weeks of age, or from a calf in an - unhealthy condition when- so killed,” is constitutional. Section 70f of the Agricultural Law, as thus added, which requires that all carcasses of calves shipped shall have attached thereto a tag “ stating the name or names of the person or persons who raised the calf, the name of the shipper, the points of shipping and. the destination and the .age of the calf,” is also constitutional. The fact that the requirement as to the tag is broad enough to apply to' veal intended to be shipped to another State does not render said section 70f obnoxious to the provision of the United States Constitution which provides that Congress shall have- the exclusive right to regulate commerce between the different States. Appeal by the defendant, Burdett Bishopp, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 1st day of August, 1904, upon the decision of the court, rendered after a trial at the Madison Special Term, overruling the defend■ant’s demurrer to the second cause- of action in the plaintiff’s amended complaint. •• The plaintiff brought this action in the Supreme Court to recover on two alleged causes of action : First. The plaintiff seeks to recover the penalty imposed by section. 37 of the Agricultural Law (Laws of 1893, chap. 338, and the acts amendatory thereof)'for an alleged violation by the defendant of section 70e of said law. Second. The plaintiff seeks to recover the penalty imposed by said section 37 for an alleged violation by the defendant of section 70f of said law. The defendant demurred to the said second alleged cause of action on- the ground that, on the face thereof, it does not state facts .sufficient to constitute a cause of action. The court at Special Term overruled such demurrer and from the interlocutory judgment entered thereon this appeal is taken. ■Sections 70e and 70-f of the Agricultural Law (Laws of 1893,' chap. 338, added by Laws of 1902, chap. 30) provide as follows: “ § 70e. Slaughtering and selling veal for food.— I7o person shall slaughter, for the purpose of selling the same for food, or expose for sale or sell within this State, or bring or cause to be brought into any city, town or village within this State for food any calf or carcass of the same, or any part thereof except the hide, unless it is in good healthy condition and was at least four weeks of age at the time of killing. Any person or persons duly authorized by the Commissioner of Agriculture, may examine any calf or veal found within this State offered or exposed for sale, or kept with intent to sell as food, and if such calf is under four weeks of age, or the veal is from a calf killed under four weeks of age, or from a calf in an unhealthy condition when so killed, he may seize the same and cause it to be destroyed or disposed of in such manner as to make it impossible to be thereafter used as food. “'§ 70f. Shipping veal.— On and after the passage of this act it shall be unlawful for .any corporation, partnership, person or persons to ship to or from any part of this State any carcass or carcasses of a calf or calves or any part of such carcass except the hide, unless they shall attach to every carcass or part thereof so shipped in a conspicuous place a tag, that shall stay thereon during such transportation, stating the name or names of the person or persons who raised- the calf, the name of the shipper, the points of shipping and the destination and the age of the calf.” Joseph Mason and Carlos J. Coleman, for the appellant. Julius M. Mayer, Attorney-General, and Joseph S. Rosalsky, Deputy Attorney-General, for the respondent. [MAJORITY — Parker, P. J.:] Parker, P. J.: There can be no doubt but that the Legislature was authorized to enact the provisions of section 70e of the Agricultural Law. If is an exercise of the police power in the interests of the public health, and that right has long been recognized by our own and by the Federal courts. Yeal, as an article of food, is deemed by the Legislature to be injurious and unsafe when eaten within four . weeks of its birth, and, for such reason, it is assumed by that section to‘regulate the use and sale of such veal as an article of food. Such right is too plain to be discussed, and the defendant has not, by this demurrer, disputed it.' (People v. Ewer, 141 N. Y. 129; People v. Arensberg, 105 id. 123; People v. Lochner, 177 id. 145, and cases cited.) Section 70f of such law was evidently passed to secure the enforcement of the provisions of the prior section, and it is against the validity of this section that this demurrer is aimed. This section does not prohibit the shipping or sale of veal. It merely requires. that all veal that is shipped shall have annexed thereto a tag stating the name of the person who raised the calf, the name of the shipper, the "points of shipping and the destination and the age of the calf. Many calves so shipped are over four weeks old; such are a legitimate article of food, but many are under that" age and are, therefore, not a healthful food.nor a legitimate article of commerce for that purpose. Their appearance, however, is substantially the same.. To an uninstructed eye they cannot be distinguished, and, hence, deceit is so easy that it is difficult and practically impossible to enforce the law unless breeders and shippers are required to so mark them that the healthful ones may be distinguished from the unhealthful. To meet this difficulty the section in question was passed. Its provisions are necessary and reasonable to complete the scheme which the Legislature has devised to protect the public from having forced npop its markets a species of food that is notoriously unhealthy and injurious.' The purpose of its provision is as clearly within the police power of the Legislature as are the provisions of section 70e, and the fact that the legitimate article as well as the illegitimate is thereby required to be tagged does not affect its necessity or reasonableness. Neither does the section violate subdivision 3 of section 8 of article 1 of the Federal Constitution, which gives to Congress power to regulate commerce. True, the prohibition against shipping without a tag is broad enough to apply to veal intended to be shipped to another State, but that does not interfere with the regulation of commerce between the States. (Railroad Co. v. Husen, 95 U. S. 465; Kidd v. Pearson, 128 id. 1, 23, 24; People v. Niagara Fruit Co., 75 App. Div. 11; affd., 173 N. Y. 629.) Within the authority of those cases, the exclusive right to regulate commerce, etc., secured to Congress by the Federal Constitution, is not invaded. The interlocutory judgment appealed from should be affirmed, with costs. All concurred. Interlocutory judgment affirmed, with costs, with leave to defendant to answer over within twenty days after service upon him of notice of the entry of this order and upon payment of all costs allowed against him.