Opinion
Argued May 3, 1916
Decided May 12, 1916
Moses Esberg for appellant. Egburt E. Woodbury, Attorney-General ( Robert P. Beyer of counsel), for respondent.
This is an action to recover a penalty for the sale of adulterated vinegar in violation of section 70 of the Agricultural Law. The adulteration consisted in the introduction of harmless artificial coloring matter, and the sale was by a retailer of a bottle bought by him from the wholesaler who imported the vinegar in barrels and cases. That the sale of vinegar containing artificial coloring matter not injurious to health may be prohibited by the state was held in People v. Girard ( 145 N.Y. 105), but it is urged that this prohibition cannot, under the provisions of the Constitution of the United States (Art. 1, § 8, ¶ 3) giving Congress power to regulate commerce with foreign nations and between the states, be applied to the sale of imported vinegar. The right doubtless exists to import and sell pure and unadulterated vinegar in the original package, free from any restriction which might be imposed by the state on such sale ( Leisy v. Hardin, 135 U.S. 100), but when the imported article is once sold, it becomes mingled in the common mass of property within the state and subject to the laws thereof. The vinegar sold by appellant was not in the original package in which it was imported, for the bottle was taken out of the case, nor was the sale by appellant the original sale by the importer, nor do the authorities sustain the contention that the state is powerless to prevent the sale of vinegar adulterated by artificial coloring matter, even when it is imported from a foreign country or state and sold in the original package. ( Plumley v. Mass., 155 U.S. 461.) People v. Buffalo Fish Co. ( 164 N.Y. 93) construes our Game Law and has no application here. ( People ex rel. Silz v. Hesterberg, 184 N.Y. 126; 211 U.S. 31.) Appellant has not established (a) a sale in the original package (b) of a legitimate article of commerce, and he has thus failed to bring himself under the protection of the Constitution of the United States. ( Crossman v. Lurman, 171 N.Y. 329.)
The judgment should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., CHASE, COLLIN, CUDDEBACK, CARDOZO and SEABURY, JJ., concur.
Judgment affirmed.