Opinion
Argued January 16, 1911
Decided February 14, 1911
James M.E. O'Grady for appellants.
Thomas C. Burke and Thomas Carmody for respondent.
This appeal is from the affirmance by the Appellate Division, in the fourth judicial department, of a judgment entered against the defendants for fifteen penalties of $100 each, adjudged to have been incurred by reason of violations of the Agricultural Law of the state. (Laws of 1893, chap. 338.) The affirmance below was by a divided court; the divergence in opinion being upon the question of the right of the People to recover aggregated, or cumulative, penalties. As to other questions, I think that they have been satisfactorily disposed of in the opinion of the Appellate Division and that we need, only, consider the one question of the penalties.
The Albion Cider Vinegar Company, a domestic corporation, engaged in the manufacture and sale of vinegar, was charged in the complaint, in substance, with having manufactured and sold a compound "in imitation and semblance of cider vinegar made exclusively from pure apple juice," which was not pure cider vinegar, so made; which was colored "to deceptively imitate cider vinegar," and which was falsely branded "New York State, Pure Cider Vinegar." It was alleged that fifteen separate samples had been taken by the inspectors from separate barrels, so branded, which, after having been chemically analyzed, proved not to be pure cider vinegar, within the provisions of the statute as to that product. The statute, which was, thus, charged with having been violated, so far as material to be recited here, was as follows: "Section 50. Definition of adulterated vinegar. — All vinegar which contains any * * * ingredients injurious to health, or any artificial coloring matter * * * shall be deemed adulterated. The term, cider vinegar, when used in this article means vinegar made exclusively from pure apple juice. Section 51. Manufacture and sale of adulterated or imitation vinegar prohibited. — No person shall manufacture for sale, keep for sale or offer for sale: 1. Any adulterated vinegar. 2. Any vinegar or product in imitation or semblance of cider vinegar, which is not cider vinegar. * * * Section 52. Packages containing cider vinegar to be branded. — Every manufacturer or producer of cider vinegar shall plainly brand on the head of each cask, barrel, keg or other package containing such vinegar, his name and place of business and the words `cider vinegar.' And no person shall mark or brand as or for cider vinegar any package containing that which is not cider vinegar."
Penalties were imposed for violations, in the following language of section 53: "Every person violating the provisions of this article shall forfeit and pay to the People of the State the sum of one hundred dollars for each violation."
Upon the trial of the action these facts appeared. On September 3, 1901, the assistant commissioner of agriculture, with his agents, went to the company's factory and took nine samples from different barrels, in a lot of seventy-five barrels, which were marked with the company's name and with the words "New York State Pure Cider Vinegar." This lot was about to be shipped to a purchaser in the state of Wisconsin. On the 24th of September, 1901, special agents, again, visited the factory and took six samples from different barrels, in a lot of sixty-three barrels, which were standing upon the floor and which were marked similarly to the previous lot. These various samples were taken and they were subjected to chemical analyses, in accordance with the provisions of the law. The referee, before whom the trial was had, made separate findings as to each barrel, from which there had been taken a sample by the state's agents. Each of these findings was that the "defendant kept for sale one certain barrel of adulterated vinegar, as and for cider vinegar, which had been theretofore manufactured for sale by said defendants and which contained artificial coloring matter, was a product in imitation or semblance of cider vinegar and which was not made exclusively from pure apple juice, and that said defendants marked, or branded * * * said certain barrel with the words `New York State Pure Cider Vinegar.'" There were fifteen of such findings and they covered the fifteen barrels in the two lots, from which separate samples had been taken. The referee found, as a conclusion of law, that the defendants had forfeited to the plaintiff fifteen penalties of $100 each and directed judgment accordingly.
There was evidence to support the findings of the referee and the only question, arising upon his determination, which will be discussed, is whether this was a case in which aggregated penalties could be recovered. The question of the power of the legislature to prohibit the artificial coloring of vinegar, and to declare an artificial coloring to be an adulteration, was disposed of in People v. Girard, ( 145 N.Y. 105). If the judgment for the fifteen penalties rested, solely, upon the findings that the defendants had manufactured for sale these fifteen barrels of adulterated vinegar, it would be erroneous. It would be incorrect to hold that the putting up of each barrel, keg, or package, of adulterated vinegar had created as many infractions of the statute, for each of which a penalty could be recovered. We must look to the language of the statute to see whether, and when, cumulative penalties are permitted in actions of this character. In repeated decisions, this court has refused to recognize a right to recover them, unless clearly authorized. The theory of such proscutions has been considered to be to administer a warning not to continue the acts complained of. Generally, the purpose of the legislature will be sufficiently subserved, when one violation, or one default, is recovered for, which shall act as a deterrent upon continuing to disregard the statute. (See Sturgis v. Spofford, 45 N.Y. 446; Fisher v. N.Y.C. H.R.R.R. Co., 46 ib. 644; Cox v. Paul, 175 ib. 328; Griffin v. Interurban St. Ry. Co., 179 ib. 438, and same case, 180 ib. 538.) These cases, which I have cited, were actions brought to recover aggregated penalties for violations of prohibitory laws and they lay down the rule that cumulative recoveries will not be permitted by the courts, in the absence of such a definite statement by the legislature as to leave its intention in that respect unmistakable. When that appears, effect will be given to the legislative intent. Such was the case, for example, in Suydam v. Smith, ( 52 N.Y. 383), where a recovery of cumulative penalties was upheld upon the language of the statue, which imposed a penalty "for each offense." Recently, when considering the question in Griffin v. Interurban St. Ry. Co., ( supra), this court took occasion to declare a rule of construction, upon the decisions, which should permit such recoveries only in cases where the statute seemed to require them; and reference was made to the language of the act in question in Suydam v. Smith, ( supra), as an illustration of such a requirement. In the Interurban Railway Company's case the Railroad Law, upon a refusal to give a transfer to a passenger, gave the right to recover a penalty "for every refusal to comply." We did not think that that language was sufficiently definite to authorize the recovery of cumulative penalties and, upon the reconsideration of the case, we pointed out the distinctive language in Suydam v. Smith, where a penalty was permitted "for each offense." It was, then, said, "that we think that `every' is not always necessarily the synonym of `each.'" Again, in Cox v. Paul, ( supra), where the right to recover successive penalties for the refusal of a corporation and of its officers to exhibit its books to a stockholder was denied, it was said that the statute imposed a penalty "not for each and every, but for any refusal" etc. We have, therefore, given an interpretation to statutes imposing penalties, which forbids a recovery for aggregated penalties, unless it is to be found in their provisions that a penalty is given, expressly, for each offense. Turning, now, to the statute in question, we find that section 53 imposes a penalty recoverable by the People "of one hundred dollars for each violation." What constitutes a violation? The act was designed to protect the health of the community and it prohibits the doing of two things. It may be violated by the manufacture and sale of adulterated, or imitation, vinegar; or it may be violated by the marking, or branding, of a cask, barrel, keg, or other package, as cider vinegar, when its contents are not cider vinegar, as defined by the law. That is to say, the adulteration of cider vinegar is a transgression of the law and the falsely marking, or branding, of any description of package containing it is another. The facts of this case show, with respect to two lots of cider vinegar which were inspected by the special agents, that each lot had been adulterated. There were, then, as I view the matter, but two violations of the statute in that respect; the one consisting in the adulteration of the lot, which was about to be shipped to the foreign purchaser, and the other in the adulteration of the lot, which, subsequently, was found standing on the factory floor, sold, or ready for sale. I think there were two transactions by the defendants, in each of which they had violated the law by the adulteration of the body of vinegar so put up, and for each of which one penalty was recoverable.
But it is clear, within the rule, that this judgment can, and should, be upheld upon the ground that there were repeated and distinct violations of the section of the statute which prohibited false marks, or brands. That section requires the manufacturer to plainly brand " each cask, barrel, keg or other package containing cider vinegar" with the words "cider vinegar" and it prohibits any person from falsely marking, or branding, "any package." The language, therefore, of section 53, when imposing a penalty of $100, "for each violation" of the law, while referable to the prohibition against adulteration, in its application to the provisions against false marks, or brands, seems to give, expressly, a right to recover a penalty in each instance that any package of vinegar is falsely marked, or branded. The precise wording of the statute is reason for giving it this strict interpretation and if any other were needed, it might readily be found in the nature and purpose of a law, enacted for the protection of the public health.
For these reasons, I advise that the judgment appealed from should be affirmed, with costs.
CULLEN, Ch. J., HAIGHT, WERNER, WILLARD BARTLETT, CHASE and COLLIN, JJ., concur.
Judgment affirmed.