tory institution from the state, or from a county, city or town thereof, or appropriated by such county, city or town for the maintenance or support in whole or in part of such institution; nor money belonging to or used for the maintenance or support of such institution, shall be expended for the purchase of, or in payment for, butterine, oleomargarine, lard cheese, or articles or products in imitation or semblance of natural butter or cheese produced from pure unadulterated milk or cream from the same, which articles or products have been rendered or manufactured in whole or in part from animal fats, or animal or vegetable oils not produced from unadulterated milk or cream from the same. § 2. No officer, manager, superintendent or agent of an institution mentioned in the first section of this act, shall purchase for the use of such institution articles or products for the purchase of which the money appropriated by law, or by a county, city or town, is forbidden to be used by this act, and no person shall sell to, or for the use of such institution, such articles or products. Nor shall such articles or products be used as articles of food or for cooking purposes in such institutions within this state. § 3. This act shall take effect immediately. It will be noticed by the terms of the act as above set forth that no provision is made for its enforcement by the statute itself. Many inquiries have been made at this office by persons interested to know in whose hands the enforcement of this statute rested. After a careful examination of the statute and a consultation with our attorneys and the AttorneyGeneral it was decided that no authority existed for this department to undertake to enforce the terms or provisions of the act, the powers of this department being only such as are created by statute; it was deemed that the power did not exist unless specifically stated; the only question that was raised was as to whether the expression in section 2 of chapter 338 of the Laws of 1893, which reads as follows: "There shall be a department of the state government known as the department of agriculture, which shall be charged with the execution of the laws relating to agriculture and to agricultural products, gave this department power to enforce this law; of course it does not unless said chapter 364 of 1893 is con strued to be an agricultural law, which was deemed so highly improbable as to make it unwise to expend any money in prosecutions under it. Upon the passage of the agricultural law, so-called, all existing dairy laws were repealed, including that part of the law making the selling of oleomargarine a misdemeanor. By chapter 692 of the Laws of 1893, section 408a of the Penal Code was made to apply to violations of the agricultural law and by its provisions handling any imitation butter was made a misdemeanor. This chapter amended the Penal Code in several other particulars but by its express provisions did not become operative until the 1st day of October, 1893. The attention of the department was not called to this state of affairs until the adjournment of the Legislature and too late to remedy it. The result was that during the summer and fall, while a persistent effort was being made by the dealers in these prohibited products to force their sale, there was no law under which they could be arrested. I did not deem it wise to disclose this state of affairs until after the first of October, when the penal part of the law became operative, deeming it better to suffer the unjust criticism which was made in some quarters for not procuring arrests than to disclose the defective condition of the law on the subject. In this connection I desire to call attention to an evident defect in said section 408a of the Penal Code, which as adopted reads as follows: § 408a. Violations of the agricultural law. Any person who disregards, disobeys or violates any proclamation, notice, order or regulation lawfully issued or prescribed by the commissioner of agriculture for the suppression or prevention of the spread of infectious or contagious diseases among domestic animals, or who violates any of the provisions of sections eighty and eighty-two of article five of the agricultural law is guilty of a misdemeanor; every person who violates any of the provisions of article two of said chapter is guilty of a misdemeanor and shall be punished by a fine of not less than twenty-five dollars nor more than two hundred dollars, or by imprisonment of not less than one month or more than six months or by both such fine and imprisonment, for the first offense; and by six months imprisonment for violations of article three of said chapter is guilty of a misdemeanor and shall be punished by a fine of not less than fifty dollars nor more than one hundred dollars. The last part of this section, which was meant to apply to second offenses and to violations of article three as passed by the Legislature, is very ambiguous in its terms and is evidently a mistake, which must have occurred in engrossing the bill or in copying it during its passage through the Legislature. Such section, as drawn, was intended to read as follows, and it is suggested that it should be re-enacted by the Legislature as follows: Any person who disregards, disobeys or violates any proclamation, notice, order or regulation lawfully issued or prescribed by the commissioner of agriculture for the suppression or prevention of the spread of contagious or infectious diseases among domestic animals, or violates any of the provisions of sections. eighty and eighty-one of article five of the agricultural law, designated as chapter thirty-three of the general laws, is guilty of a misdemeanor. Every person who violates any of the provisions of article two of the agricultural law constituting chapter thirtythree of the general laws is guilty of a misdemeanor, and if the violation be of sections twenty-one, twenty-two, twenty-three, twenty-four, twenty-five, thirty-four or thirty-five, shall be punished for each offense by a fine of not less than twenty-five dollars or more than two hundred dollars, or not less than one month or more than six months imprisonment, or by both such fine and imprisonment. If the violation be of any other provision of said article two, the person so violating shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars or not less than six months or more than one year's imprisonment. Any person violating article three of said agricultural law shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than fifty dollars nor more than one hundred dollars. Early in the year complaints reached this office through its experts and agents that oleomargarine was probably being sold in the original packages in New York city and Cohoes. The experts were detailed immediately upon this work with instructions to keep as close surveillance as possible upon the trade to ascertain the facts. It was some weeks before evidence was obtained to convince them that this was being done, the method of operation was carried on so clandestinely as to almost baffle our efforts to ascertain the probabilities in the matter. These goods were shipped from New York city, No. 12 Manhattan market, in tubs bearing the United States government stamp, the tubs themselves holding about ten pounds of the material. They were packed in barrels and headed up and delivered to the agent of Armour & Co., at Cohoes. The name of this man was unknown to us, so that barrels addressed to him were not, at first, a cause of suspicion, but after some weeks of watching of the expressmen and truckmen, it became evident to our agents that this agent was one Peter D. Falardo, and a close surveillance was kept upon his work-shop, and upon all packages coming addressed to him; it was finally discovered that he was selling these goods to certain people in that city; it was further ascertained that consignments were received on Friday night or Saturday morning of each week and distri buted by said Falardo to persons who had ordered the same. Our agents kept watching and when Mr. Falardo or his agents started out to deliver these goods they accompanied them and went to the places where they were delivered, saw them delivered and paid for; then and there took samples in duplicate, delivering a duplicate of each sample taken to the person in charge of and delivering the goods, as required by the statutes of the State. These samples, as fast as taken, were delivered to our chemist, and were, by him, analyzed and found to be oleomargarine. It was found further that Mr. Falardo had working for him a man by the name of Medard Bouchard; that, in the usual transaction of this business, the said Medard Bouchard would start, the early part of each week, canvassing among the French population of the city of Cohoes for these goods, receiving orders which were turned over to Mr. Falardo, and by him forwarded to New York. That when the goods came Mr. Falardo turned them over to Mr. Bouchard, who delivered them to the persons who had ordered them, receiving pay therefor. After submitting the questions involved and the facts in the cases we had made in all their bearings to our attorneys, it was deemed wise, in view of the decisions in the case of Leisy v. Hardin & Co., in the Supreme Court of the United States, to bring an action against Medard Bouchard, who did the canvassing, selling and delivering, and receiving the pay. A careful examination of the case above referred to will reveal to those familiar with law the reason for bringing the action against this man, rather than against a non-resident corporation or its agent in this State. In order to present the law at the earliest possible moment in the community where the goods were being sold it was decided to bring the action in the justices' court. It was done and the case came for trial on the seventeenth day of August before John A. McLean, justice of the peace of the city of At that trial this department proved by competent witnesses that the goods sold by Mr. Bouchard were made in imitation or semblance of butter, the product of the dairy; that they were colored with a foreign coloring substance not essential to the compound, the only object being to give a color which it possessed, which made it in imitation and semblance of butter; that the goods were shipped from Kansas City to New York city, at No. 12 Manhattan market, where they were stored until they were shipped out upon orders to P. D. Falardo, at Cohoes. The defense showed that the goods sold were in the original package; that Mr. Falardo was the agent of Armour & Co.; that Mr. Bouchard was at work for Mr. Falardo, they claiming the right to sell these goods in the original package on the ground that our law was unconstitutional as to them for the reason that the goods were being sold by the importer in the original package. On the whole evidence the justice rendered a verdict for the People of the State of New York, giving judgment for $150 which has not been collected. In the meantime Mr. Falardo and his employes continued to industriously canvass the city of Cohoes and sell where |