APPEAL by the plaintiff, The City of New York, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 30th day of June, 1911, affirming a judgment of the Municipal Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court on the 6th day of March, 1911, upon the dismissal of the complaint.
Terence Farley, for the appellant.
Waldemar F. Timme, for the respondent.
INGRAHAM, P. J.:
The defendant was in business in the city of New York, engaged in selling provisions. On June 23, 1910, an inspector in the department of weights and measures called at the defendant's place of business and asked for a pound jar of bacon. The defendant said he did not sell it by the pound but by the jar, and then handed the inspector a jar for which the inspector paid the defendant thirty cents. After this testimony and the introduction of an ordinance of the city of New York the parties rested, and the plaintiff asked for a judgment against the defendant for ten dollars as a penalty for a violation of this ordinance. The Municipal Court gave judgment for the defendant which was affirmed by the Appellate Term, and from that judgment the plaintiff appeals.
This jar of bacon sold by the defendant was in a sealed jar labeled 'Beechnut Bacon' and was not put up by the defendant. He sold it as an ordinary article of commerce put up by the manufacturer. There was no weight upon the jar, and the defendant expressly refused to sell it by weight. This is a well-known brand of bacon sold all over the city in sealed jars. The defendant handed the jar to the witness and the witness gave him thirty cents for it.
I think the court can take judicial notice of the fact that many kinds of fruits, vegetables, fish, meats and other provisions are preserved in sealed jars or cans and sold as food by the jar or can and not by weight. Provisions of this kind have become an important element in the food supply of large cities, and it would be destructive of the food value of these
articles if the jars or cans had to be opened and the contents weighed before they were sold. It certainly would require a most specific prohibition in a statute or ordinance to prohibit sales of food and provisions in such sealed jars without opening the jars and removing and weighing the contents. This ordinance is highly penal. Its clear intent is to prevent the public from being defrauded by false weights and measures, and the ordinance itself should be strictly enforced where a sale is made in violation of its express provisions or methods adopted which would tend to defeat the objects for which the ordinance was passed. But certainly a construction should not be given to such an ordinance by implication which would prevent the public from purchasing provisions or food protected from infection or contamination in jars or cans of this character. There is not the slightest evidence that this jar did not contain a valuable food product in ordinary use and that there was any false weight or measure in the sale of the article in question. The charge against the defendant is that he refused to sell the product by weight but was willing to allow the customer to take the jar on payment of thirty cents, and this is claimed to be in violation of this ordinance.
As before stated, this is a highly penal ordinance and it must be construed strictly and not extended by implication. The rule is thus stated (13 Am. & Eng. Ency. of Law [2d ed.], 55): 'It is well established as a general rule of law that statutes which are penal in their nature are to be strictly construed, and questions of doubt are to be resolved favorably to the accused.' And this has been the universally applied rule in this State. ( Jones v. Estis, 2 Johns. 379; Bell v. Dole, 11 id. 173; Health Department v. Knoll, 70 N.Y. 530.) In the latter case it is thus stated: 'The rule is well settled in accordance with the general rule of construction of penal statutes, that a 'penalty cannot be raised by implication, but must be expressly created and imposed."
The ordinance in question is section 388 contained in chapter 8 of the Code of Ordinances of the city of New York, entitled 'Weights and Measures.' Section 380 provides for a bureau of weights and measures in charge of a commissioner of weights and measures to be appointed by the mayor. By section
383 it is provided that all persons using weights and measures or any other instrument used in weighing or measuring any article intended to be purchased or sold shall cause the same to be tested, sealed and marked by the commissioner of weights and measures. Subsequent sections contain specific provisions for ascertaining the correctness of any weights or measures used in the city of New York. The section under which this action was brought contains a provision that no person shall sell or offer for sale in any market, public street or other place in the city of New York any fruit, vegetables or berries in crates, baskets or other measures, or any butter in prints, or any ice or coal or other fuel at or for a greater weight or measure than the true measure thereof. There is here a specific prohibition against selling any of these articles 'at or for a greater weight or measure than the true measure thereof.' This sentence is clearly intended to prevent a purchaser being defrauded by false weights or measures when the article is sold by weight or measure and is to carry out the general object of the chapter in question. The next clause of the ordinance provides: 'And all ice, coal, coke, meats, poultry and provisions (except vegetables sold by the head or bunch) of every kind, sold in the streets or elsewhere in the City of New York, shall be weighed or measured by scales, measures or balances, or in measures duly tested and stamped by the Inspector or Deputy Inspectors of Weights and Measures.' There is here no express provision prohibiting food or provisions being sold by the piece or jar, and referring back to the language used in the beginning of the section as intending to enforce the same provision, it seems to me clear that the intent was to secure the proper weights or measures for use in the sale of provisions or other articles mentioned. The language of the ...