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intended expressly to shield personal rights from the exercise of arbitrary power.” In People v. Otis, 90 N. Y. 48, Andrews, J., says: “ Depriving an owner of property of one of its attributes is depriving him of his property withiu the constitutional provision."
So, too, one may be deprived of his liberty and his constitutional rights thereto violated without the actual imprisonment or restraint of his person. Liberty, in its broad sense as understood in this country, means the right, not only of freedom from actual servitude, imprisonment, or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any law- | ful calling, and to pursue any lawful trade or avocation. All laws, therefore, which impair or trammel these rights, which limit one in his choice of a trade or profession, or confine him to work or live in a specified locality, or exclude him from his own house, or restrain his otherwise lawful movements (except as such laws may be passed in the exercise by the legislature of the police power, which will be noticed later), are infringements upon his fundamental rights of liberty, which are under constitutional protection. In Butchers' Union Company v. *Crescent City Co., 111 U. S. 746, Field, J., says: That among the inalienable rights as proclaimed in the Declaration of Independence is the right of men to pursue any lawful business or vocation in any manner not inconsistent with the equal rights of others, which may increase their property or develop their faculties, so as to give them their highest enjoyment. The common business and callings of life, the ordinary trades and pursuits which are innocent in themselves, and have been followed in all communities from time immemorial, must, therefore, be free in this country to all alike upon the same terms. The right to pursue them without let or hindrance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright." In the same case Bradley, J., says: " I hold that the liberty of pursuit, the right to follow any of the ordinary callings of life, is one of the privileges of a citizen of the United States,” of which he cannot be deprived without invading his right to liberty within the meaning of the Constitution. In Live-Stock, etc., Association v. Crescent City, etc., Company, 1 Abb. U. S. 388, 398, the learned presiding justice says :
" There is no more sacred right of citizenship than the right to pursue unmolested a lawful employment in a lawful manner. It is nothing more nor less than the sacred right of labor." In Wynehamer v. People, Jolinson, J., says: " That a law which should make it a crime for men either to live in, or rent or sell their houses,” would violate the constitutional guiarantee of personal liberty. In Bertholf v. O'Reilly, 74 N. Y. 509, 515, Andrews, J., says: That one could " be deprived of his liberty in a constitutional sense without putting his person in confinement," anul that a man's right to liberty included “the right to exercise his faculties, and to follow a lawful avocation for the support of life.”
These citations are sufficient to show that the police power is not without limitations, and that in its exercise the legislature must respect the great fundamental rights guaranteed by the Constitution. If this were otherwise, the power of the legislature would be practically without limitation. In the assumed exercise of the police power in the interest of the health, the welfare, or the safety of the public, every right of the citizen might be invaded and every constitutional barrier swept away.
Generally it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety, and while its measures are calculated, intended, convenient, and appropriate to accomplish these ends, the exercise of its discretion is not subject to review by the courts. But they must have some relation to these ends. Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded, and the determination of the legislature is not final or conclusive. If it passes an Act ostensibly for the public health, and thereby < destroys or takes away the property of a citizen, or interferes with his personal liberty, then it is for the courts to scrutinize the Act and see whether it really relates to and is convenient and appropriate to promote the public health. It matters not that the legislature may in the title to the Act, or in its body, declare that it is intended for the improvement of the public health. Such a declaration does not conclude the courts, and they must yet determine the fact declared and enforce the supreme law. . .
It is plain that this is not a health law, and that it has no relation whatever to the public health. Under the guise of promoting the public health the legislature might as well have banished cigar-making from all the cities of the State, or confined it to a single city or town, or have placed under a similar ban the trade of a baker, of a tailor, of a shoemaker, of a woodcarver, or of any other of the innocuons trades carried on by artisans in their own homes. The power would have been the same, and its exercise, so far as it concerns fundamental, constitutional rights, could have been justified by the same arguments. Such legislation may invade one class of rights to-day and another to-morrow, and if it can be sanctioned under the Constitution, while far removed in time we will not be far away in practical statesmanship from those ages when governmental prefects supervised the building of houses, the rearing of cattle, the sowing of seed, and the reaping of grain, and governmental ordinances regulated the movements and labor of artisans, the rate of wages, the price of food, the diet and clothing of the people, and a large range of other affairs long since in all civilized lands regarded as outside of governmental functions. Such governmental interferences disturb the normal adjustments of the social fabric, and usually derange the delicate and complicated machinery of industry and cause a score of ills while attempting the removal of one. The order should be affirmed. All concur.
[99 N. Y. 377.] F. R. Coudert and Wheeler H. Peckham, for appellant. Sumuel Hund, for respondent.
Rapallo, J. The defendant was convicted in the Court of General Sessions of the city and county of New York, of a violation of the sixth section of an Act entitled “ An Act to prevent Deception in Sales of Dairy Products.” Chap. 202 of the Laws of 1884. On appeal to the General Term of the Supreme Court in the first department, the conviction was affirmed, and the defendant now appeals to this court from the judgment of affirmance.
The main ground of the appeal is that the section in question is unconstitutional and void.
The section provides as follows :
"§ 6. No person shall manufacture out of any oleaginous substances, or any compound of the same, other than that produced from unadulterated milk or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk or cream of the same, or shall sell or offer to sell the same as an article of food. This provision shall not apply to pure skim-milk cheese produced from pure skim-milk.” The rest of the section subjects to heavy punishments by fine and imprisonment, “whoever violates the provisions of this section.”
The indictment charged the defendant with having on the 31st of October, 1884, at the city of New York, sold one pound of a certain article manufactured out of divers oleaginous substances and compounds thereof, other than those produced from unadulterated milk, to one J. M., as an article of food, the article so sold being designed to take the place of butter produced from pure unadulterated milk or
It is not charged that the article so sold was represented to be butter, or was sold as such, or that there was any intent to deceive or defraud, or that the article was in any respect unwholesome or deleterious, but simply that it was an article designed to take the place of butter made from pure milk or cream.
On the trial the prosecution proved the sale by the defendant of the article known as oleomargarine or oleomargarine butter. That it was sold at about half the price of ordinary dairy butter. The purchaser testified that the sale was made at a kind of factory, having on the outside a large sign “Oleomargarine.” That he knew he could not get butter there, but knew that oleomargarine was sold there. And the district attorney stated that it would not be claimed that there was any fraudulent intent on the part of the defendant, but that the whole
claim on the part of the prosecution was that the sale of oleomargarine as a substitute for dairy butter was prohibited by the statute.
On the part of the defendant it was proved by distinguished chemists that oleomargarine was composed of the same elements as dairy butter. That the only difference between them was that it contained a sınaller proportion of a fatty substance known as butterine. That this butterine exists in dairy butter only in a small proportion from three to six per cent. That it exists in no other substance than butter made from milk and it is introduced into oleomargarine butter by adding to the oleomargarine stock some milk, cream or butter, and churning, and when this is done it has all the elements of natural butter, but there must always be a smaller percentage of butterine in the manufactured product than in butter made from milk. The only effect of the butterine is to give flavor to the butter, having nothing to do with its wholesomeness. That the oleaginous substances in the oleomargarine are substantially identical with those produced from milk or
Professor Chandler testified that the only difference between the two articles was that dairy butter had more butterine. That oleomargarine contained not over one per cent of that substance, while dairy butter might contain four or five per cent, and that if four or five per cent of butterine were added to the oleomargarine, there would be no difference; it would be butter; irrespective of the sources, they would be the same substances. According to the testimony of Professor Morton, whose statement was not controverted or questioned, oleomargarine, so far from being an article devised for purposes of deception in trade, was devised in 1872 or 1873 by an eminent French scientist who had been employed by the French gove ernment to devise a substitute for butter.
Further testimony as to the character of the article being offered, the district attorney announced that he did not propose to controvert that already given. Testimony having been given to the effect that oleomargarine butter was precisely as wholesome as dairy butter, it was, on motion of the district attorney, stricken out, and the defendant's counsel excepted. The broad ground was taken at the trial, and boldly maintained on the argument of this appeal, that the manufacture or sale of any oleaginous compound, however pure and wholesome, as an article of food, if it is designed to take the place of dairy butter, is by this act made a crime. The result of the argument is that if, in the progress of science, a process is discovered of preparing beef tallow, lard, or any other oleaginous substance, and communicating to it a palatable flavor so as to render it serviceable as a substitute for dairy butter, and equally nutritious and valuable, and the article can be produced at a comparatively small cost, which will place it within the reach of those who cannot afford to buy dairy butter, the ban of this statute is upon it. Whoever engages in the business of manufacturing or selling the prohibited product is guilty of a crime; the industry must be suppressed : those who could make a livelihood
by it are deprived of that privilege, the capital invested in the business must be sacrificed, and such of the people of the State as cannot afford to buy dairy butter must eat their bread uubuttered.
The references which have been here made to the testimony on the trial are not with the view of instituting any comparison between the relative merits of oleomargarine and dairy butter, but rather as illustrative of the character and effect of the statute whose validity is in question. The indictment upon which the defendant was convicted does not mention oleomargarine, neither does the section ($ 6) of the statute, although the article is mentioned in other statutes, which will be referred to. All the witnesses who have testified as to the qualities of oleomargarine may be in error, still that would not change a particle the nature of the question, or the principles by which the validity of the act is to be tested. Section 6 is broad enough in its terms to embrace not only oleomargarine, but any other compound, however wholesome, valuable, or cheap, which has been or may be discovered or devised for the purpose of being used as a substitute for butter. Every such product is rigidly excluded from manufacture or sale in this State.
One of the learned juulges who delivered opinions at the General Term endeavored to sustain the Act on the ground that it was intended to prohibit the sale of any artificial compound, as genuine butter or cheese made from unadulterated milk or cream. That it was that design to deceive which the law rendered criminal. If that were a correct interpretation of the Act, we should concur with the learned judge in his conclusion as to its validity, but we could not concur in his further view that such an offence was charged in the indictment, or proved upon the trial. The express concessions of the prosecuting officer are to the contrary. We do not think that section 6 is capable of the construction claimed. The prohibition is not of the manufacture or sale of an article designed as an imitation of dairy butter or cheese, or intended to be passed off as such, but of an article designed to take the place of dairy butter or cheese. The artificial product might be green, red, or white instead of yellow, and totally dissimilar in appearance to ordinary dairy butter, yet it might be designed as a substitute for butter, and if so, would fall within the prohibition of the statute. Simulation of butter is not the act prohibited. There are other statutory provisions fully covering that subject. Chapter 215 of the Laws of 1882, entitled “ An Act to regulate the Manufacture and Sale of Oleomargarine, or any Form of Imitation Butter and Lard, or any Form of Imitation Cheese, for the Prevention of Fraud, and the Better Protection of the Public Health," by its first section prohibits the introduction of any substance into imitation butter or cheese for the purpose of imparting thereto a color resembling that of yellow butter or cheese. The second section prohibits the sale of oleomargarine or imitation butter thus colored, and the third section prohibits the sale of any article in semblance of natural cheese, not the