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-acter a safe guaranty, that po improper use shall be made of them, and to others upon the prescription of a physician. But that is questionable. The sale of it can, of course, be prohibited to minors and to all who may be suffering from some form of dementia, and to confirmed opium eaters. But it would seem to be taking away the free will of those who are under the law confessedly capable of taking care of themselves, if the law were to probibit the sale of opium to adults in general. But where a thing may be put to a wrongful and injurious use, and yet may serve in some other way a useful purpose, the law may prohibit the sale of such things, in any case where the vendor represents them as fit for a use that is injurious, or merely knows that the purchaser expects to apply them to the injurious purpose. Thus the sale of diseased or spoiled meats or other food, as food, intending or expecting that the purchaser is to make use of them as food, may be prohibited. So, also, the sale of milk which comes from cows fed in whole or in part upon still slops, may be prohibited, if it is true that such milk is unwholesome as human food. In the same manner a law was held to be constitutional, which prohibited the sale of illuminating oil which ignited below a certain heat. But it would be unconstitutional to prohibit altogether the sale of either of these things, if they could be employed in some other harmless and useful way. For example, the oil which was prohibited for illuminating purposes, may be very valuable and more or less harmless when used for lubricating purposes.
These principles have lately been presented for consideration and review in connection with laws prohibiting the manufacture and sale of a substance, called oleomargarine, which resembles butter, and is intended to be used instead, and to supply the place in trade, of the dairy product. It is manufactured out of certain fatty deposits of the cow, which contain the same chemical properties as butter, varying only in degree. In New York and Missouri, and perhaps in other States, laws have been enacted, prohibiting absolutely the sale and manufacture of the oleomargarine. Although there has been some attempt made to show that this butter substitute is unwholesome as food, it seems now to be established by the most thorough chemical analyses, that there is no unwholesome ingredient in unadulterated oleomargarine. If it were shown to be unwholesome as food, its sale for the purpose of human consumption could without doubt be prohibited. But the cnly valid objection to its sale is the close resemblance to genuine butter, and the consequent opportunity for the perpetration of fraud. And this was the sole ground upon which the constitutionality of the law was sustained by the Supreme Court of Missouri. But it is plain from the foregoing principles, that a total
1 Johnson v. Simonton, 43 Cal. 542. 2 Patterson v. Kentucky, 97 U. S.501.
a prohibition of the sale of a thing cannot be justified on any such grounds. The sale must be necessarily fraudulent, in order to admit of its absolute prohibition. The law, therefore, which prohibits the sale of oleomargarine, granting that it is a wholesome article of food, is unconstitutional, and so it is decided by the New York Court of Appeals, in considering the validity of the New York statute. In the United States Circuit Court, the constitutionality of the Mis
1 " The central idea of the statute before us seems very manifest; it was, in our opinion, the prevention of facilities for selling or manufacturing a spurious article of butter, resembling the genuine article so closely in its external appearance, as to render it easy to deceive purchasers into buying that which they would not buy but for the deception. The history of legislation on this subject, as well as the phraseology of the act itself, very strongly tend to confirm this view. If this was the purpose of the enactment now under discussion, we discover nothing in its provisions which enables us, in the light of the authorities, to say that the legislature, when passing the act, exceeded the power confided to that department of the government; and, unless we can say this, we cannot hold the act as being anything less than valid.” State o. Addington, 77 Mo. 118. People v. Marx, 99 N. Y. 307 (52 Am. Rep. 314).
souri statute was disputed in a petition by the party to the cause, who prayed for the intervention of the United States courts to prevent the enforcement of the law. The petition was denied, on the ground that the United States court has no jurisdiction, but in delivering the opinion of the court, Justice Miller expressed the opinion that the law was in violation of the constitution of Missouri. The practice of deception in the sale of the oleomargarine may be made punishable as a misdemeanor, and the law may require, as in Ohio, 'the oleomargarine to be put up for sale in packages on which shall be distinctly and durably painted, stamped, or marked, the name of each article used or entering into the composition of such substance. A law has lately been proposed in New York, by which every one dealing in oleomargarine, is required to put up a sign to that effect, and in the manufacture of the substance it is required to be so colored that it may be readily distinguished from pure butter. There can be no doubt as to the constitutionality of such laws, for their only effect is the prevention of fraud. They do not interfere with the honest sale of a wholesome article of food.
It has been maintained in one case,' that the judgment of a town board of aldermen that a certain article of food is unwholesome, and that therefore the sale of it can be prohibited, is not open to inquiry in the ordinary courts. There can be no doubt that the scientific correctness of the judgment of the legislative body in such a case is a judicial question, and therefore subject to review by the courts, for in no other way can the legislatures be kept within the limitations of the constitution. If it is only necessary for the legislature to pronounce a calling injurious to the public, in order to justify its prohibition, there is no limit to the police power of the government. Constitutional restrictions would exert no greater influence than disorganized public opinion; and absolutism, monarchical, aristocratic or democratic, according to the circumstances, would be the corner stone of such a government, at least in theory. The recognition of the rights of the minority would be only a matter of special grace and favor.
i In re John Brosnahan, Jr., 4 McCrary, 1. 2 Palmer o. State, 39 Ohio St. - ; 3 Ohio Law J. 708. • Johnson v. Simonton, 43 Cal. 242.
An important question, in this phase of police power, which will soon demand an explicit answer, is how far and in what manner the government may regulate and prohibit the manufacture and sale of dynamite and other compounds of nitro-glycerine. The deadly character of the composition; the ready opportunity which its portability and easy manufacture afford for its application to base and criminal uses; the ability of a few miscreants with a few pounds of it to endanger and perhaps destroy the lives of many people, demolish public and other buildings, and bring about a state of anarchy in general, all of which can be done with very little danger of detection; these considerations, if any, would most certainly justify the prohibition of the manufacture and sale of so dangerous an article. And yet a law would be unconstitutional which prohibited absolutely the manufacture and sale of dynamite and nitro-glycerine. For these powerful agencies are of great value and service in many legitimate trades and occupations. The business may be placed under the strictest police supervision; heavy penalties may be imposed upon those who knowingly sell these articles to persons to be used for criminal purposes; a heavy bond of indemnity may be required of each dealer, and only men of reputable character, under license, may be permitted to carry on the business: these regulations are all reasonable and constitutional, for they do not extend beyond the prevention of the evil which threatens the public. A total prohibition of the trade in dynamite would not only prevent the evil, but also prohibit the lawful use of a most valuable agency, and would therefore be unconstitutional.
§ 103. Prohibition of the liquor trade. — This phase of police supervision is not only the most common, but the moral and economical conditions, which induce its exercise, are so great and pressing, and the popular excitement attending all agitations against intemperance, like all popular agitations, is usually so little under the control of reason, that it is hard to obtain, from those who are attempting to form and mould public opinion, any approach to a dispassionate consideration of the constitutional limitations upon the police power of the State, in their application to the regulation and prohibition of the liquor trade. Drunkenness is distressingly common, notwithstanding the great increase in the number of those who practice and preach total abstinence from the use of intoxicating liquors; and the multitude of cases of misery and want, caused directly by this common vice, cry aloud for some measure whereby the evil of drunkenness may be banished from the earth. It is no wonder when the zealous reformer contemplates the careworn face of the drunkard's wife, and the rags of bis children, that he appeals to the law-making power to enact any and all laws which seem to promise the banishment of drunkenness ; forgetting, as it is very natural for him to do, since zealots are rarely possessed of a philosophical and judicial mind, that to make a living law, it must be demanded, and its enactment compelled by an irresistible public opinion : and where the law in question does not have for its object the prevention or punishment of a trespass upon rights, it is impossible to obtain for it the enthusiastic and practically unanimous support, which is necessary to secure a proper enforcement of it. Furthermore, if in any community public opinion is so aroused into activity as to be able to secure the enforcement of a law, having for its object the prevention of a vice, the moral force of such a public opinion will be amply sufficient to suppress it. The temperance agitator does not usually dwell on these scientific objections to temperance laws, or if he does, he either