The Fourteenth Amendment to the Constitution was not designed to
interfere with the exercise of the police power by the state for
the protection of health, the prevention of fraud, and the
preservation of the public morals.
The prohibition of the manufacture out of oleaginous substances,
or out of any compound thereof other than that produced from
unadulterated milk or cream from unadulterated milk, of an article
designed to take the place of butter or cheese produced from pure
unadulterated milk or cream from unadulterated milk, or the
prohibition upon the manufacture of any imitation or adulterated
butter or cheese, or upon the selling or offering for sale, or
having in possession with intent to sell, the same, as an article
of food, is a lawful exercise by the power to protect, by police
regulations, the public health.
Whether the manufacture of oleomargarine or imitation butter of
the kind described in the Act of the Legislature of Pennsylvania of
May 21, 1885 (Laws of Penn. of 1885, p. 22, No. 25) is or may be
conducted in such a way or with such skill and secrecy as to baffle
ordinary inspection, or whether it involves such danger to the
public health as to require, for the protection of the people, the
entire suppression of the business, rather than its regulation in
such manner as to permit the manufacture and sale of articles of
that class that do not contain noxious ingredients, are questions
of fact and of public policy which belong to the legislative
department to determine .
The statute of Pennsylvania of May 21, 1885, "for the protection
of the public health, and to prevent adulteration of dairy products
and fraud in the sale thereof" neither denies to persons within the
jurisdiction of the state the equal protection of the laws nor
deprives persons of their property without that compensation
required by law, and is not repugnant in these respects to the
Fourteenth Amendment to the Constitution of the United States.
The case is stated in the opinion.
Page 127 U. S. 679
MR. JUSTICE HARLAN delivered the opinion of the Court.
This writ of error brings up for review a judgment of the
Supreme Court of Pennsylvania sustaining the validity of a statute
of that commonwealth relating to the manufacture and sale of what
is commonly called "oleomargarine butter." That judgment, the
plaintiff in error contends, denies to him certain rights and
privileges specially claimed under the Fourteenth Amendment to the
Constitution of the United States.
By Acts of the General Assembly of Pennsylvania, one approved
May 22, 1878, and entitled "An act to prevent deception in the sale
of butter and cheese," and the other approved May 24, 1883, and
entitled "An act for the protection of dairymen, and to prevent
deception in sales of butter and cheese," provision was made for
the stamping, branding, or marking in a prescribed mode
manufactured articles or substances in semblance or imitation of
butter or cheese, not the legitimate product of the dairy and not
made exclusively of milk or cream, but into which oil, lard, or
fat, not produced from milk or cream, entered as a component part,
or into which melted butter, or any oil thereof, had been
introduced to take the place of cream. Laws of Pennsylvania, 1878,
p. 87; 1883, p. 43.
But this legislation, we presume, failed to accomplish the
objects intended by the legislature. For, by a subsequent act
approved May 21, 1885, and which took effect July 1, 1885, entitled
"An act for the protection of the public health, and to prevent
adulteration of dairy products, and fraud in the sale thereof," it
was provided, among other things, as follows:
"SECTION 1. That no person, firm, or corporate body shall
manufacture out of any oleaginous substance 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 from the
same, or of any imitation or adulterated butter or cheese, nor
shall sell, or offer for sale, or have in his, her, or their
possession, with intent to sell, the same as an article of food.
"
Page 127 U. S. 680
"SECTION 2. Every sale of such article or substance which is
prohibited by the first section of this act, made after this act
shall take effect, is hereby declared to be unlawful and void, and
no action shall be maintained in any of the courts in this state to
recover upon any contract for the sale of any such article or
substance."
"SECTION 3. Every person, company, firm, or corporate body who
shall manufacture, sell, or offer or expose for sale, or have in
his, her, or their possession with intent to sell, any substance
the manufacture and sale of which is prohibited by the first
section of this act, shall, for every such offense, forfeit and pay
the sum of one hundred dollars, which shall be recoverable, with
costs, by any person suing in the name of the commonwealth, as
debts of like amount are by law recoverable, one-half of which sum,
when so recovered, shall be paid to the proper county treasurer for
the use of the county in which suit is brought, and the other half
to the person or persons at whose instance such a suit shall or may
be commenced and prosecuted to recovery."
"SECTION 4. Every person who violates the provision of the first
section of this act shall be deemed guilty of a misdemeanor and,
upon conviction, shall be punished by a fine of not less than one
hundred dollars nor more than three hundred, or by imprisonment in
the county jail for not less than ten nor more than thirty days, or
both such fine and imprisonment, for the first offense, and
imprisonment for one year for every subsequent offense."
The plaintiff in error was indicted under the last statute in
the Court of Quarter Sessions of the Peace in Dauphin County,
Pennsylvania. The charge in the first count of the indictment is
that he unlawfully sold
"as an article of food two cases, containing five pounds each,
of an article designed to take the place of butter produced from
pure unadulterated milk, or cream from milk, the said article so
sold as aforesaid being an article manufactured out of certain
oleaginous substances and compounds of the same other than that
produced from unadulterated milk or cream from milk, and said
article so sold as aforesaid being an imitation butter."
In the
Page 127 U. S. 681
second count, the charge is that he unlawfully had in his
possession,
"with intent to sell the same as an article of food a quantity,
viz., one hundred pounds, of imitation butter designed to
take the place of butter produced from pure unadulterated milk or
cream from the same, manufactured out of certain oleaginous
substances or compounds of the same other than that produced from
milk or cream from the same."
It was agreed for the purposes of the trial that the defendant,
on July 10, 1885, in the City of Harrisburg, sold to the
prosecuting witness as an article of food two original packages of
the kind described in the first count; that such packages were sold
and bought as "butterine," and not as butter produced from pure
unadulterated milk or cream from unadulterated milk, and that each
of said packages was at the time of sale marked with the words
"Oleomargarine Butter" upon the lid and side in a straight line, in
Roman letters half an inch long.
It was also agreed that the defendant had in his possession one
hundred pounds of the same article with intent to sell it as an
article of food.
This was the case made by the commonwealth.
The defendant then offered to prove by Prof. Hugo Blanck that he
saw manufactured the article sold to the prosecuting witness; that
it was made from pure animal fats; that the process of manufacture
was clean and wholesome, the article containing the same elements
as dairy butter, the only difference between them being that the
manufactured article contained a smaller proportion of the fatty
substance known as "butterine"; that this butterine existed in
dairy butter in the proportion of from three to seven percent, and
in the manufactured article in a smaller proportion, and was
increased in the latter by the introduction of milk and cream;
that, this having been done, the article contained all the elements
of butter produced from pure unadulterated milk, or cream from the
same, except that the percentage of butterine was slightly smaller;
that the only effect of butterine was to give flavor to the butter,
and that it had nothing to do with its wholesomeness; that the
oleaginous substances in the manufactured
Page 127 U. S. 682
article were substantially identical with those produced from
milk or cream, and that the article sold to the prosecuting witness
was a wholesome and nutritious article of food, in all respects as
wholesome as butter produced from pure unadulterated milk or cream
from unadulterated milk.
The defendant also offered to prove that he was engaged in the
grocery and provision business in the City of Harrisburg, and that
the article sold by him was part of a large and valuable quantity
manufactured prior to the 21st of May, 1885, in accordance with the
laws of this commonwealth relating to the manufacture and sale of
said article, and so sold by him; that for the purpose of
prosecuting that business, large investments were made by him in
the purchase of suitable real estate, in the erection of proper
buildings and in the purchase of the necessary machinery and
ingredients; that in his traffic in said article he made large
profits, and if prevented from continuing it, the value of his
property employed therein would be entirely lost and he be deprived
of the means of livelihood.
To each offer the commonwealth objected upon the ground that the
evidence proposed to be introduced was immaterial and irrelevant.
The purpose of these offers of proof was avowed to be (1) to show
that the article sold was a new invention, not an adulteration of
dairy products nor injurious to the public health, but wholesome
and nutritious as an article of food, and that its manufacture and
sale were in conformity to the Acts of May 22, 1878, and May 24,
1883; (2) to show that the statute upon which the prosecution was
founded was unconstitutional as not a lawful exercise of police
power and also because it deprived the defendant of the lawful use
"of his property, liberty, and faculties, and destroys his property
without making compensation."
The court sustained the objection to each offer and excluded the
evidence. An exception to that ruling was duly taken by the
defendant.
A verdict of guilty having been returned, and motions in arrest
of judgment and for a new trial having been overruled,
Page 127 U. S. 683
the defendant was adjudged to pay a fine of $100 and costs of
prosecution or give bail to pay the same in ten days and be in
custody until the judgment was performed. That judgment was
affirmed by the supreme court of the state. 114 Penn.St. 265.
This case, in its important aspects, is governed by the
principles announced in
Mugler v. Kansas, 123 U.
S. 623.
It is immaterial to inquire whether the acts with which the
defendant is charged were authorized by the statute of May 22,
1878, or by that of May 24, 1883. The present prosecution is
founded upon the statute of May 21, 1885, and if that statute be
not in conflict with the Constitution of the United States, the
judgment of the Supreme Court of Pennsylvania must be affirmed.
It is contended that the last statute is void in that it
deprives all coming within its provisions of rights of liberty and
property without due process of law and denies to them the equal
protection of the laws, rights which are secured by the Fourteenth
Amendment of the Constitution of the United States.
It is scarcely necessary to say that if this statute is a
legitimate exercise of the police power of the state for the
protection of the health of the people and for the prevention of
fraud, it is not inconsistent with that amendment, for it is the
settled doctrine of this Court that as government is organized for
the purpose, among others, of preserving the public health and the
public morals, it cannot divest itself of the power to provide for
those objects, and that the Fourteenth Amendment was not designed
to interfere with the exercise of that power by the states.
Mugler v. Kansas, 123 U. S. 663;
Butchers' Union Co. v. Crescent City Co., 111 U.
S. 746,
111 U. S. 751;
Barbier v. Connolly, 113 U. S. 27;
Yick Wo v. Hopkins, 118 U. S. 356. The
question, therefore, is whether the prohibition of the manufacture
out of oleaginous substances or out of any compound thereof other
than that produced from unadulterated milk or cream from
unadulterated milk of an article designed to take the place of
butter or cheese produced from pure
Page 127 U. S. 684
unadulterated milk or cream from unadulterated milk, or the
prohibition upon the manufacture of any imitation or adulterated
butter or cheese or upon the selling or offering for sale or having
in possession with intent to sell the same as an article of food is
a lawful exercise by the state of the power to protect, by police
regulations, the public health.
The main proposition advanced by the defendant is that his
enjoyment upon terms of equality with all others in similar
circumstances of the privilege of pursuing an ordinary calling or
trade and of acquiring, holding, and selling property is an
essential part of his rights of liberty and property as guaranteed
by the Fourteenth Amendment. The Court assents to this general
proposition as embodying a sound principle of constitutional law.
But it cannot adjudge that the defendant's rights of liberty and
property, as thus defined, have been infringed by the statute of
Pennsylvania without holding that, although it may have been
enacted in good faith for the objects expressed in its title,
mainly to protect the public health and to prevent the adulteration
of dairy products and fraud in the sale thereof, it has in fact no
real or substantial relation to those objects.
Mugler v.
Kansas, 123 U. S. 623,
123 U. S. 661.
The Court is unable to affirm that this legislation has no real or
substantial relation to such objects.
It will be observed that the offer in the court below was to
show by proof that the particular articles the defendant sold and
those in his possession for sale in violation of the statute were
in fact wholesome or nutritious articles of food. It is entirely
consistent with that offer that many -- indeed that most -- kinds
of oleomargarine butter in the market contain ingredients that are
or may become injurious to health. The Court cannot say from
anything of which it may take judicial cognizance that such is not
the fact. Under the circumstances disclosed in the record, and in
obedience to settled rules of constitutional construction, it must
be assumed that such is the fact. "Every possible presumption,"
CHIEF JUSTICE WAITE said, speaking for the Court in
Sinking
Fund Cases, 99 U. S. 700,
99 U. S.
718,
"is in favor of the validity of a statute, and this continues
until the contrary is shown beyond a rational doubt.
Page 127 U. S. 685
One branch of the government cannot encroach on the domain of
another without danger. The safety of our institutions depends in
no small degree on a strict observance of this salutary rule."
See also Fletcher v.
Peck, 6 Cranch 128;
Dartmouth
College v. Woodward, 4 Wheat. 518,
17 U. S. 625;
Livingston v. Darlington, 101 U.
S. 407.
Whether the manufacture of oleomargarine or imitation butter of
the kind described in the statute is or may be conducted in such a
way or with such skill and secrecy as to baffle ordinary
inspection, or whether it involves such danger to the public health
as to require, for the protection of the people, the entire
suppression of the business, rather than its regulation in such
manner as to permit the manufacture and sale of articles of that
class that do not contain noxious ingredients, are questions of
fact and of public policy which belong to the legislative
department to determine. And as it does not appear upon the face of
the statute or from any facts of which the court must take judicial
cognizance that it infringes rights secured by the fundamental law,
the legislative determination of those questions is conclusive upon
the courts. It is not a part of their functions to conduct
investigations of facts entering into questions of public policy
merely, and to sustain or frustrate the legislative will, embodied
in statutes, as they may happen to approve or disapprove its
determination of such questions. The power which the legislature
has to promote the general welfare is very great, and the
discretion which that department of the government has in the
employment of means to that end is very large. While both its power
and its discretion must be so exercised as not to impair the
fundamental rights of life, liberty, and property, and while,
according to the principles upon which our institutions rest,
"the very idea that one man may be compelled to hold his life or
the means of living or any material right essential to the
enjoyment of life at the mere will of another seems to be
intolerable in any country where freedom prevails, as being the
essence of slavery itself,"
yet
"in many cases of mere administration, the responsibility is
purely political, no appeal lying except to the ultimate tribunal
of the public
Page 127 U. S. 686
judgment, exercised either in the pressure of public opinion or
by means of the suffrage."
Yick Wo v. Hopkins, 118 U. S. 370.
The case before us belongs to the latter class. The Legislature of
Pennsylvania, upon the fullest investigation, as we must
conclusively presume, and upon reasonable grounds, as must be
assumed from the record, has determined that the prohibition of the
sale, or offering for sale, or having in possession to sell for
purposes of food of any article manufactured out of oleaginous
substances or compounds other than those produced from
unadulterated milk or cream from unadulterated milk to take the
place of butter produced from unadulterated milk or cream from
unadulterated milk will promote the public health and prevent
frauds in the sale of such articles. If all that can be said of
this legislation is that it is unwise or unnecessarily oppressive
to those manufacturing or selling wholesome oleomargarine as an
article of food, their appeal must be to the legislature or to the
ballot box, not to the judiciary. The latter cannot interfere
without usurping powers committed to another department of
government.
It is argued in behalf of the defendant that if the statute in
question is sustained as a valid exercise of legislative power,
then nothing stands in the way of the destruction by the
legislative department of the constitutional guarantees of liberty
and property. But the possibility of the abuse of legislative power
does not disprove its existence. That possibility exists even in
reference to powers that are conceded to exist. Besides, the
judiciary department is bound not to give effect to statutory
enactments that are plainly forbidden by the Constitution. This
duty, the Court has said, is always one of extreme delicacy, for
apart from the necessity of avoiding conflicts between coordinate
branches of the government, whether state or national, it is often
difficult to determine whether such enactments are within the
powers granted to or possessed by the legislature. Nevertheless, if
the incompatibility of the Constitution and the statute is clear or
palpable, the courts must give effect to the former. And such would
be the duty of the Court if the state legislature, under the
pretense of guarding the public health, the public morals, or
the
Page 127 U. S. 687
public safety, should invade the rights of life, liberty, or
property or other rights secured by the supreme law of the
land.
The objection that the statute is repugnant to the clause of the
Fourteenth Amendment forbidding the denial by the state to any
person within its jurisdiction of the equal protection of the laws
is untenable. The statute places under the same restrictions and
subjects to like penalties and burdens all who manufacture or sell
or offer for sale or keep in possession to sell the articles
embraced by its prohibitions, thus recognizing and preserving the
principle of equality among those engaged in the same business.
Barbier v. Connolly, 113 U. S. 27;
Soon Hing v. Crowley, 113 U. S. 703;
Railway Co. v. Humes, 115 U. S. 512,
115 U. S.
519.
It is also contended that the Act of May 21, 1885, is in
conflict with the Fourteenth Amendment in that it deprives the
defendant of his property without that compensation required by
law. This contention is without merit, as was held in
Mugler v.
Kansas.
Upon the whole case, we are of opinion that there is no error in
the judgment, and it is therefore
Affirmed.
MR. JUSTICE FIELD, dissenting.
The plaintiff in error was indicted in one of the courts of
Pennsylvania for selling as an article of food two cases of
oleomargarine butter containing five pounds each, and was sentenced
to pay a fine of $100. The case being taken to the supreme court of
the state, the judgment was affirmed, and to review it the case is
brought to this Court.
The statute under which the conviction was had was passed on the
21st of May, 1885, and went into effect on the 1st of July
following. It declares in its first section
"That no person, firm, or corporate body shall manufacture out
of any oleaginous substance or any compound of the same other than
that produced from unadulterated milk or cream from the same any
article designed to take the place of butter or cheese produced
from pure unadulterated milk, or cream from the same, or of any
imitation or adulterated butter or cheese,
Page 127 U. S. 688
nor shall sell or offer for sale, or have in his, her, or their
possession with intent to sell, the same as an article of
food."
In another section, the act made a violation of these provisions
a misdemeanor punishable by a fine of not less than one hundred
dollars nor more than three hundred or by imprisonment in the
county jail for not less than ten or more than thirty days, or both
such fine and imprisonment for the first offense and imprisonment
for one year for every subsequent offense.
The act, it is to be observed, is not designed to prevent any
deception in the manufacture and sale of the article of
oleomargarine butter or any attempt to pass it off as butter made
of milk or cream. The title would indicate that the act was
intended for the protection of the public health and to prevent the
adulteration of dairy products and fraud in the sale thereof. It is
probable that the original draft of the act had such a purpose, and
that the title was allowed to remain after its body was changed. Be
this as it may, the act is one prohibiting the manufacture or sale
or keeping for sale of the article, though no concealment is
attempted as to its character, nature, or ingredients. Its validity
is rested simply upon the fact that it has pleased the legislature
of the commonwealth to declare that the article shall not be
manufactured or sold or kept for sale within its limits. On the
trial, the defendant offered to prove by competent witnesses that
the article manufactured was composed of ingredients perfectly
healthy, and was as wholesome and nutritious as butter produced
from pure milk or cream, but the court refused to allow the
evidence on the ground that it was immaterial and irrelevant. It
was sufficient, in its judgment, that the legislature had passed
the act to render a disregard of its provisions a public
offense.
The defendant also offered to prove that the article sold by him
was a part of a large and valuable quantity manufactured prior to
the passage of the Act of May 21, 1885, in accordance with the laws
of the commonwealth relating to the manufacture and sale of the
article, but this offer was also rejected on the same ground, as
immaterial and irrelevant. The case is therefore to be considered
as if the proof offered had been received.
Scotland County v.
Hill, 112 U. S. 183,
112 U. S.
186.
Page 127 U. S. 689
Two questions are thus distinctly presented: first, whether a
state can lawfully prohibit the manufacture of a healthy and
nutritious article of food designed to take the place of butter out
of any oleaginous substance, or compound of the same, other than
that produced from pure milk or cream, and its sale when
manufactured, and second, whether a state can, without compensation
to the owner, prohibit the sale of an article of food, in itself
healthy and nutritious, which has been manufactured in accordance
with its laws. These questions are not presented in the opinion of
the Court as nakedly and broadly as here stated, but they
nevertheless truly indicate the precise points involved, and
nothing else. Upon first impressions, one would suppose that it
would be a matter for congratulation on the part of the state that,
in the progress of science, a means had been discovered by which a
new article of food could be produced equally healthy and
nutritious with and less expensive than one already existing, and
for which it could be used as a substitute. Thanks and rewards
would seem to be the natural return for such a discovery and the
increase of the article by the use of the means thereby encouraged.
But not so thought the legislature of the commonwealth of
Pennsylvania. By the enactment in question it declared that no
article of food to take the place of butter shall be manufactured
out of any other oleaginous matter than that which is produced from
pure milk or cream, or be sold within its limits or kept for sale,
under penalty of fine and imprisonment.
If the first question presented can be answered, as it has been
by the Court, in the affirmative, I do not see why it is not
equally within the competency of the legislature to forbid the
production and sale of any new article of food, though composed of
harmless ingredients and perfectly healthy and nutritious in its
character, or even to forbid the manufacture and sale of articles
of prepared food now in general use, such as extracts of beef and
condensed milk and the like, whenever it may see fit to do so, its
will in the matter constituting the only reason for the enactment.
The doctrine asserted is nothing less than the competency of the
legislature to prescribe, out of
Page 127 U. S. 690
different articles of healthy and nutritious food, what shall be
manufactured and sold within its limits and what shall not be thus
manufactured and sold. I have always supposed that the gift of life
was accompanied with the right to seek and produce food, by which
life can be preserved and enjoyed, in all ways not encroaching upon
the equal rights of others. I have supposed that the right to take
all measures for the support of life, which are innocent in
themselves, is an element of that freedom which every American
citizen claims as his birthright. I admit that, previous to the
adoption of the Fourteenth Amendment of the federal Constitution,
the validity of such legislation was to be determined by the
constitution of the state and that its tribunals were the
authoritative interpreters of its meaning. This Court could
exercise no appellate jurisdiction over the judgments of the state
courts in matters of purely local concern. Their judgments in such
cases were final and conclusive. If the legislation of the state
thus sustained was oppressive and unjust, the remedy could be found
only in subsequent legislation, brought about through the influence
of wiser views and a more enlightened policy on the part of the
people. From the structure of our dual government, in which the
United States exercise only such powers as are expressly delegated
to them by the Constitution or necessarily implied, all others not
prohibited to the states being reserved to them respectively or to
the people the great mass of matters of local interest were
necessarily subject to state regulation, and whether that was
wisely or unwisely enacted, it was not a question which could come
under the consideration of this Court. The government created by
the Constitution was not designed for the regulation of matters
purely local in their character. The states required no aid from
any external authority to manage their domestic affairs. It was
only for matters which affected all the states, or which could not
be managed by them in their individual capacity, or managed only
with great difficulty and embarrassment, that a general and common
government was desired. Only such powers of internal regulation
were therefore conferred as were essential to the successful and
efficient working of the
Page 127 U. S. 691
government established, to facilitate intercourse and commerce
between the people of different states and to secure to them
equality of protection in the several states, and only such
restraints were placed upon the action of the states as would
prevent conflict with its authority, to secure the fulfillment of
contract obligations, and insure protection against punishment by
legislative decree or by retrospective legislation. By the first
section of the Fourteenth Amendment, which had its origin in the
new conditions and necessities growing out of the late civil war,
further restraints were placed upon the power of the states in some
particulars, a disregard of which subjected their action to review
by this Court. That section is as follows:
"All persons born or naturalized in the United States and
subject to the jurisdiction thereof are citizens of the United
States and of the state wherein they reside. No state shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States, nor shall any state deprive any
person of life, liberty, or property without due process of law,
nor deny to any person within its jurisdiction the equal protection
of the laws."
It is the clause declaring that no state shall "deprive any
person of life, liberty, or property without due process of law,"
which applies to the present case. This provision is found in the
constitutions of nearly all the states, and was designed to prevent
the arbitrary deprivation of life and liberty and the arbitrary
spoliation of property. As I said on a former occasion, it means
that neither can be taken, or the enjoyment thereof impaired,
except in the course of the regular administration of the law in
the established tribunals. It has always been supposed to secure to
every person the essential conditions for the pursuit of happiness,
and is therefore not to be construed in a narrow or restricted
sense.
Ex Parte Virginia, 100 U.
S. 339,
100 U. S.
366.
By "liberty," as thus used, is meant something more than freedom
from physical restraint or imprisonment. It means freedom not
merely to go wherever one may choose, but to do such acts as he may
judge best for his interest not inconsistent
Page 127 U. S. 692
with the equal rights of others -- that is, to follow such
pursuits as may be best adapted to his faculties, and which will
give to him the highest enjoyment. As said by the Court of Appeals
of New York in
People v. Marx:
"The term 'liberty,' as protected by the Constitution, is not
cramped into a mere freedom from physical restraint of the person
of the citizen, as by incarceration, but is deemed to embrace the
right of man to be free in the enjoyment of the faculties with
which he has been endowed by his Creator, subject only to such
restraints as are necessary for the common welfare."
99 N.Y. 386. And again, in
In re Jacobs:
"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 lawful calling, and to pursue any lawful
trade or vocation."
98 N.Y. 98.
With the gift of life there necessarily goes to everyone the
right to do all such acts and follow all such pursuits, not
inconsistent with the equal rights of others, as may support life
and add to the happiness of its possessor. The right to pursue
one's happiness is placed by the Declaration of Independence among
the inalienable rights of man, with which all men are endowed, not
by the grace of emperors or kings or by force of legislative or
constitutional enactments, but by their Creator, and to secure
them, not to grant them, governments are instituted among men. The
right to procure healthy and nutritious food, by which life may be
preserved and enjoyed, and to manufacture it, is among these
inalienable rights which, in my judgment, no state can give and no
state can take away except in punishment for crime. It is involved
in the right to pursue one's happiness. This doctrine is happily
expressed and illustrated in
People v. Marx, cited above,
where the precise question here was presented. That case arose upon
an indictment for a violation of a provision of an act of the
Legislature of New York entitled "An act to prevent deception in
the sale of dairy products," a section of which was almost
identical in language with the first section
Page 127 U. S. 693
of the act of the Legislature of Pennsylvania under
consideration. The defendant was convicted by the Court of General
Sessions of New York. The conviction was affirmed by the general
term of the supreme court, and from that decision an appeal was
taken to the Court of Appeals, where the judgment was reversed. The
court was of opinion that the object and effect of the act,
notwithstanding its title, was not to supplement existing
provisions against fraud and deception by means of imitation of
dairy butter, but to prohibit the manufacture and sale of any
article which could be used as a substitute for it, however openly
and fairly the character of the substitute might be avowed and
published, to drive the substituted article from the market, and
protect those engaged in the manufacture of dairy products against
the competition of cheaper substances capable of being applied to
the same uses as articles of food. At the trial and on the argument
of the appeal, the ground was taken that if such were the case, the
manufacture or sale of any oleaginous compound, however pure and
wholesome, as an article of food, if it was designed to take the
place of dairy butter, was by that act made a crime, and the court
said:
"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 unbuttered."
And after referring to the state constitution, which provides
that no member of the state shall be disfranchised or be deprived
of any of the rights and privileges secured to any citizen thereof
unless by
Page 127 U. S. 694
the law of the land or the judgment of his peers, and to the
clause which declares that no person shall be deprived of life,
liberty, or property without due process of law, and to the first
section of the article of the Fourteenth Amendment of the federal
Constitution, the court said:
"These constitutional safeguards have been so thoroughly
discussed in recent cases that it would be superfluous to do more
than refer to the conclusions which have been reached bearing upon
the question now under consideration. Among these, no proposition
is now more firmly settled than that it is one of the fundamental
rights and privileges of every American citizen to adopt and follow
such lawful industrial pursuit, not injurious to the community, as
he may see fit."
And, referring to various decisions as to the meaning of
liberty, among which was one that the right to liberty embraces the
right of man "to exercise his faculties, and to follow a lawful
vocation for the support of life," the court said:
"Who will have the temerity to say that these constitutional
principles are not violated by an enactment which absolutely
prohibits an important branch of industry for the sole reason that
it competes with another, and may reduce the price of an article of
food for the human race? Measures of this kind are dangerous even
to their promoters. If the argument of the respondent in support of
the absolute power of the legislature to prohibit one branch of
industry for the purpose of protecting another with which it
competes can be sustained, why could not the oleomargarine
manufacturers, should they obtain sufficient power to influence or
control the legislative councils, prohibit the manufacture or sale
of dairy products? Would arguments then be found wanting to
demonstrate the invalidity, under the Constitution, of such an act?
The principle is the same in both cases. The numbers engaged upon
each side of the controversy cannot influence the question here.
Equal rights to all are what are intended to be secured by the
establishment of constitutional limits to legislative power, and
impartial tribunals to enforce them."
The answer made to all this reasoning and this decision is that
the act of Pennsylvania was passed in the exercise of its police
power -- meaning by that term its power to provide
Page 127 U. S. 695
for the health of the people of the state. Undoubtedly this
power of a state extends to all regulations affecting not only the
health, but the good order, morals, and safety of society; but a
law does not necessarily fall under the class of police regulations
because it is passed under the pretense of such regulation, as in
this case, by a false title, purporting to protect the health, and
prevent the adulteration of dairy products, and fraud in the sale
thereof. It must have in its provisions some relation to the end to
be accomplished. If that which is forbidden is not injurious to the
health or morals of the people, if it does not disturb their peace
or menace their safety, it derives no validity by calling it a
police or health law. Whatever name it may receive, it is nothing
less than an unwarranted interference with the rights and the
liberties of the citizen. In
In the Matter of Jacobs, the
law passed was entitled
"An act to improve the public health by prohibiting the
manufacture of cigars and preparation of tobacco in any form in
tenement houses in certain cases, and regulating the use of
tenement houses in certain cases."
It prohibited the manufacture of cigars or preparation of
tobacco in any from on any floor, or in any part of any floor, in
any tenement house if such floor, or part of such floor, was
occupied by any person as a home or residence for the purpose of
living, sleeping, cooking, or doing any household work therein, and
declared that every person who was guilty of a violation of the
act, or of having caused another person to commit such violation,
should be deemed guilty of a misdemeanor and punished by a fine of
not less than ten dollars or more than one hundred dollars, or by
imprisonment for not less than ten days or more than six months, or
by both such fine and imprisonment. The tenement house used had
four floors, and seven rooms on each floor, and each floor was
occupied by one family, living independently of the others and
doing its cooking in one of the rooms thus occupied. Jacobs was
engaged in one of his rooms in preparing tobacco and making cigars,
but there was no smell of tobacco in any part of the house except
in that room. For this violation of the act he was arrested. A writ
of habeas corpus sued out in the court below for his discharge
Page 127 U. S. 696
was dismissed at the special term of the supreme court. On
appeal to the general term, this order was reversed, and the case
was taken to the Court of Appeals. There, the claim was made that
the legislature passed this act in the exercise of its police
power; but the court said in answer:
"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 when 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 and conclusive. If it passes an act
ostensibly for the public health, and thereby destroys or takes
away the property of a citizen and 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."
And the court concluded an extended consideration of the subject
by declaring that when a health law is challenged in the courts as
unconstitutional on the ground that it arbitrarily interferes with
personal liberty and private property without due process of law,
the court must be able to see that it has in fact some relation to
the public health, that the public health is the end aimed at, and
that it is appropriate and adapted to that end, and as it could not
see that the law in question, forbidding the cigar maker from
plying his trade in his own room in the tenement house, when
allowed to follow it elsewhere, was designed to promote the public
health, it pronounced the law unconstitutional and void. If the
courts could not in such cases examine into the real character of
the act, but must accept the declaration of the legislature as
conclusive, the most valued rights of the citizen would be
subject
Page 127 U. S. 697
to the arbitrary control of a temporary majority of such bodies,
instead of being protected by the guarantees of the Constitution.
In the recent prohibition cases from Kansas, this Court, after
stating that it belonged to the legislative department to determine
primarily what measures are appropriate or needful for the
protection of the public morals, the public health, or the public
safety, added:
"It does not at all follow that every statute enacted ostensibly
for the promotion of these ends is to be accepted as a legitimate
exercise of the police powers of the state. There are, of
necessity, limits beyond which legislation cannot rightfully go. .
. . The courts are not bound by mere form, nor are they to be
misled by mere pretenses. They are at liberty -- indeed, are under
a solemn duty -- to look at the substance of things whenever they
enter upon the inquiry whether the legislature has transcended the
limits of its authority. If, therefore, a statute purporting to
have been enacted to protect the public health, the public morals,
or the public safety has no real or substantial relation to those
objects, or is a palpable invasion of rights secured by the
fundamental law, it is the duty of the courts to so adjudge, and
thereby give effect to the Constitution."
Mugler v. Kansas, 123 U. S. 623.
In
Watertown v. Mayo, the Supreme Court of
Massachusetts, speaking of the police power of the state, said:
"The law will not allow rights of property to be invaded under
the guise of a police regulation for the preservation of the
health, or protection against a threatened nuisance, and when it
appears that such is not the real object and purpose of the
regulation, the courts will interfere to protect the rights of
citizens."
109 Mass. 315, 319. It would seem that, under the constitutions
of the states, no legislature should be permitted, under the
pretense of a police regulation, to encroach upon any of the just
rights of the citizen intended to be secured thereby. Be this as it
may, certain it is that no state can, under any pretense or guise
whatever, impair any such rights of the citizen which the
fundamental law of the United States has declared shall neither be
destroyed nor abridged. Were this not so, the protection which the
Constitution designed to
Page 127 U. S. 698
secure would be lost, and the rights of the citizen would be
subject to the control of the state legislatures, which would in
such matters be practically omnipotent. What greater invasion of
the rights of the citizen can be conceived than to prohibit him
from producing an article of food, conceded to be healthy and
nutritious, out of designated substances, in themselves free from
any deleterious ingredients? The prohibition extends to the
manufacture of an article of food out of any oleaginous substances,
or compounds of the same, not produced from milk or cream, to take
the place of butter or cheese. There are many oleaginous substances
in the vegetable as well as the animal world besides milk and
cream, but out of none of them shall any citizen of the United
States within the limits of Pennsylvania be permitted to produce
such an article of food for public consumption. Only out of pure
milk or cream shall that article be made, notwithstanding the vast
means for its production furnished by the vegetable as well as by
the animal kingdom. The full force of the doctrine asserted will be
apparent if the extent is considered to which it may be applied.
The prohibition may be extended to the manufacture and sale of
other articles of food, of articles of raiment and fuel, and even
of objects of convenience. Indeed, there is no fabric or product
the texture or ingredients of which the legislature may not
prescribe by inhibiting the manufacture and sale of all similar
articles not composed of the same materials.
The answer to the second question is equally conclusive against
the decision of the Court. In prohibiting the sale of the article
which had been manufactured by the defendant pursuant to the laws
of the state, the legislature necessarily destroyed its mercantile
value. If the article could not be used without injury to the
health of the community, as would be the case, perhaps, if it had
become diseased, its sale might not only be prohibited, but the
article itself might be destroyed. But that is not this case. Here,
the article was healthy and nutritious, in no respect injuriously
affecting the health of anyone. It was manufactured pursuant to the
laws of the state. I do not, therefore, think the state could
forbid
Page 127 U. S. 699
its sale or use -- clearly not without compensation to the
owner. Regulations of its sale and restraints against its improper
use undoubtedly could be made, as they may be made with respect to
all kinds of property, but the prohibition of its use and sale is
nothing less than confiscation. As I said in
Bartemeyer v.
Iowa, 18 Wall. 137, with reference to intoxicating
liquors, so I say with reference to this property -- I have no
doubt of the power of the state to regulate its sale when such
regulation does not amount to the destruction of the right of
property in it.
"The right of property in an article involves the right to sell
and dispose of such article, as well as to use and enjoy it. Any
act which declares that the owner shall neither sell it nor dispose
of it nor use and enjoy it confiscates it, depriving him of his
property without due process of law. Against such arbitrary
legislation by any state the Fourteenth Amendment affords
protection. But the prohibition of sale in any way or for any use
is quite a different thing from a regulation of the sale or use so
as to protect the health and morals of the community."
The fault which I find with the opinion of the Court on this
head is that it ignores the distinction between regulation and
prohibition.