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It appears to us quite clear that the object and effect of the enactment under consideratic:7 was not to supplement the existing provisions against fraud and deception by means of imitations of dairy butter, but to take a further and bolder step, and absolutely prohibiting the manufacture or 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.
The learned counsel for the respondent frankly meets this view, and claims in his points, as he did orally upon the argument, that even if it were ceriain that the sole object of the enactment was to protect the dairy industry in this State against the substitution of a cheaper article made from cheaper material, this would not be beyond the power of the Legislature.
This, we think, is the real question presented in the case. Conceding that the only limits upon the legislative power of the State are those imposed by the Siale constitution and that of the United States, we are called upon to determine whether or not those limits are transgressed by an enactment of this description. These limitations upon legislative power are necessarily very general in their terms, but are at the same time very comprehensive.
The Constitution of the State provides (Art. 1, Sec. I) that no member of this State shall be disfranchised, or deprived of any of the rights and privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers. Section 6 of Article I provides that no person shall be deprived of life, liberty, or property without due process of law, and the Fourteenth Amendment to the Constitution of the United States provides that “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.” 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 (Live Stock Association vs. The Crescent City, etc., I Abb., U. S. R., 898; 16 Wall., 156; Corfield vs. Coryell, 4 Wash. C. C. R., 380; Matter of Jacobs, 98 N. Y.,, 98). The term "liberty," as protected by the Constitution, is not cramped into a mere 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. In the language of Andrews, J., in Bertholf vs. O'Reilly (74 Ń. Y., 515), the right to liberty embraces the right of man" to exercise his faculties and to follow a lawful avocation for the support of life;" and as expressed by Earl, J., in In re Jacobs. “One may be deprived of his liberty and his constitutional right ther, to violated, without the actual restraint of his person. Liberty in its broad sense, as understood in this country, means the right not only of freedom from 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 avocation.".
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 respondents 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 inanufacture 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 number 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.
“Illustrations might be indefinitely multiplied of the evils which would result from legislation which should exclude one class of citizens from industries lawful in other respects, in order to protect another class against competition. We cannot doubt that such legislation is violative of the letter as well as of the spirit of the Constitutional provisions before referred! to, nor that such is the character of the enactment under which the appellant was convicted.
“ The judgment of the General Term of the Court of Sessions should be reversed. AL concur." (A copy.)
H. E. SICKELS, reported per 6
THE CIPPERLY CASE.
(N. Y. Star, January 24, 1886.) The news of the reversal by the Court of Appeals of the decision of the Supreme Court in the case of the People against Arthur Cipperly of Albany was received by the oleomargarinemen with dismay and by the advocates of honest butter with unmitigated satisfaction. While the Cipperly case bears on the sale of adulterated milk, the decision is regarded as thoroughly sustaining the constitutionality of the law of 1885, under which the prosecutions of bogus batter dealers have been conducted. In handing down their decision the Court of Appeals used the following words :
“Upon the argument of this case, we were of the opinion that the respondent failed to show any ground upon which the judgment appealed from could be supported; but, in view of the importance of the question raised, and difference in the court below concerning it, took. further time for its consideration. We still think the judgment wrong, and, for reasons sufficiently stated by Judge Learned, who dissented in the General Term of the Supreme Court, the judgment of that court should be reversed and the judgment of the Special Sessions
All concurred except Justice Miller, who was absent. Justice Learned's dissenting opinion, upon which the decision of the court was based, is a voluminous document, and opens with the assertion that the principle of the case of Wyndham vs. People, as to the destruction of existing property, is not, in his opinion, applicable to the present case. It would be a greater stretch of that principle to say that the statute in question deprived persons who owned cows at the time of its passage of their property, because it interfered with or even depriyed them of the use of the milk which the cows might yield. The opinion continues:
“But the defendant takes the broader ground that the Legislature cannot, under the Constitution, prohibit the sale of milk drawn from healthy cows which, in its natural state, falls below the standard fixed by the acts, unless such milk, or the article made from it, is in fact anwholesome or dangerous to public health. How is that question of fact to be determined ? The Court cannot take judicial notice whether the milk below the standard is or is not whole. some or dangerous to public health. Is that to be a question for the jury? If so, the Court must charge a jury, in each case, that if they find milk below that standard to be unwholesome then the statute is constitutional. If they find it to be unwholesome, than the statute is uncon.. stitutional. Evidently a constitutional question cannot be settled, or rather unsettled, in this, way. The constitutionality would vary with the varying judgment of juries.
“Either then the Legislature can, under the Constitution, forbid the sale of milk below a certain standard, whether such milk be in fact wholesome or not, or else they cannot do this. whether such milk be in fact wholesome or not. If they may fix a standard, they must judge whether or not inilk below that standard is wholesome. The courts can not review that judgment. * * * It cannot, then, be material to the present question whether milk below the standard fixed by the statute is or is not wholesome. The question must be whether the Legislature can establish a standard of purity. * . * Now, it is very plain that courts have nothing to do with the question of the wisdom or even, according to our courts, with the natural justice of any particular law. Courts cannot say that the Legislature has the constitutional power to pass a judicious law to regulate the sale of articles of food, but have no constitutional power to pass an injudicious law on that subject. An examination of the present law plainly shows that it relates to and is appropriate to promote the public health. Whether its details are wise we do not know. But its object is evident and good. * * * What. determined the Legislature to fix this standard we do not know. But it may be supposed that different kinds of food produce different degrees of richness in milk. It may be known to the Legislature that this watery milk supplied as food to children, cheats them with the appearance of nourishment, and deprives them of that nutritious food which they need. It may be known to legislators, then, that milk below the standard which they fix by this law is unsuitable for food and should not be sold. At any rate, all this is a matter for the Legislature. . . . The law is general in its scope; not limited to two cities. The only fault to be found is that it may be unwise, as the defendant claims, to make a certain standard the test, and to forbid the sale of milk below that test. Whether that is wise or not, it is. not for us to say. It is a provision evidently intended for the public health. No other intention can be gathered from the law. Plainly no other existed, and in view of the difficulties. which surround the attempt to secure wholesome milk to the people, it is by no means certain that the establishing of a definite standard is not a judicious provision.".
With regard to the decision of the Court of Appeals in the Marx case, the oleomargarine: test suit, the opinion says:
“In other words, the object of that law, like that of a protective tariff, was to protect the home industry of the farmer against the city industry of the manufacturer, and the Court held the law to be void, because it 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. Evidently the present law has no such characteristics. It is not intended to prohibit any branch of industry or to prevent competition. Its sole object is to regulate and control the quality of a certain article of food in the interest of the health of the people; and if the Legislature, knowing the difficulty of guarding against the watering or other adulterations of milk, deem it best to fix a standard of richness, I think this is within their power.”
A leading lawyer, who has made a special study of oleomargarine legislation, said last evening: “ There are three important points decided by this opinion of Judge Learned, indorsed by the Court of Appeals, that are worthy of consideration. These are : First-That the Leg. islature has the power to prevent the sale of unwholesome food and drink for human beings. Second—That the Legislature is the judge of what is unwholesome, and the courts can only declare a law relating to food and drink unconstitutional when the Legislature has exceeded its powers to such an extent that it appears on the face of the statute. No evidence can be given to prove that the forbidden articles are not unwholesome; and third—That those who deal in dairy products must see that they do not violate the law. They cannot prove for any purpose that they were ignorant of the fact that they were selling imitation goods. In the Cipperly case the evidence showed not only that the man did not know he was selling adulterated milk, but tha the milk was sold just as it came from the cow. There could not be a stronger case on the want of knowledge than this. This opinion declares that want of knowledge of the law is no defense. Now, the query is a logical one: If the Legislature has the power to fix a stand. ard for milk, why has it not a similar power with regard to butter ?”.
Philip Láracy, of No. 327 Tenth Avenue, and Henry Rothman, of No. 564 Eleventh Avenue, grocers, were arraigned yesterday before Justice Duffy at the Jefferson Market Police Court, for selling oleomargarine as butter. They were held in $200 bail, the former electing to be tried in the Court of General Sessions and the latter in Special Sessions.
AN IMPORTANT PENNSYLVANIA DECISION. One of the most important decisions with regard to the constitutionality of legislative ac. tion for the protection of publi. health that has recently been made was that rendered by Judge J. W. Simonton, of the Supreme Court of Pennsylvania, in the case of the Commonwealth against W. L. Powell, a Harrisburg grocer. This tradesman, confident that the prohibitive act passed May 21, 1885, would be declared unconstitutional on appeal, deliberately sold butterine as an article of food. He was arrested and tried in the Court of Quarter Sessions in Dauphin County upon an indictment based upon Section 1 of the act, which reads:
* "No person, firm, or corporate body shall manufacture out of any oleaginous substance, or any compound of the same other than that produced from pure, unadulterated milk or cream from the same, or any imitation or adulterated butter or cheese, nor sell or offer for sale, or have in his possession with intent to sell the same, as an article of food.”
It was agreed for the purposes of the trial that the defendant sold to the prosecuting witness, in the city of Harrisburg, July 10, 1885, as an article of food, two original packages, containing an oleaginous substance and compound other than that produced from pure, unadulterated milk and cream from the same, and designed to take the place of butter, and that these packages were sold as butterine, and not as butter. It was further agreed that the defendant had 100 pounds of this substance in his possession, and intended to sell the same, and the identity of the packages produced in court was admitted by the defendant. With this agree. ment and admission the Commonwealth rested, and the defendant endeavored to introduce expert testimony as to the wholesomeness of the compound. To this objection was made, and it was excluded. The case was then submitted to the jury, a verdict of guilty rendered, and the defendant moved for a new trial and an arrest of judgment.
The points made by the defense were: First, that the act under which he was indicted was unconstitutional, per se; second, that the evidence offered and rejected was relevant to the question of its constitutionality, as applied to the special facts of this case.
After citing numerous precedents showing that in a suit to declare a law unconstitutional the burden of proof is on the defendant, and that the Legislature may exercise all powers that are properly legislative, Judge Simonton's opinion continues :
is We have carefully considered the suggestions and arguments offered by his (defendant's) able counsel, intended to show that the power to enact a statute such as the one in question, which, as they contend, deprives the defendant of his facilities and takes from him his means of livelihood, is excepted out of the general grant of the legislative power contained in the Con:stitution, by the express or implied limitations or prohibitions of the Bill of Rights of the body of the Constitution itself. But, assuming for the present that the statute is in its nature legislative, we are wholly unable to find any limitation or prohibition which can be successfully pleaded against its enactment or enforcement. For, while the Bill of Rights does declare that
all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying life and liberty, and of acquiring, possessing, and protecting property and reputation, and of pursuing their own happiness,' this has never been construed to be a declaration that these rights are absolute. * * Hence, if the act in question be legislative in its character, the limitations which it prescribes for the defendant in the acquisition, possession, and use of his property are clearly within the boundary lines drawn by the Constitution, if, in the judgment of the Legislature, these limitations are considered. necessary and expedient for the welfare of the community. And if so, then, in so far as they do, if at all, interfere with the defendant's full enjoyment of his property, this interference results from the law of the land.'”
Speaking of the decision of the New York Court of Appeals in the Jacobs case, in which a statute prohibiting the making of cigars in tenement houses in certain cases was declared unconstitutional on the ground that it was not a health law, Judge Simonton says:
"And if we could be satisfied that the object and intent of the act in question here were what the Court of Appeals of New York declared the object and intent of the act before that court to be, we would not hesitate to pronounce it unconstitutional and void. But having in mind the axiom that all the presumptions are in favor of the good faith of a co-ordinate department of the government, and that to doubt is to be resolved in favor of the validity of its acts, how can we say that it is not the bona fide purpose of this act, as expressed in its title, to protect the public health, and to prevent the adulteration of dairy products and fraud in their sale? And the Legislature having, by passing the act, declared its judgment that the means used are necessary to attain these ends, we cannot review this judgment when exercised in good faith,. for the conclusive reason that it is clearly within the jurisdiction of the Legislature to effect. these purposes by appropriate means.”
Here the opinion quotes numerous precedents bearing upon the point, deals with the offer of the defendant to prove by expert witnesses the cleanliness and wholesomeness of the product, and his assertion that for its manufacture large investments had been made, this evidence having been excluded, says: “ But we are unable to see how the admission of this testimony could have legally changed the result. With respect to the first offer we are by no means prepared to say, even, that an offer to show that oleomargarine butter or butterine is made generally from pure animal fats by a pure and wholesome process, and is as wholesome and nutritious an article of food as genuine butter, would have been relevant. But this we are not now called upon to decide. The offer was made to show merely that the article admitted to have been sold in this case, was such. No one doubts that it might be made as stated in the offer. But it is no less certain that it may be made out of oleaginous substances that are neither pure nor wholesome. How, then, could evidence that the substance sold in any given case, and admitted to be that proscribed by the act, was pure and wholesome, tend to show that the statute which forbids all sales is unconstitutional ? As well might a defendant who is on trial for selling spirituous liquors in a jurisdiction where all such sales were prohibited, while admitting that he had sold the prohibited article, offer to prove, by way of defense, that the particular glass of liquor sold was pure and wholesome. Witnesses could be called in almost every case who would be willing so to testify, but no court would admit such testimony for the purpose of showing that a prohibitive statute was unconstitutional. Indeed, the question of the constitutionality of a statute cannot be determined on the testimony of witnesses, for the very conclusive reason that it is a question of law and not of fact, and must be decided by the Court on quite other grounds than those of the opinions and beliefs of witnesses. We are satisfied that it was not an error to refuse the testimony recited in the first offer. We may here remark that this offer brings into view one of the reasons that impelled the Legislature to pass this act. It states that the amount of butterine in the manufactured article was in. creased by the introduction of milk and cream, and that the only effect of butterine is to give flavor to the butter. Manifestly the purpose was to give this article as nearly as possible the flavor and semblance of butter, so that it might be sold as such by the retailer without de. tection, and no doubt this is the "fraud in the sale' which the act was designed to prevent."
In this case an appeal has been taken to the highest court of the State, and the prediction is hazarded that that court will follow the example of the Court of Appeals of this State in the Cipperly case, and base its decision upon Judge Simonton's learned opinion.
(New York Star, January 5, 1886.) The campaign against the bogus butter manufacturers and' venders is now pretty certain to be carried into the Legislatures of several States, if not into Congress itself. Our representatives at Washington cannot afford to overlook the great interest that is imperiled by this traffic—that of the dairymen and farmers of the entire country. In 1883 our exports of butter had diminished to 12,348,640 pounds, which was fully 5,000,000 pounds less than in the preced
ing year. These figures represent a total aggregate loss of 16,786,680 pounds in five years. In 1879 we exported over 25,000,000 pounds and last year (1885) a little over 10,000,000 pounds. A moment's calculation will suffice to show that in another five years our creamery export trade will be literally wiped out by bogus butter. The phenomenal growth of the oleomargarine export trade is seen by a glance at the following figures : Pounds,
Pounds. 1880..................20,000,000 1883..................23,400,000 1881..................26,300,000 1884..................39,322,841
......22,000,000 L 1885..... ........37,882,155 Here is an increase of 17,000,000 pounds of imitation butter sent to foreign markets, to offset a decrease in the same period of 16,786,680 pounds of genuine butter! It is not an easy task to show the loss to the foreign trade of the country by the substitution of oleo; but the most reliable estimates place it at $6,000,000 per annum, taking 1885 as the basis, or a little over $25,000,000 since 1879, inclusive. This, it should be remembered, is altogether apart from the home question, which deals with the loss to consumers in health and pocket and the flagrant violation of law by the wholesalers and retailers of bogus butter.
COMMISSIONER COLMAN'S WORK.
N. Y. Star, January 20, 1886. A few days ago we made reference to a most important work to which the administration is devoting a great deal of thought and effort. It is a work in which the whole people are concerned, for it touches their daily lives and relates to their closest interests. The adulteration of food in this country is attaining gigantic proportions. It is begining to affect almost everything we eat and drink, to touch the sources of our vitality, to taint the blood of our children. It menaces that dearest possession of humanity, health, and spreads over the land the blight of its stealthy and terrible influence.
The Department of Agriculture has taken up the matter in earnest. W have already al. luded to the enthusiasm with which Commissioner Colman is combating the abuse, and have given some hints as to the methods whereby he proposes to promote the end he has in view. He has enlisted in the good cause the official chemists of the different States, and those gentlemen are now engaged in the preparation of reports that will set forth not only all the various forms of food adulteration coming within their respective jurisdictions, but will, in addition, present suggestions as to the most practicable way of arresting the evil. Further than this, however, and possibly still more important, is the fact that Professor Wylie, the chief chemist of the department, who is now returning from a business mission in Europe, will bring with him full information as to the methods adopted in France, Germany, and other continental nations, for the suppression of food adulteration. Those nations, France especially, have had valuable experience in the direction mentioned, and, it is believed, have attained as nearly to perfect efficiency as could be expected. Professor Wylie's report will be a most important contribution to the work in which Commissioner Colnian is engaged.
It is not possible to overrate the magnitude of this enterprise. The people at large, the consumers, are being made the victims of a colossal, organized fraud. Those engaged in the legitimate business of supply are being oppressed and injured by dishonest competitors. The situation is deplorable from every point of view, and it should be a matter of pride to all Democrats that the administration is found tɔ be so prompt and earnest in the work of alleviating its asperities. We are at the mercy ot' adulterated milk, butter, cheese, sugar, molasses, and a hundred other articles of daily consumption-not excepting infants' food--and from this abhorrent predicament the administration proposes to extricate us. We believe that Commissioner Colman will be able to formulate a bill effectually covering the whole ground and pointing out a way by which food adulteration may be robbed of its most injurious features, if not wholly and permanently suppressed. We do not doubt that Congress will, in the interests of the public welfare, enact the law almost without a dissenting voice.
THE BOGUS BUTTER BUSINESS. WHO FAVOR AND WHO OPPOSE IT-A STRONG PRESENTATION OF THE CASE.
N. Y. Times, January, 19, 1886. If the people of this State should be required to vole upon the question whether or not merchants should be allowed to sell bogus butter for real butter, how many would be willing to be counted on the affirmative side ? If they should be required to express by vote their opinion as to the propriety of forbidding by law the manufacture of bogus butter, how many would stand up and be counted on the side of the manufacturers ? We cannot assume that any