for the promotion of the well-being of children, in reality it strikes at an inalienable right or at the personal liberty of the citizen, and but remotely concerned the interests of the community, - it would be its duty to so pronounce, and to declare its invalidity. But this legislation has no such destructive effect or tendency. It does not deprive the parent of the child's custody, nor does it abridge any just rights. It interferes to prevent the public exhibition of children, under a certain , age, in spectacles or performances which, by reason of the place or hour, of the nature of the acts demanded of the child performer, and of the surroundings and circumstances of the exhibition, are deemed by the legislature prejudicial to the physical, mental, or moral well-being of the child, and hence to the interests of the State itself. Take the facts of this case, and they seem sufficiently to warrant the interference of the law. It is not necessary to reason upon them. The scanty dress of the ballet-dancer, the pirouetting and the various other described movements with the limbs, and the vocal efforts cannot be said to be without possible prejudice to the physical condition of the child, while in the glare of the footlights, the tinsel surroundings, and the incense of popular applause, it is not impossible that the immature mind should contract such unreal views of existence as to unfit it for the stern realities and exactions of later life. The statute is not to be construed as applying only when the exhibition offends against morals or decency, or endangers life or limb, by what is required of the child Its application is to all public exhibitions or shows. That any and all such shall be deemed prejudicial to the interests of the child, and contrary to the policy of the State to permit, was for the legislature to consider and say. actor. The right to personal liberty is not infringed upon because the law imposes limitations or restraints upon the exercise of the faculties with which the child may be more or less exceptionally endowed. The inalienable right of the child or adult to pursue a trade is indisputable ; but it must be not only one which is lawful, but which, as to the child of immature years, the State or sovereign, as parens patriæ, recognizes as proper and safe. It is not the strict moralist's view, dictated by prejudice, but the view from the standpoint of a member of the body politic, which ranges the judgment in support of legislative interference to restrain the parent from permitting an employment of the child under circumstances deemed unsuited to its proper mental, moral, or physical development. In the judgment of the legislature it was deemed as unsuitable for the youth of the community, under a certain age, to dance or to perform in public exhibitions in the ways mentioned as it was deemed unsuitable for them to work in the factory, except under certain limitations as to age, hours, etc. We have not overlooked certain cases referred to by the appellant's counsel to show the invalidity of this legislation as an exercise of the police power of the State, or to show a violation of constitutional rights. They establish that the legislature has no right, under the guise of protecting health or morals, to enact laws which, bearing but remotely, if at all, upon these matters of public concern, deprive the citizen of the right to pursue a lawful occupation. Such were In re Jacobs, 98 N. Y. 98; People v. Marx, 99 N. Y. 377, 2 N. E. 29; People v. Gillson, 109 N. Y. 389 17 N. E. 343; People v. Rosenberg, 138 N. Y. 410, 34 N. E. 285. We are referred to some cases in Illinois, but they are neither applicable nor authoritative upon the question before us. Further discussion is unnecessary. We might have remained satisfied with the able and clear exposition of his views by the learned justice at the special term had not the range taken by the arguments of counsel seemed to call for a brief expression by us of our view of the principle of State interference. The order should be affirmed. All concur. Order affirmed. PEOPLE v. CANNON. NEW YORK COURT OF APPEALS. 1893. [139 N. Y. 32] 66 APPEALS from judgments of the General Term of the Supreme Court in the first judicial department, entered upon orders which affirmed judgments convicting the defendants of violation of the " Bottling Act" (Chap. 377, Laws of 1887, as amended by chap. 181, Laws of 1888), entered upon verdicts of the Court of General Sessions of the Peace of the city and county of New York. Each defendant was convicted upon a separate indictment and trial of a violation of what is described in the various records as the "Bottling Act," and known as chapter 377 of the Laws of 1887, as amended by chapter 181 of the Laws of 1888. The first three sections of the Act are here alone material. The title of the Act and the sections spoken of read as follows: "An Act to protect the owners of bottles, boxes, siphons and kegs used in the sale of soda waters, mineral and aerated waters, porter, ale, cider, ginger ale, milk, cream, small beer, lager beer, weiss beer, beer, white beer or other beverages."" 1 Section 1 enables dealers in soda water and many other things, who furnish the goods in stamped bottles, kegs, etc., to register the name or device so stamped. Section 2 makes criminal the filling of such registered bottles, etc., with the substance for which it is intended, or the selling, giving, or otherwise disposing of them without the written consent of, or unless purchased from, the party so making them. Section 3 makes such forbidden use of the vessels, etc., by any other party than the one whose device they bear, for the sale of certain specified contents, or the buying, selling, using or trafficking in such vessels, without such written consent, or the having them, by any junk dealer, or second-hand dealer, in his possession, without such written consent, - presumptive evidence of said unlawful use, etc. — - ED. 7 There were three counts in each indictment, one for unlawfully buying from a person to the grand jury unknown, one for unlawfully taking from a person to the grand jury unknown, and one for unlawfully trafficking in and disposing of in a manner and by means to the grand jury unknown certain bottles (describing them as having marks on them, etc., as provided for in the first section of the above Act). The defendants are dealers in, among other articles, second-hand bottles of all descriptions They are among the largest dealers in those articles in the city of New York, have been engaged in that business for a number of years, and their stock on hand at the time when the occurrences herein spoken of took place, reached in each case to the number of several hundred thousand bottles. Neither of the defendants was able to tell of whom or where he purchased the bottles which are the subject of complaint in his case. They purchase all kind of bottles from whoever comes with them, if satisfied they have not been stolen. Their purchases come from all over the country by rail and in vessels, and packed in boxes and barrels, and they are ignorant of the kinds of bottles that thus come until they have been taken from the various railroad stations or vessels and brought to their stores and sorted out. The defendants claimed to be ignorant of the possession of any of the classes of bottles described in the indictments until their places were visited by the police under a search-warrant sworn out by a detective employed by an association of manufacturers of soda waters, beer, etc., and who were the owners of bottles registered as provided for by the law. Among all the bottles that were in the possession of the defendants, there are involved in this proceeding but very few, as the evidence shows there were only found an insignificant quantity of registered bottles as compared with the immense numbers of others which were on hand and dealt in by the defendants. Everett P. Wheeler, for appellants. Wm. J. Gaynor, for Bartholf, appellant. PECKHAM, J. These prosecutions have been instituted for the purpose of obtaining a decision in regard to the validity of the law under which the convictions have been secured. Counsel for both parties have so stated, and the courts below have distinctly ruled upon the various propositions raised, so that the constitutionality of the statute might be fairly tested. It is claimed that the Act deprives all persons other than the manufacturers of the right to traffic in or give away sparkling or aerated liquors or beer which have ever been placed in a trade-mark bottle. It is said that if the manufacturer refuses to sell the bottle, he in effect prohibits the sale or gift of that which is contained in it, except over the counter, and it is urged that the legislature cannot grant to the manufacturer such a monopoly. It is needless to speculate as to the powers of the legislature upon this subject, because we are of the opinion the statute is not susceptible of any such construction. It is made unlawful for any one to fill up with soda waters, etc., any bottle marked and distinguished as in the first section of the Act is provided, or to deface, erase or obliterate any such mark on such bottle, or to sell, etc., or to otherwise dispose of, or traffic in the same, without the written consent of, or unless the same have been purchased from the person whose mark is on the bottle. This provision of the Act refers to the use of these empty bottles by some one other than the owner of the marks thereon, and after the original contents of such bottles have been taken out, and then unlawfully using or trafficking in the empty bottles. After the retail dealer or any one else has purchased the soda water or beer from the manufacturer, and the same has been delivered to him packed in the bottles thus marked, he is not prevented by anything in the statute from himself selling such soda water or beer and delivering the same to the purchaser packed in the same bottles in which it was delivered to him from the manufacturers. This process may be continued indefinitely. The Act is not aimed at the sale and delivery of the water or beer packed in the original bottles as it came from the manufacturer, but it is aimed at an unlawful dealing in empty bottles that have been marked, and after their original contents have been used. If otherwise, it is clear that an enormous amount of the business of the manufacturers would be curtailed. It is a fact which every one knows, that large amounts of the liquors originally put up in these bottles are sold by the manufacturers to the retail dealers, who sell them to the customers, who take them away in the original bottles in which the manufacturers delivered them to the retail dealers, and it cannot be contended with any degree of plausibility, as it seems to us, that there is anything in the language of the statute, properly construed, which prohibits such a dealing in and delivery of the liquors by any one into whose possession and ownership they have lawfully come. Nor is there any just foundation for the assertion that the Act necessarily destroys or unlawfully decreases the trade in empty bottles, which is a fair trade and one entitled to the equal protection of the law. The Act contains no provision in regard to empty bottles in general. It forbids the use or traffic in certain kinds of bottles without the written consent of the owners of the marks on them, or unless they have themselves once sold the bottles. It is not necessary that they should have sold to the person using them. A sale of the bottles to any one thereafter precludes the application of the provisions of the statute. bottle that has been marked as described in the first section, and has thereafter been used by the owner of the marks for the purpose of identifying in the market the particular goods manufactured by him and put up in such bottles, ought not to be used for other purposes against the will of the manufacturer, so long as he has not sold the bottles to any one, nor authorized any one to use or traffic in them; in other language, so long as he continues the owner of the bottles. And this kind of use or traffic the law is intended to prevent. Under the broadest definition of the term liberty, as used in the Constitution, it is not probable that any one would contend that it covers, or ought to cover, the liberty of dealing in property which the original owner has not sold to any one or authorized any one else to deal in. And yet the claim that the Act destroys the trade in second-hand bottles would lead to this result if it were allowed. Because the Act prohibits the dealing in the property of a third person without his consent, it may be that the business of the second-hand bottle-dealer is affected so far as to necessitate further precautions in regard to making purchases, than would otherwise be necessary. Before purchasing second-hand bottles he must be assured that the person selling has the right to sell them, and that he, the dealer, has the right to buy them. This may require more of an inspection of the kinds of bottles purchased than the dealer has heretofore been accustomed to give, but there is nothing improper in such obligation, and if he fail to perform it he must omit it at his peril. The Act in question has a tendency to prevent frauds upon the public in the way of filling these bottles with articles of the same nature as originally put in them, but not manufactured by the owners of the marks. Even though there may already be a section or sections of the Penal Code which cover such a subject, that does not render the further enactment of the legislature upon the same subject void. If naturally there may be trouble in showing that the person of whom the second-hand dealer purchased had himself obtained the bottles of some one who had purchased them from the manufacturers, or who had their written consent to deal in, use or traffic in them, such fact is only an additional reason for not purchasing such bottles until it is clear that they may be lawfully purchased. The Act does, undoubtedly, in this respect seriously hamper any one dealing in these kinds of empty bottles. I can, however, see no constitutional objection to the enactment based on that ground. A mere possessor of one of these empty bottles may wish to fill it without using the trade-mark. It is true he is prohibited from effacing the trade-mark, or erasing it, and this, it is said, destroys all property in the bottle, because the person who possesses it can make no earthly use of it. But in the case to which the Act is applicable, the person who has the bottle in his possession has no property right in it, and never did have. The consequence may be that he has no right to use the bottle himself, and that he does not stand in a position with regard to the person from whom he procured the bottle and contents, to require such person to take it back and give him its value, or an agreed sum, after the contents have been used. This may be his misfortune, but it does not create any right. As he never owned the bottle, or had any property right in it of that nature, that fact does not and cannot affect him. |