Commissioner of Agriculture. 77 



If it passes an act ostensibly for the public health, and thereby 

 destroys or takes away the property of a citizen, or interferes 

 with his personal liberty, then it is for the courts to scrutinize 

 the act and see whether it really relates 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." 



In conclusion the court lays down this clear statement and 

 rule (p. 115): 



" When a health law is challenged in the courts as unconsti- 

 tutional on the ground that it arbitrarily interferes with per- 

 sonal liberty and private property without due process of law, 

 the courts must be able to see that it has at least, in fact, some 

 relation to the public health, that the public health is the end 

 actually aimed at, and that it is appropriate and adapted to 

 that end. This we have not been able to see in this law, and 

 we must, therefore, pronounce it unconstitutional and void. In 

 reaching this conclusion we have not been unmindful that the 

 power which courts possess to condemn legislative acts which 

 are in conflict with the supreme law should be exercised with 

 great caution and even with reluctance. But as said by Chan- 

 cellor Kent (1 Com. 450) : ' It is only by the free exercise of 

 this power that courts of justice are enabled to repel assaults 

 and to protect every part of the government and every member 

 of the community from undue and destructive innovations upon 

 their charter rights.' " 



It is thus apparent: 



First.- — That the right to prevent any one from pursuing a 

 hitherto lawful calling, such as in this case, the manufacture 

 and sale of preservatives, exists only where the Legislature de- 

 clares that such right is exercised as a measure to preserve the 

 public health. The act under consideration is not an amend- 

 ment of the Health Law, but an amendment of the Agricultural 

 Law. It does not purport to prohibit merely deleterious pre- 



