442 THE POPULAR SCIENCE MONTHLY. 



in all lawful ways, to live and work where lie will, to earn his 

 livelihood in any lawful calling, and to pursue any lawful trade 

 or vocation." 



The case before the court was one affecting methods of sale of 

 any article of food. The Legislature had enacted a law (chap. 

 691 of 1887) that " No person shall sell, exchange, or dispose of 

 any article of food, or offer or attempt to do so upon any repre- 

 sentation, advertisement, notice, or inducement that anything 

 other than what is specifically stated to be the subject of the sale 

 or exchange is or is to be delivered or received or in any way 

 connected with or a part of the transaction as a gift, prize, pre- 

 mium, or reward to the purchaser." 



In respect to this specific act Judge Peckham held it uncon- 

 stitutional for the following reasons (p. 405) : " It seems to me 

 that to uphold the act in question upon the assumption that it 

 tends to prevent people from buying more food than they may 

 want, and hence tends to prevent wastefulness or lack of proper 

 thrift among the poorer classes, is'a radically vicious and erroneous 

 assumption, and is to take a long step backward and to favor that 

 class of paternal legislation which, when carried to this extent, 

 interferes with the proper liberty of the citizen and violates the 

 constitutional provision referred to." 



In dealing with an act which had been passed to prevent the 

 manufacture of tobacco in tenement-houses, in cities of more than 

 five hundred thousand inhabitants — an act which was specifically 

 aimed at the cities of New York and Brooklyn — Judge Earl held, 

 in the case of Jacobs, 98 New York, p. 98 (1885), that the act was 

 unconstitutional. 



Attention may well be called to the vigor with which the 

 learned judge denies the power of the Legislature to construe its 

 own acts by the titles which it may give to them. The assumption 

 of power under the indefinite term of police regulations may not 

 be admitted. The court may demand the facts to be submitted— 

 proof absolute, clear, and definite of the injury to the common 

 welfare may be required before personal liberty can be impaired 

 and the right of free contract taken away, in order that the court 

 may be satisfied that there is reasonable cause to sustain the regu- 

 lation as one rightly coming within the term of police powers. 



A decree in legislative form may present an aspect of legality 

 but may yet be wholly unlawful. Lord Brougham ruled that 

 " things may be legal and yet unconstitutional," even in England 

 where there is no written constitution. Even Parliament has 

 been overruled and called upon to submit to the rule of the courts, 

 when it has impaired the personal liberty of the subject in a man- 

 ner which is in contravention of the common law, although the act 

 of Parliament may have been wholly consistent with legal forms. 



