LAW, CONSTITUTIONAL. 



473 



the power to control and regulate the organi- 

 zation, drilling, and parading of military bodies 

 and associations, except when such bodies or 

 associations are authorized by the militia laws 

 of the United States. The exercise of this 

 power by the States is necessary to the pub- 

 lic peace, safety, and good order. To deny the 

 power would be to deny the right of the State 

 to disperse assemblages organized for sedition 

 and treason, and the right to suppress armed 

 mobs bent on riot and rapine." 



State Legislation against Oleomargarine. An 

 opinion, which was widely published and 

 commented upon during 1885, was that of 

 the New York Court of Appeals in the case 

 of the people vs. Marx, in which the Court 

 held that the Legislature had no power to 

 prohibit the manufacture or sale of oleomar- 

 garine. The law that was declared unconsti- 

 tutional in this opinion was that which is con- 

 tained in section 6 of the "act to prevent 

 deception in sales of dairy products," passed 

 by the Legislature in 1884. This section was 

 as follows : 



No person 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 of the same, or shall sell, or offer to 

 sell, the same as an article of food. This provision 

 shall not apply to pure skim milk. 



Whoever violates the provisions of this section 

 shall be guilty of a misdemeanor, and be punished 

 by a fine of not less than one hundred nor more than 

 five hundred dollars, or not less than six months' or 

 more than one year's imprisonment, or by both such 

 fine and imprisonment, for the first offense, and by 

 imprisonment for one year for each subsequent of- 

 fense. 



The Court of Appeals admitted that it is 

 within the power of the Legislature to pro- 

 hibit the sale of fraudulent imitations of but- 

 ter intended to deceive the public. It also 

 conceded to the Legislature the power to 

 regulate the sale of oleomargarine by requir- 

 ing it to be stamped as such, and by other 

 reasonable regulations to prevent its decep- 

 tive sale as butter. But, said the Court, the 

 law under consideration is not one of this 

 kind. u Tne prohibition is not of the manu- 

 facture or sale of an article designed as an 

 imitation of dairy butter, or intended to be 

 passed off as such, but of any article designed 

 to take the place of dairy butter. The arti- 

 ficial product might be green, red, or white, 

 instead of yellow, and totally dissimilar in ap- 

 pearance to ordinary butter, yet it might be 

 designed as a substitute for butter, and, if so, 

 would fall within the prohibition of the stat- 

 ute. Simulation is not the act prohibited." 

 The enactment was not aimed against fraud 

 and deception but was intended "to take a 

 further and bolder step, by absolutely prohib- 

 iting 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 mar- 

 ket and protect those engaged in the manu- 

 facture of dairy products against the compe- 

 tition of cheaper substances, capable of being 

 applied to the same uses as articles of food." 

 It absolutely prohibits and was intended to 

 suppress the manufacture and sale of oleomar- 

 garine. The question, continued the Court, is 

 whether the Legislature has the power to pass 

 a law "the sole object of which was conceded 

 to be to protect the dairy industry in this State 

 against the substitution of a cheaper article, 

 made from cheaper materials"; whether it 

 has the power to prohibit and suppress the 

 manufacture and sale of what the evidence 

 shows to be a harmless food-product. The 

 limitations upon legislative power are neces- 

 sarily very general in their terms, but at the 

 same time very comprehensive. The Consti- 

 tution of the State provides (Art. I, 1) that 

 no member of this State shall be disfranchised 

 or deprived of any of the rights and privileges 

 secured to any citizens thereof, unless by the 

 law of the land or the judgment of his peers. 

 Section 6 of Article- 1 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 privi- 

 leges or immunities of citizens of the United 

 States, nor shall any State deprive any person 

 of life, liberty, or property, without due pro- 

 cess of law, nor deny to any person within its 

 jurisdiction the equal protection of the laws." 

 After citing these provisions, the Court pro- 

 ceeded as follows : 



These constitutional safeguards have been so thor- 

 oughly discussed in recent cases that it would be su- 

 perfluous to do more than refer to the conclusions 

 which have been reached bearing upon the question 

 now Bunder consideration. Among these no proposi- 

 tion is 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 pur- 

 suits, not injurious to the community, as he may see 

 fit. The term u liberty," as protected by the Consti- 

 tution, is not cramped into a mere freedom from physi- 

 cal restraint of the person of the citizen, as by incar- 

 ceration, but it 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 wel- 

 fare. 



In the language of Andrews, J., in Bertholf vs. 

 O'Reilly, 74 New York Reports 515, the right to lib- 

 erty embraces the right of man to " exercise his facul- 

 ties and to follow a lawful vocation for the support of 

 life " : and as expressed by Earl, J., in re Jacobs, 98 

 New York Reports : " One may be deprived of his 

 liberty, and his constitutional right thereto 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, imprison- 

 ment, or restraint, but the right of one to use his facul- 

 ties 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." 



Who will have the temerity to say that these con- 

 stitutional principles are not violated by an enact- 

 ment which absolutely prohibits an important branch 

 of industry for the sole reason that it competes with 



