42 OLEOMARGARINE AND BUTTERINE. 



It appears to us quite clear that the object and effect of the enactment under consideratic:: 1 

 was not to supplement the existing provisions against fraud and deception by means of imita- 

 tions 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 openfy and 

 fairly the character of the substitute might be avowtd 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 certain 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 State constitution and that of 

 the United States, we are called upon to determine whether or not those limits are trans- 

 gressed 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. I, 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 com- 

 munity, as he may see fit (Live Stock Association vs. The Crescent City, etc., I Abb., U. S. 

 R., 898; 16 Wall., 156; Corfieldvs. Coryell, 4 Wash. C. C. R., 380; Matter of Jacobs, 9$ 

 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 em- 

 brace 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 N. Y., 515), the right 

 to liberty embraces the right of man "to exercise his faculties and to follow a lawful avoca- 

 tion 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 humaa 

 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 in- 

 dustry 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 manufacture or sale of dairy products ? Would 1 

 arguments then be found wanting to demonstrate the invalidity under the Constitution of such 1 

 an act? The principle is the same in both caes. 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 legisla- 

 tion 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. All 

 concur." (A copy.) H. E. SICKELS, reported per. C. 



