[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 3 The defendant was indicted for a misdemeanor, the charge being that he violated chapter 931 of the Laws of 1896 relating to the labeling and marking of convict-made goods or articles. The indictment alleges that the defendant on the 5th day of November, 1896, had in his possession and offering for sale, unlawfully and with criminal intent, a certain scrub brush of the form, style and material commonly used in scrub brushes, but made and manufactured, as the defendant well knew, by the labor of convicts lawfully sentenced to and confined in a prison at Cleveland, Ohio. It then charges that this article was brought from that institution into this state and was in the defendant's possession for the purpose of sale, without having upon it in any manner the words "Convict made" or any words indicating in any manner that it was manufactured by convict labor.
The defendant demurred to the indictment, upon the ground that the facts stated did not constitute a crime, and the courts below have sustained the demurrer for the reason that the statute was in conflict with the Constitution and, therefore, void. The statute went into effect by its terms on November first, 1896, and the several sections material to the questions in this case are as follows:
"SECTION 1. All goods, wares and merchandise made by convict labor in any penitentiary, prison, reformatory or other *Page 5 establishment in which convict labor is employed shall, before being sold, or exposed for sale, be branded, labeled or marked as hereinafter provided, and shall not be exposed for sale in any place within this state without such brand, label or mark.
"§ 2. The brand, label or mark hereby required shall contain at the head or top thereof the words `convict made,' followed by the year and name of the penitentiary, prison, reformatory or other establishment in which it was made, in plain English lettering, of the style and size known as great primer Roman condensed capitals. The brand or mark shall in all cases, where the nature of an article will permit, be placed upon the same, and only where such branding or marking is impossible shall a label be used, and where a label is used it shall be in the form of a paper tag, which shall be attached by wire to each article, where the nature of the article will permit, and placed securely upon the box, crate or other covering in which such goods, wares or merchandise may be packed, shipped or exposed for sale. Said brand, mark or label shall be placed upon the outside of and upon the most conspicuous part of the finished article and its box, crate or covering.
"§ 5. Section three hundred and eighty-four b of the Penal Code is hereby amended so as to read as follows: Section 384b. Penalty for dealing in convict-made goods without labeling. — A person having in his possession for the purpose of sale, or offering for sale, any convict-made goods, wares or merchandise hereafter manufactured and sold, or exposed for sale, in this state without the brand, mark or label required by law, or removes or defaces such brand, mark or label, is guilty of a misdemeanor, punishable by a fine not exceeding ten hundred dollars nor less than one hundred dollars, or imprisonment for a term not exceeding one year nor less than ten days, or both."
The act charged against the defendant, and which is admitted by the demurrer, is declared to be a crime by this statute, and the only question that we need consider, is whether the legislature had any power under the Constitution to enact *Page 6 such a law. The law is similar, in all respects, to the law of 1894 (Chap. 698, Laws of 1894), except that the latter statute was aimed at prison-made goods of other states, while the present statute applies to all prison-made goods, whether of this or other states. The act of 1894 was held to be unconstitutional and void. (People v. Hawkins, 85 Hun, 43.) The present act makes it a criminal offense to expose for sale prison-made goods of this state as well as of other states. It seems to have been assumed that the feature of the former act, which discriminated against the prison-made goods of other states, was the only objection to this class of legislation. But the broader scope of the present law removes no objection that existed to the former. On the contrary, it multiplies and intensifies them.
It is important at the outset to ascertain, if we can, the legislative purpose and intent that led to the enactment of this law. The learned district attorney in his brief in the court below has, I think, stated it quite fairly and accurately in these words:
"The statute in question is an attempt to solve a great public and economic problem. It has a bearing, directly or indirectly, upon wages paid to workmen in certain lines of industry. * * * It involves the welfare and prosperity of the laboring classes who comprise a great portion of our population * * * It is against sound public policy to compel workmen, who have to support their families by their daily earnings, to compete with the unpaid labor of convicts in penal institutions. The framers of the State and Federal Constitutions never intended to create and foster such competition. The people have a right to demand protection from the legislature in this respect, and it is within the police power of the state to require the mark, brand or label of goods made in penal institutions."
We may assume, therefore, that the purpose of the law was to promote the welfare of the laboring classes by suppressing, in some measure, the sale of prison-made goods. Waiving for the present the question whether the means employed can ever *Page 7 in the nature of things accomplish the end in view, it is quite clear that unless this statute in some degree affects the value of certain articles of merchandise by restricting the demand or imposing conditions upon the right to deal in them as property, in order to exclude them from the market, it is a mere brutumfulmen. The scrubbing brush in question was beyond all doubt an article of property in which the defendant could lawfully deal. He is forbidden, however, by this statute, under all the penalties of the criminal law, from buying or selling or having it in his possession, except upon the condition that he shall attach to it a badge of inferiority which diminishes the value and impairs its selling qualities. It is not claimed that there is any difference in the quality of this scrubbing brush when compared with one of the same grade or character made outside the prisons. There is no pretense that the act was passed to suppress any fraudulent practice or that any such practice existed with respect to such goods. The validity of the law must depend entirely upon the exercise of the police power to enhance the price of labor by suppressing, through the instrumentality of the criminal law, the sale of the products of prison labor.
The citizen cannot be deprived of his property without due process of law. The principle embodied in this constitutional guaranty is not limited to the physical taking of property. Any law which annihilates its value, restricts its use, or takes away any of its essential attributes, comes within the purview of this limitation upon legislative power. The validity of all such laws is to be tested by the purpose of their enactment and the practical effect and operation that they may have upon property. A law which interferes with property by depriving the owner of the profitable and free use of it, or hampers him in the application of it for the purposes of trade or commerce, or imposes conditions upon the right to hold or sell it, may seriously impair its value, against which the Constitution is a protection. The fact that legislation hostile to the rights of property assumes the guise of a health law or a labor law will not save it from judicial scrutiny, since the *Page 8 courts cannot permit that to be done by indirection which cannot be done directly.
The guaranty against depriving the citizen of his liberty comprehends much more than the exemption of his person from all unlawful restraint. It includes the right to engage in any lawful business, and to exercise his faculties in all lawful ways in any lawful trade, profession or vocation. All laws, therefore, which impair or trammel these rights, or impose arbitrary conditions upon his right to earn a living in the pursuit of a lawful business are infringements upon his fundamental rights of liberty, which are under constitutional protection. These rights may doubtless be affected to some extent by the exercise of the police power, which is inherent in every sovereign state. But that power, however broad and extensive, is not above the Constitution. The conduct of the individual and the use of property may be affected by its lawful and proper exercise in cases of overruling necessity and for the public good. The preservation of public order, the protection of the public health and the prevention of disease, the sale of articles of unwholesome or adulterated food, the calamities caused by fire, and perhaps other subjects relating to the safety and welfare of society, are within its scope. But no law which is otherwise objectionable as in conflict with the fundamental guarantees of the Constitution can be upheld under the police power, unless the courts can see that it has some plain or reasonable relation to those subjects, or some of them.
These principles have been so fully discussed and sanctioned by judicial authority and so often asserted that they may now be regarded as elementary. It is, therefore, unnecessary to enter the vast field of litigation involving discussions of the police power, and the validity of statutes enacted really or ostensibly in its exercise. (Wynehamer v. People, 13 N.Y. 378; In reJacobs, 98 N.Y. 98; Lawton v. Steele, 119 N.Y. 226;Forster v. Scott, 136 N.Y. 577; Colon v. Lisk, 153 N.Y. 188. )
It is entirely safe to assert that no court has yet invoked the *Page 9 police power to justify a statute, the purpose of which was to enhance the wages of labor in certain factories by suppressing, through the agencies of the criminal law, the sale of competing products made in prisons. If the wages of labor in a few factories producing goods such as are also made in prisons may be regulated by the police power, there is no reason why that power may not be used to regulate the rewards of labor in any other field of human exertion. That all legislation of this character, with this end in view, which subjects the individual to criminal prosecution unless he will comply with regulations in the sale of such goods that are intended to depress their value or demand in the market, is in violation of the Constitution, cannot be doubted.
It would be trifling with the Constitution to attempt to uphold this law on the ground that all producers or vendors of goods may be required to tell the truth concerning them, both as to their quality and the means by which or the place where they were manufactured. A knowledge of the truth concerning the origin of every article of property which is the subject of sale, trade or commerce cannot be essential to the public welfare, and even if it was the law could be effective only when applied to all property alike and not limited to articles made in certain places and by a certain class of workmen. Any attempt to carry the police power to such an extent as to require the owner of an article of property kept for sale, such as a scrubbing brush, to label it with the history of its origin and to indicate the place where it was made and the class of workmen that produced it, and to enforce such regulations by the aid of the criminal law, must be regarded as an inexcusable and intolerable invasion of the rights and liberty of the citizen.
There is nothing in the character or effect of prison labor to justify such legislation. The health and welfare of convicts is a subject peculiarly within the functions of government. The state in order to carry out the purposes of punishment must employ them at some useful labor. Whatever it may be their work must in some degree come into competition with *Page 10 the labor of others. It is not at all likely that this result ever had or can have any material or perceptible influence on wages. But even if it had, the welfare of the convicts and the interests of the taxpayers are proper subjects for consideration.
The question is reduced to the simple inquiry whether the legislature under the guise of the police power can regulate the price of labor by depressing, through the penalties of the criminal law, the price of goods in the market made by one class of workmen and correspondingly enhancing the price of goods made by another class. If the statute does not tend to produce that result there is no reason or excuse for its existence, and it would be a useless and arbitrary interference with the liberty of the individual without any possible reason or motive behind it. The law is now defended upon the ground that it was intended to accomplish, and in fact does tend to promote, that very result. If the police power extends to the protection of certain workmen in their wages against the competition of other workmen in penal institutions, why not extend it to other forms of competition? Why not give the workman who has a large family to support some advantage over the one who has no family at all? Why not give to the old and feeble a helping hand by legislation against the competition of the young and the strong? Why not give to the women, the weaker sex, who are often the victims of improvidence and want, a preference by statute over the men? Why confine such legislation to scrubbing brushes and like articles made in prisons, when multitudes of men engaged in farming, mercantile pursuits and almost every vocation in life are struggling against competition? If the statute now under consideration is a valid exercise of the police power, I am unable to give any reason why the legislature may not interfere in all the cases I have mentioned to help those who need help at the expense of those who do not.
It would be difficult to give any satisfactory reason, legal, moral or economic, why a person who happens to be confined in a prison should not be permitted or compelled to earn his living and pay his way instead of becoming a burden upon *Page 11 the public, to the detriment of his health and morals. The mere fact that he is in prison may be due to misfortune or to his natural surroundings, and in some cases he may be at least morally innocent. The state may certainly, for his own benefit and for the relief of the taxpaying community, employ him at some useful labor, and whether that labor be in building roads or making shoes, he takes the place of another. If it be lawful and right to so employ him, it is difficult to see why the state may by legislation depress the value of the products of his labor when such property is purchased in the ordinary course of commerce by a dealer therein. The state while permitting such property to come within its jurisdiction in the regular course of trade, cannot then impair its value by hostile legislation without a violation of the constitutional guaranties for the protection of property. Aside from the peculiar restrictions of revenue laws, the merchant or dealer may buy his goods where he can obtain them to the best advantage, and any restriction upon his freedom of action in this respect by state laws is, in a broad sense, an invasion of his right of liberty, since that term comprehends the right of the individual to pursue any lawful calling.
I think that the statute in question is in conflict with the Constitution of this state, since it interferes with the right to acquire, possess and dispose of property and with the liberty of the individual to earn a living by dealing in the articles embraced within the scope of the law. It is an unauthorized limitation upon the freedom of the individual to buy and sell all such articles, subject only to the law of supply and demand, and the legislation is not within the scope of the police power.
It has been suggested by some members of the court that the statute in question can be upheld under the recent amendment to the State Constitution with respect to prison labor. It should be observed that no such point was argued or submitted, either in this court or the court below, but since some of my brethren are of that opinion, the question may be properly discussed. The language of the amendment is as follows: *Page 12
"The Legislature shall, by law, provide for the occupation and employment of prisoners sentenced to the several state prisons, penitentiaries, jails and reformatories in the state; and on and after the first day of January, in the year one thousand eight hundred and ninety-seven, no person in any such prison, penitentiary, jail or reformatory, shall be required or allowed to work, while under sentence thereto, at any trade, industry or occupation, wherein or whereby his work, or the product or profit of his work, shall be farmed out, contracted, given or sold to any person, firm, association or corporation. This section shall not be construed to prevent the legislature from providing that convicts may work for, and that the products of their labor may be disposed of to, the state or any political division thereof, or for or to any public institution owned or managed and controlled by the state, or any political division thereof." (Const. 1894, art. 3, sec. 29.)
It is said that this provision of the Constitution indicates and expresses a public policy on the part of the state to suppress the competition of prison labor with free labor by forbidding the sale to the general public of prison-made goods. The term "public policy" is frequently used in a very vague, loose or inaccurate sense. The courts have often found it necessary to define its juridical meaning, and have held that a state can have no public policy except what is to be found in its Constitution and laws. (Vidal v. Girard's Exrs., 2 How. [U.S.] 127; Hollis v. Drew Theological Seminary, 95 N.Y. 166;Cross v. U.S.T. Co., 131 N.Y. 343; Dammert v. Osborn,140 N.Y. 40.) Therefore, when we speak of the public policy of the state, we mean the law of the state, whether found in the Constitution, the statutes or judicial records, so that the inquiry is whether the provision of the Constitution above cited forbids the sale of prison-made goods to the general public. Either it does or does not. If it does not, there is an end of the argument on that point. If it does, we will see hereafter how it affects the validity of this statute. If the framers of the Constitution intended to forbid the sale of prison-made goods to the general public, or to prohibit dealing *Page 13 in them, it was an easy matter to say so in terms that could not be misunderstood. Surely, the poverty of our language is not such as to preclude the framers of the fundamental law from giving plain and direct expression to such a simple thought. But the section above quoted does not forbid the sale of any article of property. It deals only with modes of employing convicts and with practices that had formerly existed, under which the labor of convicts had become a subject of bargain and sale. It simply abolished what was known as the contract system of labor in prisons, whereby the profits of the labor of convicts were secured by contractors or private parties. This is apparent from the language of the section which begins by providing for the employment of convicts. It then forbids the employment of the inmates of penal institutions at any trade or industry whereby "his work or the product and profits of his work shall be farmed out, contracted, given or sold to any person." What is it that this language forbids? Not dealing in tangible things or articles of property wherever made, but the farming out, contracting, giving away or selling of convict labor. The words "product and profit of his work" do not refer to articles of property, but to the net value of labor. If the framers of the Constitution intended to prohibit dealing in any article of merchandise, surely they would not have described the article by such vague terms as the products of work. A manufactured article is not known in common parlance, in law or political economy as the "product of labor." Of course, labor enters into its production, but in many cases it is an insignificant element. The article is the product of raw material and labor combined, or, as it is commonly expressed, labor and capital. The prohibition against dealing in any article of property cannot be found in this section without giving to the words a strained and unnatural meaning. If any of the penal institutions of the state happen to have a farm attached to it, worked by the convicts, as some of them probably have, it would be a very narrow construction of this section to hold that the products or profits of the farm, whether consisting of *Page 14 cattle or other farm produce, could not be sold to the general public because it would be the products and profits of prison labor.
But if it be assumed for the purpose of the argument that the Constitution does forbid the sale of prison-made goods to the public, it would not help the statute in question, but, on the contrary, would furnish an additional reason for its condemnation. If the Constitution forbids the sale of such goods, or prohibits dealing in them as merchandise, then clearly the legislature has no power to enact laws regulating and permitting such sales. That this was the purpose and was the obvious effect of the statute in question in its entire scope and meaning must, of course, be admitted. Therefore, if the section means what is claimed for it, the legislature has attempted to regulate and permit what the Constitution forbids. It has attempted to regulate and permit the sale of prison-made goods by fixing upon them a badge of their origin, when the Constitution provides that they shall not be sold at all. It is difficult, therefore, to understand how any one, who believes that the Constitution interdicts the sale of convict-made goods, can at the same time reach the conclusion that the statute is in harmony with the Constitution.
It would be manifestly unjust and inconsistent for the state, while it encourages and commands the employment of convicts and becomes itself the patron and customer of prison-made goods, to prohibit its citizens from dealing in the same property.
What policy could the framers of the Constitution have had in view when providing for the employment of convicts and for drawing all supplies needed by the state from goods produced in the prisons, if at the same time they forbid the general public from dealing in the same class of goods? When it is asserted that the lawmakers intended to employ convict labor in the production of property, and at the same time enacted that the property so produced should not become a part of the general mass of merchandise in the state, or the subject of bargain and sale like other property, we look for language in the Constitution so clear and explicit that no *Page 15 other construction is possible to be put upon it, but such language is not there. This construction would really impeach the honor and justice of the state, make it the sole beneficiary of convict labor and the sole competitor with free labor. I think the Constitution is open to quite another construction, and one much more honorable to the state.
But such a construction of the Constitution must, if adopted, encounter another and still more serious obstacle. Assuming that it forbids the sale in this state of the convict-made goods of Ohio, it is in conflict with the commerce clause of the Federal Constitution. The article described in the indictment in this case came into this state from a penal institution in Ohio through the operation of interstate commerce. The argument in favor of the validity of the statute assumes and asserts that it was not only the purpose of the statute, but of the Constitution of the state, to discriminate against such articles and in favor of the same articles, produced by free labor, in the markets of this state. It was a regulation of commerce by means of which the value of merchandise produced in another state was to be depressed or its sale entirely prohibited. No state can in its sovereign capacity or in its fundamental law enact anything in violation of the Federal Constitution any more than can the legislature, acting in a representative capacity. That Constitution is the supreme law of the land; anything contained in the Constitution or statutes of any state to the contrary notwithstanding. A State Constitution which is in violation of the supreme law is of no more force than a state statute open to the same objection, so that, even if this statute was not in conflict with our own Constitution, it would come under the condemnation of the Constitution of the United States. A state law which interferes with the freedom of commerce is not saved by the fact that it applies to all states alike, including the state enacting it. Interstate commerce cannot be taxed, burdened or restricted at all by state laws, even though operating wholly within its own jurisdiction. If it is a regulation of commerce, the law relates to a subject within the exclusive jurisdiction of Congress, upon which the state has no power *Page 16 to legislate. It matters not whether the regulation be under the guise of a law requiring a municipal license to sell certain goods, or a health law requiring inspection of the article, or a label law, as in this case, requiring the article to be branded or labeled. When they operate as burdens or restrictions upon the freedom of trade or commercial intercourse they are invalid. (Brennan v. Titusville, 153 U.S. 289; Brimmer v. Rebman, 138 Id. 78; Minnesota v. Barber, 136 Id. 313; Welton v.Missouri, 91 Id. 275; Webber v. Virginia, 103 Id. 344;Ward v. Maryland, 79 Id. 418; Voight v. Wright, 141 Id. 62; Bowman v. Chicago N.W.R. Co., 125 Id. 465; Guy v.Baltimore, 100 Id. 434; Gloucester F. Co. v. Pennsylvania, 114 Id. 196; Brown v. Houston, Id. 622; Robbins v. ShelbyCounty Taxing District, 120 Id. 489; Gulf C. S.F. Ry. Co. v.Ellis, 165 Id. 150; Allgeyer v. Louisiana, Id. 578;People v. Hawkins, 85 Hun, 43.)
This statute manifestly discriminates against the sale of goods made in a prison in the state of Ohio by a certain class of workmen, and in favor of the same articles when made outside a penal institution and by free labor. In some of the states labor is much cheaper than in others. But the state where labor commands the highest price, cannot make discriminating regulations for the sale of the goods made in the state where it is cheapest in order to favor the interests of its own workmen. One state may have natural advantages for the production of certain goods by reason of location, climate or the rate of wages over another state where it costs more to produce them, but the latter cannot by hostile legislation drive the cheaper made goods of the former out of its markets, even though such legislation would increase the wages of its own workmen. Trade and commerce between the states must be left free. The Constitution intended that it should be affected only by natural laws and the ordinary burdens of government imposed through the exercise of the taxing power equally on all property. The police power of a state cannot be used to depress the price or restrict the sale of articles of commerce merely because they happen to be made in a prison *Page 17 or by a certain class of workmen, while the same articles made in some other place and by free labor are left untouched by the regulation. A citizen of this state who happens to buy goods made in a prison in Ohio has the right to put them upon the market here on their own merits, and if this right is restricted by a penal law, while the same goods made in factories are untouched, such a law is a restriction upon the freedom of commerce, and the objection to it is not removed by the fact that it may have been enacted in the guise of a police regulation. The validity of such a law is to be tested by its purpose and practical operation without regard to the name or classification that may have been given to it.
This state has declared its policy to utilize convict labor in the production of such articles as the government itself, or that of any political division, or the management of any public institution may need. The convict labor necessary to supply such a large consumption must necessarily in some degree at least affect the wages of free labor, if the argument in support of this law be correct, but the general public good overbalances any evil, real or imaginary, that may proceed from that policy. Some other state may not see fit to take all the profits of convict labor itself, but to sell the products in the market, and when the articles thus produced have been absorbed into the general mass of merchandise they cannot be made the object of hostile legislation to depress their value any more than if they had been made in private manufacturing establishments. The statute in question is aimed at property produced by a certain kind of labor, and the plain purpose is to depress its value or restrict its sale in order to enhance the price or enlarge the demand for the same kind of property produced by some other kind of labor. It belongs to a class of laws which have become quite common in recent years, all resting largely upon the notion that the important problems involved in the social or industrial life of the people may be solved by legislation. This theory has, no doubt, a certain fascination over some minds, but so long as legislative power is circumscribed by the restrictions of a written Constitution, *Page 18 a statute like this cannot be sustained by the courts. Whether tested by the Federal or State Constitution it is, I think, an invalid law.
The judgment of the courts below sustaining the demurrer to the indictment should be affirmed.