The courts below have held the law (Chap. 931, Laws of 1896), regulating the sale of convict-made goods in this state to be in violation of the provisions of the Federal Constitution vesting in Congress the power to regulate commerce among the several states (Constitution U.S. art. 1, § 8, sub. 3) and consequently void.
It is urged that the act also violates the United States Constitution providing as follows: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states" (Art. IV, § 2, sub. 1); also giving Congress power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers * * *." (Art. 1, § 8, sub. 18.)
It is further argued that the Constitution of this state is violated wherein it provides: "No person shall be * * * deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation." (Art. 1, § 6.)
I am of opinion that this legislation is a legitimate exercise of the police power of the state and not repugnant to the Federal or State Constitution.
In entering upon the discussion of this appeal it is well to state the precise question presented, as the able briefs of counsel have taken rather a wide range.
The act under consideration (Ch. 931, Laws 1896) provides that all goods made by convict labor in penal institutions shall, before being sold, or exposed for sale, be branded, labeled or marked as therein provided.
It further prescribes that a person having in his possession for sale, or offering for sale, any such goods, without the brand, mark or label required by law, or removes or defaces such *Page 19 brand, mark or label, is guilty of a misdemeanor and punishable by fine, imprisonment or both.
The defendant is charged in the indictment with having in his possession for the purpose of sale certain goods manufactured by convict labor in a prison in the state of Ohio, and known by him at the time to have been so manufactured, without any brand, mark or label thereon as required by law; that he did feloniously, willfully, unlawfully and with criminal intent offer for sale and sell a scrub brush brought from a prison in the state of Ohio into this state for the purpose of sale.
As the facts alleged in the indictment stand admitted by the demurrer, we have to deal with a defendant whose guilty knowledge and criminal intent are fully established. This being so, the question is, can the defendant be punished by the state of New York without violating its own or the Federal Constitution?
If the act of 1896 is a proper exercise of the police power it is valid legislation, enforceable by the courts.
This act is declaratory of the deliberate policy of this state that free labor shall be protected from disastrous competition with the convict system, which pays to the workman no wages, and, therefore, finds little difficulty in supplanting the wage-earner in the public markets.
That this is the policy of the state is witnessed by the action of the constitutional convention of 1894, which was ratified by the people. The amendment then adopted reads in part: "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, * * *." (Art. III, § 29, State Constitution.) *Page 20
This policy is evidently designed to conserve the prosperity and welfare of the wage-earners in this state, and we are thus brought to the vital question whether the fundamental law and the statutes framed to this end are sustainable as a proper exercise of the police power?
It is as difficult as it is undesirable to define the limits of the police power. It has been said to be "the general power of a government to preserve and promote the public welfare even at the expense of private rights." (Am. Eng. Enc. of Law, vol. 18, p. 740.)
Judge EARL remarked in Matter of Jacobs (98 N.Y. 108): "The limit of the power cannot be accurately defined, and the courts have not been able or willing definitely to circumscribe it."
Judge Cooley in his Constitutional Limitations (4th ed. 719) says: "The limit of the police power in these cases must be this; the regulations must have reference to the comfort, safety and welfare of society."
The Supreme Court of Illinois in Town of Lake View v. RoseHill Cem. Co. (70 Ill. 194), referring to the police power, said: "It may be assumed it is a power co-extensive with self-protection and is not inaptly termed the `law of paramount necessity.' * * * It may be said to be that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort, safety and welfare of society."
This much of definition shows that it must be determined under the facts of each case whether the attempted exercise of the police power is proper.
A few additional facts will now be pointed out as still further narrowing the field of inquiry. Under the Constitution of this state, as already quoted, and the legislation in aid thereof (Ch. 429, Laws of 1896), no prison-made goods manufactured here can be sold to the general public, as they are only to be disposed of to the state, its political divisions and public institutions.
The law we are considering (Ch. 931, Laws of 1896) does not discriminate against the citizens of other states in favor of *Page 21 our own as did the law of 1894 (Ch. 698), and which was held by the Supreme Court of this state violative of the interstate commerce provision of the Federal Constitution. (People v.Hawkins, 85 Hun, 43.)
On the contrary, the law of 1896 throws open the markets of this state to the convict-made goods of all the other states, subject only to one restriction, while our own penal institutions are cut off from this privilege by constitutional provision.
The one restriction mentioned, to which the citizens of other states are subject, is that their prison-made goods must be branded, labeled or marked "convict made," followed by the year and penal institution in which they were manufactured.
So it is inaccurate to say, as has been said, that the law of 1896 prohibits the sale of convict-made goods from foreign states, within our jurisdiction, as it only requires that buyers in this state shall be advised as to the origin of the goods and decide for themselves whether they will purchase or not.
The fact remains that penal institutions of other states are more highly favored than our own under the policy which has been adopted to protect free labor.
It does not by any means follow, as suggested by the learned counsel for the respondent, that the marking of the goods will render it impossible to sell them. A low price for an article will doubtless attract buyers in the future as it has in the past.
The precise question then is, whether it is competent for this state, in the exercise of the police power, in order to promote the public welfare and prosperity, to impose the restriction, already pointed out, upon the sale of convict-made goods?
I am of opinion that it is for two reasons: (1) It is self-evident that the protection of free labor from competition with convict-made goods in our domestic markets will promote the public welfare and prosperity; and (2) it is competent for the state to protect its citizen from fraud or deception when any such goods are offered for sale, by advising him of the fact that they are convict-made, so that he may act with full knowledge in the premises.
In case of In re Rahrer (140 U.S. 554), Chief Justice *Page 22 FULLER said: "The power of the state to impose restraints and burdens upon persons and property in conservation and promotion of the public health, good order and prosperity, is a power originally and always belonging to the states, not surrendered by them to the general government nor directly restrained by the Constitution of the United States, and essentially exclusive."
In Kidd v. Pearson (128 U.S. 1) it was held that the right of a state to enact a statute prohibiting the manufacture of intoxicating liquors within its limits is not affected by the fact that the manufacturer of said spirits intends to export them when manufactured; the police power of a state is as broad and plenary as the taxing power (as defined in Coe v. Errol,116 U.S. 517), and property within the state is subject to the operation of the former so long as it is within the regulating restrictions of the latter. Mr. Justice LAMAR, in delivering the opinion of the court, at page 23, said: "As has been often said, `legislation (by a state) may in a great variety of ways affect commerce and persons engaged in it, without constituting a regulation of it within the meaning of the constitution,' unless, under the guise of police regulations, `it imposes a direct burden upon interstate commerce' or interferes directly with its freedom." (Vide cases there cited.)
In Pittsburgh S. Coal Co. v. Louisiana (156 U.S. 590) the state of Louisiana passed an act providing for the appointment of coal and coke boat gaugers, and making it compulsory upon all persons selling coke or coal in a barge to have it inspected and gauged; the law applied to coal and coke brought in from other states, but it was sustained as a proper exercise of the police power.
This was a regulation calculated to promote the public welfare and prosperity and protect the citizens of Louisiana from fraud and deceit. It affected commerce, but in no legal sense regulated it. (See Smith v. Alabama, 124 U.S. 465, 473; Budd v. NewYork, 143 U.S. 517; S.C., 117 N.Y. 1.)
There are many cases holding that the state may regulate and prohibit the manufacture and sale of articles of commerce. *Page 23
In Plunley v. Massachusetts (155 U.S. 461) the statute of Massachusetts of March 10th, 1891, ch. 58, "to prevent deception in the manufacture and sale of imitation butter," in its application to the sale of oleomargarine artificially colored so as to cause it to look like yellow butter, and brought into Massachusetts, was held not in conflict with the power vested in Congress to regulate commerce among the several states.
The court held in People v. Arensberg (105 N.Y. 123) that such an act was constitutional, although it appeared that the coloring matter was not injurious to health.
An act "to prevent deceptions in the sale of vinegar" was held constitutional by this court, although it was proved to be entirely healthy and safe as a food product, notwithstanding the artificial coloring matter therein contained. (People v.Girard, 145 N.Y. 105.)
The oleomargarine cases do not rest upon the well-recognized incident of the police power to protect the public health, but stand on a much broader ground, to wit, the right of the state to protect its citizens against fraud, deception and unjust dealing in trade.
Judging the act of 1896 by the general principles already commented upon, it does not, as matter of law, interfere with the power of Congress to regulate commerce among the states, nor is it repugnant to any of the constitutional provisions referred to, either federal or state. The facts in the case before us are peculiar, and we are called upon to apply well-settled principles to new conditions.
If the oleomargarine, vinegar and kindred cases are within the police power, can it be properly said that a law which not only seeks to shield the citizen from fraud, deception and unjust dealing in trade, but has for its object the further purpose, in pursuance of an enlightened public policy, to promote and protect the interests of free labor as against convict labor, is beyond the power of a sovereign state to enact?
I am of opinion that both upon principle and authority, the act of 1896 was a legitimate exercise of the police power. *Page 24
I am unable to agree with respondent's counsel as to the grave consequences likely to follow the reversal of this judgment. The possible cases he has cited, by way of illustration, do not, I think, involve the principle here decided. In fact, many cases are cited by him in the United States Supreme Court that are not in point. It is only necessary to refer to those where discriminations were made between different classes in the ranks of free labor; also the salesman license cases and the inspection of living animals before slaughter, in the state enacting the law. It is clear that the principles involved in all these cases have no application here.
The criticism is made on behalf of respondent that it is against the honor and dignity of the state to purchase products forbidden to the private citizen under the exercise of the police power.
This criticism involves a misapprehension of the situation.
It is most fitting that the state should protect its citizens and the interests of free labor as already pointed out, and it is equally proper that it should provide employment for the inmates of our penal institutions.
In this connection it is necessary to examine more critically the amendment of the State Constitution made in 1894 (Art. III, section 29), as it is seriously argued that it does not indicate a public policy on the part of the state to suppress the competition of prison labor with free labor.
The opening sentence reads as follows: "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." As I read this provision, it not only prohibits the work of prisoners from being *Page 25 farmed out or contracted to others, but it also prohibits the products from being given or sold to any person, firm, association or corporation. If the products of the work of prisoners cannot be given away or sold, then it, of necessity, follows that the product of prison labor in this state cannot be dealt in by the inhabitants thereof. I do not see how there can be any question with reference to the meaning of the words used; but, should there be, it would seem as if all doubt must, of necessity, vanish upon reading the concluding sentence of this section: "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." If the product of prison labor was intended to be sold and thus enter the general commerce and traffic of the state, what is the purpose of this clause? The mind can suggest none. The provision would be meaningless under such a construction. But when it is read in connection with the former provision quoted, and in view of my understanding of the meaning of that provision, it has a well-defined purpose. Under the former provision, as we have seen, the products of prison labor cannot be sold to individuals, etc. This would leave the prisons with the power to manufacture, but not to dispose of their product. The latter provision relieves this situation. While the goods cannot be sold to any person, firm, association or corporation, they may be disposed of to the state or any political division thereof, or to any public institution owned or managed and controlled by the state or any political division thereof. In other words, the state may supply its own wants from its own prison labor, but the product of such labor shall not be given or sold so as to enter the general traffic in manufactured goods. This construction is the one contemplated by the constitutional convention, as is evident from the report of the committee and the discussion which followed between the members of the convention. *Page 26 (Record 3, N.Y. Const. Conv. page 1370.) The report was made by Mr. McDonough, who said in explanation thereof that "The first sentence provides that the prisoners shall work; that they shall be occupied and employed as they ought to be. The second clause provides that, after January first, 1897, the products of their labor and their labor itself shall not be farmed out or sold to outside parties. The object is to prevent the selling of the goods manufactured by these prisoners or to sell their labor. The next provision is that they shall work for the benefit of the state, or any political division of the state; in other words, it provides that they may do any kind of work that is necessary for the state or for any of the institutions in the state that are owned and controlled by the state, or any political division of the state." He then proceeds with an elaborate argument calling attention to the evil resulting from the competition of free with prison labor, refers to an interview with Mr. Pillsbury, who stated, in substance, that the requirements of the state, the civil divisions thereof and of its institutions were sufficient to furnish employment for all of the prisoners in the state; then he states that in England and in France articles made by the convicts are the property of the government and are never sold, and quotes the following from the report of the general superintendent of prisons of Massachusetts: "It is well known that the state, through its penal, corrective and elemosynary institutions, is a very large consumer of manufactured products. Most of these products are such as could be quite easily manufactured by prison labor, the state being the purchaser and consumer of its own products. The irritation of free labor by competition with prison labor would be absolutely avoided, and the manufacturer would cease his complaints as to the injustice of meeting prison-made goods in the open market. There would be a constantly growing demand for these prison-made products, thus insuring steady employment and a stability in the establishment of industries that would be a vast benefit to the discipline and welfare of the prisons." A sharp discussion followed, extending through forty pages of the record, in *Page 27 which opposition was made to the provision prohibiting the selling of prison-made goods, but in the entire discussion not a single objection was expressed against the prohibition of the farming out, or the contracting of the work of prisoners. That question the convention evidently deemed settled by the vote of the people in 1883 when the question, as to whether the contract system then in force should be abolished, was submitted to them. Further extended quotations might be made from the numerous speeches made upon the subject during its consideration by the convention, but I do not regard it necessary. They all refer to one controversy. The members of the convention all understood the meaning of the provision as prohibiting the sale of prison-made goods to any person, corporation or association other than the state, the civil divisions thereof and the institutions controlled by it, so that such goods could not enter the markets of the state in competition with other manufactured goods. They differed as to the advisability of incorporating such a provision in the organic law, but not as to its meaning.
Here we have a well-settled public policy of the state incorporated in the Constitution prohibiting dealing in the product of prison-made goods by our citizens so as to bring them in competition with free labor. If dealing in prison-made goods is against public policy and is prohibited by the Constitution, the legislature may also regulate the dealing in such goods and provide for the criminal punishment of those who violate the act. Such statute would be in harmony and not in conflict with the Constitution. If against public policy then it would be within the police powers of the state and not in conflict with the provisions of the Constitution of the United States investing Congress with power to regulate commerce among the several states, to legislate as to the sale of foreign convict-made goods. (Plumley v. Massachusetts, 155 U.S. 461, and cases before cited.)
The judgment appealed from should be reversed, the demurrer to the indictment disallowed and the defendant permitted to plead. *Page 28