If the prevailing opinion correctly construes section 29, article 3 of the State Constitution the conclusion reached by it is well founded, for it has not been declared by the People of this state by an amendment to the organic law that the public welfare demands that free labor shall not be put in competition with prison labor. As construed the provision was not intended to prevent dealing in any article of merchandise even if made by convicts in our own state prisons, but 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." I deem it safe to say that such a construction will surprise the members of the convention that recommended the Constitution to the people for adoption as well as it will surprise the public at large; for the propriety and wisdom of the provision in question was the subject of much discussion in the public prints and elsewhere at the time of its submission to the people. On the one hand it was urged as most unjust that labor employed in manufacturing should be subjected to the competition of unpaid, compulsorily-enforced labor, while on the other it was strenuously insisted that the burdens of the taxpayers should not be added to by restraining the convict from contributing in whole or in part to his own support.
That the provision has been heretofore read by those charged with the administration of the affairs of prisons, and those engaged in a consideration of the question from the standpoint of public interest, according to the natural and ordinary meaning of the language employed, seems to me demonstrated by the opinion of Judge BARTLETT. I shall, therefore, assume that the people of the state have forbidden the selling of articles manufactured in our prisons, for the reason that they deemed it to be against a sound public policy to permit some of the citizens of the state skilled in certain kinds of labor to be subjected to competition with the unpaid labor of convicts.
It is now too late to consider the subject generally from *Page 29 the point of view of the political economist, for the people, in whom reside all power, have set at rest that question so far as this state is concerned. This statute neither prohibits nor attempts to prohibit other states, or the citizens of other states, from putting prison-made goods upon our markets; nor does it prohibit our own citizens from buying or selling them; if it did, then, concededly, the statute would be in violation of the commerce clause of the Federal Constitution and void; it simply requires that prison-made merchandise shall be so branded that our citizens shall know where the goods they are buying were made. This they have a right to know, for they voted to burden themselves with additional taxation rather than longer to permit a competition which they regarded as a public wrong, and they are, therefore, entitled to such legislation as will permit them to know the truth in regard to articles offered them for sale, in order that they may not, through lack of information, have forced upon them that which they would not buy advisedly. The commerce clause of the Federal Constitution does not stand in the way of their having such information, inasmuch as the Constitution of this state establishes a public policy in the working out of which the legislature may go to this extent at least under the police power of the State.
The decisions of the United States Supreme Court in the oleomargarine and other cases, some of which are referred to in Judge BARTLETT'S opinion, furnish adequate support for that assertion. They establish, generally, that commerce between the states may be regulated to some extent under the police power of the State which includes, among other things, efforts to prevent fraud and deception on purchasers. In view of the public policy declared by the people of this State through their Constitution, I am of the opinion that this statute is well within the police power of the State, and therefore, under the decision in theSlaughterhouse cases, not repugnant to the Federal Constitution.
I concur with Judge BARTLETT for a reversal of the judgment. *Page 30
O'BRIEN, J., reads for affirmance of judgment; GRAY, MARTIN and VANN, JJ., concur for affirmance upon the ground that the statute conflicts with and is repugnant to the commerce clause of the Federal Constitution.
BARTLETT, J., reads for reversal; PARKER, Ch. J., reads memorandum concurring with BARTLETT, J., and HAIGHT, J., concurs for reversal.
Judgment affirmed.