I concur.
I call attention to the further fact not mentioned in the opinion that the courts will exercise stricter scrutiny over measures which encroach on civil liberties than those which affect economic situations in determining whether the legislature has constitutionally exercised its judgment. This could hardly be better expressed than in the footnote in Law and Politics, a collection of occasional papers by Mr. Justice Frankfurter, page 97. *Page 58
"Friendly critics have suggested that Cardozo viewed encroachments upon civil liberties with less deference to the legislative judgment than that which he accorded to economic measures. The same seeming inconsistency has been suggested against Holmes and the answer made in Holmes' case applies to Cardozo as well:
"`The Justice deferred so abundantly to legislative judgment on economic policy because he was profoundly aware of the extent to which social arrangements are conditioned by time and circumstances, and of how fragile, in scientific proof, is the ultimate validity of a particular economic adjustment. He knew that there was no authoritative fund of social wisdom to be drawn upon for answers to the perplexities which vast new material resources had brought. And so he was hesitant to oppose his own opinion to the economic views of the legislature. But history had also taught him that, since social development is a process of trial and error, the fullest possible opportunity for the free play of the human mind was an indispensable prerequisite. Since the history of civilization is in considerable measure the displacement of error which once held sway as official truth by beliefs which in turn have yielded to other truths, the liberty of man to search for truth was of a different order than some economic dogma defined as a sacred right because the temporal nature of its origin had been forgotten. And without freedom of expression, liberty of thought is a mockery. Nor can truth be pursued in an atmosphere hostile to the endeavor or under dangers which only heroes hazard.
"`Naturally, therefore, Mr. Justice Holmes attributed very different legal significance to those liberties of the individual which history has attested as the indispensable conditions of a free society from that which he attached to liberties which derived merely from shifting economic arrangements. * * * Because these civil liberties were explicitly safeguarded in the Constitution or conceived to be basic to any notion of the liberty guaranteed by the Fourteenth Amendment, Mr. Justice Holmes was far more ready to find legislative invasion in this field than in the area of debatable economic reform.'" Frankfurter, Mr. Justice Holmes and the Supreme Court (1938), 50, 51.
The right to be free from unreasonable searches and seizures is a civil right. To use the power of search and seizure for the convenience of discovering and recovering for certain groups engaged in business is not a public purpose, however it may be disguised. I assume that the opinion does not intend to go to the extent of holding that there *Page 59 might not be power in the legislature to give the right to search and seizure of containers actually being used for the spurious purpose of palming off a product of A's as that of B by using B's trademarked containers where such was prohibited out of consideration of public welfare.
MOFFAT, C.J., being disqualified, did not participate herein.