[689]

The Act, it is to be observed, is not designed | other oleaginous matter than that which is pro-
to prevent any deception in the manufacture duced from pure milk or cream, or be sold
and sale of the article of oleomargarine butter, within its limits or kept for sale under penalty
or any attempt to pass it off as butter made of of fine and imprisonment.
milk or cream. The title would indicate that If the first question presented can be an-
the Act was intended for the protection of the swered, as it has been by the court, in the af-
public health, and to prevent the adulteration firmative, I do not see why it is not equally
of dairy products, and fraud in the sale there- within the competency of the Legislature to
of. It is probable that the original draft of forbid the production and sale of any new arti-
the Act had such a purpose, and that the title cle of food, though composed of harmless in-
was allowed to remain after its body was gredients, and perfectly healthy and nutritious
changed. Be this as it may, the Act is one in its character, or even to forbid the manufac-
prohibiting the manufacture or sale, or keep-ture and sale of articles of prepared food now
ing for sale, of the article, though no conceal- in general use, such as extracts of beef and con-
ment is attempted as to its character, nature, densed milk, and the like, whenever it may see
or ingredients. Its validity is rested simply fit to do so, its will in the matter constituting
upon the fact that it has pleased the Legisla- the only reason for the enactment. The doctrine
ture of the Commonwealth to declare that the asserted is nothing less than the competency
article shall not be manufactured or sold or of the Legislature to prescribe out of different
kept for sale within its limits. On the trial articles of healthy and nutritious food, what
the defendant offered to prove by competent shall be manufactured and sold within its limits,
witnesses that the article manufactured was and what shall not be thus manufactured and
composed of ingredients perfectly healthy, and sold. I have always supposed that the gift of
was as wholesome and nutritious as butter pro-life was accompanied with the right to seek
duced from pure milk or cream. But the court and produce food, by which life can be pre-
refused to allow the evidence, on the ground served and enjoyed, in all ways not encroaching
that it was immaterial and irrelevant. It was upon the equal rights of others. I have supposed
sufficient, in its judgment, that the Legislature that the right to take all measures for the sup-
had passed the Act, to render a disregard of its port of life, which are innocent in themselves,
provisions a public offense.
is an element of that freedom which every
American citizen claims as his birthright. I
admit that previous to the adoption of the
Fourteenth Amendment of the Federal Con-
stitution, the validity of such legislation was to
be determined by the Constitution of the State,
and that its tribunals were the authoritative in-
terpreters of its meaning. This court could
exercise no appellate jurisdiction over the judg-
ments of the state courts in matters of purely
local concern. Their judgments in such cases
were final and conclusive. If the legislation
of the State thus sustained was oppressive and
unjust, the remedy could be found only in sub-
sequent legislation, brought about by the in-
fluence of wiser views and a more enlightened
policy on the part of the people. From the
structure of our dual government, in which the
United States exercise only such powers as are
expressly delegated to them by the Constitu-
tion, or necessarily implied, all others not pro-
hibited to the States being reserved to them re-
spectively, or to the people, the great mass of
matters of local interest were necessarily sub-
ject to state regulation, and whether that was
wisely or unwisely enacted, it was not a ques-
tion which could come under the consideration
of this court. The government created by the
Constitution was not designed for the regula
tion of matters purely local in their character.
The States required no aid from any external
authority to manage their domestic affairs. It
was only for matters which affected all the
States or which could not be managed by them
in their individual capacity, or managed only
with great difficulty and embarrassment, that a
general and common government was desired.
Only such powers of internal regulation were,
therefore, conferred as were essential to the
successful and efficient working of the govern-
ment established, to facilitate intercourse and
commerce between the people of different States,
and to secure to them equality of protection
in the several States; and only such restraints

The defendant also offered to prove that the article sold by him was a part of a large and valuable quantity manufactured prior to the passage of the Act of May 21, 1885, in accordance with the laws of the Commonwealth relating to the manufacture and sale of the article; but this offer was also rejected on the same ground, as immaterial and irrelevant. The case is therefore to be considered as if the proof offered had been received. Scotland County v. Hill, 112 U.S.183, 186 [28: 692, 693]. Two questions are thus distinctly presented; first, whether a State can lawfully prohibit the manufacture of a healthy and nutritious article of food designed to take the place of butter, out of any oleaginous substance, or compound of the same, other than that produced from pure milk or cream, and its sale when manufactured; and, second, whether a State can, without compensation to the owner, prohibit the sale of an article of food, in itself healthy and nutritious, which has been manufactured in accordance with its laws.

These questions are not presented in the opinion of the court as nakedly and broadly as here stated, but they nevertheless truly indicate the precise points involved, and nothing else. Upon first impressions one would suppose that it would be a matter for congratulation on the part of the State, that in the progress of science a means had been discovered by which a new article of food could be produced, equally healthy and nutritious with, and less expensive than, one already existing, and for which it could be used as a substitute. Thanks and rewards would seem to be the natural return for such a discovery, and the increase of the article by the use of the means thereby encouraged. But not so thought the Legislature of the Commonwealth of Pennsylvania. By the enactment in question it declared that no article of food to take the place of butter shall be manufactured out of any

[69

[69

were placed upon the action of the States as
would prevent conflict with its authority, secure
the fulfillment of contract obligations, and in-
sure protection against punishment by legisla-
tive decree or by retrospective legislation. By
the first section of the Fourteenth Amendment,
which had its origin in the new conditions and
necessities growing out of the late civil war,
further restraints were placed upon the power
of the States in some particulars, a disregard
of which subjected their action to review by
this court. That section is as follows:

"All persons born or naturalized in the
United States, and subject to the jurisdiction
thereof, are citizens of the United States and
of the State wherein they reside. 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 de-
prive any person of life, liberty, or property
without due process of law; nor deny to any
person within in its jurisdiction the equal pro-
tection of the laws.'

"

to pursue one's happiness is placed by the Dec-
laration of Independence among the inalienable
rights of man, with which all men are endowed,
not by the grace of emperors or kings, or by
force of legislative or constitutional enactments,
but by their Creator; and to secure them, not
to grant them, governments are instituted
among men. The right to procure healthy and
nutritious food, by which life may be preserved
and enjoyed, and to manufacture it, is among
these inalienable rights, which, in my judg
ment, no State can give and no State can take
away except in punishment for crime. It is in-
volved in the right to pursue one's happiness.
This doctrine is happily expressed and illus-
trated in People v. Marx, cited above, where the
precise question here was presented. That case
arose upon an indictment for a violation of a
provision of an Act of the Legislature of New
York, entitled "An Act to Prevent Deception
in the Sale of Dairy Products," a section of
which was almost identical in language with
the first section of the Act of the Legislature
of Pennsylvania under consideration. The de-
fendant was convicted by the Court of General
Sessions of New York. The conviction was
affirmed by the general term of the supreme
court, and from that decision an appeal was
taken to the court of appeals, where the judg-
ment was reversed. The court was of opinion
that the object and effect of the Act, notwith-
standing its title, was not to supplement exist-

It is the clause declaring that no State shall "deprive any person of life, liberty, or property without due process of law" which applies to the present case. This provision is found in the Constitutions of nearly all the States, and was designed to prevent the arbitrary deprivation of life and liberty, and the arbitrary spoliation of property. As I.said on a former occasion, it means that neither can be taken, or the enjoyment thereof impaired, ex-ing provisions against fraud and deception by cept in the course of the regular administration of the law in the established tribunals. It has always been supposed to secure to every person the essential conditions for the pursuit of happiness and is therefore not to be construed in a narrow or restricted sense. Er parte Virginia, 100 U. S.366 [25: 686].

means of imitation of dairy butter, but to prohibit the manufacture and sale of any article which could be used as a substitute for it, however openly and fairly the character of the substitute might be avowed and published, to drive the substituted article from the market and protect those engaged in the manufacture of dairy By "liberty," as thus used, is meant some- products against the competition of cheaper thing more than freedom from physical re- substances capable of being applied to the same straint or imprisonment. It means freedom uses as articles of food. At the trial, and on not merely to go wherever one may choose, but the argument of the appeal, the ground was to do such acts as he may judge best for his in- taken that, if such were the case, the manufac[692] terests not inconsistent with the equal rights of ture or sale of any oleaginous compound, howothers; that is, to follow such pursuits as may ever pure and wholesome, as an article of food, be best adapted to his faculties, and which if it was designed to take the place of dairy will give to him the highest enjoyment. As butter, was by that Act made a crime, and the said by the Court of Appeals of New York, in court said: "The result of the argument is, People v. Marx, 99 N. Y. 386, "the term 'lib- that if, in the progress of science, a process is erty,' as protected by the Constitution, is not discovered of preparing beef tallow, lard, or cramped into mere freedom from physical re- any other oleaginous substance, and communistraint of the person of the citizen, as by incar-cating to it a palatable flavor, so as to render it ceration, but is deemed to embrace 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 welfare;" and again, In the matter of Jacobs: "Liberty, in its broad sense, as understood in this country, means the right not only of freedom from actual 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 vocation." 98 N. Y. 98.

With the gift of life there necessarily goes to everyone the right to do all such acts, and follow all such pursuits, not inconsistent with the equal rights of others, as may support life and add to the happiness of its possessor. The right

serviceable as a substitute for dairy butter, and
equally nutritious and valuable, and the article
can be produced at a comparatively small cost,
which will place it within the reach of those
who cannot afford to buy dairy butter, the ban
of this statute is upon it. Whoever engages in
the business of manufacturing or selling the
prohibited product is guilty of a crime; the in-
dustry must be suppressed; those who could
make a livelihood by it are deprived of that
privilege; the capital invested in the business
must be sacrificed, and such of the people of
the State as cannot afford to buy dairy butter
must eat their bread unbuttered." And after
referring to the State Constitution, which pro-
vides that no member of the State shall be dis-
franchised, or be deprived of any of the rights
and privileges secured to any citizen thereof,
unless by the law of the land, or the judgment

[693]

[694]

[695]

[696]

[697]

If the courts could not in such cases examine | food for public consumption. Only out of pure
into the real character of the Act, but must ac- milk or cream shall that article be made, not-
cept the declaration of the Legislature as con- withstanding the vast means for its production
clusive, the most valued rights of the citizen furnished by the vegetable as well as by the ani-
would be subject to the arbitrary control of a mal kingdom. The full force of the doctrine
temporary majority of such bodies, instead of asserted will be apparent if the extent is consid-
being protected by the guarantees of the Con-ered to which it may be applied. The prohibi-
stitution. In the recent prohibition cases from tion may be extended to the manufacture and
Kansas this court, after stating that it belonged sale of other articles of food, of articles of rai-
to the legislative department to determine prima- ment and fuel, and even of objects of conve-
rily what measures are appropriate or needful nience. Indeed, there is no fabric or product,
for the protection of the public morals, the pub- the texture or ingredients of which the Legis-
lic health, or the public safety, added: "It lature may not prescribe by inhibiting the
does not at all follow that every statute enacted manufacture and sale of all similar articles not
ostensibly for the promotion of these ends is to composed of the same materials.
be accepted as a legitimate exercise of the police
powers of the State. There are of necessity
limits beyond which legislation cannot right-
fully go.
The courts are not bound by
mere form, nor are they to be misled by mere
pretenses.
They are at liberty-indeed, are un-
der a solemn duty-to look at the substance of
things, whenever they enter upon the inquiry
whether the Legislature has transcended the
limits of its authority. If, therefore, a statute
purporting to have been enacted to protect the
public health, the public morals, or the public
safety has no real or substantial relation to
those objects, or is a palpable invasion of rights
secured by the fundamental law, it is the duty
of the courts to so adjudge, and thereby give
effect to the Constitution. Mugler v. Kansas,
123 U. S. 623, 661 [31: 205, 210].

***

The answer to the second question is equally conclusive against the decision of the court. In prohibiting the sale of the article which had been manufactured by the defendant pursuant to the laws of the State, the Legislature necessarily destroyed its mercantile value. If the article could not be used without injury to the health of the community, as would be the case perhaps if it had become diseased, its sale might not only be prohibited but the article itself might be destroyed. But that is not this case. Here the article was healthy and nutritious, in no respect injuriously affecting the health of any one. It was manufactured pursuant to the laws of the State. I do not, therefore, think the State could forbid its sale or use; clearly not without compensation to the owner. Regulations of its sale and restraints against its improper use undoubtedly could be made, as they may be made with respect to all kinds of property; but the prohibition of its use and sale is nothing less than confiscation. As I said in Bartemeyer v. Iowa, 85 U. S. 18 Wall. 137 [21:932], with reference to intoxicating liquors, so I say with reference to this proper ty, I have no doubt of the power of the State to regulate its sale, when such regulation does not amount to the destruction of the right of property in it. "The right of property in an article involves the right to sell and dispose of such article as well as to use and enjoy it. Any Act which declares that the owner shall neither sell it nor dispose of it, nor use and enjoy it, confiscates it, depriving him of his property without due process of law. Against such ar bitrary legislation by any State the Fourteenth Amendment affords protection. But the prohibition of sale in any way or for any use is quite a different thing from a regulation of the sale or use so as to protect the health and morals of the community." The fault which I find with the opinion of the court on this head is that it ignores the distinction between regu

In Watertown v. Mayo, 109 Mass. 315, 319, the Supreme Court of Massachusetts, speaking of the police power of the State, said: The law will not allow rights of property to be invaded under the guise of a police regulation for the preservation of the health, or protection against a threatened nuisance, and when it appears that such is not the real object and purpose of the regulation the courts will interfere to protect the rights of citizens." It would seem that under the Constitutions of the States no Legislature should be permitted, under the pretense of a police regulation, to encroach upon any of the just rights of the citizen intended to be secured thereby. Be this as it may, certain it is that no State can, under any pretense or guise whatever, impair any such rights of the citizen which the fundamental law of the United States has declared shall neither be destroyed nor abridged. Were this not so, the protection which the Constitution designed [698] to secure would be lost, and the rights of the citizen would be subject to the control of the State Legislatures, which would in such matters be practically omnipotent. What greater invasion of the rights of the citizen can be con-lation and prohibition. ceived, than to prohibit him from producing an article of food, conceded to be healthy, and nutritious, out of designated substances, in themselves free from any deleterious ingredients? The prohibition extends to the manufacture of an article of food out of any oleaginous substances, or compounds of the same, not produced from milk or cream, to take the place of butter or cheese. There are many oleaginous substances in the vegetable as well as the animal world, besides milk and cream, but out of none of them shall any citizen of the United States within the limits of Pennsylvania be permitted to produce such an article of

[699]

HAY Walker, Jr., ET AL., Plffs. in Err., v. [699]
COMMONWEALTH OF PENNSYLVANIA.

(See S. C. Reporter's ed. 699.)

The case of Powell v. Commonwealth of Penn-
sylvania, ante, followed, in holding the Pennsylva
facture and sale of oleomargarine butter to be a
nia Statute of May 21, 1885, relating to the manu-
valid law.

[No. 1303.]
Submitted Jan. 4, 1888. Decided April 9, 1888.

[579]

IN ERROR to the Supreme Court of the State loe v. Merchants F. Ins. Co. 50 U. 8. 9 How.

of Pennsylvania, to review a judgment sustaining the validity of the Pennsylvania Statute relating to oleomargarine butter. Affirmed. Messrs. Weiss & Gilbert, W. B. Rodgers and D. T. Watson, for plaintiffs in er

ror.

Messrs. A. H. Wintersteen and Wayne
Mac Veagh, for defendant in error.

For points and authorities of counsel in this
case, see next preceding case.

Mr. Justice Harlan delivered the opinion of the court:

The questions presented in this case do not differ, in any material respect, from those determined in Powell v. Commonwealth of Pennsylvania, just decided. The principles announced in that case necessarily require an affirmance of the judgment below. It is so ordered.

TALMADGE E. BROWN, Appt.,

v.

DISTRICT OF COLUMBIA.

(See S. C. Reporter's ed. 579-589.)

Board of public works of District of Columbia-
power of ratification of contract-disallow
ance-judgment, when a bar.

1. The board of public works of the District of
Columbia consisted of five members, who were the
Joint agents of the District in the management of
Its streets and alleys; and a contract with the
board, to be binding upon the District, must have
been ratified by a majority of the members of
the board.

390 (13:187); Hamilton v. Lycoming Mut. Ins.
Co. 5 Pa. 339 and cases cited; Mactier v. Frith,
6 Wend. 103; Pratt v. Hudson River R. R. Co.
21 N. Y. 305; Bronson v. Chappell, 79 U. S. 12
Wall. 681 (20:436).

It became valid and binding by reason of the
fact that it was afterwards recognized by the
parties and was performed in part by the de-
fendant.

Brown, Stat. Fr. §§ 447, 448 and notes; Fre-
mont, Stat. Fr. SS 461-476; Lind. Stat. Fr..
$$ 359-365; Danolds, Stat. Fr. § 65; Gibbons
Stat. of Frauds, §§ 416-423; Neal v. U. S. 14
Ct. Cl. 280.

It became valid by the ratification thereof by
Congress.

Act June 20, 1874, 18 Stat. 116; Act June 11,
1878, 20 Stat. 102; Act June 16, 1880, 20 Stat.
286; Joint Res. Dec. 21, 1874, 18 Stat. 223;
Neitzey v. Dist. of Columbia, 17 Ct. Cl. 111.

Messrs. A. H. Garland, Atty- Gen., and Robert A. Howard, Asst. Atty-Gen., for appellee.

Mr. Justice Lamar delivered the opinion of the court:

This is an appeal from a judgment of the Court of Claims dismissing the petition of the that court to recover a judgment against the appellant, Talmadge E. Brown, who sued in District of Columbia, appellee, for $200,000, in satisfaction of his claim for damages for breach of an alleged contract, and for work and labor performed and materials furnished in the paving of certain streets in the Cities of Washington and Georgetown.

The petition was filed November 16, 1880, and contains four counts, the first of which is 2. Where a corporate power resides in a select in substance as follows: That from 1869 to [580] body, or has been delegated to a committee or 1874, inclusive, petitioner, William W. Ballard, agents, then, in the absence of special provision otherwise, a minority of the select body, or of the and Edward L. Marsh, all of whom were citicommittee or agents, are powerless to bind the zens of the United States, were in partnership majority, or to do any valid act. 3. Held, under the circumstances of this case, under the name of the Ballard Pavement Comthat the alleged contract, sued on, for paving cer- pany, their business consisting in grading, pavtain streets, has not been rendered valid by reasoning, etc., streets, sidewalks, etc.; that on or of any recognition of said contract, nor by the about December 10, 1872, said company made ratification thereof by Congress. and completed a contract with the District of Columbia, whereby said company became bound to pave with wood pavement such streets, or parts of streets, in the Cities of Washington and Georgetown, in the said District of Columbia, as the board of public works of said District should designate from time to time, to the amount of 75,000 square yards, said work to be assigned and completed during 1873, and at the

4. In the disposition of claims by the board of audit, a disallowance of them is the same as their rejection.

5. Held further, in this case, that the judgment of
the Supreme Court of the District of Columbia, in
a suit brought by William W. Ballard and others
against the District (described in the opinion) is a
bar to the first count of the petition.

[No. 224.]
Submitted April 13,1888. Decided May 14, 1888.

APPEAL from a judgment of the Court of
Claims, dismissing the petition of the ap-
pellant, who sued to recover damages for breach
of an alleged contract, and for work performed
and materials furnished in paving certain streets
in the District of Columbia. Affirmed.

Reported below in 19 Ct. Cl. 445.
The facts are stated in the opinion.
Messrs. C. C. Cole and Fillmore Beall,
for appellant:

The contract sued upon is a valid contract,
binding upon the parties.

Moore v. U. S. i Ct. Cl. 90; Adams v. U. 8. Id. 192, Driscoll v. U. S. 13 Ct. Cl. 15-37; Gar fielde v. U. S. 11 Ct. Cl. 322, 592; Cobb v. U. S. 7 Ct. Cl. 473; Neal v. E. S. 14 Ct. Cl. 280; Garfielde v. U. S. 93 U. S. 242 (23:779); Tay

price of $3.50 per square yard, and also to do
such grading, hauling, filling, and setting of
curbing on the streets paved by said company,
and at the board prices, as the said board of
public works should order or direct; that by

the terms of said contract the said work was to
be paid for as the same progressed; that at the
time the said board of public works of the said
said contract with said pavement company the
District of Columbia made and entered into
make the same in the manner and form the
said board had full power and authority to
same was made; and that said contract was in
the words and figures following, to wit:
"The Ballard Pavement Company, Washington,
D. C.:

"Your proposition of this date, as follows: