People v. Hawkins

• Decision Date: 11 October 1898
• Citation: 157 N.Y. 1,51 N.E. 257
• Parties: PEOPLE v. HAWKINS.
• Court: New York Court of Appeals Court of Appeals

157 N.Y. 1

51 N.E. 257

PEOPLE

v.HAWKINS.

Court of Appeals of New York.

Oct. 11, 1898.

Appeal from supreme court, appellate division, Third department.

Samuel K. Hawkins was indicted for having and offering for sale a scrub brush of convict make, not so labeled. There was a judgment of the appellate division (47 N. Y. Supp. 56) affirming a judgment entered on a decision sustaining a demurrer to the indictment, and the people appeal. Affirmed.

Parker, C. J., and Bartlett and Haight, JJ., dissenting.

Harry C. Perkins, for the People.

Frederick Collin, for respondent.

O'BRIEN, J.

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 1, 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 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.

‘Sec. 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.'

‘Sec. 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 such a law. The law is similar in all respects to the law of 1894 (chapter 698, Laws 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, 32 N. Y. Supp. 524. 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, 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 brutum fulmen. 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 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 guaranties of the constitution can be upheld under the police power, unless the courts can see that it has some plain or reasonable...