in all lawful ways, to live and work where lie will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or vocation."
The case before the court was one affecting methods of sale of any article of food. The Legislature had enacted a law (chap. 691 of 1887) that "No person shall sell, exchange, or dispose of any article of food, or offer or attempt to do so upon any representation, advertisement, notice, or inducement that anything other than what is specifically stated to be the subject of the sale or exchange is or is to be delivered or received or in any way connected with or a part of the transaction as a gift, prize, premium, or reward to the purchaser."
In respect to this specific act Judge Peckham held it unconstitutional for the following reasons (p. 405): "It seems to me that to uphold the act in question upon the assumption that it tends to prevent people from buying more food than they may want, and hence tends to prevent wastefulness or lack of proper thrift among the poorer classes, is a radically vicious and erroneous assumption, and is to take a long step backward and to favor that class of paternal legislation which, when carried to this extent, interferes with the proper liberty of the citizen and violates the constitutional provision referred to."
In dealing with an act which had been passed to prevent the manufacture of tobacco in tenement-houses, in cities of more than five hundred thousand inhabitants—an act which was specifically aimed at the cities of New York and Brooklyn—Judge Earl held, in the case of Jacobs, 98 New York, p. 98 (1885), that the act was unconstitutional.
Attention may well be called to the vigor with which the learned judge denies the power of the Legislature to construe its own acts by the titles which it may give to them. The assumption of power under the indefinite term of police regulations may not be admitted. The court may demand the facts to be submitted—proof absolute, clear, and definite of the injury to the common welfare may be required before personal liberty can be impaired and the right of free contract taken away, in order that the court may be satisfied that there is reasonable cause to sustain the regulation as one rightly coming within the term of police powers.
A decree in legislative form may present an aspect of legality but may yet be wholly unlawful. Lord Brougham ruled that "things may be legal and yet unconstitutional," even in England where there is no written constitution. Even Parliament has been overruled and called upon to submit to the rule of the courts, when it has impaired the personal liberty of the subject in a manner which is in contravention of the common law, although the act of Parliament may have been wholly consistent with legal forms.
