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. . . .

It is entirely safe to assert that no court has yet invoked the police power to justify a statute, the purpose of which was to enhance the wages of labor in certain factories by suppressing, through the agencies of the criminal law, the sale of competing products made in prisons. If the wages of labor in a few factories producing goods such as are also made in prisons may be regulated by the police power, there is no reason why that power may not be used to regulate the rewards of labor in any other field of human exertion. That all legislation of this character, with this end in view, which subjects the individual to criminal prosecution unless he will comply with regulations in the sale of such goods that are intended to depress their value or demand in the market, is in violation of the Constitution, cannot be doubted.

It would be trifling with the Constitution to attempt to uphold this law on the ground that all producers or vendors of goods may be required to tell the truth concerning them, both as to their quality and the means by which or the place where they were manufactured. A knowledge of the truth concerning the origin of every article of property which is the subject of sale, trade or commerce cannot be essential to the public welfare, and even if it was, the law could be effective only when applied to all property alike and not limited to articles made in certain places and by a certain class of workmen. Any attempt to carry the police power to such an extent as to require the owner of an article of property kept for sale, such as a scrubbing brush, to label it with the history of its origin and to indicate the place where it was made and the class of workmen that produced it, and to enforce such regulations by the aid of the criminal law, must be regarded as an inexcusable and intolerable invasion of the rights and liberty of the citizen.

There is nothing in the character or effect of prison labor to justify such legislation. The health and welfare of convicts is a subject peculiarly within the functions of government. The state in order to carry out the purposes of punishment must employ them at some useful labor. Whatever it may be their work must in some degree come

into competition with the labor of others. It is not at all likely that this result ever had or can have any material or perceptible influence on wages. But even if it had, the welfare of the convicts and the interests of the taxpayers are proper subjects for consideration.

The question is reduced to the simple inquiry whether the legislature under the guise of the police power can regulate the price of labor by depressing, through the penalties of the criminal law, the price of goods in the market made by one class of workmen and correspondingly enhancing the price of goods made by another class. If the statute does not tend to produce that result there is no reason or excuse for its existence, and it would be a useless and arbitrary interference with the liberty of the individual without any possible reason or motive behind it. The law is now defended upon the ground that it was intended to accomplish, and in fact does tend to promote, that very result. If the police power extends to the protection of certain workmen in their wages against the competition of other workmen in penal institutions, why not extend it to other forms of competition? Why not give the workman who has a large family to support some advantage over the one who has no family at all? Why not give to the old and feeble a helping hand by legislation against the competition of the young and strong? Why not give to the women, the weaker sex, who are often the victims of improvidence and want, a preference by statute over the men? Why confine such legislation to scrubbing brushes and like articles made in prisons, when multitudes of men engaged in farming, mercantile pursuits and almost every vocation in life are struggling against competition? If the statute now under consideration is a valid exercise of the police power, I am unable to give any reason why the legislature may not interfere in all the cases I have mentioned to help those who need help at the expense of those who do not.

It would be difficult to give any satisfactory reason, legal, moral or economic, why a person who happens to be confined in a prison should not be permitted or compelled to earn his living and pay his way instead of becoming a burden upon the public, to the detriment of his health and morals. The mere fact that he is in prison may be due to misfortune or to his natural surroundings, and in some cases he may be at least morally innocent. The state may certainly, for his own benefit and for the relief of the taxpaying community, employ him at some useful labor, and whether that labor be in building roads or making shoes, he takes the place of another. If it be lawful and right

to so employ him, it is difficult to see why the state may by legislation depress the value of the products of his labor when such property is purchased in the ordinary course of commerce by a dealer therein. The state, while permitting such property to come within its jurisdiction in the regular course of trade, cannot then impair its value by hostile legislation without a violation of the constitutional guaranties for the protection of property. Aside from the peculiar restrictions of revenue laws, the merchant or dealer may buy his goods where he can obtain them to the best advantage, and any restriction upon his freedom of action in this respect by state law is, in a broad sense, an invasion of his right of liberty, since that term comprehends the right of the individual to pursue any lawful calling.

I think that the statute in question is in conflict with the Constitution of this state, since it interferes with the right to acquire, possess and dispose of property and with the liberty of the individual to earn a living by dealing in the articles embraced within the scope of the law. It is an unauthorized limitation upon the freedom of the individual to buy and sell all such articles, subject only to the law of supply and demand, and the legislation is not within the scope of the police power. . . . .

The judgment of the courts below sustaining the demurrer to the indictment should be affirmed.

QUESTIONS

1. Is it the liberty and property of the defendant or of the convict laborer that the court is most concerned in protecting?

2. Would not the protection of free labor from convict-made goods promote the public welfare and prosperity, and so come within the police power?

3. Why can the statute not be upheld as a measure to prevent fraud and deception? Does it differ essentially from the statutes regulating the sale of oleomargarine?

4. Why should the state not come to the aid of workmen with large families, or women, or the old and feeble, or in general those who are at a competitive disadvantage in the labor market?

5. Was the statute in the principal case in violation of the commerce clause of the Federal Constitution?

6. Waiving the question of constitutionality, do you think the statute justifiable from the economic view-point?

7. Could the legislature of New York have forbidden the sale of convictmade goods altogether?

8. Could it have forbidden the sale of goods made by convict labor in other states?

9. A state law prohibits any person from offering convict-made goods from other states for sale within the state unless he has first obtained a license (at a cost of $500 a year) from the Secretary of State. Is it valid?

10. If an act of Congress declared that convict-made goods brought into any state should be subject to the laws of that state, enacted in the exercise of the police power, to the same extent as if the goods were domestic, would the statute in the principal case then be valid?

11. Could Congress prohibit the transportation in interstate commerce of convict-made goods which are intended by any person interested therein to be used in violation of any law of the state into which the goods are transported?

12. Would such a law make effective a state statute like that of the principal case?

13. Could Congress prohibit the transportation in interstate commerce of convict-made goods?

14. Is there in your state a statute discriminating against convict-made goods? If so, how has it fared in the courts?

IV

THE LABOR UNION

A. THE LEGAL STATUS OF THE LABOR UNION

I. THE DOCTRINE OF CONSPIRACY

A

THE PEOPLE v. FISHER

Supreme Court of the State of New York. 1835. 14 Wend. (N. Y.) 9.

[This was an indictment for a conspiracy. It was alleged that the defendants, journeymen shoemakers in Geneva, N. Y., formed an unlawful combination to prevent any journeyman shoemaker from working below certain rates. Their by-laws fixed the price of $1 per pair for the making of men's coarse boots, imposed a penalty of $10 upon any journeyman shoemaker who should work for less, and the defendants agreed not to work for any master shoemaker who broke any of the by-laws unless he paid the combination a penalty of $10. One Pennock made boots for Lum for 75 cents a pair, and in pursuance of the aforesaid "unlawful conspiracy, combination and agreement" the defendants left Lum's employ, "to the great injury of the trade and against the peace of the people of the state of New York."]

By the Court, SAVAGE, CH., J. The legislature have given us their definition of conspiracies, and abrogated the common law on the subject. We must therefore see whether this case comes within the statute. The legislature have said, "If two or more persons shall conspire, either (1) To commit any offence; or (2) Falsely and maliciously to indict another for any offence, or to procure another to be charged or arrested for any such offence; or (3) Falsely to move or maintain any suit; or (4) To cheat and defraud any person of any property by any means which are in themselves criminal; or (5) To cheat and defraud any person of any property, by any means which if executed would amount to a cheat, or to obtaining money or property by false pretences; or (6) To commit any act injurious to the public health, to public morals, or to trade or commerce; or for the perversion or