dency, in many instances, to give inferior brands a preference over superior brands of mixed paint. And that such act has no tendency to accomplish the prevention of fraud, because it does not prevent the manufacture and sale "of any imaginable paint concoction in paste form," or impure linseed oil, or any spurious article, as "white lead," or "white lead in oil," or as "white lead paint," because a paint ready for use may be lawfully made of such concoctions and substitutes; "that the manufacture and sale of paste paint is a substantial part of the paint manufacturing and selling business of the United States; that millions of dollars worth of white lead in oil and compounds intended as substitutes therefor are annually manufactured and sold in the United States; that tinting colors for use as an ingredient of paint are manufactured in large quantities and sold in cans, in paste form, throughout the United States; that linseed oil, as such, is an article of commerce throughout the United States;" and that the statute, by failing to place restriction on the manufacture or sale of such paint and material, but imposing penalties and restrictions on the manufacturers of mixed paint, unjustly discriminates against the latter, and, for the same reason and "the other facts and circumstances" stated in the bill, they will be deprived of their property without due process of law.

It was also alleged that each of the complainants manufactures "scores of different kinds and shades of mixed paints, differing from each other in chemical composition; that even the same kind and shade of mixed paint manufactured by any one of your orators has no fixed chemical composition, but varies in such composition from time to time and practically with each lot manufactured, by reason of the wide variations in the chemical composition of the constituent ingredients, more especially the chemical composition of the dry colors used; that in order to properly label the cans of mixed paint manufactured by your orators and sold in North Dakota showing 'the quantity or amount of each and every 'ingredient used therein, and not specified' in said act, each of your orators

would have to have a chemical analysis made of each lot of mixed paint before putting the same up in cans or other containers." It is alleged that this would add materially to the -cost of manufacture of mixed paints, cast a burden upon them, from which the manufacturers of other paints are free, and would deprive them of their property without due process of law. It is further alleged that there are dealers in North Dakota who have on hand stock of mixed paint subject to the act and who will be subject to criminal prosecution unless the cans containing the same be opened and analyzed and labelled, which opening would make the paint unsalable; that dealers who in the future shall purchase from any of the complainants, and the distributing agents and salesmen of complainants, will be subject to criminal prosecution, that thereby a multiplicity of criminal prosecutions will ensue and suits to enforce payments for paints sold or to be sold. And if the complainants should label the mixed paints manufactured by them as required by the act they would not only be subject to the expense thereof, but that their products will be held up to suspicion and prejudice of the dealers in and users of the same, which will make it either impossible or more difficult and expensive to sell their products in said State, all of which will produce incalculable and irreparable injury to complainants; that the dealers in paints who are now subject or may be subject to prosecution under such act will not have sufficient interest to or can successfully raise the defense of the invalidity of the act, "inasmuch as such defense involves the consideration of the complex state of facts hereinbefore set forth."

Fear is expressed that most of such prosecutions will result in conviction, and that by such the brands of mixed paints involved therein will be branded as adulterated and illegal products, and will thereby be rendered unsalable, all of which will produce incalculable and irreparable injury to complainants, and will constitute the taking of their property without due process of law and the denial to them of the equal protection of the laws.

It is difficult to separate the admissions and denials of the answer to paragraph 17. It admits that practical problems are involved in the manufacture of paints, particularly of mixed paints, the solution of which is the result of a variety of practical tests and experiments; "that the technology of paint manufacture has made gradual and constant progress during the past fifty years, during which time it has undergone an evolutionary process." It admits that formerly carbonate of lead was the only material which was universally used as the proper pigment used in paints requiring or admitting of the use of a white pigment, and that oxide of zinc has gained recognition as in many cases appropriate as a white pigment, but denies that such recognition has come within the last twenty-five years; on the contrary, asserts it has been recognized and used for a period of thirty years. Admits that there are materials other than carbonate of lead and oxide of zinc used in connection with the latter or instead of them, but denies their equal efficiency; on the contrary, alleges that tests and experiments have not determined or demonstrated the value and usefulness of such materials, and further alleges that their use and value have not progressed beyond the experimental stage. That about one-half of the leading manufacturers entirely reject them, or reject them because upon test they have proved to be unsatisfactory and inefficient, and others that time has not yet demonstrated their value. Admits that zinc made from Western ores is valuable and efficient as a pigment, provided sulphate of lead incidental to its production does not exceed in quantity 5 per cent of its constituent elements, and alleges that the percentages of the sulphate of lead are widely different.

The answer to sub-paragraph "b" of paragraph 17 admits that in making the colored paints there mentioned it is necessary to employ some of the articles mentioned in connection with some pigment other than carbonate of lead; and that the latter would change or modify the exact shades sought to be produced. But it is alleged on information and belief that the aggregate of all mixed paints produced, sold and consumed in

207 U.S.

Argument for Appellants.

North Dakota, in the preparation of which it is necessary to exclude carbonate of lead and to include one or more of the substituted materials mentioned in the bill, does not exceed 25 per cent of the aggregate of all mixed paints which may be prepared and produced by the use alone of carbonate of lead and oxide of zinc as pigments. Save as to those admitted, the answer denies the efficiency of the materials mentioned, and avers that the general use of them is "to cheapen and adulterate the paints wherein they are employed," and of all substances known they are best adapted and lend themselves most readily and are commonly used as adulterants to cheapen mixed paints. It is further averred that 70 to 75 per cent of the paints used in the State are mixed paints, and that their adulteration has become and is a great evil. "That no other substances have been discovered or known, which, by their inherent qualities, lend themselves so readily to or are so commonly employed for such purpose of fraud and deception as those described in said sub-paragraph 'b.'"

Mr. Sigmund Zeisler, with whom Mr. Henry L. Stern was on the brief, for appellants:

Corporations are persons within the provisions of the Fourteenth Amendment. Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 154.

The classification, though ostensibly between paints, is in reality between paint manufacturers. Connolly v. Union Sewer Pipe Co., 184 U. S. 540.

The exercise of the police power must be reasonable. The question of the reasonableness of a state statute ostensibly passed in the exercise of the police power is a judicial question. Mugler v. Kansas, 123 U. S. 623, 661; Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 301; Wisconsin, M. & P. R. Co. v. Jacobson, 179 U. S. 287, 301; Dobbins v. Los Angeles, 195 U. S. 223, 235; Lawton v. Steele, 152 U. S. 133, 137; Holden v. Hardy, 169 U. S. 366, 395; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150; Lochner v. New York, 198 U. S. 45; Chicago, B. & Q.

Argument for Appellants.

207 U. S.

R. Co. v. Illinois, 200 U. S. 561, 592; Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684; Long v. Maryland, 74 Maryland, 565.

While every intendment is to be made in favor of the lawfulness of the exercise of this power, the courts will not imagine the existence of some undisclosed and unknown reason for its exercise. The simple decision of the legislature cannot be held to constitute such reason. Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 699; Dobbins v. Los Angeles, 195 U. S. 223, 237; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 154; Lochner v. New York, 198 U. S. 45, 56.

A statute ostensibly passed in the exercise of the police power must be judged by its natural effect and not by its proclaimed purpose.

A statute which restrains the liberty or property rights of individuals, though ostensibly passed in the exercise of the police power, cannot be held valid, unless it has a real or substantial relation to some legitimate object of the police power which its provisions reasonably tend to accomplish. Lochner v. New York, 198 U. S. 45, 64; Mugler v. Kansas, 123 U. S. 623, 661; C., B. & Q. R. Co. v. Illinois, 200 U. S. 561, 593; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150.

Even if a statute is fairly referable to the police power of the State, still if it impairs or destroys a right secured by the Federal Constitution, it is invalid. Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 558.

In making regulations, providing penalties or imposing liabilities in the exercise of the police power, the legislature has the right to make classifications. But classification must have some reasonable basis. The differences which will support class legislation must be such as in the nature of things furnish a reason for separate laws. The differences must bear a reasonable relation to the purpose of the statute. Arbitrary designation or selection is not classification. When burdens are placed upon some and not upon others similarly situated with respect to the purpose for which such burdens are imposed, the classi