§ 681. Scope of the police power.- Any extension of the police power beyond the preserving of peace and order in the community and the protection of life, health and morals of the individual is a departure so radical as to be absolutely destruc has held that persons or corporations engaged in occupations in which the public have an interest or use may be regulated by statute. But the reasons assigned for these decisions are that the public has a use in these occupations, and that the persons engaged in them are in the exercise of a public franchise, or special privileges not enjoyed by others not so engaged; that their business implies a trust and public duty, and that the government has, therefore, the power to see that this trust is not abused, and that the duty imposed by it is properly performed. On this principle statutes have been upheld which regulate the charges of railroad companies and other common carriers, elevator, telephone, telegraph and other companies, hackmen, warehousemen, owners of water-mills, etc. But we are aware of no well-considered case in which a statute has been upheld that undertook to regulate the dealings between employer and employee, even in this class of occupations, much less in cases that are not impressed with a public trust or duty." "The decisions of various courts of this country upon the authority of the legislature of a state to prescribe rates for transportation by railroad companies, and, in some instances, for the use of elevators, have proceeded on the ground that these were public employments; and it is implied in all, or nearly all, of these decisions that the legislature could not constitutionally prescribe the rates of compensation to be paid for services or for the use of property in exclusively private employments. It is manifest, however, from the ex amples we have given that the regulation of contracts by statute, not amounting to a determination of rates or prices, has not been confined to public employments, or to business which may be said to be affected with a distinct public interest. The legislation on this subject relates to a great variety of contracts, and has been passed, some of it to promote the public health or the public morals or the public convenience, some of it for the protection of individuals against fraud, and some of it for the protection of classes of individuals against unfair or unconscionable dealing. The considerations which may influence the legislature to determine what legislation of this character is required by good public policy, or, in the words of the constitution, what laws are 'for the good and welfare of this commonwealth and for the government and ordering thereof, and of the subjects of the same,' are not for us to weigh, except so far as may be necessary to determine whether the legislation proposed is repugnant or contrary to the constitution. The legislation on similar subjects in Great Britain and in other foreign countries which have no written constitutions limiting the powers of the legislature is not in all respects pertinent to the present inquiry; but, considering the history of legislation in England concerning servants or laborers from the earliest times, and the statutes which in modern times have been passed in several foreign countries and in many of the states of this country regulating the employment of laborers in factories, we cannot say, as matter of law, that the leg tive of all limitations upon the exercise of the power. If the state can go beyond considerations affecting the peace and order of the community and the life, health or morals of the individual, and intervene for reasons of a purely social or economic nature, then there are no limitations whatsoever upon the power of legislatures to intervene and in their discretion dictate terms upon which various contracts shall be made and different occupations pursued. When it was urged that a law prohibiting mining companies from keeping or controlling a truck-store or shop for furnishing supplies, clothing, groceries, etc., to employees was the legitimate exercise of the police power, it was very well said1 that such law had nothing to do with the processes of mining or manufacturing, that it did not tend in any manner to render the work less perilous or less laborious; in short, that it did not affect the life, health or morals of those employed in mines, and therefore could not be legitimately held to be within the police power of the state.2 islation proposed is so plainly not wholesome or reasonable that the general court may not judge it to be for the good and welfare of the commonwealth." Opinion of the Justices, In re House Bill No. 1,230 (1895), 163 Mass. 589, 40 N. E. R. 713. 1 Frorer et al. v. People (1892), 141 IIL 171, 31 N. E. R. 395. 2 Referring to the police power and various regulations of private rights, the supreme court in this case said: "Other instances of statutory regulations of private rights are, in lien laws in favor of homesteaders, mechanics, etc.; limitation laws; the statute of frauds and other statutes relating to evidence; laws in regard to pleadings; exemption laws and insolvent laws. But these all relate not to the power to contract in regard to matters of general right, but to the remedy for the enforcing of contracts, as to which the legislature may make such regulations as the public welfare seems to demand, so long as, under pretense of regulating the remedy, it does not impair the right itself. Cooley's Const. Lim. (1st ed.), 361. So, under what is denominated the 'police power,' laws may be constitutionally enacted imposing new burdens on persons and property, and restricting personal rights of enjoyment of property, where, in the opinion of the general assembly, the public welfare demands it,— under which may be instanced license laws, laws or ordinances fixing fire limits, quarantine laws, laws imposing liability upon masters on account of death or injury of servants, laws requiring dangerous machinery to be so guarded and used as to avoid injuries to others, laws to prevent monopolies, extortions and fraudulent impositions, and, in general, all laws whereby one person is prohibited from so using his liberty or property as to injure or endanger the liberty of another. Cooley's Const. Lim. (1st ed.), 527.” Again it has been said: "The police power is limited to enactments Where the requirements of an act or regulation under consideration have no tendency to insure personal safety or protect property, and no reference to the safety or welfare of society, they do not fall within the police power.1 The rights of property cannot be invaded under the guise of a police regulation for the promotion of health when it is clearly apparent that such is not the object and purpose of the act or regulation.2 A law prohibiting the operation of barber shops on Sunday is void as an unconstitutional discrimination between classes, and if urged as a sanitary measure it does not fall within the police power, since it has no reference to the health, safety and welfare of society.3 having reference to the comfort, the safety or the welfare of society, and under guise of it a person cannot be deprived of a constitutional right. It is impossible that, under that power, what is lawful if done by A., if done by B. cannot be a misdemeanor, the circumstances and conditions being the same. Theoretically there is among our citizens no inferior class, other than that of those degraded by crime or other vicious indulgences of the passions. Those who are entitled to exercise the elective franchise are deemed equals before the law, and it is not admissible to arbitrarily brand, by statute, one class of them, without reference to and wholly irrespective of their actual good or bad behavior, as too unscrupulous, and the other class as too imbecile or timid and weak, to exercise that freedom in contracting which is allowed to all others." From opinion of supreme court in Frorer et al. v. People (1892), 141 Ill. 171, 31 N. E. R. 395. 43 N. E. R. 1108. In this case the supreme court said: "It will not and cannot be claimed that the law in question was passed as a sanitary measure, or that it has any relation whatever to the health of society. As has been heretofore seen, as a general rule a police regulation has reference to the health, comfort, safety and welfare of society. How, it may be asked, is the health, comfort, safety or welfare of society to be injuriously affected by keeping open a barber shop on Sunday? It is a matter of common observation that the barber business, as carried on in this state, is both quiet and orderly. Indeed it is shown by the evidence incorporated in the record that the barber business, as conducted, is quiet and orderly,- much more so than many other departments of business. In view of the nature of the business and the manner in which it is carried on it is difficult to perceive how the rights of any person can be affected or how the 1 Millett v. People (1886), 117 Ill. 294, comfort or welfare of society can be 7 N. E. R. 631. 2 Austin v. Murray (1834), 16 Pick. 121. See also Inhabitants of Watertown v. Mayo (1872), 109 Mass. 319; In re Jacobs (1885), 98 N. Y. 98. 3 Eden v. People (1896), 161 Ill. 293, disturbed. If the act were one calculated to promote the health, comfort, safety and welfare of society, then it might be regarded as an exercise of the police power of the state.” "The police power of the state is that power which enables it to promote the health, comfort, safety and welfare of society. It is very broad and far reaching, but it is not without its limitations. Legislative acts passed in pursuance of it must not be in conflict with the constitution, and must have some relation to the ends sought to be accomplished,- that is to say, to the comfort, welfare or safety of society. Where the ostensible object of an enactment is to secure the public comfort, welfare or safety, it must appear to be adapted to that end. It cannot invade the rights of person and property under the guise of a mere police regulation, when it is not such in fact; and where such an act takes away the property of a citizen or interferes with his personal liberty, it is the province of the courts to determine whether it is really an appropriate measure for the promotion of the comfort, safety and welfare of society."1 § 682. While it is entirely competent for legislatures to adopt suitable regulations regarding the employment of children and females in occupations which are detrimental to life and health, or which are demoralizing, it is not competent for the state in the exercise of its police power to pass a law prohibiting the employment of females in any factory or workshop for more than eight hours a day, since such a limitation has no reasonable connection with the preservation of life, health or morals of the individuals in question.2 1 From opinion of the supreme court of Illinois, in Ritchie v. People (1895), 155 Ill. 98, 40 N. E. R. 454. 2 Ritchie v. People, supra. Referring to certain authorities cited in support of the opposing contention, the supreme court of Illinois said: "We are also referred to statements made in some of the text-books to the effect that the legislature may limit the hours of labor of women in manufacturing establishments. Parker & Worthington's Public Health and Safety, sec. 260. These statements appear to be based entirely upon the decision of the supreme court of Massachusetts. Commonwealth v. Hamilton Mfg. Co. (1876), 120 Mass. 383, where it was held that an act providing that no woman over the age of eighteen years should be employed by any person, firm or corporation in any manufacturing establishment more than ten hours in any one day was valid. But under the constitution of Massachusetts, article 4, section 1, the legislature has power to ordain all manner of wholesome and reasonable statutes, with or without penalties, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the governing and ordering thereof, and of the subjects of the same.' The decision referred to was evidently made in view of the large discretion so vested in the legislative branch of the gov ernment, and it was said that the When a health law, passed in the exercise of the police power, is challenged as unconstitutional on the ground that it arbitrarily interferes with personal liberty and private property, the courts must be able to see that it has some relation to the public health, and that the public health is the only end aimed at, otherwise it is unconstitutional.1 § 683. In a case involving the validity of an ordinance directed against department stores, and which provided that it should be unlawful for any party engaged in selling dry goods and certain other articles to sell meat, fish and similar products, it was said: "The ordinance is also an attempted interference by the city with rights guarantied to the defendant by the constitutions of the United States and of this state. The questions involved are not new. They have been before this and other courts throughout this country in numerous cases, and the rights of the citizen, as against such interference, have been frequently defined and uniformly upheld. These constitutions act might be maintained as a health reasoning of the opinion in the Massachusetts case cited does not seem to us to be sound. It assumes that there is no infringement upon the employer's right to contract, because he may employ as many persons or as much labor as he chooses, nor upon the employee's right to contract, because she may labor as many hours as she chooses in some other occupation than that specified in the statute. This is a begging of the question. The right to contract would be valueless if it could not be exercised with reference to the particular subject-matter in hand. If its exercise is forbidden between two persons competent to contract, and concerning a lawful subject of contract, it is none the less abridged because other persons may be permitted to contract, or because the same persons may be at liberty to contract about some other matter." 1 In re Jacobs (1885), 98 N. Y. 98. 2 City of Chicago v. Netcher (1889), 183 Ill. 104, 55 N. E. R. 707. |