prosecution of that trade. But it is questionable, except in the case of minors, whether the prohibition can rest upon the claim that the employment will prove hurtful

Minors are under the guardianship

of the state, and their actions can be controlled so that they may not injure themselves. But when they have arrived at majority they pass out of the state of tutelage and stand before the law free from all restraint, except that which may be necessary to prevent the infliction by them of injury upon others. It may be, and probably is, permissible for the state to prohibit pregnant women from engaging in certain employments, which would be likely to prove injurious to the unborn child, but there can be no more justification for the prohibition of the prosecution of certain callings by women, because the employment will prove hurtful to themselves, than it would be for the state to prohibit men from working in the manufacturing of white lead, because they are apt to contract lead poisoning, or to prohibit occupation in certain parts of the iron smelting works, because the lives of men so engaged are materially shortened." Further, the same writer says: "Laws, therefore, which are designed to regulate the terms of hiring in strictly private employments are unconstitutional because they operate as an interference with one's natural liberty, in a case in which there is no trespass upon private right, and no threatening injury to the public. And this conclusion not only applies to laws regulating the rate of wages of private workmen, but also any other law whose object is to regulate any of the terms of hiring, such as the number of hours of labor per day, which the employer may demand. There can be no constitutional interference by the state in the private relation of master and servant except for the purpose of preventing fraud and trespasses.''12

If the statement of the law by these two

Mr.

on the part of the state, so long as his undertakings are confined to those employments, the character of which is not under the ban of legal inhibition, or so long as their public or quasi-public character does not subject them to state control, unless, being a minor, he is under the special guardianship of the state; or, being a pregnant woman, she is to be restrained because of possible injury to her child; or, unless the pursuit of such employment under the particular circumstances is so far injurious to the public generally as to be properly restrained for that reason. Tiedeman plainly says that in no event is a person sui juris to be restricted in his employment because of possible injury to himself, pointing out most excellent and convincing reasons why not. It is to be noticed also that the discussion refers to no particular provisions of state constitutions, but to "liberty" and "the pursuit of happiness" as protected and conserved to the individual by the federal constitution. Pointing to the same end is the language of Field, J., in Butchers' Union Company v. Crescent City Company:18 Among those inalienable rights, as proclaimed in that great document (the Declaration of Independence), is the right of men to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their facilities, so as to give them the highest enjoyment. The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all communities from time immemorial, must, therefore, be free in this country to all alike upon the same conditions. The right to pursue them, without let or hinderance except that which is applied to all persons of the same age, sex and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright.

proper, without injury to his neighbors, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.' "'14 Equally strong is the language of Matthews, J., in Yick Wo v. Hopkins:15 "When we consider the nature and the theory of our institutions of government, the principle upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true, that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage.

But

the fundamental rights to life, liberty and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing, the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth 'may be a government of laws and not of men.' For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." Again, Field, J., dissenting in Powell v. Pennsylvania,16 says: "With the 14 Adam Smith's Wealth of Nations, Book I. Ch. 10. 15 118 U. S. 369. 16 127 U. S. 692.

gift of life there necessarily goes to every one the right to do all such acts, and follow all such pursuits, not inconsistent with the equal rights of others, as may support life and add to the happiness of its possessor. The right to pursue one's happiness is placed by the Declaration of Independence among the inalienable rights of man, with which all men are endowed, not by the grace of emperors or kings, or by the force of legislation or constitutional enactments, but by their creator, and to secure them, not to grant them, governments are instituted among men."

Further authorities to this end are as follows: "The constitutional guaranty that no person shall be deprived of his property without due process of law may be violated without the physical taking of property for public or private use. Property may be destroyed or its value may be annihilated; it is owned and kept for some useful purpose, and it has no value unless it can be used. Its capability for enjoyment and adaptability to some use are essential characteristics and attributes without which property cannot be conceived; and hence any law which destroys it or its value, or takes away any one of its essential attributes, deprives the owner of his property. So, too, one may

be deprived of his liberty and his constitutional rights thereto violated, without the actual restraint or imprisonment of his person. Liberty, in its broad sense as understood in this country, means the right, not only of freedom from actual servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation. All laws, therefore, which impair or trammel these rights, which limit one in his choice of a trade or profession, or confine him to work or live in a specified locality, or exclude him from his own house, or restrain his otherwise lawful movements (except as such laws may be passed in the exercise by the legislature of the police power), are infringements upon his fundamental rights of liberty, which are under constitutional protection." "The law will not allow the rights of property to be invaded under the guise of a police regulation

17 Earl, J., in Matter of Application of Jacob, 98 N. Y. 105.

for the promotion of health, when it is manifest that such is not the object and purpose of the regulation."'18 "The law will not allow rights of property to be invaded under the guise of a police regulation for the preservation of health or protection against a threatened nuisance; and when it appears that such is not the real object and purpose of the regulation, courts will interfere to protect the rights of the citizen."'19 "All sorts of restrictions and burdens are imposed under the police power, and when these are not in conflict with any constitutional prohibition or fundamental principle they cannot be successfully assailed in a judicial tribunal. But under the pretense of prescribing a police regulation, the state cannot be permitted to encroach upon any one of the just rights of the citizen which the constitution intended to secure against abridgment."'20

The language of Mr. Justice Field and Mr. Justice Matthews, and that of the other authorities cited, certainly tends strongly to support the proposition that the right of residents in the United States to freely contract with reference to their own labor in any lawful calling is secured to them, not alone by our Declaration of Independence and constitution, but by the even more inviolable fundamental principles of liberty itself. It is pointed out, also, that this right may not be

18 Austin v. Murray, 16 Pick. 121, 126.

19 Watertown v. Mayo, 109 Mass. 315, 319.

20 Slaughter-House Cases, 16 Wall 36, 87. See also: People v. Otis, 90 N. Y. 52; Fertilizing Company v. Hyde, 97 U. S. 659: Rockwell v. Nearin, 35 N. Y. 302; Wynehamer v. People, 13 N. Y. 378; Craig v. Klein, 65 Pa. St. 399; Herdic v. Young, 5 P. F. Smith, 176; Thorpe v. Rutland, 27 Vt. 149; Coe v. Shultz. 47 Barb. 64; Green v. Savannah, 6 Ga. 1; People v. Hawley, 3 Pick 330; Ames v. County, 11 Mich. 139; Vanderbilt v. Adams, 1 Cow. 349; In re Danville Cemetery Association. 66 N. Y. 560; Town of Lakeview v. Rose hill Company, 70 Ill. 181, 2 Kent's Com. I; Berthalf v. O'Reilly, 74 N. Y. 515; Live Stock, etc. Association v. Crescent City, etc., 1 Abb. (U. S.) 398, 16 Wall. 106; Corfield v. Coryell, 4 Wash. C. C. 380; Mayor, etc. v. Thorne, 7 Paige's Ch. 263; Butchers' Union Company v. Crescent City Company, 111 U. S. 746, 751, 760;

abridged on any trumped-up pretext for the exercise of the police power of the state. There is no doubt that, in proper cases, every right of the individual may be abridged to conform to the just demands of the people at large. To what extent is indicated by Harlan, J., in Patterson v. Kentucky:21 "By the settled doctrines of this court, the power extends, at least, to the protection of the lives, the health and the property of the community against the injurious exercise by any citizen of his own rights. State legislalation, strictly and legitimately for police purposes, does not, in the sense of the constitution, necessarily intrench upon any authority which has been confided, expressly or by implication, to the national government.

Whether the policy thus pursued by the state is wise or unwise, it is not the province of the national authorities to determine. That belongs to each state, under its own sense of duty, and in view of the provisions of its own constitution. Its action, in those respects, is beyond the corrective power of this court." Yet it is not conceivable that this language should be construed to mean that the legislature may exceed the limitations of constitutional law or the basic principles of our government.

The laws thus far enacted for the regulation of hours of employment rest upon an exercise of the police power, either because the employment is public or quasi-public in character and the interests of the public demand such regulation; or that the health of the community will become impaired, in the absence of such regulation, because of the effect of such employment on the persons so employed. To the first class of cases, obviously, no attention need he given in connection with the present discussion. Cases and statutes, squarely in point, which go so far as to regulate the hours of labor of men engaged in private employments, are few. The Utah statute, regulating the hours of labor of men employed in smelters, etc., applies only to these particular employments. This act was held not to be in conflict with

proper, without injury to his neighbors, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.' "14 Equally strong is the language of Matthews, J., in Yick Wo v. Hopkins:15 When we consider the nature and the theory of our institutions of government, the principle upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sov. ereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true, that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing, the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth 'may be a government of laws and not of men.' For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to

gift of life there necessarily goes to every one the right to do all such acts, and follow all such pursuits, not inconsistent with the equal rights of others, as may support life and add to the happiness of its possessor. The right to pursue one's happiness is placed by the Declaration of Independence among the inalienable rights of man, with which all men are endowed, not by the grace of emperors or kings, or by the force of legislation or constitutional enactments, but by their creator, and to secure them, not to grant them, governments are instituted among men."

Further authorities to this end are as follows: The constitutional guaranty that no person shall be deprived of his property without due process of law may be violated without the physical taking of property for public or private use. Property may be destroyed or its value may be annihilated; it is owned and kept for some useful purpose, and it has no value unless it can be used. Its capability for enjoyment and adaptability to some use are essential characteristics and attributes without which property cannot be conceived; and hence any law which destroys it or its value, or takes away any one of its essential attributes, deprives the owner of his property. So, too, one may

be deprived of his liberty and his constitutional rights thereto violated, without the actual restraint or imprisonment of his person. Liberty, in its broad sense as understood in this country, means the right, not only of freedom from actual servitude, imprisonment or restraint, but the night of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation. All laws, therefore, which impair or trammel these rights, which limit one in his choice of a trade or profession, or confine him to work or live in a specified locality, or exclude him from bis own house, or restrain his otherwise lawful movements (except as such laws may be passed in the exercise by the legislature of the police power), are infringements upon his

for the promotion of health, when it is manifest that such is not the object and purpose of the regulation."'18 "The law will not allow rights of property to be invaded under the guise of a police regulation for the preservation of health or protection against a threatened nuisance; and when it appears that such is not the real object and purpose of the regulation, courts will interfere to protect the rights of the citizen."19 "All sorts of restrictions and burdens are imposed under the police power, and when these are not in conflict with any constitutional prohibition or fundamental principle they cannot be successfully assailed in a judicial tribunal. But under the pretense of prescribing a police regulation, the state cannot be permitted to encroach upon any one of the just rights of the citizen which the constitution intended to secure against abridgment."20

The language of Mr. Justice Field and Mr. Justice Matthews, and that of the other authorities cited, certainly tends strongly to support the proposition that the right of residents in the United States to freely contract with reference to their own labor in any lawful calling is secured to them, not alone by our Declaration of Independence and constitution, but by the even more inviolable fundamental principles of liberty itself. It is pointed out, also, that this right may not be

18 Austin v. Murray, 16 Pick. 121, 126.

19 Watertown v. Mayo, 109 Mass. 315, 319.

20 Slaughter-House Cases, 16 Wall. 36. 87. See also: People v. Otis, 90 N. Y. 52; Fertilizing Company v. Hyde. 97 U. S. 659; Rockwell v. Nearin, 35 N. Y. 302; Wynehamer v. People, 13 N. Y. 378; Craig v. Klein, 65 Pa. St. 399; Herdic v. Young, 5 P. F. Smith, 176; Thorpe v. Rutland, 27 Vt. 149; Coe v. Shultz. 47 Barb. 64; Green v. Savannah, 6 Ga. 1; People v. Hawley, 3 Pick 330; Ames v. County, 11 Mich. 139; Vanderbilt v. Adams, 1 Cow. 349; In re Danville Cemetery Association. 66 N. Y. 560; Town of Lakeview v. Rose hill Company, 70 Ill. 181, 2 Kent's Com. I; Berthalf v. O'Reilly, 74 N. Y. 515; Live Stock, etc. Association v. Crescent City, etc., 1 Abb. (U. S.) 398, 16 Wall. 106;

abridged on any trumped-up pretext for the exercise of the police power of the state. There is no doubt that, in proper cases, every right of the individual may be abridged to conform to the just demands of the people at large. To what extent is indicated by Harlan, J., in Patterson v. Kentucky:21 "By the settled doctrines of this court, the power extends, at least, to the protection of the lives, the health and the property of the community against the injurious exercise by any citizen of his own rights. State legislalation, strictly and legitimately for police purposes, does not, in the sense of the constitution, necessarily intrench upon any authority which has been confided, expressly or by implication, to the national government.

Whether the policy thus pursued

by the state is wise or unwise, it is not the province of the national authorities to determine. That belongs to each state, under its own sense of duty, and in view of the provisions of its own constitution. Its action, in those respects, is beyond the corrective power of this court." Yet it is not conceivable that this language should be construed to mean that the legislature may exceed the limitations of constitutional law or the basic principles of our government.

The laws thus far enacted for the regulation of hours of employment rest upon an exercise of the police power, either because the employment is public or quasi-public in character and the interests of the public demand such regulation; or that the health of the community will become impaired, in the absence of such regulation, because of the effect of such employment on the persons so employed. To the first class of cases, obviously, no attention need be given in connection with the present discussion. Cases and statutes, squarely in point, which go so far as to regulate the hours of labor of men engaged in private employments, are few. The Utah statute, regulating the hours of labor of men employed in smelters, etc.,