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prosecution of that trade. But it is ques on the part of the state, so long as his undertionable, except in the case of minors, takings are confined to those employments, whether the probibition can rest upon the the character of which is not under the ban claim that the employment will prove hurtful of legal inhibition, or so long as their public or to them. Minors are under the guardianship quasi-public character does not subject them of the state, and their actions can be controlled | to state control, unless, being a minor, he is so that they may not injure themselves. under the special guardianship of the state ; But when they have arrived at majority or, being a pregnant woman, she is to be rethey pass out of the state of tutelage and strained because of possible injury to her stand before the law free from all restraint, child; or, unless the pursuit of such employexcept that which may be necessary to pre- | ment under the particular circumstances is vent the infliction by them of injury upon so far injurious to the public generally as to others. It may be, and probably is, permis be properly restrained for that reason. Mr. sible for the state to prohibit pregnant women Tiedeman plainly says tbat in no event is a from engaging in certain employments, which person sui juris to be restricted in his emwould be likely to prove injurious to the ployment because of possible injury to himunborn child, but there can be no more self, pointing out most excellent and conjustification for the probibition of the prose. vincing reasons why not. It is to be noticed cution of certain callings by women, because also that the discussion refers to no particuthe employment will prove hurtful to them lar provisions of state constitutions, bui to selves, than it would be for the state to pro "liberty" and "the pursuit of happiness” as bibit men from working in the manufacturing protected and conserved to the individual by of wbite lead, because they are apt to contract the federal constitution. Pointing to the lead poisoning, or to probibit occupation in same end is the language of Field, J., in certain parts of the iron smelting works, Butchers' Union Company v. Crescent City because the lives of men so engaged are Company:18. Among those inalienable rights, materially shortened.”ll Further, the same | as proclaimed in that great document (the writer says: “Laws, therefore, which are Declaration of Iudependence), is the right of designed to regulate the terms of hiring in men to pursue any lawful business or vocastrictly private employments are unconsti tion, in any manner not inconsistent with the tutional because they operate as an inter equal rights of others, which may increase ference with one's natural liberty, in a case their prosperity or develop their facilities, in wbich there is no trespass upon private so as to give them the highest enjoyment. right, and no threatening injury to the pub The common business and callings of life, lic. And this conclusion not only applies to the ordinary trades and pursuits, which arelaws regulating the rate of wages of private innocuous in themselves, and have been fol. workmen, but also any other law whose lowed in all communities from time immemoobject is to regulate any of the terms of hir rial, must, therefore, be free in this country ing, sueh as the number of hours of labor to all alike upon the same conditions. The per day, which the employer may demand. right to pursue them, without let or hinderance There can be no constitutional interference except that which is applied to all persons of by tbe state in the private relation of master the same age, sex and condition, is a distinand servant except for the purpose of pre guishing privilege of citizens of the United venting fraud and trespasses."12

States, and an essential element of that freeIf tbe statement of the law by these two dom which they claim as their birthright. authorities—Cooley and Tiedeman-is to be It has been well said: "The property wbicb accepted as correct, it must be concluded every man has in his own labor, as it is the that every person may contract with refer- original foundation of all other property, so ence to bis own labor as he sees fit, inde it is the most sacred and inviolable. The pendently of any restriction or interference patrimony of the poor man lies in the

strength and dexterity of his own hands, u Tiedeman on Limitations of Police Power, Section and to hinder his employing this strength 86.

and dexterity in what manner he thinks 12 Tiedeman on Limitation of Police Power, Section 178.

18 111 U. S. 787.

proper, without injury to his neighbors, is a gift of life there necessarily goes to every one plain violation of this most sacred property. the right to do all such acts, and follow all It is a manifest encroachment upon the just such pursuits, not inconsistent with the equal liberty both of the workman and those who rights of others, as may support life and add might be disposed to employ him. As it to the happiness of its possessor. The right hinders the one from working at what he to pursue one's happiness is placed by the thinks proper, so it hinders the others from Declaration of Independence among the inemploying whom they think proper.'”14 alienable rights of man, with which all men Equally strong is the language of Matthews, are endowed, not by the grace of emperors J., in Yick Wov. Hopkios:15 “When we con

or kings, or by the force of legislation or sider the nature and the theory of our insti. constitutional enactments, but by their creatutions of government, the principle upon tor, and to secure them, not to grant them, which they are supposed to rest, and review governments are instituted among men.” the history of their development, we are con Further authorities to this end are as fol. strained to conclude that they do not mean lows: “The constitutional guaranty that do to leave room for the play and action of person shall be deprived of his property purely personal and arbitrary power. Sov. without due process of law may be violated ereignty itself is, of course, not subject to without the physical taking of property for law, for it is the author and source of law; public or private use. Property may be debut in our system, while sovereign powers stroyed or its value may be annihilated; it is are delegated to the agencies of government, owned and kept for some useful purpose, sovereignty itself remains with the people, and it has no value unless it can be used. Its by whom and for whom all government exists capability for enjoyment and adaptability to and acts. And the law is the definition and some use are essential characteristics and atlimitation of power. It is, indeed, quite tributes without which property cannot be true, that there must always be lodged some conceived ; and hence any law which dewhere, and in some person or body, the stroys it or its value, or takes away any one authority of final decision; and in many of its essential attributes, deprives the owner cases of mere administration the responsibil of his property. * * * So, too, one may ity is purely political, no appeal lying except be deprived of his liberty and his constituto the nitimate tribunal of the public, judg. tional rights thereto violated, without the ment, exercised either in the pressure of actual restraint or imprisonment of his person. opinion or by means of the suffrage. But Liberty, in its broad sense as understood in the fundamental rights to life, liberty and this country, means the right, not only of the pursuit of bappiness, considered as in freedom from actual servitude, imprisonment dividual possessions, are secured by those

or restraint, but the right of one to use bis max'ms of constitutional law which are the

faculties in all lawful ways, to live and work monuments showing. the victorious progress where he will, to earn bis livelihood in any of the race in securing to men the blessings lawful calling, and to pursue any lawful of civilization under the reign of just and trade or avocation. All laws, therefore, equal laws, so that, in the famous language which impair or trammel these rights, which of the Massachusetts Bill of Rights, the limit one in his choice of a trade or profes. government of the commonwealth ‘may be sion, or confine him to work or live in a a government of laws and not of men. For specified locality, or exclude him from bis the very idea that one man may be compelled own house, or restrain his otherwise lawful to hold his life, or the means of living, or movements (except as such laws may be any material right essential to the enjoyment passed in the exercise by tbe legislature of of life, at the mere will of another, seems to the police power), are infringements upon bis

'oro froedom | fundamental rights of liberty, wbich are un.

for the promotion of health, when it is mani abridged on any trumped-up pretext for the fest that such is not the object and purpose exercise of the police power of the state. of the regulation.”'18 “The law will not al There is no doubt that, in proper cases, every low rights of property to be invaded under right of the individual may be abridged to the guise of a police regulation for the preser. conform to the just demands of the people vation of health or protection against a at large. To what extent is indicated by threatened nuisance; and when it appears Harlan, J., in Patterson v. Kentucky :21 that such is not the real object and purpose "By the settled doctrines of this court, the of the regulation, courts will interfere to power extends, at least, to the protection of protect the rights of the citizen.”19 “All the lives, the bealth and the property of the sorts of restrictions and burdens are im community against the injurious exercise by posed under the police power, and when any citizen of his own rights. State legislathese are not in conflict with any constitu lation, strictly and legitimately for police tional prohibition or fundamental principle purposes, does not, in the sense of the consti. they cannot be successfully assailed in a ju tution, necessarily intrench upon any authordicial tribunal. * * * But under the ity which has been confided, expressly or by pretense of prescribing a police regulation, implication, to the national government. the state cannot be permitted to encroach * * * Whether the policy thus pursued upon any one of the just rights of the citizen by the state is wise or unwise, it is not the which the constitution intended to secure province of the national authorities to deteragainst abridgment.”:20

mine. That belongs to each state, under its The language of Mr. Justice Field and Mr. own sense of duty, and in view of the provisJustice Matthews, and that of the other au

ions of its own constitution. Its action, in thorities cited, certainly tends strongly to

those respects, is beyond the corrective support the proposition that the right of res. | power of this court.” Yet it is not conceividents in the United States to freely contract able that this language should be construed with reference to their own labor in any law- to mean that the legislature may exceed the ful calling is secured to them, not alone by

limitations of constitutional law or the basic our Declaration of Independence and consti principles of our government. tution, but by the even more inviolable fun- The laws thus far enacted for the reguladamental principles of liberty itself. It is tion of hours of employment rest upon an pointed out, also, that this right may not be exercise of the police power, either because

the employment is public or quasi-public in

character and the interests of the public 18 Austin v. Murray, 16 Pick. 121, 126.

demand such regulation; or that the health 19 Watertown v. Mayo, 109 Mass. 315, 319.

of the community will become impaired, in 20 Slaughter-House Cases, 16 Wall. 36, 87. See also:

the absence of such regulation, because of People v. Otie, 90 N. Y. 52; Fertilizing Company y. Hyde, 97 U. S. 659; Rockwell v. Nearin, 35 N. Y. 302;

the effect of such employment on the persons Wynebamer v. People, 13 N. Y. 378; Craig v. Klein, so employed. To the first class of cases, 65 Pa. St. 399; Herdic v, Young, 5 P. F. Smith, 176;

obviously, no attention need be given in Tborpe v. Rutland, 27 Vt. 149; Coe v. Sbultz, 47 Barb. 64; Green v. Savannah, 6 Ga. 1; People v. Hawley, 3

connection with the present discussion. Pick 330; Ames v. County, 11 Mich. 139; Vanderbilt Cases and statutes, squarely in point, which V. Adams, 1 Cow. 349; In re Danville Cemetery

go so far as to regulate the hours of labor of Association. 66 N. Y. 560; Town of Lakeview v. Rose bill Company, 70 III. 181, 2 Kent's Com. I; Berthalt

men engaged in private employments, are v. O'Reilly, 74 N. Y. 515; Live Stock, etc. Association few. The Utah statute, regulating the hours v. Crescent City, etc., 1 Abb. (U. S.) 398, 16 Wall. 106; of labor of men employed in smelters, etc., Corfield v. Coryell, 4 Wash. C. C. 380; Mayor, etc. V. annlieg only to these narticular emnlnı monto Tharne. 7 Paigal. Chanan.

proper, without injury to his neighbors, is a gift of life there necessarily goes to every one plain violation of this most sacred property. the right to do all such acts, and follow all It is a manifest encroachment upon the just such pursuits, not inconsistent with the equal liberty both of the workman and those who rights of others, as may support life and add might be disposed to employ him. As it

to the happiness of its possessor. The right hinders the one from working at what he to pursue one's happiness is placed by the thinks proper, so it hinders the others from Declaration of Independence among the inemploying whom they think proper.' »34 alienable rights of man, with which all men Equally strong is the language of Matthews, are endowed, not by the grace of emperors J., in Yick Wov. Hopkios:15 “When we con or kings, or by the force of legislation or sider the nature and the theory of our insti constitutional enactments, but by their creatutions of government, the principle upon tor, and to secure them, not to grant them, which they are supposed to rest, and review governments are instituted among men.” the history of their development, we are con Further authorities to this end are as fol. strained to conclude that they do not mean lows: “The constitutional guaranty that no to leave room for the play and action of person shall be deprived of his property purely personal and arbitrary power. Sov. without due process of law may be violated ereignty itself is, of course, not subject to without the physical taking of property for law, for it is the author and source of law; public or private use. Property may be debut in our system, while sovereign powers stroyed or its value may be annihilated; it is are delegated to the agencies of government, owned and kept for some useful purpose, sovereignty itself remains with the people, and it has no value unless it can be used. Its by whom and for whom all government exists capability for enjoyment and adaptability to and acts. And the law is the definition and some use are essential characteristics and atlimitation of power. It is, indeed, quite tributes without which property cannot be true, that there must always be lodged some conceived; and hence any law which dewhere, and in some person or body, the stroys it or its value, or takes away any one authority of final decision; and in many of its essential attributes, deprives the owner cases of mere administration the responsibil- of his property. * * * So, too, one may ity is purely political, no appeal lying except | be deprived of his liberty and bis constituto the ultimate tribunal of the public, judg- tional rights thereto violated, without the ment, exercised either in the pressure of actual restraint or imprisonment of his person. opinion or by means of the suffrage. But Liberty, in its broad sense as understood in the fundamental rights to life, liberty and this country, means the right, not only of the pursuit of bappiness, considered as in. freedom from actual servitude, imprisonment dividual possessions, are secured by those or restraint, but the light of one to use his maxims of constitutional law wbich are the faculties in all lawful ways, to live and work monuments showing, the victorious progress where he will, to earn bis livelibood in any of the race in securing to men the blessings lawful calling, and to pursue any lawful of civilization under the reign of just and trade or avocation. All laws, therefore, equal laws, so that, in the famous language which impair or trammel these rights, which of the Massachusetts Bill of Rights, the limit one in his choice of a trade or profes

ent of the commonwealıb ‘may be sion, or confine him to work or live in a a government of laws and not of men.' For specified locality, or exclude him from his the very idea that one man may be compelled own house, or restrain his otherwise lawful to hold his life, or the means of living, or | movements (except as such laws may be any material right essential to the enjoyment passed in the exercise by the legislature of of life, at the mere will of another, seems to the police power), are infringements upon bis be intolerable in any country where freedom fundamental rights of liberty, wbich are upprevails, as being the essence of slavery

der constitution il protection."); “The law itself.” Again, Field, J., dissenting in will not allow the rights of property to be in. Powell v. Pennsylvania, 16 says: “With the vaded under the guise of a police regulation 14 Adam Smith's Wealth of Nations, Book I. Ch. 10. 15 118 U. S. 369.

17 Earl, J., in Matter of Application of Jacob, 98 16 127 U. S. 692.

IN. Y. 105.

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for the promotion of health, when it is mani. abridged on any trumped-up pretext for the fest that such is not the object and purpose exercise of the police power of the state. of the regulation.”]8 “The law will not al There is no doubt that, in proper cases, every low rights of property to be invaded under right of the individual may be abridged to the guise of a police regulation for the preser. conform to the just demands of the people vation of health or protection against a at large. To wbat extent is indicated by threatened nuisance; and when it appears Harlan, J., in Patterson v. Kentucky :21 that such is not the real object and purpose "By the settled doctrines of this court, the of the regulation, courts will interfere to power extends, at least, to the protection of protect the rights of the citizen."9 “All the lives, the bealth and the property of the sorts of restrictions and burdens are im community against the injurious exercise by posed under the police power, and when any citizen of his own rights. State legislathese are not in conflict with any constitu lation, strictly and legitimately for police tional prohibition or fundamental principle purposes, does not, in the sense of the constithey cannot be successfully assailed in a ju tution, necessarily intrench upon any authordicial tribunal. * * * But under the ity which has been confided, expressly or by pretense of prescribing a police regulation, implication, to the national government. the state cannot be permitted to encroach * * * Whether the policy thus pursued upon any one of the just rights of the citizen by the state is wise or unwise, it is not the which the constitution intended to secure province of the national authorities to deteragainst abridgment."'20

mine. That belongs to each state, under its The language of Mr. Justice Field and Mr. own sense of duty, and in view of the provisJustice Matthews, and that of the other au ions of its own constitution. Its action, in thorities cited, certainly tends strongly to

those respects, is beyond the corrective support the proposition that the right of res

power of this court." Yet it is not conceividents in the United States to freely contract

able that this language should be construed with reference to their own labor in any law

to mean that the legislature may exceed the ful calling is secured to them, not alone by

limitations of constitutional law or the basic our Declaration of Independence and consti principles of our government. tution, but hy the even more inviolable fun The laws thus far enacted for the reguladamental principles of liberty itself. It is tion of hours of employment rest upon an pointed out, also, that this right may not be exercise of the police power, either because

the employment is public or quasi-public in

character and the interests of the public 18 Austin v. Murray, 16 Pick. 121, 126.

demand such regulation; or that tbe health 19 Watertown v. Mayo, 109 Mass. 315, 319.

of the community will become impaired, in 20 Slaughter-House Cases, 16 Wall. 36, 87, See also:

the absence of such regulation, because of People v, Otis, 90 N. Y. 52; Fertilizing Company v. Hyde. 97 U. S. 659: Rockwell v. Nearin, 35 N. Y, 302;

the effect of such employment on the persons Wynehamer v. People, 13 N. Y. 378; Craig v. Klein, so employed. To the first class of cases, 65 Pa. St. 399; Herdic v, Young, 5 P. F. Smith, 176; |

obviously, no attention need be given in Thorpe v. Rutland, 27 Vt. 149; Coe v. Sbultz. 47 Barb. 64; Green v. Savannah, 6 Ga. 1; People v. Hawley, 3

connection with the present discussion. Pick 330; Ames v. County, 11 Mich. 139; Vanderbilt Cases and statutes, squarely in point, which V. Adams, 1 Cow. 319; In re Danville Cemetery

go so far as to regulate the hours of labor of Association. 66 N. Y. 560; Town of Lakeview v. Rose bill Company, 70 III. 181, 2 Kent's Com. I; Bertbalt

men engaged in private employments, are v. O'Reilly, 74 N. Y. 515; Live Stock, etc. Association few. The Utah statute, regulating the hours v. Crescent City, etc., 1 Abb. (U. S.) 398, 16 Wall. 106;

of labor of men employed in smelters, etc., Corfield v. Coryell, 4 Wash. C. C. 380; Mayor, etc. v. Thorne, 7 Paige's Ch. 263; Butchers' Union Company

applies only to these particular employments. v. Crescent City Company, 111 U. S. 746, 751, 760; This act was held not to be in conflict with People v. Marx, 99 N. Y. 377, 386. As to what cousti. the constitution of the state, which provides tutes a proper exercise of police power, see Slaughter House Cases, 111 U. S. 746; License Cases, 5 How.

in express terms that “the legislature sball 504; Gilman v. Philadelphia, 3 Wall. 713; Hender pass laws to provide for the health and safety son v. Mayor of New York, 92 U. S. 259; R. R.

of employees in factories, smelters and Company v. Husen, 95 U. 8. 465; Beer Company v. Massachusetts, 97 U.S. 25; Boyd v. Alabama, 94 U.S. 645.

31 97 U. $. 504,

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