As the possession of property, of which a person cannot be deprived,

doubtless implies that such property may be acquired, it is safe to

say that a state law which undertakes to deprive any class of persons

of the general power to acquire property would also be obnoxious to

the same provision. Indeed, we may go a step further, and say that as

property can only be legally acquired, as between living persons, by

contract, a general prohibition against entering into contracts with

respect to property, or having as their object the acquisition of

property, would be equally invalid.

The latest utterance of this court upon this subject is contained in

the case of Allgeyer _vs._ Louisiana, 165 U. S. 578, 591, 17 Sup. Ct.

427, in which it was held that an act of Louisiana which prohibited

individuals within the state from making contracts of insurance

with corporations doing business in New York was a violation of the

fourteenth amendment. In delivering the opinion of the court, Mr.

Justice Peckham remarked: “In the privilege of pursuing an ordinary

calling or trade, and of acquiring, holding, and selling property

must be embraced the right to make all proper contracts in relation

thereto; and, although it may be conceded that this right to contract

in relation to persons or property, or to do business within the

jurisdiction of the state, may be regulated, and sometimes prohibited,

when the contracts or business conflict with the policy of the state

as contained in its statutes, yet the power does not and cannot extend

to prohibiting a citizen from making contracts of the nature involved

in this case, outside of the limits and jurisdiction of the state, and

which are also to be performed outside of such jurisdiction.”

This right of contract, however, is itself subject to certain

limitations which the state may lawfully impose in the exercise of

its police powers. While this power is inherent in all governments,

it has doubtless been greatly expanded in its application during

the past century, owing to an enormous increase in the number of

occupations which are dangerous or so far detrimental to the health of

employees as to demand special precautions for their well-being and

protection, or the safety of adjacent property. While this court has

held (notably in the cases of New Orleans _vs._ Davidson, 95 U. S.

465, and Yick Wo _vs._ Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064) that

the police power cannot be put forward as an excuse for oppressive and

unjust legislation, it may be lawfully resorted to for the purpose of

preserving the public health, safety, or morals, or the abatement of

public nuisances, and a large discretion “is necessarily vested in the

legislature, to determine, not only what the interests of the public

require, but what measures are necessary for the protection of such

interests.” Lawton _vs._ Steele, 152 U. S. 133, 136, 14 Sup. Ct. 499.

The extent and limitations upon this power are admirably stated by

Chief Justice Shaw in the following extract from his opinion in

Massachusetts _vs._ Alger, 7 Cush. 84.

“We think it a settled policy, growing out of the nature of

well-ordered civil society, that every holder of property, however

absolute and unqualified his title, holds it under the implied

liability that its use may be so regulated that it shall not be

injurious to the equal enjoyment of others having an equal right

to the enjoyment of their property, nor injurious to the rights of

the community. All property in this commonwealth, as well in the

interior as that bordering on the tide waters, is derived directly

or indirectly from the government, and held subject to those general

regulations which are necessary to the common good and general welfare.

Rights of property, like all other social and conventional rights,

are subject to such reasonable limitation in their enjoyment as will

prevent them from being injurious, and to such reasonable restraints

and regulations by law as the legislature, under the government and

controlling power vested in them by the Constitution, may think

necessary and expedient.”

This power, legitimately exercised, can neither be limited by contract

nor bartered away by legislation.

While this power is necessarily inherent in every form of government,

it was, prior to the adoption of the constitution, but sparingly used

in this country. As we were then almost purely an agricultural people,

the occasion for any special protection of a particular class did not

exist. Certain profitable employments, such as lotteries and the sale

of intoxicating liquors, which were then considered to be legitimate,

have since fallen under the ban of public opinion, and are now either

altogether prohibited, or made subject to stringent police regulations.

The power to do this has been repeatedly affirmed by this court.

While the business of mining coal and manufacturing iron began in

Pennsylvania as early as 1716, and in Virginia, North Carolina, and

Massachusetts even earlier than this, both mining and manufacturing

were carried on in such a limited way, and by such primitive methods,

that no special laws were considered necessary, prior to the adoption

of the Constitution, for the protection of the operatives; but, in the

vast proportions which these industries have since assumed, it has been

found that they can no longer be carried on, with due regard to the

safety and health of those engaged in them, without special protection

against the dangers necessarily incident to these employments. In

consequence of this, laws have been enacted in most of the states

designed to meet these exigencies, and to secure the safety of persons

peculiarly exposed to these dangers. Within this general category are

ordinances providing for fire escapes for hotels, theaters, factories

and other large buildings; a municipal inspection of boilers; and

appliances designed to secure passengers upon railways and steamboats

against the dangers necessarily incident to these methods of

transportation. In states where manufacturing is carried on to a large

extent, provision is made for the protection of dangerous machinery

against accidental contact; for the cleanliness and ventilation of

working rooms; for the guarding of well holes, stairways, elevator

shafts; and for the employment of sanitary appliances. In others, where

mining is the principal industry, special provision is made for the

shoring up of dangerous walls; for ventilation shafts, bore holes,

escapement shafts, means of signaling the surface; for the supply of

fresh air, and the elimination, as far as possible, of dangerous gases;

for safe means of hoisting and lowering cages; for a limitation upon

the number of persons permitted to enter a cage; that cages shall be

covered; and that there shall be fences and gates around the top of

shafts, besides other similar precautions.

These statutes have been repeatedly enforced by the courts of the

several states; their validity assumed; and, so far as we are informed,

they have been uniformly held to be constitutional.

In Daniels _vs._ Hilgard, 77 Ill. 640, it was held that the legislature

had power, under the Constitution, to establish reasonable police

regulations for the operating of mines and collieries, and that an

act providing for the health and safety of persons employed in coal

mines, which required the owner or agent of every coal mine or colliery

employing ten men or more to make or cause to be made an accurate

map or plan of the workings of such coal mine or colliery, was not

unconstitutional, and that the question whether certain requirements

are a part of a system of police regulations adopted to aid in

the protection of life and health was properly one of legislative

determination, and that a court should not lightly interfere with such

determination, unless the legislature had manifestly transcended its

province.

In Pennsylvania _vs._ Bonnell, 8 Phila. 534, a law providing for the

ventilation of coal mines, for speaking tubes, and the protection of

cages, was held to be constitutional, and subject to strict enforcement.

But, if it be within the power of a legislature to adopt such means

for the protection of the lives of its citizens, it is difficult to

see why precautions may not also be adopted for the protection of

their health and morals. It is as much for the interest of the state

that the public health should be preserved as that life should be made

secure. With this end in view, quarantine laws have been enacted in

most, if not all, of the states; insane asylums, public hospitals, and

institutions for the care and education of the blind established; and

special measures taken for the exclusion of infected cattle, rags, and

decayed fruit. In other states laws have been enacted limiting the

hours during which women and children shall be employed in factories;

and while their constitutionality, at least as applied to women,

has been doubted in some of the states, they have been generally

upheld. Thus, in the case of Com. _vs._ Hamilton Mfg. Co., 120 Mass.

383, it was held that a statute prohibiting the employment of all

persons under the age of eighteen, and of all women laboring in any

manufacturing establishment more than sixty hours per week, violates no

contract of the commonwealth implied in the granting of a charter to a

manufacturing company, nor any right reserved under the constitution

to any individual citizen, and may be maintained as a health or police

regulation.

Upon the principles above stated, we think the act in question may

be sustained as a valid exercise of the police power of the state.

The enactment does not profess to limit the hours of all workmen, but

merely those who are employed in underground mines, or in the smelting,

reduction, or refining of ores or metals. These employments, when too

long pursued, the legislature has judged to be detrimental to the

health of the employees; and, so long as there are reasonable grounds

for believing that this is so, its decision upon this subject cannot be

reviewed by the federal courts.

While the general experience of mankind may justify us in believing

that men may engage in ordinary employments more than eight hours per

day without injury to their health, it does not follow that labor

for the same length of time is innocuous when carried on beneath the

surface of the earth, where the operative is deprived of fresh air and

sunlight, and is frequently subjected to foul atmosphere and a very

high temperature, or to the influence of noxious gases generated by the

processes of refining or smelting.

We concur in the following observations of the Supreme Court of Utah in

this connection:

“The conditions with respect to health of laborers in underground

mines doubtless differ from those in which they labor in smelters and

other reduction works on the surface. Unquestionably the atmosphere

and other conditions in mines and reduction works differ. Poisonous

gases, dust, and impalpable substances arise and float in the air in

stamp mills, smelters, and other works in which ores containing metals,

combined with arsenic or other poisonous elements or agencies, are

treated, reduced, and refined, and there can be no doubt that prolonged

effort, day after day, subject to such conditions and agencies, will

produce morbid, noxious, and often deadly effects in the human system.

Some organisms and systems will resist and endure such conditions

and effects longer than others. It may be said that labor in such

conditions must be performed. Granting that, the period of labor each

day should be of a reasonable length. Twelve hours per day would be

less injurious than fourteen, ten than twelve, and eight than ten. The

legislature has named eight. Such a period was deemed reasonable....

The law in question is confined to the protection of that class of

people engaged in labor in underground mines, and in smelters and other

works wherein ores are reduced and refined. This law applies only to

the classes subjected by their employment to the peculiar conditions

and effects attending underground mining and work in smelters, and

other works for the reduction and refining of ores. Therefore it is

not necessary to discuss or decide whether the legislature can fix the

hours of labor in other employments. Though reasonable doubts may exist

as to the power of the legislature to pass a law, or as to whether the

law is calculated or adapted to promote the health, safety, or comfort

of the people, or to secure good order or promote the general welfare,

we must resolve them in favor of the right of that department of

government.” 46 Pac. 1105.

The legislature has also recognized the fact, which the experience

of legislators in many states has corroborated, that the proprietors

of these establishments and their operatives do not stand upon

an equality, and that their interests are, to a certain extent,

conflicting. The former naturally desire to obtain as much labor as

possible from their employees, while the latter are often induced by

the fear of discharge to conform to regulations which their judgment,

fairly exercised, would pronounce to be detrimental to their health

or strength. In other words, the proprietors lay down the rules,

and the laborers are practically constrained to obey them. In such

cases self-interest is often an unsafe guide, and the legislature may

properly interpose its authority.

It may not be improper to suggest in this connection that although

the prosecution in this case was against the employer of labor, who

apparently, under the statute, is the only one liable, his defense is

not so much that his right to contract has been infringed upon, but

that the act works a peculiar hardship to his employees, whose right

to labor as long as they please is alleged to be thereby violated. The

argument would certainly come with better grace and greater cogency

from the latter class. But the fact that both parties are of full age,

and competent to contract, does not necessarily deprive the state

of the power to interfere, where the parties do not stand upon an

equality, or where the public health demands that one party to the

contract shall be protected against himself. “The state still retains

an interest in his welfare, however reckless he may be. The whole is no

greater than the sum of all the parts, and when the individual health,

safety, and welfare are sacrificed or neglected, the state must suffer.”

We have no disposition to criticise the many authorities which

hold that state statutes restricting the hours of labor are

unconstitutional. Indeed, we are not called upon to express an

opinion upon this subject. It is sufficient to say of them that they

have no application to cases where the legislature had adjudged that

a limitation is necessary for the preservation of the health of

employees, and there are reasonable grounds for believing that such

determination is supported by the facts. The question in each case

is whether the legislature has adopted the statute in exercise of a

reasonable discretion, or whether its action be a mere excuse for an

unjust discrimination, or the oppression or spoliation of a particular

class....

We are of opinion that the act in question was a valid exercise of

police power of the state, and the judgments of the Supreme Court of

Utah are therefore affirmed.

Mr. Justice Brewer and Mr. Justice Peckham dissented.

APPENDIX IV

IN RE JACOBS

(Court of Appeals of New York. January 20, 1885.)

CONSTITUTIONAL LAW--PUBLIC HEALTH--POLICE REGULATION

The act entitled “An act to improve the public health, by prohibiting

the manufacture of cigars and preparation of tobacco in any form, in

tenement houses, in certain cases,” (chap. 272; Laws 1884), held not

within the police power, and unconstitutional.

When a health law is challenged as unconstitutional on the ground that

it arbitrarily interferes with personal liberty and private property

without due process of law, the courts must be able to see that it has,

at least in fact, some relation to the public health, and that the

public health is the end actually aimed at, and that it is appropriate

and adapted to that end. Under the guise of police regulations,

personal rights and private property cannot be arbitrarily invaded, and

the determination of the legislature is not final or conclusive.

(Argued December 17, 1884; decided January 20, 1885.)

Appeal from an order of the General Term of the Supreme Court, first

department, reversing an order, made at Special Term, which dismissed

the writ of habeas corpus obtained by relator, the respondent herein,

to inquire into the cause of his detention.

The essential facts appear in the opinion. Cases cited by counsel

omitted.

Opinion of the Court, per EARL, J.

The relator Jacobs was arrested on the 14th day of May, 1884, on a

warrant issued by a police justice in the city of New York under the

act chapter 272 of the Laws of 1884, passed May 12, entitled “An act

to improve the public health by prohibiting the manufacture of cigars

and preparation of tobacco in any form in tenement-houses in certain

cases, and regulating the use of tenement-houses in certain cases.” On

the evidence of the complainant he was by the justice committed for

trial, and thereafter upon his petition, a justice of the Supreme Court

granted a writ of habeas corpus, to which a return was made, and upon

the hearing thereon the justice made an order dismissing the writ and

remanding him to prison. From that order he appealed to the General

Term of the Supreme Court, which reversed the order and discharged him

from prison, on the ground that the act under which he was arrested was

unconstitutional and therefore void. The district attorney on behalf

of the people then appealed to this court, and the sole question for

our determination is, whether the act of 1884, creating the offense

for which the relator was arrested, was a constitutional exercise of

legislative power.

The facts as they appeared before the police justice were as follows:

The relator at the time of his arrest lived with his wife and two

children in a tenement-house in the city of New York in which three

other families also lived. There were four floors in the house, and

seven rooms on each floor, and each floor was occupied by one family

living independently of the others, and doing their cooking in one

of the rooms so occupied. The relator at the time of his arrest was

engaged in one of his rooms in preparing tobacco and making cigars, but

there was no smell of tobacco in any part of the house except the room

where he was thus engaged.

These facts showed a violation of the provisions of the act which took

effect immediately upon its passage and the material portions of which

are as follows: “Section 1. The manufacture of cigars or preparation

of tobacco in any form on any floor, or in any part of any floor, in

any tenement-house is hereby prohibited, if such floor or any part

of such floor is by any person occupied as a home or residence for

the purpose of living, sleeping, cooking or doing any household work

therein. Section 2. Any house, building or portion thereof, occupied as

the home or residence of more than three families living independently

of one another, and doing their cooking upon the premises, is a

tenement-house within the meaning of this act. Section 3. The first

floor of said tenement house on which there is a store for the sale of

cigars and tobacco shall be exempt from the prohibition provided in

section one of this act. Section 5. Every person who shall be found

guilty of a violation of this act, or of having caused another to

commit such violation, shall be deemed guilty of a misdemeanor, and

shall be punished for every offense by a fine of not less than ten

dollars and not more than one hundred dollars or by imprisonment for

not less than ten days and not more than six months, or both such fine

and imprisonment. Section 6. This act shall apply only to cities having

over five hundred thousand inhabitants.”

What does this act attempt to do? In form, it makes it a crime for

a cigarmaker in New York and Brooklyn, the only cities in the State

having a population exceeding 500,000, to carry on a perfectly lawful

trade in his own home. Whether he owns the tenement-house or has hired

a room therein for the purpose of prosecuting his trade, he cannot

manufacture therein his own tobacco into cigars for his own use or for

sale, and he will become a criminal for doing that which is perfectly

lawful outside of the two cities named--everywhere else, so far as

we are able to learn, in the whole world. He must either abandon the

trade by which he earns a livelihood for himself and family, or, if

able, procure a room elsewhere, or hire himself out to one who has a

room upon such terms as, under the fierce competition of trade and

the inexorable laws of supply and demand, he may be able to obtain

from his employer. He may choose to do his work where he can have the

supervision of his family and their help, and such choice is denied

him. He may choose to work for himself rather than for a taskmaster,

and he is left without freedom of choice. He may desire the advantage

of cheap production in consequence of his cheap rent and family help,

and of this he is deprived. In the unceasing struggle for success

and existence which pervades all societies of men, he may be deprived

of that which will enable him to maintain his hold, and to survive.

He may go to a tenement-house, and finding no one living, sleeping,

cooking or doing any household work upon one of the floors, hire a

room upon such floor to carry on his trade, and afterward some one may

commence to sleep or to do some household work upon such floor, even

without his knowledge, and he at once becomes a criminal in consequence

of another’s act. He may go to a tenement-house, and finding but two

families living therein independently, hire a room, and afterward by

subdivision of the families, or a change in their mode of life, or in

some other way, a fourth family begins to live therein independently,

and thus he may become a criminal without the knowledge, or possibly

the means of knowledge that he was violating any law. It is, therefore,

plain that this law interferes with the profitable and free use of

his property by the owner or lessee of a tenement-house who is a

cigarmaker, and trammels him in the application of his industry and the

disposition of his labor, and thus, in a strictly legitimate sense, it

arbitrarily deprives him of his property and of some portion of his

personal liberty.

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 of its essential attributes, deprives the owner of his

property.

The constitutional guaranty would be of little worth, if the

legislature could, without compensation, destroy property or its value,

deprive the owner of its use, deny him the right to live in his own

house, or to work at any lawful trade therein. If the legislature has

the power under the Constitution to prohibit the prosecution of one

lawful trade in a tenement-house, then it may prevent the prosecution

of all trades therein. “Questions of power,” says Chief Justice

Marshall in Brown _vs._ State of Maryland (12 Wheat. 419), “do not

depend upon the degree to which it may be exercised. If it may be

exercised at all it must be exercised at will of those in whose hands

it is placed.” Blackstone in his classification of fundamental rights

says: “The third absolute right inherent in every Englishman is that

of property which consists in the free use, enjoyment and disposal

of all his acquisitions without any control or diminution, save only

by the law of the land.” (1 Com. 138), in Pumpelly _vs._ Green Bay

Co. (13 Wall. 166, 177), Miller, J., says: “There may be such serious

interruption to the common and necessary use of property as will be

equivalent to a taking within the meaning of the Constitution.” In

Wynehamer _vs._ People (13 N. Y. 378, 398), Comstock, J., says: “When a

law annihilates the value of property and strips it of its attributes,

by which alone it is distinguished as property, the owner is deprived

of it according to the plainest interpretation, and certainly within

the constitutional provision intended expressly to shield personal

rights from the exercise of arbitrary power.” In People _vs._ Otis

(90 N. Y. 48), Andrews, J., says: “Depriving an owner of property of

one of its attributes is depriving him of his property within the

constitutional provision.”

So, too, one may be deprived of his liberty and his constitutional

rights thereto violated without the actual imprisonment or restraint

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, which

will be noticed later), are infringements upon his fundamental rights

of liberty, which are under constitutional protection. In Butchers’

Union Co. _vs._ Crescent City Co. (111 U. S. 746), Field, J., says:

That among the inalienable rights as proclaimed in 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 property or develop their faculties,

so as to give them their highest enjoyment. The common business and

callings of life, the ordinary trades and pursuits which are innocent

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 terms. The right to pursue them without let or hindrance,

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.” In the same case Bradley, J., says: “I hold

that the liberty of pursuit, the right to follow any of the ordinary

callings of life, is one of the privileges of a citizen of the United

States,” of which he cannot be deprived without invading his right to

liberty within the meaning of the Constitution. In Live Stock, etc.,

Association _vs._ Crescent City, etc., Company (1 Abb. (U. S.) 388,

398), the learned presiding justice says: “There is no more sacred

right of citizenship than the right to pursue unmolested a lawful

employment in a lawful manner. It is nothing more nor less than the

sacred right of labor.” In Wynehamer _vs._ People, Johnson, J., says:

“That a law which should make it a crime for men either to live in, or

rent or sell their houses,” would violate the constitutional guaranty

of personal liberty. In Bertholf _vs._ O’Reilly (74 N. Y. 509, 515),

Andrews, J., says: That one could “be deprived of his liberty in a

constitutional sense without putting his person in confinement,” and

that a man’s right to liberty included “the right to exercise his

faculties, and to follow a lawful avocation for the support of life.”

But the claim is made that the legislature could pass this act in the

exercise of the police power which every sovereign state possesses.

That power is very broad and comprehensive, and is exercised to promote

the health, comfort, safety and welfare of society. Its exercise in

extreme cases is frequently justified by the maxim _salus populi

suprema lex est_. It is used to regulate the use of property by

enforcing the maxim _sic utere tuo, ut alienum non loedas_. Under it

the conduct of an individual and the use of property may be regulated

so as to interfere, to some extent, with the freedom of the one and the

enjoyment of the other; and in cases of great emergency engendering

overruling necessity, property may be taken or destroyed without

compensation, and without what is commonly called due process of law.

The limit of the power cannot be accurately defined, and the courts

have not been able or willing definitely to circumscribe it. But the

power, however broad and extensive, is not above the Constitution. When

it speaks, its voice must be heeded. It furnishes the supreme law, the

guide for the conduct of legislators, judges and private persons, and

so far as it imposes restraints, the police power must be exercised

in subordination thereto. Judge Cooley, speaking of the regulation by

the legislature under the police power of the conduct of corporations

holding inviolable charters, says: “The limit to the exercise of the

police power in these cases must be this: the regulations must have

reference to the comfort, safety and welfare of society; they must not

be in conflict with any of the provisions of the charter, and they

must not, under pretense of regulation, take from the corporation any

of the essential rights and privileges which the charter confers. In

short, they must be police regulations, in fact, and not amendments

of the charter in curtailment of the corporate franchise.” (Const,

Lim. (4th ed.) 719.) In Potter’s Dwarris on Statutes, 458, it is said

that “the limit to the exercise of the police power can only be this;

the legislation must have reference to the comfort, the safety or the

welfare of society; it must not be in conflict with the provisions of

the Constitution.” In Commonwealth _vs._ Alger (7 Cush. 53, 84), Shaw,

Ch. J., says, that the police power “was vested in the legislature, by

the Constitution, to make, ordain and establish all manner of wholesome

and reasonable laws, statutes and ordinances, either with penalties

or without, not repugnant to the Constitution, as they shall judge to

be for the good and welfare of the Commonwealth and of the subjects

of the same. It is much easier to perceive and realize the existence

and sources of the power than to mark its limitations or prescribe

limits to its exercise.” In Austin _vs._ Murray (16 Pick. 121, 126),

it is said: “The law will not allow the rights of property to be

invaded under the guise of a police regulation for the promotion of

health, when it is manifest that such is not the object and purpose

of the regulation.” In Watertown _vs._ Mayo (109 Mass. 315, 319),

Colt, J., says: “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.” In the

Slaughter-house cases (16 Wall. 36, 87), Field, J., says: “All sorts

of restrictions and burdens are imposed under the police power, and

when these are not in conflict with any constitutional prohibitions

or fundamental principles, 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 of

the just rights of the citizen which the Constitution intended to

secure against abridgment.” In Coe _vs._ Schultze (47 Barb. 64), a

learned judge speaking of the constitutional limitations upon the

police power says: “I am not willing to concede that the legislature

can constitutionally declare an act or thing to be a common nuisance,

which palpably, according to our present experience or information, is

not and cannot be under any circumstances a common nuisance, by the

common-law definitions or common-law decisions. I am not willing to

conclude that the legislature can constitutionally declare or authorize

any sanitary commission or board to declare the keeping or the use,

in any way, of sugar or vinegar to be a common nuisance, because the

one is sweet and the other sour, or for any other reason. By such an

unlimited power it is easy to see that any citizen might be deprived of

his property without compensation, and without any colorable pretext

that the public good required such deprivation.” (See, also, In the

Matter of Cheesebrough, 78 N. Y. 232.)

These citations are sufficient to show that the police power is not

without limitations, and that in its exercise the legislature must

respect the great fundamental rights guaranteed by the Constitution. If

this were otherwise, the power of the legislature would be practically

without limitation. In the assumed exercise of the police power in the

interest of the health, the welfare or the safety of the public, every

right of the citizen might be invaded and every constitutional barrier

swept away.

Generally it is for the legislature to determine what laws and

regulations are needed to protect the public health and secure the

public comfort and safety, and while its measures are calculated,

intended, convenient and appropriate to accomplish these ends, the

exercise of its discretion is not subject to review by the courts.

But they must have some relation to these ends. Under the mere guise

of police regulations, personal rights and private property cannot be

arbitrarily invaded, and the determination of the legislature is not

final or conclusive. If it passes an act ostensibly for the public

health, and thereby destroys or takes away the property of a citizen,

or interferes with his personal liberty, then it is for the courts

to scrutinize the act and see whether it really relates to and is

convenient and appropriate to promote the public health. It matters

not that the legislature may in the title to the act, or in its body,

declare that it is intended for the improvement of the public health.

Such a declaration does not conclude the courts, and they must yet

determine the fact declared and enforce the supreme law. In Matter

of Ryers (72 N. Y. 1), Folger, J., speaking of the drainage Act then

under consideration, says: “The legislature has done no more than

the Constitution permitted in providing in general terms a way for

the promotion and preservation of the public health. It is still for

the judiciary to see to it that each occasion presents the necessity

for the work, and that the purpose to be reached is public.” In Town

of Lake View _vs._ Rose Hill Co. (70 Ill. 191), the court, speaking

of the police power, says: “As a general proposition, it may be

stated that it is in the province of the lawmaking power to determine

whether the exigencies exist calling into exercise this power. What

are the subjects of its exercise is clearly a judicial question.”

Even the power of taxation, which is one of the broadest possessed by

the legislature, is not without its limitations, and its action in

reference thereto may be scrutinized by the courts; and that which is

done under the guise of taxation may be condemned as sheer spoliation

and confiscation without due process of law. (Weismer _vs._ Village of

Douglas, 64 N. Y. 91; Stuart _vs._ Palmer, 74 id. 183; People _vs._

Equitable Trust Co., 96 id. 387.) The legislature may condemn or

authorize the condemnation of private property for public use, and it

may, in the exercise of its discretion, determine when and upon what

property the power of eminent domain may be exercised; but its exercise

is not beyond the reach of judicial inquiry. Whether or not a use

is a public one, which will justify the exercise of the power, is a

judicial question. It may be difficult sometimes to determine whether

a use is public or private. Although the legislature may declare it to

be public, that does not necessarily determine its character; it must

in fact be public, and if it be not, no legislative fiat can make it

so, and any owner of property attempted to be taken for a use really

private can invoke the aid of the courts to protect his property rights

against invasion. (Rockwell _vs._ Nearing, 35 N. Y. 302; Matter of

Townsend, 39 id. 171; Matter of Deansville Cemetery Association, 66

id. 569; Matter of Eureka Basin Warehouse and Manufacturing Co., 96

id. 42.) The general government is one of limited powers particularly

specified in the Federal Constitution. But in addition to the powers

granted, it is provided in the Constitution that congress shall have

power “to make all laws which shall be necessary and proper for

carrying into execution the foregoing powers.” Under this provision,

congress is not the final judge of what is “necessary and proper,”

but its laws must have a legitimate end in view, must be within the

scope of the Constitution, must be appropriate and plainly adapted

to that end, and not prohibited by, but consistent with, the letter

and spirit of the Constitution; and whether the laws passed under the

implied powers contained in the section cited are of the character

mentioned and thus justified, is always open to judicial inquiry.

(McCulloch _vs._ Maryland, 4 Wheat. 316, 421; Hepburn _vs._ Griswold,

8 Wall. 603; Legal Tender Cases, 12 id. 457; 110 U. S., 421.) If it

were for congress to determine when these implied or incidental powers

should be exercised, its powers would be without any restraint, and

instead of being a body with limited powers, it would, in its own

discretion, have general and unlimited power of legislation. “Whatever

meaning,” says Mr. Madison (1 Ann. of Cong. 1848), “the clause of the

Constitution conferring all necessary and proper means to carry into

effect the enumerated powers may have, none could be admitted that

would give an unlimited discretion to congress.” And in Marbury _vs._

Madison (1 Cranch, 137), Chief Justice Marshall says: “To what purpose

are limitations committed to writing, if those limits may at any time

be passed by those intended to be restrained? The distinction between

a government with limited and unlimited powers is abolished if those

limits do not confine the persons on whom they are imposed.” These

citations are apt to show how the police power may, and how it ought

not to be exercised, and how far its exercise is subject to judicial

inquiry. A law enacted in the exercise of the police power must in fact

be a police law. If it be a law for the promotion of the public health,

it must be a health law, having some relation to the public health.

We will now once more recur to the law under consideration. It does not

deal with tenement-houses as such; it does not regulate the number of

persons who may live in any one of them, or be crowded into one room,

nor does it deal with the mode of their construction for the purpose

of securing the health and safety of their occupants or of the public

generally. It deals mainly with the preparation of tobacco and the

manufacture of cigars, and its purpose obviously was to regulate them.

We must take judicial notice of the nature and qualities of tobacco.

It has been in general use among civilized men for more than two

centuries. It is used in some form by a majority of the men in this

State, by the good and bad, learned and unlearned, the rich and poor.

Its manufacture into cigars is permitted without any hindrance, except

for revenue purposes, in all civilized lands. It has never been said,

so far as we can learn, and it was not affirmed even on the argument

before us, that its preparation and manufacture into cigars were

dangerous to the public health. We are not aware, and are not able to

learn, that tobacco is even injurious to the health of those who deal

in it, or are engaged in its production or manufacture. We certainly

know enough about it to be sure that its manipulation in one room can

produce no harm to the health of the occupants of other rooms in the

same house. It was proved in this case that the odor of the tobacco

did not extend to any of the other rooms of the tenement-house. Mr.

Secretary McCulloch in his late annual report to Congress, in which he

recommends the removal of the internal tax from tobacco that it might

thus be placed upon a footing with other agricultural products, says:

“An article which is so generally used and which adds so much to the

comfort of the large numbers of our population who earn their living

by manual labor, cannot properly be considered a luxury.” To justify

this law it would not be sufficient that the use of tobacco may be

injurious to some persons, or that its manipulation may be injurious

to those who are engaged in its preparation and manufacture; but it

would have to be injurious to the public health. This law was not

intended to protect the health of those engaged in cigarmaking, as they

are allowed to manufacture cigars everywhere except in the forbidden

tenement-houses. It cannot be perceived how the cigarmaker is to be

improved in his health or his morals by forcing him from his home and

its hallowed associations and beneficent influences, to ply his trade

elsewhere. It was not intended to protect the health of that portion of

the public not residing in the forbidden tenement-houses, as cigars are

allowed to be manufactured in private houses, in large factories and

shops in the too crowded cities, and in all other parts of the State.

What possible relation can cigarmaking in any building have to the

health of the general public? Nor was it intended to improve or protect

the health of the occupants of tenement-houses. If there are but three

families in the tenement-house, however numerous and gregarious their

members may be, the manufacture is not forbidden; and it matters not

how large the number of the occupants may be if they are not divided

into more than three families living and cooking independently. If

a store is kept for the sale of cigars on the first floor of one of

these houses, and thus more tobacco is kept there than otherwise would

be, and the baneful influence of tobacco, if any, is thus increased,

that floor, however numerous its occupants, or the occupants of

the house, is exempt from the operation of the act. What possible

relation to the health of the occupants of a large tenement-house could

cigarmaking in one of its remote rooms have? If the legislature had

in mind the protection of the occupants of tenement-houses, why was

the act confined in its operation to the two cities only? It is plain

that this is not a health law, and that it has no relation whatever to

the public health. Under the guise of promoting the public health the

legislature might as well have banished cigarmaking from all the cities

of the State, or confined it to a single city or town, or have placed

under a similar ban the trade of a baker, of a tailor, of a shoemaker,

of a woodcarver, or of any other of the innocuous trades carried on by

artisans in their own homes. The power would have been the same, and

its exercise, so far as it concerns fundamental, constitutional rights,

could have been justified by the same arguments. Such legislation may

invade one class of rights to-day and another to-morrow, and if it can

be sanctioned under the Constitution, while far removed in time we

will not be far away in practical statesmanship from those ages when

governmental prefects supervised the building of houses, the rearing of

cattle, the sowing of seed and the reaping of grain, and governmental

ordinances regulated the movements and labor of artisans, the rate of

wages, the price of food, the diet and clothing of the people, and a

large range of other affairs long since in all civilized lands regarded

as outside of governmental functions. Such governmental interferences

disturb the normal adjustments of the social fabric, and usually

derange the delicate and complicated machinery of industry and cause a

score of ills while attempting the removal of one.

When a health law is challenged in the courts as unconstitutional on

the ground that it arbitrarily interferes with personal liberty and

private property without due process of law, the courts must be able to

see that it has at least in fact some relation to the public health,

that the public health is the end actually aimed at, and that it is

appropriate and adapted to that end. This we have not been able to see

in this law, and we must, therefore, pronounce it unconstitutional and

void. In reaching this conclusion we have not been unmindful that the

power which courts possess to condemn legislative acts which are in

conflict with the supreme law should be exercised with great caution

and even with reluctance. But as said by Chancellor Kent (1 Com.

450): “It is only by the free exercise of this power that courts of

justice are enabled to repel assaults and to protect every part of the

government and every member of the community from undue and destructive

innovations upon their charter rights.”

The order should be affirmed.

All concur.

Order affirmed.

APPENDIX V

PURE FOOD BILL

(In the Senate of the United States. January 21, 1904.)

(_Read twice and referred to the Committee on Manufactures._)

AN ACT FOR PREVENTING THE ADULTERATION OR MISBRANDING OF FOODS OR

DRUGS, AND FOR REGULATING TRAFFIC THEREIN, AND FOR ALL OTHER PURPOSES.

[Sidenote: _Changes Bureau of Chemistry to Bureau of Chemistry and

Foods, Charged With Inspection of Food and Drug Products._]

_Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled_, That for the purpose of

protecting the commerce in food products and drugs between the several

states and in the District of Columbia and the territories of the

United States and with foreign countries the Secretary of Agriculture

shall organize the bureau of chemistry of the Department of Agriculture

into a bureau of chemistry and foods, which shall have the direction

of the chemical work of the present bureau of chemistry and of the

chemical work of the other executive departments whose respective heads

may apply to the Secretary of Agriculture for such collaboration, and

which shall also be charged with the inspection of food and drug

products, as hereinafter provided in this act. The Secretary of

Agriculture shall make necessary rules and regulations for carrying

out the provisions of this act, under which the director of the bureau

of chemistry and foods shall procure from time to time, or cause

to be procured, and analyzed, or cause to be analyzed or examined,

chemically, microscopically, or otherwise, samples of foods and drugs

offered for sale in original unbroken packages in the District of

Columbia, in any territory, or in any state other than that in which

they shall have been respectively manufactured or produced, or from

a foreign country, or intended for export to a foreign country. The

Secretary of Agriculture is hereby authorized to employ such chemists,

inspectors, clerks, laborers, and other employees as may be necessary

to carry out the provisions of this act and to make such publication of

the results of the examinations and analyses as he deems proper.

[Sidenote: _To Procure and Analyze Samples of Foods and Drugs._]

[Sidenote: _Prohibits Importation of Food or Drugs Adulterated or

Misbranded._]

Sec. 2. That the introduction into any state or territory or the

District of Columbia from any other state or territory or the District

of Columbia, or from any foreign country, or shipment to any foreign

country of any article of food or drugs which is adulterated or

misbranded, within the meaning of this act, is hereby prohibited;

and any person who shall ship or deliver for shipment from any state

or territory or the District of Columbia to any other state or

territory or the District of Columbia, or to a foreign country, or who

shall receive in any state or territory or the District of Columbia

from any other state or territory or the District of Columbia, or

foreign country, or who, having received, shall deliver, in original

unbroken packages, for pay or otherwise, or offer to deliver to any

other person, any such article so adulterated or misbranded within

the meaning of this act, or any person who shall sell or offer for

sale in the District of Columbia or the territories of the United

States such adulterated, mixed, misbranded, or imitated foods or

drugs, or export or offer to export the same to any foreign country,

shall be guilty of a misdemeanor, and for such offense be fined not

exceeding two hundred dollars for the first offense and for each

subsequent offense not exceeding three hundred dollars or be imprisoned

not exceeding one year, or both, in the discretion of the court:

_Provided, nevertheless_, That no article shall be deemed misbranded

or adulterated within the provisions of this act when intended for

export to any foreign country and prepared or packed according to the

specifications or directions of the foreign purchaser when no substance

is used in the preparation or packing thereof in conflict with the laws

of the foreign country to which said article is intended to be shipped;

but if said article shall be in fact sold or offered for sale for

domestic use or consumption, then this proviso shall not exempt said

article from the operation of all the other provisions of this act.

[Sidenote: _Penalty for Dealer._]

[Sidenote: _Prosecution for Violation._]

Sec. 3. That the director of the bureau of chemistry and foods shall

make, or cause to be made, under rules and regulations to be prescribed

by the Secretary of Agriculture, examinations of specimens of foods and

drugs offered for sale in original unbroken packages in the District

of Columbia, in any territory or in any state other than that in which

they shall have been respectively manufactured or produced, or from any

foreign country, or intended for shipment to any foreign country, which

may be collected from time to time in various parts of the country. If

it shall appear from any such examination that any of the provisions of

this act have been violated, the Secretary of Agriculture shall at once

certify the facts to the proper United States district attorney, with a

copy of the results of the analysis, duly authenticated by the analyst

under oath.

Sec. 4. That it shall be the duty of every district attorney to whom

the Secretary of Agriculture shall report any violation of this act to

cause proceedings to be commenced and prosecuted without delay for the

fines and penalties in such case provided.

DEFINITIONS

[Sidenote: _Definitions._]

Sec. 5. That the term “drug,” as used in this act, shall include all

medicines and preparations recognized in the United States Pharmacopœia

for internal or external use. The term “food,” as used herein, shall

include all articles used for food, drink, confectionery, or condiment

by man or domestic animals, whether simple, mixed, or compound.

The term “misbranded,” as used herein, shall apply to all drugs, or

articles of food, or articles which enter into the composition of food,

the package or label of which shall bear any statement regarding the

ingredients or substances contained in such article, which statement

shall be false or misleading in any particular, and to any food or drug

product which is falsely branded as to the state, territory, or country

in which it is manufactured or produced.

ADULTERATIONS

Sec. 6. That for the purposes of this act an article shall be deemed to

be adulterated--

In case of drugs:

[Sidenote: _Adulterations in Drugs._]

First. If when a drug is sold under or by a name recognized in the

United States Pharmacopœia, it differs from the standard of strength,

quality, or purity, as determined by the test laid down in the United

States Pharmacopœia official at the time of the investigation.

Second. If its strength or purity fall below the professed standard

under which it is sold.

Third. If it be an imitation of or offered for sale under the name of

another article.

In the case of confectionery:

[Sidenote: _Adulterations in Confectionery._]

If it contain terra alba, barytes, talc, chrome yellow, or other

mineral substances or poisonous colors or flavors, or other ingredients

deleterious or detrimental to health.

In the case of food:

[Sidenote: _Adulterations in Foods._]

First. If any substance or substances has or have been mixed and packed

with it so as to reduce or lower so as to thereby injuriously affect

its quality or strength.

Second. If any substance or substances has or have been substituted

wholly or in part for the article.

Third. If any valuable constituent of the article has been wholly or in

part abstracted.

Fourth. If it be an imitation of or offered for sale under the

distinctive name of another article.

Fifth. If it be mixed, colored, powdered, or stained in a manner

whereby damage or inferiority is concealed.

Sixth. If it contain any added poisonous ingredient which may render

such article injurious to health.

Seventh. If it be labeled or branded so as to deceive or mislead the

purchaser, or purport to be a foreign product when not so.

Eighth. If it consists in whole or in part of a filthy, decomposed,

or putrid animal or vegetable substance, or any portion of an animal

unfit for food, whether manufactured or not, or if it is the product of

a diseased animal, or one that has died otherwise than by slaughter:

_Provided_, That an article of food which does not contain any added

poisonous or deleterious ingredients shall not be deemed to be

adulterated in the following cases:

[Sidenote: _Articles Labeled, Branded or Tagged._]

[Sidenote: _Guaranty from Manufacturer._]

First. In the case of mixtures or compounds which may be now or from

time to time hereafter known as articles of food, under their own

distinctive names, and not included in definition fourth of this

section. Second. In the articles labeled, branded, or tagged so as

to plainly indicate that they are mixtures, compounds, combinations,

imitations, or blends: Provided, That the same shall be labeled,

branded, or tagged so as to show the character and constituents

thereof: _And provided further_, That nothing in this act shall be

construed as requiring or compelling proprietors or manufacturers of

proprietary foods which contain no unwholesome ingredient to disclose

their trade formulas, except in so far as the provisions of this act

may require to secure freedom from adulteration or imitation: _Provided

further_, That no dealer shall be convicted under the provisions of

this act when he is able to prove a written guaranty of purity, in

a form approved by the Secretary of Agriculture as published in his

rules and regulations, signed by the manufacturer or the party or

parties from whom he purchased said articles: _Provided also_, That

said guarantor or guarantors reside within the jurisdiction of the

United States. Said guaranty shall contain the full name and address

of the party or parties making the sale to the dealer, and said party

or parties shall be amenable to the prosecutions, fines, and other

penalties which would attach in due course to the dealer under the

provisions of this act: _Provided_, That when in the preparation

of food products for shipment they are preserved by an external

application applied in such manner that the preservative is necessarily

removed mechanically or by maceration in water or otherwise, the

provisions of this act shall be construed as applying only when said

products are ready for consumption.

[Sidenote: _Preservatives._]

[Sidenote: _Standards of Food Products._]

Sec. 7. That it shall be the duty of the Secretary of Agriculture to

fix standards of food products when advisable for the guidance of

the officials charged with the administration of food laws and for

the information of the courts, and to determine the wholesomeness or

unwholesomeness of preservatives and other substances which are or may

be added to foods, and to aid him in reaching just decisions in such

matters he is authorized to call upon the committee on food standards

of the Association of Official Agricultural Chemists, and such other

experts as he may deem necessary.

[Sidenote: _Manufacturer, Producer or Shipper Must Sell Samples._]

Sec. 8. That every person who manufactures or produces for shipment

and delivers for transportation within the District of Columbia or any

territory, or who manufactures or produces for shipment or delivers for

transportation from any state, territory or the District of Columbia,

to any other state, territory, or the District of Columbia, or to any

foreign country, any drug or article of food, and every person who

exposes for sale or delivers to a purchaser in the District of Columbia

or any territory any drug or article of food manufactured or produced

within said District of Columbia or any territory, or who exposes for

sale or delivers for shipment any drug or article of food received from

a state, territory, or the District of Columbia other than the state,

territory, or the District of Columbia in which he exposes for sale or

delivers such drug or article of food, or from any foreign country,

shall furnish within business hours and upon tender and full payment

of the selling price a sample of such drugs or article of food to any

person duly authorized by the Secretary of Agriculture to receive the

same, and who shall apply to such manufacturer, producer, or vender, or

person delivering to a purchaser, such drug or article of food for such

sample for such use in sufficient quantity for the analysis of any such

article or articles in his possession.

[Sidenote: _Penalty for Refusal to Sell Samples._]

Sec. 9. That any manufacturer, producer, or dealer who refuses to

comply, upon demand, with the requirements of section eight of this act

shall be guilty of a misdemeanor, and upon conviction shall be fined

not exceeding one hundred dollars, or imprisonment not exceeding one

hundred days, or both. And any person found guilty of manufacturing or

offering for sale, or selling, an adulterated, impure, or misbranded

article of food or drug in violation of the provisions of this act

shall be adjudged to pay, in addition to the penalties hereinbefore

provided for, all the necessary costs and expenses incurred in

inspecting and analyzing such adulterated articles which said person

may have been found guilty of manufacturing, selling or offering for

sale.

[Sidenote: _Act Does Not Interfere With Commerce Wholly Internal in any

State._]

Sec. 10. That this act shall not be construed to interfere with

commerce wholly internal in any state, nor with the exercise of

their police powers by the several states; but foods and drugs fully

complying with all the provisions of this act shall not be interfered

with by the authorities of the several states when transported from one

state to another so long as they remain in original unbroken packages,

except as may be otherwise provided by statutes of the United States.

[Sidenote: _Condemnation of Goods._]

Sec. 11. That any article of food or drug that is adulterated or

misbranded within the meaning of this Act, and is transported or being

transported from one State to another for sale, or if it be sold or

offered for sale in the District of Columbia and the territories of the

United States, or if it be imported from a foreign country for sale,

or if intended for export to a foreign country, shall be liable to be

proceeded against in any district court of the United States, within

the district where the same is found and seized for confiscation, by

a process of libel for condemnation. And if such article is condemned

as being adulterated or misbranded, within the meaning of this act,

the same shall be disposed of as the said court may direct, and the

proceeds thereof, if sold, less the legal costs and charges, shall

be paid into the Treasury of the United States, but such goods shall

not be sold in any state contrary to the laws of that state. The

proceedings of such libel cases shall conform as near as may be to

proceedings in admiralty, except that either party may demand trial by

jury of any issue of fact joined in such case; and all such proceedings

shall be at the suit of and in the name of the United States.

[Sidenote: _Authority to Investigate Original Packages by Permission of

Secretary of Treasury._]

Sec. 12. That the Secretary of Agriculture is authorized to investigate

the character and extent of the adulteration of foods, drugs and

liquors, and whenever he has reason to believe that articles are being

imported from foreign countries which by reason of such adulteration

are dangerous to the health of the people of the United States, or

of kinds which are forbidden entry into or forbidden to be sold or

restricted in sale in the countries in which they are made or from

which they are exported, or which shall be falsely labeled in any

respect either by the omission of the name of any added ingredient or

otherwise, or in regard to the place of manufacture or the contents of

the package, shall make a request upon the Secretary of the Treasury

for samples from original packages of such articles for inspection and

analysis; and the Secretary of the Treasury is hereby authorized to

open such original packages and deliver specimens to the Secretary of

Agriculture for the purpose mentioned, giving due notice to the owner

or consignee of such articles, who may be present and have the right to

introduce testimony; and the Secretary of the Treasury shall refuse

delivery to the consignee of any of such goods which the Secretary of

Agriculture reports to him have been inspected and analyzed and found

to be dangerous to health, or of kinds which are forbidden entry into

or forbidden to be sold or restricted in sale in the countries in

which they are made or from which they are exported, or which shall

be falsely labeled in any respect either by the omission of the name

of any added ingredient or otherwise, or in regard to the place of

manufacture or the contents of the package.

[Sidenote: _Delivery of Goods to Consignee May Be Refused by Secretary

of the Treasury._]

Sec. 13. This act shall be in force and effect from and after the first

day of September, Anno Domini nineteen hundred and four.

Passed the House of Representatives January 19, 1904.

Attest: A. MCDOWELL, _Clerk_.

This bill failed to pass the Senate both in 1904 and 1905.

INDEX

Addams, Jane, VIII, 40.

Adulteration of foods, 210-211, 222, 225, 230, 325 (Appendix V).

Alabama, child labor in, 35;

new statute in, 37;

nightwork in, 78;

illiterate children in, 86, 89;

age limit in, 91;

no factory inspectors in, 159.

Arkansas, 89.

Atkins vs. the State, 128.

Attendance agents, women as, 177.

Australian Federation, 198.

Boston, 8, 12, 14, 185-186.

Buffalo, 12, 14.

Bureau of Charities, Chicago, 40.

Bureau of Labor (U. S.), 99, 105.

California, 215, 81-89.

Cambridge, Mass., 23.

Canton Cotton Mill vs. Edwards, 256.

Census (U. S.), 70, 73, 81, 100, 197.

Chicago, V, VI, 21, 32, 39-40, 50, 58, 60, 72, 106, 142-144,

179-180,

184, 215, 217, 219, 254.

Children’s Protective Alliance in New Jersey, 54.

Christmas cruelties, 20, 30-33.

Colorado, 106, 134, 148, 152, 161-162, 169, 190-191, 193-194,

198-199.

Commission for Children (U. S.), 99-104.

Committee on Relations of Employer and Employee, 79-80.

Compulsory Education, in Alton, Ill., 51;

in Chicago, 58, 60, 184;

in New York and Pennsylvania, 73;

in Massachusetts, 86;

states having none, 89-90;

relation to child labor law, 96, 238.

Congestion of population, 109.

Constitution of the United States, 143, 146, 147-148, 152-153, 158,

163, 280 (Appendix III).

Consumers’ League seeks leisure for clerks, 106;

advocates early closing, 115;

inspector for, 120;

improvement achieved by, 126;

intervention by, 136, 202, 221, 243.

Delaware, child labor law, 80;

nightwork, 91;

nine hours day, 134.

Denver, women vote for all officials, 186-187, 190;

county judge of, 192;

voting mothers of, 193-194.

Department of Agriculture (U. S.), 99, 103.

Department of Education, 99.

Dependent families, 41, 49-50, 52, 249;

girl, 75, 110;

fathers, 13;

orphans, 76;

widows, 63, 66.

Disabled fathers, 13, 35, 39;

parent, 35, 39, 246;

relative, 35-39.

Divorce Reform League, 206.

Eliot, President Charles W., of Harvard University, 23.

Employers’ Liability, 102, 256 (Appendix I).

Factory acts, 89.

Factory inspector, VII, 6;

none in several states, 36-38, 40;

varying efficiency of, 56, 60, 64, 89, 97, 139;

women as, 177, 219, 225-226, 237, 239, 244, 246.

Florida, 88.

French Canadian children, 85.

General Federation of Women’s Clubs, 106.

Georgia, no child labor law, 33-34, 38;

Northern corporations in, 61;

eleven hours day, 63;

children in manufacture, 70;

rank in scale of states, 86;

illiteracy in, 82-89; age limit, 91;

competition with New England, 107, 134-135, 166;

women excluded from public life, 193;

supreme court decision in child labor case, 256.

Grover Cleveland, 106.

Hamilton Manufacturing Co. (120 Mass., 283), 154, 136.

Helena, Montana, 219-220.

Holden vs. Hardy, 128, 137, 145, 158, 160-161, 164, 233, 254, 280

(Appendix III).

Hull-House, VII, VIII, 40.

Idaho, women vote in, 198.

Illinois, VII;

child labor law of 1903, 30;

end of working day, 32;

age limit, 33;

children in mines, 38;

laws of 1891, 1893, 1897 and 1903, 39;

scholarships, 41;

Alton, 43;

children imported for work, 47;

ideals of immigrants, 58-61;

nightwork

prohibited, 63;

enforcement of child labor laws, 77;

eight hours day, 80;

position in scale of states, 85-88;

Supreme Court, 128;

working week 48 hours, 134;

decision in case Ritchie vs. the People, 139, 147, 142-144;

strikes in, 145, 158-160, 155-156, 158-159, 160-162;

girl in trade union, 181, 200, 219;

Ritchie vs. the People, 259.

Illiterate children, 4, 11, 36, 47, 54, 59;

in Pennsylvania, 73;

imported by relatives, 75;

in Chicago, 77;

in census of 1900, 81-89, 100.

Immigrants, 6, 11;

false ideals of parents, 58, 61;

Welsh miner’s experience, 69;

Russian girl in sweatshop, 75;

import illiterate children, 75;

women as inspectors of, 177;

in colonies, 183;

as purchasers, 214-215.

In re Jacobs, 230-231, 233, 238, 240-241, 244, 246-247, 253-255,

306 (Appendix IV).

Indiana, 85.

Infant mortality, 4, 100-101.

Institutions for children, 7;

records of, 17;

erroneously called private, 64;

dependents and delinquents together, 102;

competition with manufacturers in sewing trades, 124;

the sweating-system in, 130;

so-called reformatory, 205.

Inter-State Commerce Commission, 67.

Iowa, 93.

Italian, child immigrants, 11;

importation of children, 76;

in Massachusetts, 86;

girl in Chicago school, 180;

as purchasers, 214;

olive oil, 214, 216;

sewing in tenement, 237.

Juvenile court, observations regarding messenger service, 17;

insufficient number of, 102, 189.

Kansas, 39, 40, 41.

Kentucky, 37.

Label of trade union, cigarmakers, 126;

of cracker-bakers, 182;

tailors, 220, 240-243.

Licenses for tenement work, 8, 237-238.

Lochner _vs._ New York, 128, 159, 233, 254-255.

Louisiana, child labor in, 36;

age limit, 36;

rank in scale of states, 89, 91;

child labor bill introduced, 93.

London School Board, 176, 185, 188.

Maine, 91, 103.

Maryland, 88.

Massachusetts, ethical standards, 8, 61, 67;

rank in scale of states, 70;

child labor law age limit, 78;

hours of labor, 80;

illiterate children, 82-89;

needle trades in, 119;

competition with Georgia, 135;

powers of legislature, 136, 149;

protection of women engaged in commerce, 137;

strikes in, 145;

constitution of, 149-150, 155, 164;

educational qualification for voting, 173.

Mercantile inspection, 27, 169, 201-202.

Michigan, 68, 82-85.

Mississippi, 89, 134.

Missouri, 36, 39, 161.

Montana, 134.

Municipal milk supply, 224.

National Child Labor Committee, 106.

National Congress of Mothers, 106.

National Consumers’ League, recognition of clerks’ right to leisure,

106;

advocates Saturday half-holiday, 115;

inspector for, 120;

achievement of, 126;

demands leisure for young workers, 136;

changing industrial conditions affecting working women and

children, 202;

endeavor to form body of organized purchasers, 221;

label on women’s and children’s white muslin underwear, 243.

National Educational Association, 106.

Nebraska, 85, 91, 148, 152, 160.

Needle-trades, 8, 130, 240, 217-218, 231, 237.

Nevada, 81.

New Hampshire, 91, 82-84.

New Jersey, 37;

glass-bottle industry in, 52;

nightwork in, 53;

imported boys for glass works, 54;

thrift urged for children, 63;

children in manufacture, 70;

illiterate children, 82-88;

rank in scale of states, 82;

hours of labor, 134;

repeal of Fifty-Five Hours law, 154, 170.

New York, VII;

infant mortality in, 4;

begging infants in, 5;

kindergarten children working in tenements, 6;

subsidized institutions, 7;

child labor law of 1903, 11;

Child Labor Committee, 12;

penal code affecting telegraph boys, 18;

corporations having branches in the South, 61;

needle-trades subsidized, 64;

comparison with children in manufacture in Pennsylvania, 70-73;

illiterate children in, 82-88;

sweating system, 111;

Court of Appeals decision People _vs._ Orange Co.

Road Construction Co., 128;

hours of labor of children, 143, 137-138, 144, 160, 169;

insufficient schools, 187-188;

Foundling Asylum, 194;

clerks insufficiently protected, 200-202;

consumptive tenement-workers, 213, 215, 231, 233, 237, 244-245,

253;

in re Jacobs, 306 (Appendix IV).

New Zealand, 196-198.

Night inspections, 44, 96.

Night work, of newsboys, 15;

of telegraph and messenger boys, 20;

of children in retail trade, 30-33;

in manufacture, 34-36 and 45 _et seq._;

in glass works, 53 _et seq._, 71, 73;

in Pennsylvania and Rhode Island, 78;

in Illinois, 139, 143-144;

in Alabama, 169;

in New Jersey, 170.

North Carolina, child labor law of 1903, 35-37;

children in coal mines, 39;

in manufacture, 70;

rank in the scale of states, 82-89;

illiterate children, 82-89;

age limit, 91;

age of consent, 194.

North Dakota, 91.

Nurses’ Settlement, VII.

Ohio, 25, 85, 82-89.

Oregon, 85.

Orphans in the glass industry, 43;

maintenance of, 66;

a social and industrial phenomenon, 67;

imported to work, 76;

need of a Commission for Children, 100-102.

Parasite trades, 64-65.

Pauper, 49, 50, 52, 217, 253.

Pennsylvania, 56, 63;

children in manufacture, 70-78;

illiterate children, 80-89;

miners in, 159.

Pensions, 48, 101.

People _vs._ the Orange Co. Road Construction Co., 128.

Police matrons, women as, 177.

Probation officers, women as, 177.

Portuguese children, 86.

Poverty, 42, 50 _et seq._, 54, 58, 98, 220, 253.

Public Education Association of New York City, 173.

Pure Food bill, 325 (Appendix V.).

Registration of births, 100.

Retail Dealers’ Association of New York City, 169, 201.

Ritchie _vs._ the People, 128, 143, 145, 147, 155, 254-255, 259

(Appendix II.).

Rhode Island, 70, 78, 91.

Rochester, N. Y., municipal milk supply, 224.

Russian children, 11, 74, 76, 86.

Sanitary inspectors, women as, 177.

Scholarships for working children, 40-42, 50, 52.

School nurses, 177, 188.

South Australia, women vote in, 198.

South Carolina, 70, 87, 89;

age of consent in, 194, 216.

Speed, 43, 121-124, 159.

Strikes, 144, 168, 171, 182.

Sweating system, 159, 166, 210, 212, 218, 229, 231, 235, 240, 242,

250-251.

Syrian children, 186.

Texas, 36-37.

Thrift, 60, 63.

Trade agreements, 114, 127, 132, 134, 163, 165-167.

Trade unions, 53, 55, 90, 117, 126, 133, 165-167, 181, 198, 201,

216,

220-221, 238, 240, 242-245.

Traveling libraries in Wyoming, 197.

United States, 8, 33, 46, 60, 68, 186, 215, 253.

United States Census, 70, 81-85, 197.

United States Congress, 132, 206, 325 (Appendix V).

United States Commission for Children, 99-103.

United States Fish Commission, 101-102, 129-130.

United States Supreme Court, 106, 127-128, 132, 137, 141, 145, 148,

150-152, 155-157, 159-164, 167, 233-234, 254, 280 (Appendix

III).

Utah, 85, 146, 149-152, 154, 157, 161, 164, 198.

Vermont, 134.

Virginia, 35, 37, 82-85, 89, 91.

Washington, 85, 160-161.

West Virginia, 36, 88, 91.

Widows, 13, 35, 63, 66, 243, 248.

Wisconsin, 27, 70.

Women, as attendance agents, probation officers, police matrons,

176;

as inspectors of immigrants, 177;

as sanitary inspectors, tenement inspectors, 177;

as army nurses and school nurses, 177.

Women’s Trade Union League, 198.

Wyoming, 196-198.

THE CITIZEN’S LIBRARY OF ECONOMICS, POLITICS, AND SOCIOLOGY

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_12mo._ _Half Leather_ _$1.25 net, each_

=Monopolies and Trusts.= By RICHARD T. ELY, PH.D., LL.D.

“It is admirable. It is the soundest contribution on the subject

that has appeared.”--PROFESSOR JOHN R. COMMONS.

“By all odds the best written of Professor Ely’s work.”--PROFESSOR

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=Outlines of Economics.= By RICHARD T. ELY, PH.D., LL.D., author of

“Monopolies and Trusts,” etc.

=The Economics of Distribution.= By JOHN A. HOBSON, author of “The

Evolution of Modern Capitalism,” etc.

=World Politics.= By PAUL S. REINSCH, PH.D., LL.B., Professor of

Political Science, University of Wisconsin.

=Economic Crises.= By EDWARD D. JONES, PH.D., Junior Professor of

Commerce and Industry, University of Michigan.

=Government in Switzerland.= By JOHN MARTIN VINCENT, PH.D., Associate

Professor of History, Johns Hopkins University.

=Political Parties In the United States, 1846-1861.= By JESSE MACY,

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=Essays on the Monetary History of the United States.= By CHARLES J.

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=Colonial Government.= By PAUL S. REINSCH, PH.D., LL.B., author of

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=Democracy and Social Ethics.= By JANE ADDAMS, head of “Hull House,”

Chicago.

=Municipal Engineering and Sanitation.= By M. N. BAKER, PH.B.,

Associate Editor of “Engineering News.”

=American Municipal Progress.= By CHARLES ZUEBLIN, B.D., Associate

Professor of Sociology in the University of Chicago.

=Irrigation Institutions.= By ELWOOD MEAD, C.E., M.S., Chief of

Irrigation Investigations, Department of Agriculture.

=Railway Legislation in the United States.= By BALTHASAR H. MEYER,

PH.D., Professor of Political Economy, Univ. of Wisconsin.

=Studies in the Evolution of Industrial Society.= By RICHARD T. ELY,

PH.D., LL.D., author of “Monopolies and Trusts,” etc.

=The American City: A Problem in Democracy.= By DELOS F. WILCOX,

PH.D., author of “A Study of City Government.”

=Money: A Study of the Theory of the Medium of Exchange.= By DAVID

KINLEY, PH.D., Professor of Economics and Dean of the College of

Literature and Arts in the University of Illinois.

=The Foundations of Sociology.= By EDWARD ALSWORTH ROSS, PH.D.,

author of “Social Control,” etc.

=The Elements of Sociology.= By FRANK W. BLACKMAR, PH.D., Professor

of Sociology and Economics in the University of Kansas.

=Colonial Administration.= By PAUL S. REINSCH, PH.D., LL.B., author

of “Colonial Government,” “World Politics,” etc.

=An Introduction to the Study of Agricultural Economics.= By HENRY C.

TAYLOR, M.S.AGR., PH.D., Assistant Professor of Political Economy in

the University of Wisconsin.

=Some Ethical Gains through Legislation.= By FLORENCE KELLEY,

Secretary of the National Consumers’ League, New York.

=SOME ETHICAL GAINS THROUGH LEGISLATION.= By FLORENCE KELLEY,

Secretary of the National Consumers’ League, New York.

It is proposed to discuss in each of the four divisions of this

book the gain arising from the legislation already achieved in the

direction of recognizing and establishing the particular right

named in the title; and also the gain remaining to be achieved--our

American legislation being perhaps distinguished chiefly by its lack

of uniformity. The main divisions of the book will be: (1) The Right

to Childhood, (2) The Right to Leisure, (3) The Purchaser’s Right to

Knowledge. (4) The Right of Women to Vote.

IN PREPARATION FOR EARLY ISSUE

=NEWER IDEALS OF PEACE.= By JANE ADDAMS, of Hull House, Chicago,

author of “Democracy and Social Ethics.”

Miss Jane Addams has done a great work at Hull House; but her interests

and her influence extend beyond the bounds of that model social

settlement. The problems of democracy and of society at large have

engaged her attention, and have brought from her essays, lectures,

and other works in which readers and hearers have found sound ideas,

wise suggestions, and stimulating views--all set forth with unfailing

adherence to the highest ideals. The present volume gives expression to

the ripest and most mature results of her observations and studies.

=CUSTOM AND COMPETITION.= By RICHARD T. ELY, PH.D., LL.D., author of

“Outlines of Economics,” “Monopolies and Trusts,” etc.

=BRITISH CITIES AND THEIR PROBLEMS.= By MILO ROY MALTBIE, PH.D.

=INTRODUCTION TO SOCIAL THEORY.= By GEORGE E. VINCENT, PH.D., and

RALPH G. KIMBLE, PH.D.

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Transcriber’s Notes

Obvious punctuation errors and omissions have been corrected silently.

Page numbers in the Index referring to the preface were incorrect in the

original and have been corrected.

Page 94: “is able to real fluently” changed to “is able to read

fluently”

Page 146: “to rehabiliate” changed to “to rehabilitate”

Page 156: “the factories and wrokshops” changed to “the factories and

workshops”

Page 184: “pressure of businss” changed to “pressure of business”

Page 225: “the familar Italian label” changed to “the familiar Italian

label”

Page 257: “and guarding aginst” changed to “and guarding against”

Page 260: “factory or workship” changed to “factory or workshop”

Page 318: “leigslature has done” changed to “legislature has done”

Some ethical gains through legislation · 第 8 / 8 章