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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=Monopolies and Trusts.= By RICHARD T. ELY, PH.D., LL.D.
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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
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=Government in Switzerland.= By JOHN MARTIN VINCENT, PH.D., Associate
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=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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=Democracy and Social Ethics.= By JANE ADDAMS, head of “Hull House,”
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=Municipal Engineering and Sanitation.= By M. N. BAKER, PH.B.,
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=American Municipal Progress.= By CHARLES ZUEBLIN, B.D., Associate
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=Irrigation Institutions.= By ELWOOD MEAD, C.E., M.S., Chief of
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=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,
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=Money: A Study of the Theory of the Medium of Exchange.= By DAVID
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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.
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=Some Ethical Gains through Legislation.= By FLORENCE KELLEY,
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=SOME ETHICAL GAINS THROUGH LEGISLATION.= By FLORENCE KELLEY,
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It is proposed to discuss in each of the four divisions of this
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IN PREPARATION FOR EARLY ISSUE
=NEWER IDEALS OF PEACE.= By JANE ADDAMS, of Hull House, Chicago,
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adherence to the highest ideals. The present volume gives expression to
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=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”