show that the plaintiff was to some extent an Invalid before she was injured, and that the pain and disability she had suffered since should in part at least be attributed to previous Ill health. Robinson v. Waupaca, 77 Wis. 544, 46 N. W. 809.

And a verdict for the plaintiff for $700 in an action for a personal injury to a child not quite two months old, alleged to have caused her to become deaf and dumb, will not be set aside as Inadequate where her parents were both mutes, and the testimony was voluminous and conflicting, consisting largely of that of experts, and there was a conflict as to whether the injury caused her condition, or as to whether it was hereditary. Davis v. Central R. Co. 60 Ga. 329. So, a verdict for the plaintiff in an action to recover for a year's service for a sum less than full wages will not be disturbed where there was proof of misconduct, but that the plaintiff was not discharged, and it does not appear for what length of time of service the verdict had been given, as the jury may have taken the misconduct into the estimate under the quantum meruit. Scott v. Baldwicke, 2 MIII, Const. 410.

And a new trial on writ of inquiry on a covenant to pay a certain sum, and a grant that upon default it should be lawful for the covenantee to enter and take profits, will not be granted because the damages are too small, where entry and taking profits are pleaded, unless there was some trick or contrivance in the case. Anonymous, 2 Salk. 647.

And a new trial will not be granted on the ground that the small amount of damages shows that the jury must have come to a compromise, In an action against the defendant for excavating under his own house and removing his own soil, whereby the plaintiff's house was deprived of support and sank, unless from the circumstances of the case it is evident that there was a total refusal on the part of the jurors to discharge their duty, and the verdict is necessarlly wholly inconsistent, and it will be sustained where there was some color for the view that some of the injury might have arisen from the plaintiff's house being built upon a foundation that gave way. Richards v. Rose. 24 Eng. L. & Eq. 406, 9 Exch. 218, 23 L. J. Exch. N. S. 3, 17 Jur. 1036, 2 C. L. Rep. 311.

So, a nominal verdict for the plaintiff in an action against a bailee for injury to and destruction of goods will not be set aside on the ground that the damage must have been more, or there was no cause of action, where it is possible to reconcile the verdict as the result of an opinion that although the negligence or misconduct of the plaintiff had not occasioned the injury, it had in some way contributed to it. Mostyn v. Coles, 7 Hurlst. & N. 872, 31 L. J. Exch. N. S. 151, 10 Week. Rep. 355.

And a new trial will not be granted on the ground that the verdict was perverse, in an action for negligently driving against and killing the plaintiff's horse proved to be worth £30, because the jury gave a verdict for only £15, though the court was of the opinion that the damages were too small, where there was strong evidence to negative negligence on the part of the defendant, and some evidence of negligence on the part of the plaintiff. Hawkins v. Alder, 18 C. B. 640.

So, in Flanders v. Meath, 27 Ga. 358, the court refused to set aside a verdict for the plaintiff for $50 in an action for personal injuries received by being run over by a dray, where there was evidence of negligence on the part of the plaintiff, upon the theory that where both

parties were in fault but small damages should be awarded.

In Wilson v. Hicks, 26 L. J. Exch. N. S. 242, however, which was an action on a charter party for not loading a cargo, the captain of the vessel having been directed to go to a desig. nated place, but as no cargo could be obtained there, he was requested to go back to the place he came from or elsewhere with the hope of obtaining a cargo, which he declined to do, and remained inactive until the time for loading had elapsed, the amount of freight lost being £2,750, a verdict for £500 was set aside as too low, notwithstanding a direction to the Jury that if they deemed the master's conduct unreasonable they might diminish the damages on that account on the theory that the jury had acted unreasonably and arbitrarily.

And a verdict for one dollar in an action for damages for an alleged nuisance will be set aside as not supported by the evidence, where it appears that the plaintiffs were largely and seriously damaged by water flowing on to and over their land, and that a large part of the water was caused to flow there by the acts of the defendants, though a part of the flow was other wise caused, where there was nothing to warrant a finding that all of the damage was done by the water coming from the other source. Learned v. Castle, 78 Cal. 454, 21 Pac. 11, 18 Pac. 872.

VI. Who entitled to relief.

As a general rule, where the jury gives the plaintiff less than he is entitled to recover upon the finding of the issues, it is an error of which the plaintiff alone can complain, and if he submits to the verdict, the defendant cannot be heard to insist that it shall be set aside be

cause it is unjust to the plaintiff. Wolf v Goodhue F. Ins. Co. 43 Barb. 400; Lamberty v. Roberts, 31 N. Y. S. R. 148, 9 N. Y. Supp. 607.

And a verdict in an action for damages in favor of the plaintiff will not be set aside at the Instance of the defendant because it was for one half of the amount that the plaintiff claimed was due him, though the evidence as to the amount due was uncontradicted. Alderman v. Cox, 74 Mo. 78.

A party against whom a verdict is rendered Is not entitled to a new trial upon the ground that the other party ought to have recovered more or nothing. Wright v. Griffey, 44 Ill. App. 115.

And a new trial will not be granted at the instance of the defendant where the plaintiff recovered apparently less, rather than more, than the evidence warranted. Smith v. Lee, 82 Ga. 674, 10 S. E. 201.

And a verdict in an action upon an insurance policy in which it was claimed that the insured set fire to the property himself, and that he was guilty of fraud and perjury in preparing the preliminary proofs, will not be set aside on motion of the defendant because it is for less

than the amount of the policy, upon the theory

that the fact that it was less furnishes evidence leged, where the motion for a new trial virtually that he was guilty of the fraud and perjury alconcedes that if the verdict had been for the whole amount insured it could not be disturbed. Wolf v. Goodhue F. Ins. Co. 43 Barb. 400.

And the allowance of a counterclaim asserted by the defendant where the court had withdrawn it from the consideration of the jury is not a ground for a new trial on motion of the defendant; the plaintiff is the only one who can complain. Wood v. Belden, 54 N. Y. 658.

It has been held, however, that a verdict for

a much less sum, in an action on contract in which the plaintiff was entitled to recover his whole claim or nothing, will be deemed to show that the jury, in determining the case, either wholly disregarded the evidence, or misapprehended its effect, or overlooked some important fact, or necessarily found some fact in favor of defendant, which is wholly inconsistent with a verdict for any amount in favor of the plaintiff, and may therefore be set aside, even on motion of the defendant. Powers v. Gouraud, 19 Misc. 268, 44 N. Y. Supp. 249.

But the defendant cannot complain because the plaintiff did not recover against him as large a verdict as he was entitled to unless the amount of the verdict shows that the jury in determining the case either wholly disregarded the evidence, or misapprehended its effect, or overlooked some Important fact, or must have necessarily found some fact in favor of the defendant which is wholly inconsistent with a verdict for any amount in favor of the plaintiff; and a verdict for the plaintiff will not be set aside on such an application upon the ground that if plaintiff was entitled to recover at all he should have recovered more, where a counterclaim was pleaded and evidence given to support it, and the jury was charged that if they should find in favor of the plaintiff on such pleading they should deduct the amount they found him entitled to from the amount which the plaintiff would otherwise be entitled to. Harton v. Bloom, 1 Jones & S. 115.

So, the court possesses the power at common law to grant a new trial on its own motion, and the power is not limited to cases where the error is that of the court, or where there is misconduct of the jury, but extends to an award of insufficient damages in an action for personal injury. Fort Wayne & B. I. R. Co. v. Wayne Circuit Judge, 110 Mich. 173, 68 N. W. 115.

A plaintiff not entitled to recover at all, however, cannot have a verdict in his favor set aside because the damages are inadequate. O'Malley v. Chicago City R. Co. 33 Ill. App. 854, 30 Ill. App. 309; Lovett v. Chicago, 35 Ill. App. 570; Hubbard v. Mason City, 64 Iowa, 245, 20 N. W. 172; Gray v. Second Ave. R. Co. 65 N. Y. 501.

And a judgment to which the plaintiff was not entitled will be affirmed on appeal taken on the ground that the damages were inadequate where the defendant entered no motion for a new trial. O'Malley v. Chicago City R. Co. 30

Ill. App. 309.

But in Galther v. Kansas City, etc., R. Co. 27 Fed. Rep. 545, a verdict for $250 for the plaintiff in an action for a personal Injury caused by negligence, though accepted by the defendant, was set aside on motion of the plaintiff made upon the ground that it was inadequate, where the case was such that if the defendant had asked a new trial the court would have granted it on the ground that the verdict was given to the plaintiff merely through sympathy for a poor man.

A new trial will not be granted in an action by a father for the death of his minor child alleged to have been caused by negligence on account of the smallness of the damages, where, if the child had lived and brought the action, he would not have been entitled to a new trial on that ground, as the father, under Ind. Code, 784, stands in the place of the child as to the right of action. Gann v. Worman, 69 Ind. 458. See also Rafferty v. Missouri P. R. Co. 15 Mo. App. 559, infra, IV. e, 2.

VII. Matters of procedure.

An application to set aside a verdict on the

ground of inadequacy may be properly made to the judge who tried the cause. Piatz v. Cohoes, 8 Abb. N. C. 392.

And the trial judge may entertain a motion for a new trial on the ground of inadequacy of the verdict upon his minutes, and need not compel the plaintiff to take the more formal proceeding of moving at special term upon a case made at the first instance for that purpose. McDonald v. Walter, 40 N. Y. 551; McKeever v. Weyer, 11 N. Y. Week. Dig. 258; Emmons v. Sheldon, 26 Wis. 648.

McDonald v. Walter, 40 N. Y. 551, supra, apparently overrules Moore v. Wood, 19 How. Pr. 405, holding that N. Y. Code, § 264, does not permit a motion for a new trial upon the ground that the damages were inadequate to be heard upon the justice's minutes, the only remedy of the plaintiff in such a case being by a motion for a new trial upon a case.

But a motion for a new trial for inadequacy of damages must be made either at special term or upon the minutes, the proceeding to obtain a new trial being analogous to that to obtain one for excessive damages. Carpenter v. Beare, 4 Hun, 509.

And where a party in whose favor a verdict was rendered depends upon the circumstance that it was too small, he may rely upon the ground that the verdict was not sustained by the evidence on a motion for a new trial. Bennett v. Hobro, 72 Cal. 17, 13 Pac. 473: Du Brutz v. Jessup, 54 Cal. 118; Emmons v. Sheldon, 26 Wis. 648; Gartner v. Saxon, 19 R. I. 461, 36 Atl. 1132.

And the ground on which the courts set aside verdicts and grant new trials for the reason that the damages are inadequate under statutes similar to the Minnesota act is that such verdicts should be treated as not supported or justified by the evidence. Henderson v. St. Paul & D. R. Co. 52 Minn. 479, 55 N. W. 53.

It has been held, however, that passion or prejudice of a jury exhibited by the rendition of a verdict for insufficient damage is not proper as an independent ground for setting aside a verdict, where the whole matter is statutory. and there is no provision authorizing the setting aside of a finding on that ground. Benjamin v. Stewart, 61 Cal. 605.

And that the rendition of a judgment for a smaller amount than that to which the successful party appears from the evidence to be entitled does not go to the question of the sufficiency of the verdict upon a motion for a venire de novo. Paxton v. Vincennes Mfg. Co. 20 Ind. App. 253, 50 N. E. 583.

And in Moore v. Wood, 19 How. Pr. 405, It was held that a verdict upon insufficient evidence means a verdict for a party upon evidence insufficient to establish his right to recover, and which therefore ought not to stand; and a party cannot move to set aside a verdict in his own favor because of inadequacy on the ground that the evidence was insufficient to sustain it. But see supra, McDonald v. Walter, 40 N. Y. 551.

Where a motion is made to set aside a verdict for inadequacy of damages on the statutory ground of insufficiency of the evidence to justify the verdict, the statement must specify the particulars in which the evidence is alleged to be insufficient, and if such particulars are not stated, the motion will be disregarded. Benjamin v. Stewart, 61 Cal. 605.

But specifications that the Injuries of the plaintiff were very serious, and that the sum found by the jury was unreasonable and grossly inadequate, are sufficient on motion for a new trial on the ground that the verdict was not

sustained by the evidence. 72 Cal. 178, 13 Pac. 473.

And specifications on motion for a new trial, made on the ground that the evidence is insufficient to justify the verdict, that by the evidence it is shown that the plaintiff was wrongfully assaulted and beaten, and that he was previously in good health and able to earn $60 per month, and that the injuries resulted in the loss of his arm and great physical and mental pain, and rendered him unable to earn his support, and that the verdict for $500 was wholly inadequate, are sufficient. Townsend v. Briggs, 88 Cal. 230, 26 Pac. 108.

That a judgment was rendered for too small a sum is no ground for a writ of error; the remedy is by petition for a new trial under the statute. Whitwell v. Atkinson, 6 Mass. 272.

And an omission to make a motion for a new trial on the ground of inadequacy of damages is fatal to a proceeding by appeal where the appeal rests entirely upon the inadequacy of the sum named by the jury and upon the plaintiff's right to a new trial for that reason. Carpenter v. Beare, 4 Hun, 509.

But where a verdict is set aside the appellate court will usually sustain the action of the trial court on the principle that such motions are addressed to the sound discretion of the court. Lefrois v. Monroe County, 88 Hun, 109, 34 N. Y. Supp. 612; O'Shea v. McLear, 15 N. Y. Civ. Proc. Rep. 69, 1 N. Y. Supp. 407.

And the court of appeals in New York will not review the discretion of the court on this ground. Jung v. Keuffel, 144 N. Y. 381, 39 N. E. 340.

And the appellate court is not justified in reversing the action of an inferior court on a motion for a new trial on that ground unless It appears that the discretion vested in the lower court had been abused. McKeever v. Weyer, 11 N. Y. Week. Dig. 258.

Or that the discretion was unreasonably exercised.. Chouquette v. Southern Electric R. Co. (Mo.) 53 S. W. 897; Lee v. George Knapp & Co. 137 Mo. 385, 38 S. W. 1107.

But see BENTON V. COLLINS, holding that the discretion of the trial court is not reviewable on appeal.

And to entitle a party to have a judgment In his favor reversed it must appear that he was deprived of his full right by some error of the court, and not by his own neglect, and where a verdict gives the plaintiff damages for only a portion of the time to which he is entitled, and this is not in consequence of any erroneous instruction, but of a mere omission, his remedy is not to enter a judgment on such verdict and then reverse it on error, but he should move either for a new trial or that the jury be directed to amend and complete the verdict, and If he goes on and enters judgment in his own favor for such sum as the verdict finds, he cannot then reverse it because the rest was not included. Newton v. Allis, 16 Wis. 198.

The appellate powers of the court of common pleas in New York with respect to appeals from the general term of the marine court are similar to those of the court of appeals in cases of appeals to that court, and the same rules must obtain, and if the general term of the marine court sets aside a verdict upon the ground that It was the result of a compromise, having the power to do so in the exercise of its discretion, the court of common pleas can only consider upon appeal the exceptions taken during the trial, and cannot correct the error of the jury. Rowe v. Comley, 11 Daly, 318.

So, refusal of the court below to grant a new trial upon the ground that the verdict was too

The grounds for awarding a new trial under 1 Va. Rev. Code, 510, § 96, authorizing it where the damages found are manifestly small, need not be stated on the record. Rixey v. Ward, 3 Rand. (Va.) 52.

And an order stating that a verdict for the plaintiff for nominal damages had been returned, and that a motion on behalf of the plaintiff was made upon the minutes of the court for a new trial, but that such motion was denied, sufficiently discloses the fact that the motion was made for inadequacy, to warrant the consideration of that ground on appeal. Cowles v. Watson, 14 Hun, 41.

So, while the general rule is to require the party obtaining an order for a new trial to pay costs where the damages found by the jury are so small as to force upon the mind the conviction that by some means the jury acted under the influence of a perverted judgment, the court might properly relieve the party from such payment. Emmons v. Sheldon, 26 Wis. 648.

And the cost of a former trial in an action for damages for negligence in which a verdict of six cents was set aside and a new trial granted because substantial damages were proved on the ground that it was against the evidence, and also the cost of subsequent proceedings and of the appeal from the order setting aside the verdict, will be regarded as costs of the cause to abide the event. Robbins v. Hudson River R. Co. 7 Bosw. 1.

But the payment of the costs of the first trial is a condition precedent to the second trial, under a judgment awarding a new trial for inadequacy, under 1 Va. Rev. Code, 510, § 96, though the judgment directing the payment of the costs says nothing about when they shall be paid. Rixey v. Ward, 3 Rand. (Va.) 52.

VIII. Increase of verdict by court.

In some of the early English cases the court, instead of granting a new trial for inadequacy of damages, claimed and exercised the power to increase the verdict given to such an amount as It deemed just.

Thus, in Brown v. Seymour, 1 Wils. 5, it was held that the court had discretionary power, in an action for damages for mayhem, to increase the damages given by the jury, though the declaration was generally for an assault, battery, and mayhem without any description of the mayhem, but that the court must take into consideration all the circumstances of the case, and that where the plaintiff did not appear to have received great damage a verdict for £150 was enough where it appeared that great provocation was given.

So, in Cook v. Beal, 1 Ld. Raym. 176, 3 Salk. 115, it was held that in an action for a battery if the wound was visible and the damages are inadequate the court will increase them either after verdict or writ of inquiry, though the wound was not technically described in the declaration as a mayhem, although in fact it was not one, provided the declaration particularizes it, or the judge at nisi prius makes a certificate of it either by indorsement or by word of mouth, but not unless the plaintiff appears in person, and the judge at nisi prius cannot increase the damages.

This practice, however, seems to be obsolete

in England. See English cases of more recent date set forth supra in this note. But it seems to be the rule in Louisiana though that state derives its jurisprudence from the civil, and not the common, law.

Thus, in Louisiana it is a matter within the discretion of the court to Increase the verdict of a jury when it is satisfied that the jury have falled to do justice, though the court rarely finds occasion to do so. Caldwell v. Vicksburg, S. & P. R. Co. 41 La. Ann. 624, 6 So. 217; Sullivan v. Vicksburg, S. & P. R. Co. 39 La. Ann. 800, 2 So. 586.

And in Caldwell v. Vicksburg, S. & P. R. Co. 41 La. Ann. 624, 6 So. 217, a verdict in an action for a personal injury for $1,000 was amended by the court by increasing it to $2,000 upon the ground that, considering the expenses and trouble incurred by the plaintiff for medical attendance and in the necessary prosecution of his legal right, the sum allowed would leave him no compensation for his sufferIng and injury at all commensurate with their serious character.

And in Sullivan v. Vicksburg, S. & P. R. Co. 39 La. Ann. 800, 2 So. 586, a verdict in an action for personal injuries for $100 was amended by the court by increasing it to $600, where the plaintiff was knocked senseless and his ear cut In two, and he received a gash on his head, and his face was bruised, and his leg severely sprained, and he was laid up for several days suffering great pain, and did not recover for some weeks, and incurred expenses for board and medical treatment.

In some, if not all, the other states, however,

the court on a motion for a new trial for inadequacy of damages may direct that a new trial will be allowed unless the defendant will consent that the verdict shall be raised to the amount shown by the instrument sued on to be due, and upon such consent being given may enter judgment accordingly. James v. Morey, 44 Ill. 352.

And see Richards v. Sandford, 2 E. D. Smith, 349, supra, IV. e, 2.

And the defendant against whom a judgment was rendered may, on motion for a new trial on the ground of inadequacy of damages, obviate the error where the amount for which the verdict should have been found can be ascertained by computation by agreeing to increase the verdict to the proper amount. Carr v. Miner, 42 Ill. 179.

And the supreme court may, on appeal, correct a judgment in an action for damages for the appropriation of land under the right of eminent domain, where it appears that interest had not been allowed in the court below, where it should have been, without reversing and remanding the case. Alloway v. Nashville, 88 Tenn. 510, 8 L. R. A. 122, 13 S. W. 123.

But the practice of directing a new trial unless the defendant will consent to an increase of the verdict to the proper amount should be sparingly indulged in, and never adopted except in clear cases. Carr v. Miner, 42 Ill. 179.

As to the power of appellate courts to interfere with verdicts for excessive damages, see note to Burdict v. Missouri P. R. Co. (Mo.) 26 L. R. A. 384. F. H. B.

1.

Re Thomas A. MORGAN.

(........Colo.........)

Regulations authorized by Const. art. 16, for the proper ventilation of mines, for escapement shafts, "and such other appliances as may be necessary to protect the health and secure the safety of the workmen therein," embrace only such reasonably necessary mechanical appliances as will secure the end in view, and do not include other kinds of health regulations. 2. A statute making it unlawful to work more than eight hours per day in minés or smelters is in violation of Const. art. 2, 3, guaranteeing liberty and the right to acquire, possess, and protect property.

8.

4.

the United States, holding that an eighthour law of a certain state does not violate the Federal Constitution, is not binding on the courts of another state in favor of the validity of such a law under the Constitution of that state.

(July 17, 1899.)

APPLICATION for a writ of habeas cor

pus to obtain the release of petitioner from custody to which he had been committed for violation of a statute regulating the hours of labor in mining occupations. Petitioner discharged.

Statement by Campbell, Ch. J.:

At a preliminary examination before a justice of the peace upon a charge of con

Legislation to protect a citizen

against the consequence of his own acts is not within the constitutional exercise of the police power.

A decision of the Supreme Court of NOTE. As to statutory limitation of hours of labor, see People v. Phyfe (N. Y.) 19 L. R. A. 141, and note; also note to State v. Loomis, (Mo.) 21 L. R. A. on page 796; Low v. Rees Printing Co. (Neb.) 24 L. R. A. 702; Ritchie v. People (II.) 29 L. R. A. 79; State v. McNally (La.) 36 L. R. A. 533; Holden v. Hardy (Utah) 87 L. R. A. 103 (Affirmed in 169 U. S. 366, 42 L. ed. 780); State v. Holden (Utah) 37 L. R. A.

See also 47 L. R. A. 380.

eight hours per day, the defendant was committed to jail, in default of giving the required bail, and, to secure his liberty, has filed in this court his petition for a writ of habeas corpus. The prosecution was under § 2 of "An Act Regulating the Hours of 108; and Short v. Bullion, B. & C. Min. Co. (Utah) 45 L. R. A. 603.

As to statutory provisions to secure health and safety of employees, see State v. Hoskins (Minn.) 25 L. R. A. 759, and note; Consolldated Coal & Min. Co. v. Floyd (Ohio) 25 L. R. A. 848, and note; and People v. Smith (Mich.) 32 L. R. A. 853, and note.

Employment in Underground Mines, and in | Smelting and Ore Reduction Works, and Providing Penalties for Violations Thereof," passed by the twelfth general assembly, the material provisions of which are embraced in the first two sections:

"Sec. 1. The period of employment of working men in all underground mines or workings shall be eight (8) hours per day, except in cases of emergency, where life or property is in imminent danger.

"Sec. 2. The period of employment of working men in smelters, and in all other institutions for the reduction or refining of ores or metals, shall be eight (8) hours per day, except in cases of emergency, where life or property is in imminent danger."

nor v. Gascoigne, 11 Tex. 455; Giblin v. Jordan, 6 Cal. 418.

The supreme court of a state will "certainly not reverse itself but for an overwhelming conviction that it has committed a serious and palpable error."

Atchison, T. & S. F. R. Co. v. Farrow, 6 Colo. 498; People ex rel. Bentley v. Le Fevre, 21 Colo. 218, 40 Pac. 882; Harrow v. Myers, 29 Ind. 469; Carver v. Louthain, 38 Ind. 530; Lindsay v. Lindsay, 47 Ind. 283; Seale v. Mitchell, 5 Cal. 403.

Where an individual is of full age and sound mind, the attempt to assert paternalism over him is an invasion of the personal rights reserved to him by the Constitution.

Re House Bill No. 203, 21 Colo. 27, 39 Pac. 431; Re Eight Hours Bill, 21 Colo. 29, 39 Pac. 328; Low v. Rees Printing Co. 41 Neb. 127, 24 L. R. A. 702, 59 N. W. 362; Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; Ritch

ion:

Article 2:

"Sec. 1. That all political power is vested in and derived from the people; that all government, of right, originates from the people, is founded upon their will only, and is instituted solely for the good of the whole."

"Sec. 3. That all persons have certain natural, essential, and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property, and of seeking and obtaining their safety and happiness."

"Sec. 28. The enumeration in this Constitution of certain rights shall not be construed to deny, impair, or disparage others retained by the people."

Article 5:

Mr. Charles H. Toll, with Messrs. Wolcott & Vaile, Charles W. Waterman, and William W. Field, for petitioner: The unconstitutionality of this law is stare decisis in Colorado.

Re House Bill No. 203, 21 Colo. 27, 39 Pac. 431.

When a question is once clearly and positively decided in a certain way, the general public conform themselves to the law as laid down in that decision, and a repudiation of that decision, and the rendering of one directly contrary thereto, would destroy and unsettle all the rights arising under, and all the acts taken in reliance upon, the former decision.

Broom, Legal Maxims, 7th ed. 147; Syd

N. E. 454; Com. v. Perry, 155 Mass. 117, 14 L. R. A. 325, 28 N. E. 1126; Godcharles v. Wigeman, 113 Pa. 431, 6 Atl. 354; State v. Goodwill, 33 W. Va. 179, 6 L. R. A. 621, 10 S. E. 285; Braceville Coal Co. v. People, 147 Ill. 66, 22 L. R. A. 340, 35 N. E. 62.

A law such as the one under consideration is in violation of § 25 of the Bill of Rights, which declares "that no person shall be deprived of life, liberty, or property without due process of law."

It is for the courts, and the courts alone, to decide what are the proper subjects for the exercise of the police power, and the province, and only province, of the legislature is to determine whether the exigency exists which calls for the exercise of police power.

Tiedeman, Pol. Power, 1886, § 3, pp. 12, 13; Toledo, W. & W. R. Co. v. Jacksonville, 67 Ill. 37, 16 Am. Rep. 611; Lake View v. Rose Hill Cemetery Co. 70 Ill. 192, 22 Am. Rep. 71.

That police power can only be exercised to prohibit things which are hurtful to the health, safety, and welfare of society, the public at large, and cannot be exercised for the sole and special benefit of individuals or any special class or classes of individuals.

Tiedeman, Pol. Power, § 1, p. 4; 18 Am. & Eng. Enc. Law, 1st ed. p. 739.

Mr. John M. Waldron, also for petitioner:

The supreme court of this state clearly concedes the existence of personal immuni ties, fully reserved to the people at large.

Packer v. People, 8 Colo. 365, 8 Pac. 564. No department of the government possesses unlimited power under a Constitution like ours.

Greenwood Cemetery Land Co. v. Routt, 17 Colo. 163, 15 L. R. A. 369, 28 Pac. 1125; People ex rel. Connor v. Stapleton, 18 Colo. 583, 23 L. R. A. 787, 33 Pac. 167; Citizens' Sav. & L. Asso. v. Topeka, 20 Wall. 662, 22 L. ed. 461; State ex rel. Atty. Gen. v. Moores, 55 Neb. 480, 41 L. R. A. 624, 76 N. W. 175; Von Holst, Constitutional History