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of United States, $ 271; Cooley, Const. L. ed. 1115; Butchers' Union 8. 8. & L. 8. L. Lim. 5th ed. p. 208; Cincinnati, W. & 2. R. Co. v. Crescent City L. S. L. & 8. H. Co. 111 Co. v. Clinton County Comrs. 1 Ohio St. U. S. 759, 28 L. ed. 591, 4 Sup. Ct. Rep. 77 ; Parker v. Com. 6 Pa. 511; People ex rel. 652; Barbier v. Connolly, 113 U. S. 27, 28 Bolton v. Albertson, 55 N. Y. 50; Rathbone 1. ed. 923, 5 Sup. Ct. Rep. 357; Mugler v. v. Wirth, 150 N. Y. 459, 34 L. R. A. 408, 45 Kansas, 123 U. S. 663, 31 L. ed. 221, 8 Sup. N. E. 15; l'eople v. Morris, 13 Wend. 325; Ct. Rep. 273; Powell v. Pennsylvania, 127 People ex rel. Townsend v. Porter, 90 N. Y. U. S. 678, 32 L. ed. 253, 8 Sup. Ct. Rep. 75; People ex rel.Dunn v. Detroit Super. Ct. 992, 1257; Minneapolis & St. L. R. Co. v. Judge, 29 Mich. 228; State v. Constantine, Beckwith, 129 U. S. 29, 32 L. ed. 585, 9 42 Ohio St. 437, 51 Am. Rep. 833; West Sup. Ct. Rep. 207; Marchant v. PennsylvaPoint Water Power & Land Improv. Co. v. nia R. Co. 153 U. S. 390, 38 h. ed. 756, 14 State ex rel. Moodie, 49 Neb. 218, 66 N. W. Sup. Ct. Rep. 894; Hooper v. California, 6.
155 U. S. 648, 39 L. ed. 297, 15 Sup. Ct. The Colorado eight-hour act violates the Rep. 207; Magoun v. Illinois Trust & Sav. essential individual rights secured to the Bank, 170 U. S. 293, 42 L. ed. 1042, 18 Sup. people of this state by the provisions of the Ct. Rep. 594; Kentucky Railroad Таа bill of rights in undertaking to place re- Cases, 115 U. S. 321, sub nom. Cincinnati, strictions upon persons sui juris to enter N. 0. & T. P. R. Co. v. Kentucky, 29 L. ed. into contracts of employment for the prose- 414, 6 Sup. Ct. Rep. 57; yes v. Missouri, cution of a lawful business.
120 U. S. 68, 30 L. ed. 578, 7 Sup. Ct. Rep. Palmer v. T'ingle, 55 Ohio St. 423, 45 N. 350; Allgeyer v. Louisiana, 165 U. S. 578, E. 314; Ritchie v. People, 155 Hl. 98, 22 L. 41 L. ed. 832, 17 Sup. Ct. Rep. 427; Yick R. A. 79, 40 N. E. 454; Re Jacobs, 98 N. Y. Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 98, 50 Am. Rep. 636; Tiedeman, Pol. Power, 6 Sup. Ct. Rep. 1064; Re Dolph, 17 Colo. § 86; Waters v. Wolf, 162 Pa. 153, 29 Atl. 35, 28 Pac. 470; Re Lowrie, 8 Colo. 505, 9 646; Godcharles v. Wigeman, 113 Pa. 431, Fac. 489; Cooley, Const. Lim. 432 et seq. 6 Atl. 354; John Spry Lumber Co. v. Sault The right of contract with reference to Sav. Bank, Loan & T. Co. 77 Mich. 199, 6 business which is in itself lawful and propL. R. A. 204, 43 N. W. 778; State v. Good er is beyond legislative control, whether un. will, 33 'W. Va. 183, 6 L. R. A. 621, 10 S. E. der the guise of the exercise of police power 285; State v. Julow, 129 Mo. 163, 29 L. R. or otherwise. A. 257, 31 S. W. 781; Harding v. People, 160 Tiedeman, Pol. Power, p. 233; Cooley, Ill. 459, 32 L. R. A. 445, 43 N. E. 624; Fro- Const. Lim. 5th ed. p. 745; 2 Hare, Am. rer v. People, 141 Ill. 171, 16 L. R. A. 492, Const. Law, p. 779; Ex parte Newman, 9 31 N. E. 395; Ramsey v. People, 142 Ill. 380, Cal. 508; McCarthy v. New York, 96 N. Y. 17 L. R. A. 853, 32 N. E. 364; Millett v. 5, 48 Am. Rep. 601. People, 117 Ill. 294, 57_Am. Rep. 869, 7 N. The Colorado eight-hour act is not appliE. 631; Re Grice, 79. Fed. Rep. 627; Leep cable where the contract of hiring fixes the v. St. Louis, 1. M. & 8. R. Co. 58 Ark. 407, unit or period of employment on some other 23 L. R. A. 264, 25 S. W. 75; Braceville Coal basis than by the day, i. e., an express conCo. v. People, 147 Ill. 66, 22 L. R. A. 340, 35 tract of hiring by the hour, week, month, or N. E. 62; People v. Marx, 99 N. Y. 377, 52 year is not within its purview. Am. Rep. 34, 2 N. E. 29; People ex rel. Ty. Helphenstine v. Hartig, 5 Ind. App. 172; roler v. Warden of City Prison, 157 N. Y. | Bartlett v. Grand Rapids Street R. Co. 82 116, 51 N. E. 1006; People v. Budd, 117 N. Mich. 658, 46 N. W. 1034. Y, 1, 5 L. R. A. 559, 22 N. E. 670, 682; Messi's. David M. Campbell, Attorney State v. Fire Creek Coal & O. Co. 33 W. Va. General, Booth M. Malone, Daniel 188, 6 L. R. A. 359, 10 S. E. 288; Low v. Prescott, Calvin E. Reed, Dan B. Kees Printing Co. 41 Neb. 127, 24 L. R. A. Carey, Thomas M. Patterson, and John 702, 59 N. W. 362; People v. Gillson, 109 N. H. Murphy for respondent. Y. 389; Tacoma v. Krech, 15 Wash. 296, 34 L. R. A. 68, 46 Pac. 255; Ex parte Jentzsch, Campbell, Ch. J., delivered the opinion 112 Cal. 468, 32 L. R. A. 664, 44 Pac. 803 ; of the court: Keim v. Chicago, 46 Ill. App. 445; Pasa- The petitioner challenges the validity of dena v. Stimson, 91 Cal. 238, 27 Pac. 604; the statute, as inhibited by the foregoing State v. Granneman, 132 Mo. 326, 33 S. W. clauses of the organic law. The position of 784; Eden v. People, 161 Ill. 296, 32 L. R. the attorney general is that it was passed as A. 659, 43 N. E. 1108; Ex parte Kuback, a health regulation, and may be vindicated 85 Cal. 274, 9 L. R. A. 482, 24 Pac. 737; as coning within the range of the police Cooley, Const. Lim. 5th ed. 486; Re Eight powers of the state. Four years before it Hours Bill, 21 Colo. 32, 39 Pac. 328.
became an act, this court, to an inquiry of A given legislative act may not be viola- the house of representatives of the tenth tive of any personal rights of the citizen, so general assembly as to the constitutionalifar as the Federal Constitution is con- ty of a bill reading, "Eight hours shall concerned, while at the same time the same act stitute a legal day's work for all classes of would unquestionably be adjudged void by mechanics, workingmen, and laborers em. the state judiciary as contravening the bill ployed in any mine, factory, or smelter of of rights of the state Constitution where any kind whatsoever in the state of Colorathe law was enacted.
do,” replied that it was “not competent for Patterson v. Kentucky, 97 U. S. 501, 24' the legislature to single out the mining, manufacturing, and smelting industries of ours shows that the latter probably con the state, and impose upon them restric- tains more restrictions upon the power of the tions with reference to the hours of their legislature than are to be found in any other employees from which other employers of la- instrument; and whether measured by the bor are exempt.” And it was further said decisions of the courts of that state, or as that the section "violates the right of par. the result of our own construction, we think ties to make their own contracts,-a right it clear that the general court of Massachuguaranteed by our bill of rights." Re setts has, in the field of legislation under reEight Hours Bill, 21 Colo. 29, 39 Pac. 328. view, much wider latitude, and is hampered The twelfth general assembly must have by fewer restrictions, than is our general been aware of this, and another decision con- assembly. cerning the power of the legislature to pass The extent and meaning of the act in what is called a "coal-screening bill,”—the question are not difficult of ascertainment, opinion being reported in 21 Colo. 27, and 39 though it is not a model of statutory comPac. 431 (Re House Bill No. 203)-in position. That it operates as a limitation which this species of legislation was con- both upon the employer and the employeo demned as hostile to the Constitution. But, seems clear. It forbids a certain kind of wholly disregarding these decisions, binding employment. There can be no employment alike on all departments of government, it without the concurring acts of him who proceeded to enact the measure now before contracts for employment and of him who us. Though it affords no justification for contracts to be employed. Both are within such legislative action in defiance of and the inhibitions of the enactment, and, if it against the solemn decision of this court, we is valid, each is liable to the penalty for presume the excuse that might be offered making the forbidden contract. The peti. therefor is that, after these decisions were tioner, therefore, as a laboring man, is prohanded down, in a sister state an act in the hibited from entering into a contract to same language was passed and approved by work in a smelter more than eight hours in its highest court, and, as is claimed, sanc any one day. If, in our Constitution, there tioned by the Supreme Court of the United was, as there seems to be in that of Utah, a States. Following the rule of stare decisis, specific affirmative provision enjoining upon we might content ourselves with a mere af- the general assembly the enactment of laws firmance of our previous announcements, to protect the health of the classes of work. made, as they were, upon full consideration; ingmen therein enumerated, it might be that but, in view of the importance of the ques. acts reasonably appropriate to that end tions involved, we have thought it best fully would not be obnoxious to that provision of to discuss the principles by which this act our Constitution forbidding class legislamust be tested.
tion; for it could hardly be said that a The question presented for our determina classification made by the Constitution tion is, Does the act under which the peti. itself was arbitrary or unfair, or that it tioner is being prosecuted violate any con- clashed with another provision of the same stitutional provision? In this resolution instrument inhibiting class legislation. The the provisions of our own Constitution must two provisions should be construed together, govern. Decisions of other jurisdictions, so as to harmonize, if that be possible under defining the limits of legislation under their sound canons of construction, and the gen. Constitutions, are not always to be followed eral clause forbidding class legislation elsewhere, upon the supposition that the night be regarded as qualified by the spesame limitations everywhere prevail. This cial one which authorizes such legislation in is illustrated in the answer of the judges of respect to the enumerated classes. Article the supreme judicial court of Massachusetts 16 of our Constitution is devoted to mining in response to an inquiry by the house of and irrigation, and § 2 directs that “the representatives as to the validity of a pro- general assembly shall provide by law for posed bill. In the course of the opinion, aft. the proper ventilation of mines, the con. er referring to the fact that legislation simi-struction of escapement shafts, and such lar to that proposed had been held by the other appliances as may be necessary to procourts in some states unconstitutional on tect the health and secure the safety of the different grounds, and without expressing workmen therein.". These regulations manan opinion as to the correctness of those de- ifestly embrace only such reasonably necescisions tested by the respective constitu- sary mechanical appliances as will secure the tions, the honorable judges said: “The end in view, and do not include other kinds legislative power granted to the general of health regulations. Whether this comcourt by the Constitution of Massachusetts mand, addressed to the legislature, to prois perhaps more comprehensive than that tect the health of these workmen by requirfound in the Constitutions of some of the ing the mines to be furnished with the apother states.”. Opinion of Justices in House pliances specified, does not restrict the lawBill No. 1,230, 163 Mass. 590, 28 L. R. A. making power to the things named, on the 344, 40 N. E. 713. A similar observation principle that when authority to do a parwas made by the supreme court of Illinois ticular thing is given, and the mode of doin Ritchie v. People, 155 Ill. 98, 29 L. R. A. ing it is prescribed, all other modes are ex79, 40 N. E. 454. It is peculiarly appropri- cluded, might be a material inquiry, where ate, we think, to our organic act. À com- the validity of the act was challenged by a parison of many other Constitutions with minor; but as that question relates to work. men in mines, and not in smelters, we pre- | to the paramount and sovereign right of the fer to put our decision upon impregnable state to exercise its police power to protect grounds that cover both cases. Be that as the public health; and to this, the principal it may, we have no constitutional provision question in this proceeding, we now address which authorizes the legislature to single ourselves. out workingmen in underground mines and The protection of the public health is smelters, and impose upon them restrictions mentioned neither in the body of the act as to the number of hours they shall work nor in its title, as is usually the case in simat these industries, from which workingmen ilar acts of other states. When it is clearin all other departments of industry are ex. ly perceived from the terms of an act that empt. To this effect is our decision in Re the thing prohibited necessarily affects the Eight Hours Bill, 21 Colo. 29, 39 Pac. 328; public health, it may not be necessary exand we have heard no argument in the case pressly to declare therein what the object at har, nor have we been cited to any au- of the act is; but, where the result is doubtthority, that leads us to a different conclu. ful, the object of the act ought, somewhere sion.
and somehow, to be stated, and, in accordThe act is equally obnoxious to the provi. ance with some decisions, must be thus prosions of our bill of rights, set out in the claimed, else the act will be held invalid on statement, which guarantee to all persons the ground that it is deceptive in not extheir natural and inalienable right to per pressing its real object. Possibly such decsonal liberty, and the right of acquiring, laration would not be conclusive that its possessing, and protecting property. Liber real character is what it is expressed to be, ty neans something more than mere free any more than the absence of a declaration dom from physical restraint. It includes would be that such was not its true nature. the privilege of choosing any lawful occu. Where there is a mandatory requirement in pation for the exercise of one's physical and the Constitution (Colo. Const. art. 5, § 21) mental faculties which is not injurious to that no bill except the general appropriation others. The right to acquire and possess bill shall contain more than one subject, property includes the right to contract for which shall be clearly expressed in the title, one's labor. The latter is essentially a the title of this act is at least questionable. property right. The arbitrary classification Certainly, unless "regulating the hours of of rights into rights of persons and rights employment” is synonymous with or equivaof things, made by Blackstone and other julent to “protecting the public health, the rists for purposes of convenience in treat- title would seem to be dubiously stated. ment, has been the occasion for hostile criti. But, as counsel have not made this point, cism by those favoring socialistic or pater- we pause only to mention, but not to decide, nal legislation. Employing the argumen- it. *It is upon the hypothesis, however, that tum ad honinem, they say that those deci. it is the duty of the judiciary to sustain sions in which courts have carefully guarded every act of the legislative department, if rights of property put property above the it can be done on any conceivable rational man. A moment's calm reflection will show constitutional ground, that, for the present the falsity of this charge. Property, as such, purpose, we assume with counsel for rehas no claim upon the protection of the spondent that the object of the legislature law. When a property right is spoken of, was the enactment of a health measure, and the right of some person over or concerning that in effectuating the same it has complied the property is meant. All rights recog. with the clause of the Constitution just renized by the law pertain to persons, natural ferred to. or artificial. The absolute rights are com- Starting, then, with the premise, which is monly designated as personal rights. They practically admitted to be true, that this act are such as are annexed to the person, like contravenes the constitutional provisions life and reputation, while property rights quoted in the statement, let us see if, notare those unconnected with the person, but withstanding this conflict, it can be justified which none the less belong to some person. as a valid exercise of the police power. It All rights, both those spoken of as personal is difficult to define, or with precision to deand those denominated as property rights, scribe, the police power. It has rarely been belong to the individual citizen; and, when attempted by the courts, and the attempt has it is said that property rights must not be never been attended with complete success. infringed, what is meant is merely that the Following the authorities, we may say that right of some person to or concerning prop- it extends to the protection of the public erty must not be interfered with. That this health. It is upon the specific ground that act infringes both the right to enjoy liberty limiting the time a workingman may labor and to acquire and possess property seems in a smelter to eight hours a day conduces too clear for argument. While not conced. to and preserves the health of the laborer ing that this limitation is not permissible, himself that this act is sought to be upheld. counsel for respondent, as we understand with sincere respect for the ability of the them, recognize the fact (but, if they do not, courts in whose opinions the remarks are the same is only too apparent) that these found, but with a profound conviction of natural rights are violated by the provisions their erroneous conception of the nature and of the act. The limitation is claimed to be limits of the police power, we submit that warranted on the ground that these and all much loose reasoning has been indulged in, other constitutional guaranties must yield and some decisions rendered that cannot be defended upon principle. As we understand cised, and the reasonableness of that exerit, the “police power” is the name given to cise. Tiedeman, Pol. Power, § 3; People that function of government by which is en- v. Jackson & M. Pl. Road Co. 9 Mich. 285; forced the maxim, sic utere tuo ut alienum Lake View v. Rose Hill Cemetery Co. 70 ill. non lædas. In Cooley, Const. Lim. 6th ed. 191, 22 Am. Rep. 71; 18 Am. & Eng. Enc. 710, we read that this maxim “is that which Law, 746 et seq.; People v. Gillson, 109 N. Y. lies at the foundation of the power.” Prof. 389, 17 N. E. 343. In that great repository Tiedeman, in his work on the Limitations of of constitutional learning, Cooley, Const. Police Power, in § 1, says: “The object of Lim., Judge Cooley, at page 208, 6th ed. well government is to impose that degree of re- says: “The maxims of Magna Charta and straint upon human actions which is nec- the common law are the interpreters of conessary to the uniform and reasonable con- stitutional grants of power, and those acts servation and enjoyment of private rights. which by those maxims the several depart
The conservation of private rights ments of government are forbidden to do can. is attained by the imposition of a wholesome not be considered within any grant or apporrestraint upon their exercise, such a re- tionment of power which the people in genstraint as will prevent the infliction of in eral terms have made to those departments.” jury upon others in the enjoyment of them.” This observation, as we take it, is as pertiHe further quotes with approval the lan. nent to the general police power vested in, guage of Judge Redfield in the case of though not expressly conferred upon, the Thorpe v. Rutland & B. R. Co. 27 Vt. 140, 62 legislature under written constitutions, as Am. Dec. 625: “This police power of the it is to some express power therein delegated. state extends to the protection of the lives, At page 711 of the same work is quoted with limbs, health, comfort, and quiet of all per approval the following language of Judge sons, and the protection of all property with Christiancy, found in his able opinion in in the state. According to the maxim, Sic People v. Jackson & M. Pl. Road Co. 9 Mich. utere tuo ut alienum non lædas, which being 285:, "Powers, the exercise of which can of universal application, it must, of course, only be justified on this specific ground (that be within the range of legislative action to they are police regulations], and which define the mode and manner in which every would otherwise be clearly prohibited by the one may so use his own as not to injure oth- Constitution, can be such only as are so ers." And Prof. Tiedeman immediately fol. clearly necessary to the safety, comfort, or lows this quotation with the statement that well-being of society, or so imperatively re"any law which goes beyond that principle quired by the public necessity, as to lead to which undertakes to abolish rights, the exer- the rational and satisfactory conclusion cise of which does not involve an infringe- that the framers of the Constitution could ment of the rights of others, or to limit the not, as men of ordinary prudence and foreexercise of rights beyond what is necessary sight, have intended to prohibit their exer. to provide for the public welfare and the cise in the particular case, notwithstanding general security—cannot be included in the the language of the prohibition would other. police power of the government.” It thus wise include it.” The opinion in Palmer. v. appears that, in proceeding under this l'ingle, 55 Ohio St. 423, 45 N. E. 313, discusspower, the legislature must choose proper
es the nature of the police power. Reservsubjects for its exercise, and must observe ing opinion as to the correctness of the de constitutional limitations just as closely as termination of the court in that case with when it enacts laws pertaining to the public reference to the law before it, which has been revenue, or provides for the exercise of the repudiated in Jones v. Great Southern Firepower of eminent domain. In our form of proof Hotel Co. 58 U. S. App. 397, 86 Fed. government, unlimited power does not ex. Rep. 370, 30 C. C. A. 108, its remarks in disist in any department (Prentice, Pol. cussing, one phase of the general subject, Powers, 267 ; Citizens' Sav. & L. A880. v. To meet with our approval. In reply to the arpeka, 20 Wall. 655, 22 L. ed. 455), and when- gument of counsel, who claimed the most ever the constitutionality of an act of any sweeping power of the legislature in restrictdepartment is challenged the judicial depart. ing the right of contract when the general ment is the final arbiter.
good requires it, the court said: “It may be Notwithstanding this general rule, we are restrained only in so far as it is necessary here met with the argument, and the asser- for the common welfare and the equal protection is baldly made, that in the exercise of its tion and benefit of the people. That such repolice power the legislature is subject to no straint of the right and liberty of contract restriction except its own unbridled discre- is for the common public welfare, and equal tion as to what subjects it may select for protection and benefit of the people, must apregulation, and the kind of regulation it may pear, not only to the general assembly, by prescribe. We cannot assent to this doc- force of popular clamor or the pressure of trine. It may find apparent sanction in un. the lobby, but also to the courts; and it must guarded expressions of text writers or in be so clear that a court of justice, in the judicial opinions, but it is contrary to every calm deliberation of its judgment, may be well-considered decision. It is for the legis. able to see that such restraint is for the comlature to determine the exigency (that is, mon welfare and equal protection and bene. the occasion) for the exercise of the power; fit of the people.” To the same effect, see but it is clearly within the jurisdiction of John Spry Lumber Co. v. Sault Sav. Bank, the courts to determine what are the sub- Loan & T. Co. 77 Mich. 199, 6 L. R. A. 204, jects upon which the power is to be exer- '43 N. W.778.
In the light of these principles every act welfare of less than the entire people. Our of this character must be tested. While in- bill of rights expressly says that government voking as a warrant for this act that phase is instituted solely for the good of the whole. of the police power extending to the public In this we must not be understood as limhealth, its supporters do not claim that its iting the legislature, where the facts justify real and primary object is to protect the pub apparent discrimination, in passing health lic health, or the health of that portion of laws affecting only certain classes. Indeed, the community in the immediate vicinity, or laws having for their object the protection affected by the operation, of smelters. If of small portions of a community have been that purpose is present at all, it is only so upheld, as in Northwestern Fertilizing Co. inferentially, and the means employed to se, v. Hyde Park, 97 U. S. 659, 24 L. ed. 1036, cure it are neither adequate nor appropriate. where a nuisance, obnoxious probably only The smelting of ores is a continuous process, to part of a village, was abated; but what we night and day, the year through. It is not mean to decide is that in a purely private, claimed that the business is injurious to pub- lawful business, in which no special privilege lic health. It would be absurd to argue or license has been granted by the state, and that, while the process itself is continuous, the carrying on of which is attended by no limiting the hours of those laboring in a injury to the general public, it is beyond the smelter in any wise conduces to preserve the power of the legislature, under the guise of health of any portion of the public. That is the police power, to prohibit an adult man to say, three shifts of laborers, working eight who desires to work thereat from working hours each, would affect the public health to more than eight hours a day, on the ground the same extent, if at all, as would two shifts that working longer may, or probably will, at twelve hours each. It is not contended injure his own health. Åh Lim v. Territory, that the business of smelting is unlawful; 1 Wash. 156, 9 L. R. A. 395, 24 Pac. 588, nor is it claimed that the act was passed to held valid an act of the territory providing prevent employers from perpetrating fraud that any person who smoked or inhaled opiupon employees, or to protect the latter from um was guilty of a misdemeanor, notwithtrespasses. Indeed, the only object that can standing the object, or at least one object, of rationally be claimed for it is the preserva- the act was to protect the smoker or inhaler tion of the health of those working in the himself from the effect of his own act. This smelters. Were the object the act to pro regulation was thought by three of the five tect the public health, and its provisions judges to be warranted by a provision of the reasonably appropriate to that end, it might organic act of the territory (no question of be sustained; for in such a case even the conflict with a state Constitution being in isconstitutional right of contract may be sue) extending, as they said, "the power of reasonably limited. But the act before us is the territorial legislature to all rightful subnot of that character. In selecting a subject jeots of legislation; and, when once we confor the exercise of the police power the legis. cede the rightfulness of the subject, the ex. lature must keep within its true scope. The tent and character of the legislation on that reason for the existence of the power rests subject cannot be called in question by the upon the theory that one must so use his own courts." Possibly some courts would uphold as not to injure others, and so as not to in such legislation, if confined to appropriate terfere with or injure the public health, cases, on the ground that smoking or inhalsafety, morals, or general welfare. How can ing opium was necessarily demoralizing to one be said injuriously to affect others, or society, degrading to public morals, and ininterfere with these great objects, by doing jurious to the general welfare. But the poan act which confessedly visits its conse- sition taken by the Washington tribunal, quences on himself alone? And how can an that courts cannot inquire into the character alleged law, that purports to be the result of an act, or question legislation, finds no of an exercise of the police power, be such in sanction in any well-considered case or standreality, when it has for its only object, not ard text-book. In the dissenting opinion the the protection of others, or the public health, true doctrine is recognized. In some of the safety, morals, or general welfare, but the other
found such expressions welfare of him whose act is prohibited, (dicta, it is true) as that the state has such when, if committed, it will injure him who an interest in each citizen that it may procommits it, and him only? The maxim does tect him against the consequences of his own not read, "So use your own right or prop-rashness, and, upon the theory that the state erty as not to injure yourself or your own is made up of the sum of all its parts, it property.” Perceiving the inconsistency may, for each individual, and for his supthat must follow an attempt to vindicate a posed good, prescribe any regulations that law on the principle that underlies the police are appropriate and suitable for the whole. power, counsel adroitly invoke the maxim, In other words, this theory is based upon the Salus populi suprema est lex. So far as we proposition that each part making up the can ascertain, no commentator and no judge whole includes the whole itself, in the same has ever sought to borrow this wholesome sense that the whole includes each part. maxim and use it as a prop to uphold a law This, in principle, is the same as the theory whose object is to protect a man against him that would authorize the state to prescribe self. The welfare of the people is indeed the any regulations it saw fit for keeping a citi. supreme law, but this maxini cannot be twist. zen out of its jails, hospitals, or poor-houses, ed to sustain a law violating private rights, I because it is a legitimate function of governwhich contemplates the promotion of the ment to levy and collect taxes to build such