quality of garments the citizen may wear, the quantity and quality of food he may eat, and the beverage he may drink. And, because one cannot support and properly edu institutions. The argument in support of such a theory is specious, and, while in one sense (but to a limited extent only) true, yet, like all argument from analogy, it is dangerous, and should be carefully circum-cate his family for less than a certain scribed. If the theory is correct, the state would be justified in prescribing the most minute details for the regulation of the personal conduct of individual citizens, as to things in no wise affecting the great public interests. Whenever a man fails in business, or loses a fortune by some great calamity, or droughts or floods destroy his crops, the legislature could levy a tax or make an appropriation, and therefrom establish him in business or make good the loss. The practical application of the theory would destroy the fundamental principles upon which our government is founded. Let us make some further applications of this principle, and see to what such legislation would lead. It is, of course, no objection to this act to say that hereafter the legislature may pass another act that is invalid. But if the principle of the decision by which the present one is saved, in its logical extension, will protect others that every rational mind will declare void, it is well to stop for reflection; for it is a question of power, and not discretion, we are now considering. The business of operating smelters and working underground mines is purely a private business. It is not affected with a public interest, or devoted to a public use. Even here the general and better rule is that regulations of such businesses are confined to their public side, and do not descend to interference in contracts and strictly private dealings between employers and employees. Hence smelting does not come within the operation of the principle of those decisions in which have been upheld reasonable regulations of a business affected by a public interest. If, to protect the health of workmen engaged in these two occupations, the legislature may limit them to eight hours' labor per day, it may hereafter, upon the ground that idleness, resulting from short hours of labor, leads to drunkenness and gambling, and industry, promoted by longer hours, to happiness and health, enact that workmen must labor at these occupations fourteen or sixteen hours per day; and by extending the same principle to other occupations, it may say, to use an illustration employed in argument, that a man weighing 120 pounds or less shall not work in a stone quarry, because only large and powerful men can safely work therein; that only men free from a tendency to tuberculosis shall work at indoor occupations, because those so afflicted need more pure air and sunshine than they can get if excluded from the open air; that only persons not needing the aid of eyeglasses shall become makers or repairers of watches, because labor, with such mechanical aids, upon delicate mechanisms, tends to destroy vision; or that those suffering from sluggish livers shall not engage in sedentary occupations, because their health demands active, muscular effort. Then it is only one step further to provide by law the style and amount of money, the legislature may declare that, to promote the general welfare, no employer shall contract to pay, or pay, anemployee less than an arbitrary wage, so fixed as to produce the required sum. Such and other illustrations that readily suggest themselves are germane, and each and every supposed act could be sustained upon the same principle that would make the act before us valid. If counsel's contention be sound, that, to promote the general welfare and protect the public health or safety, the legislature is above the Constitution, and brooks no restraint; if it is the sole judge, not merely of the exigency, but also of the subjects, for the exercise of the police power, and its reasonableness,--then, indeed, all these, and almost all other conceivable, regulations of private affairs are permissible. If we stop to consider the form of government under which we live, and what pains the framers of our organic acts took to protect the rights of the individual citizen, we would naturally expect to find that measures passed for the alleged protection of the citizen against the consequences of his own acts would clash with constitutional safeguards inserted therein to conserve the inalienable rights of man. This maxim, like many others, has been much abused; but restricting legislation to measures clearly within its scope is not abusing, but merely giving proper effect to, it. In this connection we notice-what has already been suggested-an argument pressed upon us in support of this species of legislation. We are told that the law is, to a large extent, a progressive science; that during our national existence many changes and reforms, both in procedure and in substantive law, have been made; and that to conform to the complex conditions of modern society, and to solve the many problems arising out of the industrial relations, many more such will likely take place, and the law will be forced to adapt itself to these new conditions, if society is to be kept together and government preserved. We are not disposed to dispute the accuracy of these observations, or the correctness of the prediction made, but we fail to perceive the force of the application to the statute in hand. Such legislation does not denote an advance in the law of the domestic relations. On the contrary, it is a distinct and emphatic return-a retrogression-to that period in English history when l'arliament busied itself in passing numerous acts interfering with the freedom of conscience in religious matters, and in prescrib ing minute regulations of the personal conduct of the individual, against which our an. cestors rebelled, and which was one among other causes that prompted them to found here a government under which it would be impossible thus to interfere with the purely private affairs of the citizen. Our conclusion as to the invalidity of this act is grounded upon principle. Let it now be tested by the authorities. Except as to | of labor for as many additional hours as she etc. In the Constitution of Utah there is an entire article (16) devoted to the rights of labor. For our present purpose, §§ 1, 6, and 7 only need be here reproduced. They are: "Sec. 1. The rights of labor shall have just protection through the laws calculated to promote the industrial welfare of the state." "Sec. 6. Eight hours shall constitute a day's work on all works or undertakings carried on or aided by the state, county, or municipal governments; and the legislature shall pass laws to provide for the health and safety of employees in factories, smelters, and mines. "Sec. 7. The legislature, by appropriate legislation, shall provide for the enforcement of the provisions of this article." the latter, for the court remarked that such tion as comes within the range of the general | his sacred rights of liberty, and freedom of police power, the court might enter to ascer- contract embraced in his right of property, tain if it accords with the Constitution. and his exemption from arbitrary and unjust This extract from the opinion of Zane, Ch. discriminations, all of which are guaranteed J., bears out our statement: "The provi- to him in the sections of our Constitution sion of the state Constitution quoted makes above quoted, are violated by this act. It it the duty of the legislature to 'pass laws is a mistaken notion that the 14th article of to provide for the health and safety of em- amendment to the National Constitution ployees in factories, smelters, and mines.' created any civil rights, or entitled citizens And we are not authorized to hold that the of states to transfer from the states to the law in question is not calculated and adapted Federal government their security and proin any degree to promote the health and tection. In a long series of decisions, beginsafety of persons working in mines and smel- ning with the Slaughter-House Cases, 16 ters. Were we to do so, and declare it void, Wall. 26, 21 L. ed. 394, and, among other we would usurp the powers intrusted by the great cases, in Patterson v. Kentucky, 97 U. Constitution to the lawmaking power." S. 501, 24 L.. ed. 1115; Butchers' Union S. H. State v. Holden, 14 Utah, 95, 37 L. R. A. 103, & L. S. L. Co. v. Crescent City L. S. L. & S. 46 Pac. 762. And the remark of Mr. Justice H. Co. 111 U. S. 746, 759, 28 L. ed. 585, 591, Brown in Holden v. Hardy, 169 U. S. 366, 42 4 Sup. Ct. Rep. 652; Barbier v. Connelly, 113 L. ed. 780, 18 Sup. Ct. Rep. 383, further cor- U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357; roborates it, when he said: "The supreme Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. court of Utah was of opinion that, if author- 220, 6 Sup. Ct. Rep. 1064; Powell v. Pennsyl ity in the legislature were needed for the vania, 127 U. S. 678, 683, 32 L. ed. 253, 8 Sup. enactment of the statute in question, it was Ct. Rep. 992, 1257; and Allgeyer v. Louisifound in that part of article 16 of the Consti- ana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. tution of the state which declared that 'the Rep. 427,-the Supreme Court of the United legislature shall pass laws to provide for the States has held, as well expressed by Miller, health and safety of employees in factories, J., in the Slaughter-House Cases: "The consmelters, and mines."" As the question is stitutional provision there alluded to did not not necessarily before us, perhaps we proper- create those rights which it called privileges ly withhold opinion upon it; but we are not and immunities of citizens of the states. It prepared to say, with counsel for petitioner, threw around them in that clause no security that this provision of the Utah Constitution for the citizen of the state in which they is so far different from ours that the former were claimed or exercised. Nor did it proinstrument will, and the latter will not, per- fess to control the power of the state govern. mit of such legislation. Rather we may say ments over the rights of its own citizens. that we are impressed with the able argu- Its sole purpose was to declare to the several ment of counsel appearing amici curia in be- states that, 'whatever those rights, as you half of the law, wherein they maintain, with grant or establish them to your own citistrong reasoning, that the presence in the zens, or as you limit or qualify, or impose Utah Constitution of article 16, on which restrictions on their exercise, the same, the Utah court founded its decision, adds neither more nor less, shall be the measure nothing to the power which the legislature of the rights of citizens of other states withwould have without it, unless it be, as we in your jurisdiction."" And by Field, J., in are disposed to concede, that its presence re- the Barbier Case: "Neither the amendment, moves the objection that otherwise might be made to an act on the ground that it is class legislation. However this may be, upon the claim that the decision of the state court in the Utah cases is a precedent for us, it is sufficient now to say that no effort was there made, as there is here, to vindicate the law as a valid exercise of the general unwritten police power, and for this reason the cases cannot be treated as authority. And since we are entitled to presume that the court there chose the the strongest, if not the only, ground on which to rest its determination, but little, if any, weight is to be given to the claim that the reasoning of the opinion supports respondent's contention that our act is in harmony with our own Constitution. It is chiefly on account of the authoritative character of decisions of the Supreme Court of the United States that we are asked to uphold this act. It goes without saying that if a Federal question were involved in the case at bar, and had been passed upon by that tribunal, our duty in the premises would be clear. But the petitioner does not invoke the protection of any provision of the national Constitution. He maintains that broad and comprehensive as it is,-nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power' to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity." See also 118 U. S. 365, 30 L. ed. 225, 6 Sup. Ct. Rep. 1064. And so long as any state observes the requirements of the 14th Amendment, and, in its legislation, gives to citizens of other states the same privileges and immunities that are enjoyed by its own citizens, and provides that no person shall be deprived of life, liberty, or property without due process of law, and affords to all persons within its jurisdiction the equal protection of its laws, the Federal courts cannot interfere therewith, even though the policy of the state be unwise, and its laws arbitrary and oppressive, and flagrantly in violation of the state Constitution. And so it might well be that a law is valid so far as a clause of the Federal Constitution is concerned, and yet be expressly inhibited by the Constitution of a sion is now, as before the 14th Amendment, ing upon a state court, when the same ques- state. It does not necessarily follow, there- party by virtue of the Federal Constitution In People v. Budd, 117 N. Y. 1, 5 L. R. A. 559, 22 N. E. 670, 682, we find, both in the majority and dissenting opinions, admirable statements of what consideration should be given by a state court to a decision of the Supreme Court of the United States on a question of constitutional law, where the point relates to the validity of a state statute claimed to be void because it deprives a citizen of life, liberty, and property without due process of law, and the decision sustains the validity of the law. Mr. Justice Andrews, speaking for the majority, thus states the rule: "Since the 14th Amendment, the question whether a state statute infringes the constitutional guaranty protecting life, We have made these extracts from the auliberty, and property, where it arises in a thorities chiefly for the reason that they furstate court, involves the consideration of nish a complete answer to the contention of both the Federal and state Constitutions, al- respondent's counsel that the decision of the though the ground of construction and de- Supreme Court of the United States in the cision is identical under either instrument. Holden Cases is, in the circumstances here But whether the decision of the state court present, a binding authority, or any author. presents a Federal question reviewable on ity, upon this court. In all such questions, appeal to the Supreme Court of the United when it is once determined that no Federal States depends on the nature of the decision question is involved, that is the end of the inof the state court; that is to say, whether it quiry by the Federal court. For the sake of affirmed the validity of the statute, or held brevity, we desire, in this connection (though it to be unconstitutional and void. If the the reference might be equally pertinent state court decides that the statute does vio elsewhere) to notice what Mr. Justice late the constitutional guaranty, its deci-Brown, who wrote the opinion of the ma 1 other words, as to whether a given act of a state legislature does or does not violate the Federal Constitution, the decision of the Supreme Court of the United States is supreme, to which all other tribunals must yield obedience. On the other hand, upon the question as to whether or not a state law is valid or invalid under a state Consti tution, the decision of the supreme court of that state is supreme and binding upon the Federal as well as the state courts, with well-recognized exceptions, not applicable here, as illustrated in Burgess v. Seligman, 107 U. S. 20, 33, 27 L. ed. 359, 365, 2 Sup. Ct. Rep. 10. In the light of these authorities it is clear First, that the decision of the supreme. court of Utah in construing the Utah statute is not an authority here, for the reason that the decision there was based entirely upon the mandatory nature of a provision of the Utah Constitution which is not present in our organic act; second, in affirming the judgment of the Utah court, the decision of the Supreme Court of the United States in the Holden Cases is not a precedent for this court in construing our act, for the reason that the sole question before the Federal court was whether or not the Utah act violated the Federal Constitution. If, however, it could be maintained that this affirmance was in effect a determination that the Utah law was in harmony with the Utah Constitution, the decision of the Federal court would not be an authority here, because we have no such constitutional provision. jority, said of these decisions of the various | 515; Carroll v. Carroll, 16 How. 275, 287, state courts declaring unconstitutional 14 L. ed. 936, 937, 2 Black, Judgm. § 611. In eight-hour statutes: "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 last sentence, removed from its proper setting, in its literal signification might seem to support respondent's contention that in exercising police power the legislature may override all constitutional limitations. If it be conceded, as it is not, that in the pending cause it was competent for that tribunal to make an announcement as to the power of the legislature in this connection that would bind the state courts, we think it clear that none such as is claimed here was made; for when this sentence is read, as it should be, with what immediately precedes and follows, it is not susceptible of the interpretation put upon it. What follows is a declaration that, if ti legislature has exercised a reasonable discretion its act will be enforced, but if its action is a mere excuse for an unjust discrimination, or the oppression of a particular class, it is a nullity. What precedes, indicates, in the view of the court, that no criticism could be made upon the decisions of these state courts. These considerations, coupled with the closing words of the opinion, in which it is said that "the act in ques- In State v. Peel Splint Coal Co. 36 W. Va. tion was a valid exercise of the police power 802, 17 L. R. A. 385, 15 S. E. 1000, the court of the state," are persuasive that the learned construed two acts,-one prohibiting any justice intended his language to have only corporation or person engaged in any busi the scope to which language in an opinion ness from paying its employees wages in any. must always be restricted, viz., the facts of thing but lawful money; the other provid. the particular case, and that therefore this ing that persons operating coal mines should language, which would seem to be general in weigh and measure coal at the place where its application, was intended to be restricted mined, before the same is screened; the forto a case in which there was express consti- mer being generally known as the "Scrip Act," tutional authority, as in Utah, for the enact- and the latter as the "Coal-Screening Act." ment of legislation like that then and now Both were held constitutional. It appears challenged. But, if we should be wrong in from the majority opinion that the decision, this construction, we must still for ourselves as stated by the court, was based upon two determine whether acts of our own legisla- propositions: First, that defendant was a ture are or are not in contravention of our corporation which, under the laws of West own Constitution. If the language used by Virginia, enjoyed unusual and extraordinary that august tribunal in Holden v. Hardy is privileges, which enabled it to surround itto be understood as limiting or defining how self with a vast retinue of laborers, who far a state legislature may go in the exercise needed to be protected against all fraudulent of the police power without transcending or suspicious devices in the weighing of coal any of the limits prescribed by the Federal or payment of labor; second, that the defendConstitution, we agree with counsel for pe-ant as a licensee was pursuing a vocation titioner that it was needful to the ascertain ment of the question before the court. But if it is not to be thus restricted, and if it was employed with the view of determining what are the true limits of the police power of a state under the provisions of the Constitution of that state, the remarks in that connection are wholly obiter, and not authority in that court itself, much less in any other jurisdiction. Wadsworth v. Union P. R. Co. 18 Colo. 600, 610, 23 L. R. A. 812, 33 Pac. which the state had taken under its general supervision for the purpose of securing the safety of employees by ventilation, inspection, and governmental report; and the defendant therefore must submit to such regulations as the sovereign thinks conducive to the public health, morals, or public security. Two of the four judges dissented, and in vigorous opinions, fortified by cogent reasoning, held both acts to be unconstitutional. Considering the grounds upon which the de |