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 circumscribed. 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.

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 cate his family for less than a certain amount of money, the legislature may declare that, to promote the general welfare, no employer shall contract to pay, or pay, an employee 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 legíslature 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

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 legis-law, have been made; and that to conform lature 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

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 Parliament busied itself in passing numerous acts interfering with the freedom of conscience in religious matters, and in prescribing minute regulations of the personal conduct of the individual, against which our ancestors 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 the penalty, the act is identical in terms with chooses in any one day, practically there is a law of Utah, which, in three cases in the no limit at all upon the length of time that supreme court of that state, has been held she may work, provided she can get employvalid; and in two of the cases, on writ of error ment. But the disposition made of the case from the Supreme Court of the United evades the real question. To one who deStates, the judgment of the state court has sires to devote her entire time and energies been affirmed. State v. Holden, 14 Utah, 71, in laboring at one particular occupation, in 37 L. R. A. 103, 46 Pac. 756, 14 Utah, 96, 37 which the legislature seeks to restrict her, L. R. A. 108, 46 Pac. 1105; Short v. Bullion it is no answer to say that her right to make B. & C. Min. Co. (Utah) 45 L. R. A. 603, 57 contracts for her labor is not curtailed bePac. 720; Holden v. Hardy, 169 U. S. 366, cause she may work as many additional 42 L. R. A. 780, 18 Sup. Ct. Rep. 383. hours as she pleases at some other occupaThey are the only authorities directly in tion. The value of the right consists in freepoint that are cited as sanctioning our act, and dom to labor in any lawful business she may the only additional ones which may fairly be select, for as many hours each day as she considered, either in the reasoning of the chooses. This case is the only authority opinions or in the principles involved, as cited in some of the text-books for legislatending to uphold it, are Com. v. Hamilton tion of this character, but we cannot follow Mfg. Co. 120 Mass. 383; State v. Peel Splint it. Its doctrine, as applicable to adult men, Coal Co. 36 W. Va. 802, 17 L. R. A. 385, 15 at least, is materially weakened, if not overS. E. 1000. In the Massachusetts case the thrown, by the subsequent decision in Com. act construed provided that"no minor under V. Perry, 155 Mass. 117, 14 L. R. A. 325, 28 the age of eighteen years, and no woman over N. E. 1126, where an act providing that no that age, shall be employed in laboring by employer shall impose a fine upon an emany person, firm, or corporation in any man- ployee engaged at weaving, or withhold his ufacturing establishment in this common-wages, in whole or in part, for imperfections wealth more than ten hours in any one day," "that may arise during the process of weav etc. This enactment, under some authori- ing, was held to be in conflict with the Conties, might be held valid, applying, as it does, stitution of that commonwealth, as interferonly to women and minors, since the former ing with the right of acquiring, possessing, class, on account of sex and supposed physi- and protecting property; and in the latter cal infirmities, and the latter, because of their case are cited with approval several authortender age, are under the guardianship of ities hereinafter to be discussed, which are the state, and, not standing on an equality squarely in conflict with the former. with adult men, are subjects of restraining regulations. But it is not clear whether the act was sustained on this ground, or that it was a valid police regulation. Probably not the latter, for the court remarked that such legislation might be maintained either as a health or police regulation, if it were necessary to resort to those sources for power. If the former, the case would not be apposite. Whatever the basis for the decision may be, the reasoning of the court in support of it is not satisfactory; for, in answer to the argument that the prohibition of the act violated the right of an adult woman to labor as many hours per day as she chooses, the court said: "The obvious and conclusive reply to this is that the law does not limit her right to labor as many hours per day or per week as she may desire; it does not in While disclaiming any expression of opinterms forbid her laboring in any particular ion as to whether the act in question might business or occupation as many hours per or might not be upheld as an exercise of the day or per week as she may desire; it merely police power, which, though unexpressed in prohibits her being employed continuously in the Constitution, resides in every sovereign the same service more than a certain number state, the supreme court of Utah clearly of hours per day or week which is so clearly grounded its decision upon the mandatory within the power of the legislature that it nature of the foregoing § 6. The imperative becomes unnecessary to inquire whether it command thereof was thought to operate is a matter of grievance of which this defend- both upon the legislature and the courts,ant has the right to complain." We may ap- upon the legislature as an express injunction parently digress to remark that if this con- requiring the enactment of legislation to struction is correct, and if the real object of protect the health of the classes enumerated, the act be to protect the health of a certain and upon the courts as an implied restricclass of working women by shortening the tion, withdrawing from them an inquiry into hours of labor, that object is frustrated, such legislation as should be passed in obesince, if the act permits one of the designated dience to that command, upon which invesclass, after working the eight hours, to en-tigation, in the absence of the constitutional gage in any other than the forbidden kind limitation, and with respect to such legisla

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."

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-broad and comprehensive as it is, nor any 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 I would be clear. But the petitioner does not invoke the protection of any provision of the national Constitution. He maintains that

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

state. It does not necessarily follow, there- sion is now, as before the 14th Amendment, fore, that because an act has met the approv- final and conclusive, and no appeal can be al of the Supreme Court of the United taken to the Federal court, as in that case States, as not infringing any provision of the no right under the Constitution and laws of Federal Constitution, it is for that reason the United States has been denied. If, on free from a prohibition contained in a state the other hand, the state court sustains the Constitution. This distinction is not always statute and denies the right asserted, the observed, and some confusion exists on ac- Federal jurisdiction attaches, and an appeal count of the loose talk about it. It should may be taken to the United States Supreme be said that counsel for respondent recog- Court. It cannot be maintained, we think, nize it. Nevertheless they would have us that a decision of the Federal court sustainsustain this law on the authority of a deci- ing a state statute is res judicata and bindsion which, when rightly considered under ing upon a state court, when the same questhe facts of this case, is not an authority at tion subsequently arises there under a simall. In many of its own decisions the Su- ilar statute. It would still be the duty of preme Court of the United States has clearly the state court to examine the question, and indicated the extent and scope of its juris- decide it according to its interpretation of diction in cases like that before it in the the constitutional guaranty." Peckham, J., Holden Case. In the Barbier Case, 113 U. tersely and to the same effect, on page 35, 117 S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357, Mr. N. Y., and page 682, 22 N. E., says: "In conJustice Field, speaking for the court, said: struing a clause in our state Constitution "In this case we can only consider whether similar to one in the Federal instrument, the 4th section of the ordinance of the city should we follow the interpretation of such and county of San Francisco is in conflict clause as given by the Federal court, which with the Constitution or laws of the United interpretation compels us to deny to these States. We cannot pass upon the conform- defendants the relief they ask for, although ity of that section with the requirements of otherwise we are satisfied that they are justthe Constitution of the state. Our jurisdic ly entitled to that relief. If any right, priv tion is confined to a consideration of the Fed-ilege, or immunity claimed under the Federal eral question involved." And in Yick Wo v. Constitution or laws be denied by this court, Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. its decision is reviewable in the supreme Ct. Rep. 1064, Mr. Justice Matthews, speak court, and in such cases it is our duty to fol. ing for the court, says: "The question low in the footsteps of that court, and to be whether his imprisonment is illegal, under guided and controlled by its decisions. But the Constitution and laws of the state, is in this case the right is claimed under our not open to us. And although that question state Constitution, and in matters pertain might have been considered in the circuit ing to its proper construction our decision is court in the application made to it, and by final, excepting that if, as construed by us, this court on appeal from its order, yet ju- the Constitution or our laws deny the exist dicial propriety is best consulted by accept-ence of some right or privilege claimed by a ing the judgment of the state court upon the points involved in that inquiry."

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, liberty, and property, where it arises in a state court, involves the consideration of both the Federal and state Constitutions, although the ground of construction and decision is identical under either instrument. But whether the decision of the state court presents a Federal question reviewable on appeal to the Supreme Court of the United States depends on the nature of the decision of the state court; that is to say, whether it affirmed the validity of the statute, or held it to be unconstitutional and void. If the state court decides that the statute does violate the constitutional guaranty, its deci

party by virtue of the Federal Constitution or laws, our decision is reviewable by the Federal court, not for the purpose of reviewing our construction of our own Constitution or laws, but to see whether, under the Constitution or laws as construed by us, any right or privilege existing by virtue of the Federal Constitution or laws has been violated or denied, and, if so, to give it effect notwithstanding the state law or Constitu tion. But where we deny no right or privi lege claimed, and, on the contrary, assert and protect it, there is no review by the Federal court possible." In Indianapolis v. Navin, 151 Ind. 139, 41 L. R. A. 337, 47 N. E. 525, and 51 N. E. 80, the same rule is laid down, and numerous authorities are cited.

We have made these extracts from the authorities chiefly for the reason that they furnish a complete answer to the contention of respondent's counsel that the decision of the Supreme Court of the United States in the Holden Cases is, in the circumstances here present, a binding authority, or any authority, upon this court. In all such questions, when it is once determined that no Federal question is involved, that is the end of the inquiry by the Federal court. For the sake of brevity, we desire, in this connection (though the reference might be equally pertinent elsewhere) to notice what Mr. Justice Brown, who wrote the opinion of the ma

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 Constitution, 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.

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 In the light of these authorities it is clear override all constitutional limitations. If-First, that the decision of the supreme. it be conceded, as it is not, that in the pend- court of Utah in construing the Utah statute ing cause it was competent for that tribunal is not an authority here, for the reason that to make an announcement as to the power of the decision there was based entirely upon the legislature in this connection that would the mandatory nature of a provision of the bind the state courts, we think it clear that Utah Constitution which is not present in none such as is claimed here was made; for our organic act; second, in affirming the when this sentence is read, as it should be, judgment of the Utah court, the decision of with what immediately precedes and follows, the Supreme Court of the United States in it is not susceptible of the interpretation the Holden Cases is not a precedent for this put upon it. What follows is a declaration court in construing our act, for the reason that, if the legislature has exercised a rea- that the sole question before the Federal sonable discretion its act will be enforced, court was whether or not the Utah act viobut if its action is a mere excuse for an un-lated the Federal Constitution. If, however, just 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 busithe 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 ascertainment 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 publie secur ity. 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