the Constitution of the United States." It is hardly necessary to add that if the exercise of this high and questionable state function can not be justified as an assertion of the police power, the suppression of the right to make a particular defense in a court of justice is manifestly a denial of due process of law.

§ 193. Due process not infringed by limitation on hours of labor of women. In Muller v. Oregon, 208 U. S. 412, it was held that the limitation of the hours of labor of women employed in laundries to ten hours daily, made by the Oregon Laws of 1903, does not infringe the due process guaranteed by the Fourteenth Amendment. The Court said: "We held in Lochner v. New York, 198 U. S. 45, that a law providing that no laborer shall be required or permitted to work in bakeries more than sixty hours in a week or ten hours in a day was not, as to men, a legitimate exercise of the police power of the state, but an unreasonable, unnecessary, and arbitrary interference. with the right and liberty of the individual to contract in relation to his labor, and as such was in conflict with, and void under the Federal Constitution. That decision is invoked by plaintiff in error as decisive of the question before us. But this assumes that the differences between the sexes does not justify a different rule respecting a restriction of the hours of labor. The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long continued labor, particularly when done standing, the influence of vigorous health upon the future well being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for existence. This difference justifies a difference in legislation, and upholds that which is designed to compensate for some of the burdens which rest upon her."

§ 194. Due process not denied by the prevention of the diversion of waters. In Hudson County Water Co. v.

McCarter, 209 U. S. 349, it was held that a law of New Jersey preventing a riparian owner from diverting the waters of a stream of that state into any other state, for use therein, does not conflict either with the due process of law or the equal protection of the laws guaranteed by the Fourteenth Amendment. The Court said: "It sometimes is difficult to fix the boundary stones between the private right of property and the police power when, as in the case at bar, we know of few decisions that are much in point. But it is recognized that the state, as quasi-sovereign and representative of the interests of the public, has a standing in court to protect the atmosphere, the water, and the forests within its territory, irrespective of the assent or dissent of the private owners of the land most immediately concerned. Kansas v. Colorado, 185 U. S. 125, 141, 142; Georgia v. Tennessee Copper Co., 206 U. S. 230, 238. What it may protect by suit in this court from interference in the name of property outside of the state's jurisdiction, one would think that it could protect by statute from interference in the same name within. On this principle of public interest and police power, and not merely as the inheritor of a royal prerogative, the state may make laws for the preservation of game, which seems a stronger case. Greer v. Connecticut, 161 U. S. 519, 534."

§ 195. Due process and the prohibition of exportation of Philippine coin. In Ling Su Fan v. United States, 218 U. S. 302, it was held that the prohibition against the exportation of Philippine silver coin from the Philippine Islands under penalty of forfeiture and fine or imprisonment, did not deprive the owner of such coin of due process of law. The Court said: "Conceding the title of the owner of such coins, yet there is attached to such ownership those limitations which public policy may require by reason of their quality as a legal tender and as a medium of exchange. However unwise a law may be, aimed at the exportation of such coins, in the face

of the axioms against obstructing the free flow of commerce, there can be no serious doubt but that the power to coin money includes the power to prevent its outflow from the country of its origin. To justify the exercise of such a power it is only necessary that it shall appear that the means are reasonably adapted to conserve the general public interest, and are not an arbitrary interference with private rights of contract or property. The law here in question is plainly within the limits of the police power, and not an arbitrary or unreasonable interference with private rights."

§ 196. Forbidding burial within city limits. In Laurel Hill Cemetery v. San Francisco, 216 U. S. 358, it was held that an ordinance forbidding the burial of the dead in a burial ground situated within the limits of the city and county of San Francisco did not deprive the owner of such burial ground of its property without due process of law. The Court said: "The only question that needs to be answered, if not the only one before us, is whether the plaintiff's property is taken contrary to the Fourteenth Amendment. In considering it, the allegation as to the large tracts available for burying purposes may be laid on one side. The plaintiff has no grievance with regard to them. The Winnebago, 205 U. S. 354, 360. Moreover, it is said by the supreme court of the state that burial within the San Francisco city or county limits already was forbidden by statute, except in existing cemeteries or such as might be established by the board of supervisors. The board of supervisors passed the ordinance now complained of; so that, as pointed out by the court, the ordinance in effect merely prohibited burials in existing cemeteries. the extent to

which legislation may modify and restrict the uses of property consistently with the Constitution is not a question for pure abstract theory alone. Tradition and the habits of the community count for more than logic. Since, as before the making of constitutions, regulations of

burial and prohibition of it in certain spots, especially in crowded cities, have been familier to the Western world. This is shown sufficiently by the cases cited by the court below; e. g., Coates v. New York, 7 Cow. 585; Kincaid's Appeal, 66 Pa. 411; Sohier v. Trinity Church, 109 Mass. 1, 21; Carpenter v. Yeadon, 86 C. C. A. 122, 158 Fed. 766. The plaintiff must wait until there is a change of practice, or at least established consensus of civilized opinion, before it can expect this court to overthrow the rules that the lawmakers and the court of his own state uphold."

§ 197. Due process not denied by Michigan Sales-inBulk act. In Kidd, Dater & Price Co. v. Musselman Grocer Co., 217 U. S. 457, it was held that a valid exercise of the police power, not in conflict with either the due process or the equal protection of the laws clauses of the Fourteenth Amendment, was embodied in the act in question (1905) which avoided, as against creditors, sales in bulk otherwise than in the regular course of business, unless an inventory was made at least five days before the sale, the purchaser receiving a list of the seller's creditors and notifying them of the proposed sale personally, or by registered mail, at least five days before its completion, a purchaser not complying with the statute being made a receiver for the benefit of the creditors of the seller. The Court said: "Substantially the same arguments are urged as were presented in Lemieux v. Young, 211 U. S. 489, decided after this writ of error was sued out. The requirement of the Michigan law, that a full and detailed inventory shall be made does not seem to us to be oppressive and arbitrary, as, in bone fide purchases of stocks of goods in bulk, a careful purchaser is solicitous to demand such an inventory, and in the purchase in question an inventory was in fact made. Nor can we say, in view of the ruling in the Lemieux Case, to the effect that a state may, without violating the Constitution of the United States, require that creditors be constructively notified of the proposed sale of a stock of goods in bulk,

that a requirement for what is in effect actual notice to each creditor is so unreasonable as to be a mere arbitrary exertion of power, beyond the authority of the legislature to exert."

§ 198. Creation of depositors' guaranty fund valid exercise of police power. In Noble State Bank v. Haskell, 219 U. S. 104, it was held that a valid exercise of the police power, not depriving a solvent bank of its liberty or property without due process of law, was embodied in a state statute authorizing the levy and collection from every bank existing under the laws of the state of an assessment based upon average daily deposits, for the purpose of creating a depositors' guaranty fund to secure the full payment of deposits in the event such bank becomes insolvent. The Court said: "The only contract that it (the bank) relies on is its charter. That is subject to alteration or repeal, as usual, so that the obligation hardly could be said to be impaired by the act of 1907 before us, unless that statute deprives the plaintiff of liberty or property without due process of law. See Sherman v. Smith, 1 Black 587. Whether it does so or not is the only question in the case. In answering that question, we must be cautious about pressing the broad words of the Fourteenth Amendment to a drily logical extreme. Many laws which it would be vain to ask the court to overthrow could be shown, easily enough, to transgress a scholastic interpretation of one or another of the great guaranties in the Bill of Rights. They more or less limit the liberty of the individual, or they diminish property to a certain extent. We have few scientifically certain criteria of legislation, and as it often is difficult to mark the time where what is called the police power of the states is limited by the Constitution of the United States, judges should be slow to read into the latter a nolumus mutare as against the lawmaking power. . . . In short, when the Oklahoma legislature declares by implication that free banking is a public danger, and