that an arbitrary exercise of the power could be restrained, but it would have to be palpably so to justify a court in interfering with so salutary a power and one so necessary to the public health.”

§ 205. Due process not denied by ordinance concerning milk not subjected to tuberculin test. In Adams v. Milwaukee, 228 U. S. 572, it was held that the due process clause of the Fourteenth Amendment was not offended by an ordinance providing for the confiscation, forfeiture, and immediate destruction of milk, not conforming to the requirements forbidding the shipment into the city of milk drawn from cows outside, unless such cows shall have first been subjected to the tuberculin test, and an official certificate of their exemption from tuberculosis or other diseases shall have been filed with the health officer. The Court said: "The different situations of the animals require different regulations. Cows kept outside the city cannot be inspected by the health officer; they can be inspected by a licensed veterinary surgeon, and a certificate of the fact and the identity of the cows and the milk authenticated as required by the ordinance. The requirements are not unreasonable; they are properly adaptive to the conditions. They are not discriminatory; they have proper relation to the purpose to be accomplished. That purpose and the necessity for it we can not question. Jacobson v. Massachusetts, 197 U. S. 11; Laurel Hill Cemetery v. San Francisco, 216 U. S. 358; Mutual Loan Co. v. Martell, 222 U. S. 225; Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192; Crossman v. Luman, 192 U. S. 189; New Orleans Gaslight Co. v. Drainage Commission, 197 U. S. 453."

§ 205a. Due process not denied by statutes prohibiting the sale as "ice cream" of a product containing less than a fixed percentage of butter fat. In Hutchinson Ice Cream Co. v. Iowa, 242 U. S. 153, the Court said: "The right of the state under the police power to regulate the sale

of products with a view to preventing frauds or protecting the public health is conceded by plaintiffs in error. And they do not contend that the particular percentages of butter fat set by Iowa and Pennsylvania are so exacting as to be in themselves unreasonable. . . . The ice cream of commerce is not iced or frozen cream. It is a frozen confection—a compound. The ingredients of this compound may vary widely in character, in the number used, and in the proportions in which they are used. . . Plaintiffs in error contend that as ice cream is shown to be a generic term embracing a large number and variety of products, and the term as used does not necessarily imply the use of dairy cream in its composition, it is arbitrary and unreasonable to limit the ice cream of commerce to that containing a fixed minimum of butter fat. But the legislature may have found in these facts persuasive evidence that the public welfare required the prohibition enacted. . . . Laws prohibiting the sale of milk or cream containing less than fixed percentages of butter fat present a familiar instance of such legislation. Cases in the state courts upholding laws of this character are referred to in the margin. This court has repeatedly sustained the validity of similar prohibitions. Schmidinger v. Chicago, 226 U. S. 578; Armour & Co. v. North Dakota. 240 U. S. 510."

§ 206. Due process not denied by state law regulating barrier pillars between adjoining coal properties. In Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, it was held that the Pennsylvania act of June 2, 1891, prescribing the width of the barrier pillar to be left between adjoining coal properties, which must be sufficient to protect the employees of either mine in case the other shall be abandoned and allowed to fill with water, is not so uncertain or unjust as to constitute a taking of property without due process of law, because such width of pillar is to be determined under the statute "by the engineers of the adjoining property owners, together with the

inspector of the district in which the mine is situated," nor because the statute does not require that notice be given to the lessor, being satisfied with reasonable notice to the lessee, nor prescribe the procedure, nor give a right to appeal. The Court said: "Indeed, the statute seems to contemplate some judicial control, for it prescribes no penalty for a violation of the findings of the engineers and inspector, nor any mode of enforcing their determination except by a suit for injunction under art. 15 of the act. In such a suit a party deeming himself aggrieved because of arbitrary action by the statutory tribunal may presumably have his opportunity to be heard with respect to this as well as other fundamental defenses.

it is a general and fundamental rule that if a statute be reasonably susceptible of two interpretations, one of which would render it unconstitutional and the other valid, it is the duty of the courts to adopt that construction which upholds its validity, We think it not an unreasonable construction that if the engineers disagree they shall submit their differences to the inspector, and that a determination agreed on by one of them in conjunction with the inspector shall fulfill the requirements of the act. It must be remembered that this tribunal is to settle, not a private property right, but a matter affecting the public safety; hence, in the absence of clear language to the contrary, the section is open to the construction that, as in other public matters, a majority of the referees or arbitrators may act. Omaha v. Omaha Water Co., 218 U. S. 180, 192."

§ 207. Constitutional exercise of the police power in reference to depositors' guaranty fund. In Lankford v. Platte Iron Works Co., 235 U. S. 461, it was held that the police power asserted under the Oklahoma laws upon this subject, heretofore considered, did not offend the due process of law clause of the Fourteenth Amendment because the state instead of committing the fund to the mere ministerial administration of the banking board,

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saw fit to vest the title to the fund in itself. The Court said: "This court, in Noble State Bank v. Haskell, 219 U. S. 104, sustained the constitutionality of the act as an exercise of the police power of the state. The law in its general purpose was there presented and passed on. The relation of the state to the fund did not come up for consideration, but necessarily this is but a detail in administration, not one affecting legality of the law. The creation of the fund was said to be justified by its purpose, and the power of the state was declared adequate to accomplish it. "The purpose of the fund,' it was said, 'is shown by its name. It is to secure the full repayment of deposits.' Where the state should vest the title to the fund for the purpose of its administration was immaterial to the essence of the power to creat the fund. Whether the state should commit it to the mere ministerial administration of the bank commissioner and banking board, and subject them to controversies with depositors, or draw around them the circle of its immunity, was a matter within its competency to determine, and we are brought to the question of interpretation— which has the state done?" To that question this answer was given: "It appears that the law intended to give to the state as definite a title to the depositors' guaranty fund as to the common school fund; as definite, therefore, as the title of South Carolina to the assets of the state dispensary, which was the subject in Murray v. Wilson Distilling Co., 212 U. S. 578. In both cases there were ultimate beneficiaries-in the pending case, the bank depositors; in the other case, the creditors of the dispensary. And the purpose of the law-or, if you will, the command of the law-in each case was or is the satisfaction of the claims of those beneficiaries. The fund, having this ultimate destination, does not take its administration from the officers of the state, or subject them to judicial control. We can not assume that it will not be faithfully managed and applied."

§ 208. Due process denied by Kansas act inflicting penalties on employer for imposing certain conditions on employee. The Kansas act of March 13, 1903, as construed and applied by the highest court of that state (State v. Coppage, 87 Kan. 752), imposed fine or imprisonment upon an employer or his agent for having prescribed as a condition upon which one may secure employment, or remain in the service of, such employer (such employment being terminable at will) that the employee shall enter into an agreement not to become or remain a member of any labor organization while so employed, such employee being subject to no disability or incapacity depriving him of the right to exercise a voluntary choice. In declaring that said act, as so applied and construed, is repugnant to the due process clause of the Fourteenth Amendment the Court in Coppage v. Kansas, 236 U. S. 1, said: "When a man is called upon to agree not to become or remain a member of the union while working for a particular employer, he is in effect only asked to deal openly and frankly with his employer, so as not to retain the employment upon terms to which the latter is not willing to agree. And the liberty of making contracts does not include a liberty to procure employment from an unwilling employer, or without a fair understanding. Nor may the employer be foreclosed by legislation from exercising the same freedom of choice that is the right of the employee. To ask a man to agree, in advance, to refrain from affiliation with the union while retaining a certain position of employment, is not to ask him to give up any part of his constitutional freedom. He is free to decline the employment on those terms, just as the employer may decline to offer employment on any other; for 'it takes two to make a bargain.' Having accepted employment on those terms, the man is still free to join the union when the period of employment expires; or, if employed at will, then at any time upon simply quitting the employment. And, if bound by his own agreement to refrain from joining during a stated