property without due process of law which would be unconstitutional unless it believed that in so doing it was exercising the police power of the state. In both cases the legislature primarily decides that the laws are constitutional and within the police power respectively.

Is the decision of the law-making power in either case final and decisive? Most certainly not. If such were the case, no laws could be held to be unconstitutional by the courts; nor could any court have the right to determine the question as to whether or not any given law fell within or without the police power of the state. It would suffice for the legislature to declare in the enactment-no matter what might be its scope or subject-matter-this law is passed in the exercise of the police power of the state, or this law is passed for the preservation of public morals.

This seems to be the position taken by special counsel for the state. He argues that the legislature of Illinois in its wisdom has determined that the law was necessary for the preservation and protection of public morals and for the prevention of fraud and that its enactment would secure both, and that no court has a right to go behind and examine this finding. That such is not the law is shown by the fact that able and industrious counsel and conscientious and painstaking judges have for years past been endeavoring to ascertain and determine the limits and scope of the police power of the state, and declaring whether enactments are within or without its scope, and are so far from defining exact limits to the police power, as are the arctic explorers from the north pole.

Prentice in his recent work upon Police Powers, plainly recognizes the right of a court to determine whether any specific enactment falls within or without the police power. On page 6 of that work in speaking of the police power which he terms a "law of necessity," he says: "The law of necessity has been stated to be an exception to all human ordinances and constitutions, yet has been frequently decided to be subject to the law of reason and subject to the control of the courts.' Again on page 7 the same author cites with ap

*

proval the statement of Chief Justice Taney in the License Cases, "that this power of government (to-wit, police power) inherent in every sovereignty is not an uncontrollable or despotic authority, subject to no limitation exercisable * at the whim of the legislative body." Again on page 9 of his work he recognizes the same right of the court when he says: "The limits (i. e. of the police power) are not yet reached while we still advance, but the underlying principles by which the reason or unreason, or the constitutional limits of the authority claimed or used, may be investigated or judged, are now fortunately less obscure."

The same author, in speaking of the right of a state to protect itself under the police power from the introduction within its limits of paupers, vagrants, criminals, etc., declares (p. 10): "Such a right can only arise from a vital necessity for its exercise and cannot be carried beyond the scope of that necessity." Further on in the same work, the author declares: "we also see these police powers themselves under limitation. Besides judgment of 'common right and reason,' they may be tried in our country under two Constitutions, that of the United States and that of the State in which the question is raised." Page 268.

In the case In re Jacobs, 98 N. Y. 98, 110, the court declares: "Under the mere guise of police regulations personal rights and private property cannot be arbitrarily invaded and the determination of the legislature is not final or conclusive. If it passes an act ostensibly for the public health and thereby destroys or takes away the property of a citizen or interferes with his personal liberty, then it is for the courts to scrutinize the act and see whether it really relates to and is convenient and appropriate to promote the public health. * Such a declaration does not conclude the courts, and they must yet determine the fact declared and enforce the supreme law."

Even counsel for the state at a different place in his very exhaustive printed argument, unguarded-it appears to the

15 How. 583.-Ed.

court-admits the right of the courts to determine whether or not a statute falls within the police power of the state when he quotes approvingly the following language used by Justice Field in the Powell case (Powell v. Pennsylvania, 127 U. S. 678): "If that which is forbidden is not injurious to the health or morals of the people, if it does not disturb peace and menace their safety, it derives no validity by calling it a police or health law." When Justice Field used this language, he had under consideration and was endeavoring to determine whether or not a certain legislative act was within the police power of the state. If the legislature had the right conclusively and finally to determine that its legislation was within the police power of the state, why this language, and why Mr. Forrest's commendation of the same.

This court is clearly of the opinion that when an act of the legislature, passed ostensibly in the exercise of the police power of the state, is submitted to a court for its construction in a proceeding in law or equity, that such court has a right to determine whether or not it is a legitimate exercise of the police power, particularly when, as in the case under consideration, the legislation in question has the effect of securing certain rights to one class of citizens and denying them to all other citizens, and diminishing the value of what was, prior to the passage of the act, legitimate, lawful and freely negotiable property.

Is the act in question a legitimate exercise of the police power of the state? If the provisions of the act carried out. the intention expressed in the title or caption, it would unquestionably be within that power. An act whose provisions in fact dealt with and prevented "frauds upon travelers and owners of any railroad, steamboat, or other conveyance for the transportation of passengers" as declared in the title of the act, would clearly be a legitimate and proper exercise of the police power. Let us examine the act and ascertain what provisions it contains concerning frauds upon travelers or transportation companies. Sec. 1 provides that transportation companies shall provide all their ticket agents with writ

ten certificates of agency attested by the corporate seal. Sec. 2 makes it unlawful for any person not having such certificates to sell-what? Bogus tickets? Forged tickets? Expired tickets? Tickets limited to a particular person? No; none of these. It makes it unlawful for any person not having such certificates of authority to sell tickets, passes or other evidence of the holder's title to travel" and these alone. In other words it makes it unlawful to sell a ticket good in the hands of any one who honestly acquired it and which, up to the time of the passage of the law, was a vendible, merchantable commodity. In what possible manner can the making of such articles as a ticket, good in the hands of its holder for a ride upon a railroad, unmerchantable and nonsalable, tend to the prevention of fraud upon travelers? Does the sale of such a ticket injure the public health, if it be unaffected the fever germs or the public morals, unless upon it there appears what is unchaste and lascivious? Is it in any way inimical to the public welfare to have such a ticket sold by one citizen to another? After, and as the result of most careful deliberation, this court cannot conceive how the sale of a "ticket, pass or evidence of holder's title to travel" even in the remotest degree injures the public health, morals, or public welfare. The language of Judge Allen in Thomas v. Wabash R. R. Co., 40 Fed. 126, 133, is singularly appropriate to this law. Speaking of another law with a similarly deceptive title, he says: "The has

*

act

not only a false and deceitful title, but its purpose was to confer special privileges upon certain corporations and deny to others of the same class the exercise of the same rights. The act is in conflict with the 22nd section of the fourth article of the constitution of Illinois. Frye v. Partridge, 82 Ill. 273; People v. Cooper, 83 Ill. 586; People v. Meech, 101 Ill. 200; Millett v. People, 117 Ill. 305, 7 N. E. 631; Cooley's Const. Lim. 389-396." To sustain such a law as the exercise of the police power would amount to striking out of our constitution the second and thirteenth sections of the Bill of Rights, and overthrow the last barrier between personal rights and corporate aggression.

But it is contended by counsel for the state and railway corporations that there is another ground aside from the claim that the law is a legitimate exercise of the police power upon which it must be held that the law is a valid and legal enactment, to-wit, that it is a law framed for the regulation of a business impressed with a public duty and performing certain quasi-public functions.

This contention has been pressed with great force and ability by counsel and is worthy of serious consideration. That corporations carrying on a business of quasi-public character, such as the operation of a railroad, ferries, canal, etc., are subject to legislative control and regulation, cannot be doubted, and if the law in question was passed for the purpose of, and did in fact control or regulate the management of railroads, steamboats and other means of transportation, it should be upheld by the courts.

Let us examine the law first in relation to the intention of the legislature, and second, as to the effect of the law with reference to the claim that it is a regulation of the business of transportation.

The legislature which passed the act probably knew the aim and intent of the act better than either court or counsel, and the aim and scope of legal enactment is always either generically or specifically set out in its title. Following the usual practice the legislature of Illinois declared the aim and scope of this act in its caption. It is there declared to be an act-not to regulate or control transportation companies, but an act to prevent frauds upon travelers and owners of conveyances for the transportation of passengers." In other words, the legislature enacting the law declares it to be an act passed in the interests of public morals to suppress fraud -a clear and unmistakable intent to exercise the police power. If it was intended to be a law for the regulation of transportation companies, the legislature would have so declared it in its title. It was clearly not the intention of the legislature to regulate transportation companies, and in sections two and three of the act, which are the vital sections thereof, and the sections under which relators have been indicted, no pretense