Scales v. State. tal civil rights for the security and establishment of which organized society is instituted, and these remain, with certain exceptions expressly established by the Federal Constitution, subject to the exclusive control and authority of the States free from all Federal restraint. On the other hand, the "privileges and immunities of citizens of the United States" are those which arise out of the nature and essential character of the national government, the provisions of its Constitution, and the laws and treaties made in pursuance thereof; and these alone are placed under Federal protection by the clause quoted. It declares that a different construction "would transfer the security and protection of all the civil rights from the State to the Federal government," would "authorize Congress" to pass laws in advance, limiting and restricting the legislative power by the States in their most ordinary and usual functions, and would constitute the Supreme Court of the United States "a perpetual censor upon all legislation of the States on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights." Wherefore the court said: "We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them." Slaughter House Cases, 16 Wall. 36. It is needless to say that the privileges and immunities involved under this statute belong to that class which the court characterizes as those of citizens of the State, and therefore are not referred to by this clause of the fourteenth amendment. (3) The other constitutional inhibitions invoked may be grouped and considered together. They are: First, the remaining clauses of the fourteenth amendment, viz.: "Nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws;" second, the clause of article 6 of the State Constitution declaring that no person shall be "deprived of life, liberty or property without due process of law;" and thirdly, the declaration in article 1 of the State Constitution that government's "only legitimate end is to protect citizens in the enjoyment of life, liberty and property. When it assumes other functions it is usurpation and oppression." All these provisions simply express fundamental principles of American constitutional gov ernment, which are embodied or necessarily implied in the Constitution of all the States, and are everywhere recognized and enforced. It is not essential to discuss them severally, or with too great nicety; for it is universally admitted, that however broadly these principles may be expressed, there exists, ex necessitate rei, in every government, the power to impose certain restrictions upon the individual rights of "life, liberty and property." which it is not within the meaning and intent of such provisions to prohibit or restrain. Without such power society and government could not exist, or would subserve no useful purpose; the main object of government being to prevent individuals, in the exercise of their own rights, from transgressing the rights of others, and to impose that degree of restraint upon the conduct of each which is necessary to the conservation and promotion of the right of all. This is what is known as the police power of government, and it is founded in and properly limited by a just and reasonable application of the principle, sic utere tuo ut alienum non ladas." As has been said by an eminent judge, It is much easier to perceive Scales v. State. and realize the existence and sources of this power than to mark its boundaries or prescribe limits to its exercise." Definitions of it have been given by Blackstone, by Judge Cooley, by Chief Justice SHAW, of Massachusetts, by Chief Justice REDFIELD, of Vermont, and by Judge CHRISTIANCY, of Michigan, and by many other jurists and judges. Vide 4 Bl. Com. 162; Cooley Const. Lim. 572; Com. v. Alger, 7 Cush. 84; Thorpe v. Rutland, etc., R. Co., 27 Vt. 140; s. c., 62 Am. Dec. 625; People v. Jackson, etc., Co., 9 Mich. 285. There exists a remarkable consensus of authority that the establishment of a compulsory day of rest in each week is a legitimate exercise of police power. Such laws have been passed in nearly every State of the Union, and their constitutionality has never been successfully questioned in but a single case within our knowledge, that of Ex parte Newman, 9 Cal. 502, and it was subsequently overruled in the same court in Ex parte Andrews, 18 Cal. 678. The grounds upon which such legislation has been sustained are various, but those which commend themselves to our judgment as most conformable to the principle of police power are best stated by the Supreme Court of California. 'The duty of government comprehends the moral as well as the physical welfare of the State; and in this instance it is asserted on behalf of this law that the passage of it is essential to the welfare of the people, both moral and physical. It is claimed that from physical causes men require respite from intellectual and physical labor in the proprotion of one day's rest in seven, and that a law which enjoins this is not only for the aggregate good of society, but for the benefit of all the members. It is said that the labor of six days, with this relaxation, is more productive in the long run than the uninterrupted labor of the week. It is said besides that this law affords indirectly protection against oppression to employees, women, apprentices and servants, and that but for the law men would keep open stores and shops because their neighbors did so, and that by competition a sort of compulsion exists to violate the laws of health." Ex parte Andrews, 18 Cal. 678. Mr. Tiedeman develops the same idea as follow: Whatever the metaphysicians or theologians may tell us about free will, in the complex society of the present age the individual is a free agent to but a limited degree. He is in the main but a creature of circum. stances. Those who most need the cessation from labor are unable to take the necessary rest if the demands of trade should require their uninterrupted attention to business; and if the law did not interfere, the feverish, intense desire to acquire wealth, inciting a relentless rivalry and competition, would ultimately prevent, not only the wage-earners, but likewise the capitalists and employers themselves, from yielding to the warnings of nature, and obeying the instinct of self-preservation, by resting periodically from labor. Remove the prohibition of law, and this wholesome sanitary regulation would cease to be observed." Tied. Lim. Police Power, 181. We have considered the objections urged against the law, that it operates unjustly against our fellow-citi zens of the Jewish faith, who, in obedience to the mandates of their religion, observe Saturday as a day of rest. This objection has been often considered and overruled. Frolickstein v. Mayor of Mobile, 40 Ala. 725; Ex parte An drews, 18 Cal. 678; Ex parte Bird, 19 id. 130; Com. v. Hyneman, 101 Mass. 30; Com, v. Has, 122 id. 40; Com. v. Wolf, 3 Serg. & R. 48; Specht v. Com.. Kempner v. Cohn. 8 Penn. St. 312; s. c., 49 Am. Dec. 518; Charleston v. Benjamin, 2 Strobh. 508; State v. Railroad Co., 15 W. Va. 362; s. c., 36 Am. Rep. 803. The law leaves the Jew at entire liberty to observe his own religious Sabbath, but it is not bound to take cognizance of individual religions as a ground of redemption from the operation of the general laws. Uniformity in the day fixed is essential to the successful execution of the law, which would be rendered much more difficult if a different day of rest was assigned to various classes, besides the inconvenience to the business interests of the community which would result from the partial suspension of trade on several different days. It only remains to consider the objection urged against the law on the ground of inequality, because of the numerous exceptions contained in the act. The objection has not the slightest force. The law is not unequal in any constitutional sense. No person in the State is permitted to pursue any of the prohibited callings on Sunday. Every person is at liberty to pursue those which are excepted. The same discretion which authorizes the legislature to determine that the public health, welfare, and convenience required the adoption of the general rule equally authorized it to exempt from its operation certain specified callings, on the ground that the public welfare and convenience would be more hindered than advanced by the suspensions of such callings. It is not for us to control the law-making power in such a case, or to require it to fit its laws to a Procrustean bed of our own construction. See note, 41 Am. Rep. 579. KEMPNER V. COHN. (4% Ark. 519.) Contract by letter. A contract by letter is complete the moment an acceptance of the offer is mailed, providing it is done with reasonable promptness and before any intimation of withdrawal is received.* ONTRACT. The opinion states the case. The plaintiff had C judgment below. J. H. Harrod, for appellant. Caruth and Erb, for appellee. SMITH, J. Cohn sued Kempner for the non-payment of an alleged agreement to convey a certain lot on Main street in the city of Little Rock. He claimed damages for the loss of his bargain, for expenses incurred in investigating the title, for the loss * See notes, 32 Am. Rep. 40; 48 Am. Rep. 519. Kempner v. Cohn. of interest upon the money which he had raised by the sale of interest-bearing securities in order to comply with the terms of purchase and which he had been unable immediately to reinvest to his satisfaction, and for the loss of a profitable lease of the lot which he had made on the faith of getting the lot. The answer denied the existence of any contract between the parties for the sale of the lot. Upon a trial before a jury, the plaintiff recovered a verdict and judgment for $611.50. The assignments in the motion for a new trial were the admission of improper evidence, the refusal of the court to give a certain charge to the jury and want of evidence to sustain the verdict. The plaintiff lived in Little Rock, the defendant at Hot Springs. The two cities are about sixty miles apart and there is communication by mail twice a day. On the 28th of January the plaintiff wrote the defendant inquiring his terms. The answer was as follows: "HOT SPRINGS, January 30, 1885. "M. M. Cohn, Little Rock, Ark.: In "Dear Sir Yours of the 28th received and contents noted. reply will say, in regard to the lot, I will sell you for $10,000, $5,000 cash and $5,000 give your note with ten per cent interest. If that is satisfactory, send the deed and I will send you properly acknowledged. Respectfully yours. J. KEMPNER." This letter was sent in the care of A. Kempner, the defendant's uncle, and agent for the payment of taxes and collection of rents, but who had no authority to contract for the sale of the lot; so that it was not delivered to Cohn until February 2. On February 5 Cohn told A. Kempner he would take the property and requested him to inform the defendant. And in reply to the letter of January 30, he wrote himself, as follows: "LITTLE ROCK, ARK., February 7, 1885. "J. Kempner, Hot Springs, Ark.: "Dear Sir-I hand you herewith the deed for your property, which you and your wife will please sign and edged. In order that I may get possession as would like for you to return the deed, as well as all the deeds, memoranda, agreements, contracts, etc., that you have in connec tion with this property, at your earliest convenience, say by Mo have duly acknowlsoon as possible, I Kempner v. Cohn. day's mail, if you can. I am having the title looked up now, which if found correct, I will comply with your terms contained in your letter of January 30, to-wit: $5,000 in cash and my note for balance or other $5,000. If you should prefer, I will give you Mr. A. Kempner's indorsement, the note to bear ten per cent per annum. You can send the deed to Mr. A. Kempner if you want to, or to the Merchant's National Bank, if you prefer. Though if con- . venient, I would rather you would come up, because it is always easier to talk than to write. By the memoranda, agreements, etc., I mean your papers relating to the walls on each side, so as to know what to claim. Hoping you will give this your early attention, I am, yours truly, M. M. CонN." This letter was put into one of the government letter boxes before Cohn had received any notice that the offer was withdrawn. The envelope is postmarked Little Rock, February 7, 9 P. M. It reached Kempner on the 9th of February. The defendant being informed by letter from A. Kempner that Cohn was making his arrangements to buy the property, wrote on the 7th of February, to Cohn, that he had changed his mind and now declined to sell. Evidence was given, over objection, that Cohn, immediately after receiving the letter of January 30, had set to work to procure an abstract of the title, paying therefor $11.50, and had employed attorneys to examine the same at a cost of $50. Also that he had parted with valuable securities to raise the money for the cash payment, and that after Kempner's refusal to consummate the trade, he had tried unsuccessfully, for some two months, to reinvest the money, whereby he had lost 880 or $100 in interest. It was further proved, without objection, that Cohn, about the time he wrote accepting the offer, had made a contract with another person, for a lease of the lot. The property was variously estimated by different witnesses to be worth from $10,000 to $12,500. The plaintiff requested no special directions to the jury. The instructions given at the defendant's instance were as follows: 1. The court instructs the jury that before they will be authorized to find damages for plaintiff in any sum whatever, they must believe from a preponderance of the evidence that the contract between plaintiff and defendant for the sale of said lot was definite and complete and without condition. VOL. LVIII — 98 |