is a cessation from labor. In its enactment the legislature has given the sanction of law to a rule of conduct which the entire civilized world recognizes as essential to the physical and moral well-being of society. Upon no subject is there such a concurrence of opinion, among philosophers, moralists, and statesmen of all nations, as on the necessity of periodical cessations from labor. One day in seven is the rule, founded in experience, and sustained by science. . . . The prohibition of secular business on Sunday is advocated on the ground that by it the general welfare is advanced, labor protected, and the moral and physical well-being of society promoted.

Justice Fuller then turns to the opinion that had been handed down by the Minnesota supreme court and cites the following extract:

Courts will take judicial notice of the fact that, in view of the custom to keep barber shops open in the evening as well as in the day, the employees in them work more, and during later, hours than those engaged in most other occupations, and that this is especially true on Saturday afternoons and evenings; also that, owing to the habit of so many men to postpone getting shaved until Sunday, if such shops were to be permitted to be kept open on Sunday, the employees would ordinarily be deprived of rest during half of that day.

In view of all these facts we cannot say that the legislature has exceeded the limits of its legislative police power in declaring that, as a matter of law, keeping barber shops open on Sunday is not a work of necessity or charity, while as to all other kinds of labor they have left that question to be determined as one of fact.

Commenting upon this view, the Chief Justice adds in closing:

We recognize the force of the distinctions suggested and perceive no adequate ground for interfering with the wide

discretion confessedly necessarily exercised by the states in these matters, by holding that the classification was so palpably arbitrary as to bring the law into conflict with the Federal Constitution.

courts.

CHAPTER XX

TENEMENTS

THE regulation of sweat-shop work by law has been greatly affected by the view early taken by the New York In 1885 an effort was made to put a stop to sweating by the enactment of a law prohibiting the making of cigars and other tobacco products in the tenement houses of cities of the first class. This law was taken to the highest court of the state and a decision secured adverse to the statute. The opinion written in this court has attracted wide attention and has had wide influence both on courts in reaching decisions on other cases and on legislatures in framing and passing laws for the removal of industrial evils. It has also called forth from sources both varied and weighty criticisms as vigorous as have been offered touching any decision since that in the Dred Scott case. To make the law effective it was found necessary to draw it up in a specific form embodying details that would make both its meaning and its application clear. The act was designated as " an act to improve the public health by prohibiting the manufacture of cigars and preparations of tobacco in any form in tenement houses in certain cases, and regulating the use of tenement houses in certain cases." To make the enforcement of the law possible, it was deemed necessary to state expressly that the manufacture was prohibited in any part of any floor of any tenement house if such part of such floor was occupied for living purposes.

A tenement house was defined as any

house occupied as a home by more than three families living independently. If there was a tobacco store on the first floor, the law was not to apply to that entire floor. The law visited a penalty upon any person found guilty either of violating or of causing another to violate the act. Justice Earl wrote the opinion of the court and there was no dissent.

The point of view of the court is shown in its answer to a question asked by itself: "What does this act attempt to do?" Its answer is:

In form, it makes it a crime for a cigar-maker in New York or Brooklyn. . . to carry on a perfectly lawful trade in his own home. Whether he owns the tenement house or has hired a room therein for the purpose of prosecuting his trade, he cannot manufacture therein his own tobacco into cigars for his own use or for sale, and he will become a criminal for doing that which is perfectly lawful outside of the two cities named-everywhere else so far as we are able to learn in the whole world.

He must either abandon the trade by which he earns a livelihood for himself and family, or, if able, procure a room elsewhere, or hire himself out to one who has a room upon such terms as, under the fierce competition of trade and the inexorable laws of supply and demand, he may be able to obtain from his employer. He may choose to do his work where he can have the supervision of his family and their help, and such choice is denied him. He may choose to work for himself rather than for a taskmaster, and he is left without freedom of choice. He may desire the advantage of cheap production in consequence of his cheap rent and family help, and of this he is deprived. In the unceasing struggle for success and existence which pervades all societies of men, he may be deprived of that which will enable him to maintain his hold, and to survive. He may go to a tenement house, and finding no one living, sleeping, cooking or doing any household work upon

one of the floors, hire a room upon such floor to carry on his trade, and afterward some one may commence to sleep or to do some household work upon such floor, even without his knowledge and he at once becomes a criminal in consequence of another's act. He may go to a tenement house, and finding but two families living therein independently, hire a room, and afterward by subdivision of the families, or a change in their mode of life, or in some other way, a fourth family begins to live therein independently, and thus he may become a criminal without the knowledge, or possibly the means of knowledge that he was violating any law. It is, therefore, plain that this law interferes with the profitable and free use of his property by the owner or lessee of a tenement house who is a cigarmaker, and trammels him in the application of his industry and the disposition of his labor, and thus, in a strictly legitimate sense, it arbitrarily deprives him of his property and of some portion of his personal liberty. . .

Property may be destroyed, or its value may be annihilated. It is owned and kept for some useful purpose and it has no value unless it can be used. Its capability for enjoyment and adaptability to some use are essential characteristics and attributes without which property cannot be conceived, and hence any law which destroys it or its value, or takes away any of its essential attributes, deprives the owner of his property. . . .

If the legislature has the power under the constitution to prohibit the prosecution of one lawful trade in a tenement house, then it may prevent the prosecution of all trades therein.

The law further infringes upon the right of liberty. To deprive of liberty actual imprisonment is not necessary. One may be deprived of liberty in other ways.

Liberty, in its broad sense as understood in this country, means the right, not only of freedom from actual servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn