citizen of the state." In State v. Loomis, 115 Mo. 307, the term "due process of law" was discussed and applied to subjects kindred to those now under consideration. The court of appeals of Texas, in an opinion filed June 25, 1892, and found in San Antonio etc. Ry. Co. v. Wilson, 19 S. W. Rep. 910, cites with approval the case of the Atchison etc. R. R. Co. v. Baty, 6 Neb. 37; 29 Am. Rep. 356. Immediately following and enforcing their approval was a full review of the same subject as had been discussed by Judge Gantt, with a synopsis of the holdings of numerous courts with reference thereto. The length of this opinion forbids an extended quotation from the opinion to which reference has just been made, but its examination will be found to further illustrate and enforce the principles laid down in Atchison etc. R. R. Co. v. Baty, 6 Neb. 37; 29 Am. Rep. 356. The special practical application of the principles to which we have just referred refer to the alleged attempt to deprive parties of the right to contract as they see fit, and will, therefore, be treated under that head.

3. In Braceville Coal Co. v. People, there was filed October 26, 1893, by the supreme court of Illinois, an opinion, reported in 147 Ill. 66, 37 Am. St. Rep. 206, in which was the following language: "There can be no liberty protected by government that is not regulated by such laws as will preserve the right of each citizen to pursue his own advancement and happiness in his own way, subject only to the restraints necessary to secure the same right to all others. The fundamental principle upon which such liberty is based, in free and enlightened government, is equality under the law of the land. It has accordingly been everywhere held that liberty, as that term is used in the constitution, means not only freedom of the citizen from servitude and restraint, but is deemed to embrace the right of every man to be free in the use of his powers and faculties, and to adopt and pursue such a vocation or calling as he may 146 choose, subject only to the restraints necessary to secure the common welfare: Frorer v. People, 141 Ill. 171; Commonwealth v. Perry, 155 Mass. 117; 31 Am. St. Rep. 533; People v. Gillson, 109 N. Y. 389; 4 Am. St. Rep. 465; Live Stock etc. Assn. v. Crescent City etc. Co., 1 Abb. U. S. 388; Slaughter House Cases, 16 Wall. 36; Godcharles v. Wigeman, 113 Pa. St. 431; State v. Goodwill, 33 W. Va. 179; 25 Am. St. Rep. 863. Property, in its broader

sense, is not the physical thing which may be the subject of ownership, but is the right of dominion, possession, and power of disposition which may be acquired over it; and the right of property preserved by the constitution is the right not only to possess and enjoy it, but also to acquire it in any lawful mode, or by following any lawful industrial pursuit which the citizen, in the exercise of the liberty guaranteed, may choose to adopt. Labor is the primary foundation of all wealth. The property which each one has in his own labor is the common heritage; and, as an incident to the right to acquire other property, the liberty to enter into contracts by which labor may be employed in such way as the laborer shall deem most beneficial, and of others to employ such labor, is necessarily included in the constitutional guaranty.

We need not extend this opinion by further discussion. The right to contract necessarily includes the right to fix the price at which labor will be performed and the mode and time of payment. Each is an essential element of the right to contract, and whosoever is restricted in either, as the same is enjoyed by the community at large, is deprived of liberty and property."

For a further discussion of these propositions reference is made to the case entitled Application of Jacobs, 98 N. Y. 106; 50 Am. Rep. 636. A complete review of the authorities upon this point will be found in Leep v. St. Louis etc. Ry. Co., 58 Ark. 407, 41 Am. St. Rep. 109, in which the opinion of the supreme court of Arkansas was filed February 23, 1894. It is the latest case which has come under our observation 147 and is strictly in line with those above quoted from and cited as to the questions under consideration.

A full and careful examination of all the questions presented has satisfied us that sections 1 and 3 of the act discussed are unconstitutional for the reasons above assigned. The legislation attempted cannot be defended as a police regulation, as was attempted in argument, for, under pretense of the exercise of that power, the legislature cannot prohibit harmless acts which do not concern the health, safety, and welfare of society: Millett v. People, 117 Ill. 294; 57 Am. Rep. 869; Frorer v. People, 141 Ill. 171; State v. Loomis, 115 Mo. 307; Ex parte Kuback, 85 Cal. 274; 20 Am. St. Rep. 226; Application of Jacobs, 98 N. Y. 106; 50 Am. Rep. 636; People v. Gillson, 109 N. Y. 389; 4 Am. St. Rep. 465. The

claim that this act was a proper exercise by the legislature of its police power cannot be sustained. It results that the judgment of the district court is affirmed.

STATUTES-CONSTRUCTION OF.-If a statute is void in some of its provi sions, but valid in others, the whole statute will fall if the various provisions are so intermingled and mutually dependent one upon the other as to raise the presumption that the legislature would never have passed the statute unless it believed the whole could stand as valid and constitutional: See note to State v. Deal, 12 Am. St. Rep. 219.

CONSTITUTIONAL LAW-POLICE POWER. -No general power resides in the legislature to regulate private business, prescribe the conditions under which it shall be conducted, fix the prices of commodities or services, or interfere with freedom of contract: People v. Budd, 117 N. Y. 1; 15 Am. St. Rep. 460.

KOFKA V. ROSICKY.

(41 NEBRASKA, 328.]

SPECIFIC PERFORMANCE IS A Matter of DISCRETION in the court which with. holds or grants relief, according to the circumstances of each particular case, when the general rules and principles which govern the court will not furnish any exact measure of justice between the parties. SPECIFIC PERFORMANCE TO PREVENT FRAUD.-If an oral contract, partly performed by one party and wholly by the other, has the elements of certainty, and is established by clear and satisfactory proof, a court of equity will decree a specific performance of it if nonfulfillment would amount to a fraud on the one who has performed his part. ADOPTION-SPECIFIC PERFORMANCE OF CONTRACT-AGREEMENT TO MAKE ADOPTED CHILD AN HEIR.-If a young child is given by its parents to its uncle and aunt to be as their own, under an agreement to adopt and rear it, to nurture and educate it, and, at their death, to leave it all their property, and it takes their name, not knowing its own father and mother, but recognizing its uncle and aunt as such, and lives with them for a number of years, and until they die possessed of real property which they do not either by deed or will transfer to it, there is such a part performance by the parties as will entitle the child to a decree giving it the title to the property, by way of specific performance of the contract.

Switzler & McIntosh, for the appellant.

Mahoney, Minahan & Smyth, for the appellee.

333 HARRISON, J. December 8, 1888, the following petition was filed in the district court of Douglas county.

"The plaintiff, Josephine Kofka, appears by her next friend, James Kofka, and for her cause of action alleges the fact to be that this plaintiff was born in Omaha, Nebraska

on the sixteenth day of March, 1877; that her father's name is James Kofka, who appears here as her next friend, and her mother's name is Mary Kofka, both of whom were then residing in Omaha, and have ever since here resided; that the parties to this suit are all of Bohemian nationality; that soon after her birth, to wit, in the month of August, 1878, there were living in Omaha, John Spilinek, deceased, and his wife, Anna Spilinek, the latter being a sister of the plaintiff's mother. During said month the said John Spilinek and Anna Spilinek, who never had any children of their own, requested of plaintiff's parents the privilege of taking this plaintiff with them to live with them as their child. The parents of plaintiff having several children, one of whom at that time was only a few weeks old, fully considered the matter, and having full confidence that plaintiff would receive at the hands of John and Anna Spilinek the care and affection which is due from parents to child, consented to said request, but only upon the expressed and well-understood conditions, to be hereinafter named; that is to say, James Kofka and Mary Kofka, the parents of the plaintiff, gave up the care, custody, and control of said child, in the said month of August, 1878, on the consideration and agreement, then and there assented 334 to by the said John and Anna Spilinek, that they would legally adopt and receive the said child as their own, would care for her, rear and educate her, and that she should have their fullest and best affection, and at their death she, the plaintiff, should inherit and be left all the property with which they died possessed.

"Plaintiff further says that she went to live with the said John and Anna Spilinek at the time above mentioned, on the terms aforesaid; that she continued to live uninterruptedly with them until their death, which came to John Spilinek on September 16, 1888, and to Anna Spilinek on September 19, 1888. The plaintiff says that during all of said time she conducted herself toward the said Spilineks as an affectionate and obedient child and received at their hands all the devotion and love a child should receive from parents; that she had, for several years previous to their death, assisted her aunt, Anna Spilinek, in the work about the house, in the way of washing, making up the beds, house-cleaning, going on errands, and generally doing at their request any thing within her power; that she has of late years been going to the public schools of the city of Omaha, where she was always

enrolled and known as Josephine Spilinek, and, in fact, she has always gone by that name, and never knew any other until the death of the said John and Anna Spilinek. Plaintiff says the said John and Anna Spilinek always called her their own child, and so treated her, and she was told and given to understand by them that her own father was her uncle and her own mother her aunt, and she knew not the contrary until after September 19, 1888, and she always believed, and in her own mind cannot but believe yet, that the said John and Anna Spilinek were her real father and mother.

"The plaintiff further says that the said deceased, John Spilinek and Anna Spilinek, often, during the last ten years, expressed and made known to friends and acquaintances, and to the plaintiff's parents, their intention to leave 335 this plaintiff all their property at their death, and these promises and declarations on the part of both were made up to and within a few days of and on the very day of their death, and plaintiff says that up to the very time of their death they intended to leave their property to this plaintiff; that the said deceased always intended to fulfill their agreement of adoption by legal proceedings according to the statutes, but all parties concerned were on intimate and friendly terms, and the matter was allowed to go by, all feeling secure, and that for all intents and purposes plaintiff was as fully their child as if the formalities had been gone through, until it was finally prevented by his sudden death as hereinafter mentioned.

"Plaintiff further says that on the sixteenth day of September, 1888, the deceased John Spilinek was suddenly overtaken by a loss of control of his mental faculties and while thus afflicted shot himself dead, and inflicted mortal wounds at the same time upon his said wife; that John Spilinek died within a short time on the same day, but his said wife Anna lingered until September 19, 1888, when she died from the effects of said wounds. Plaintiff says there was no marital or family difficulty whatever to induce this conduct on. the part of said John Spilinek, but it was wholly caused by despondency, brought on by fancied business embarrassments.

"Plaintiff says that the deceased John Spilinek died intestate, but had it not been for his sudden act of suicide, he would have made provision by will for his property to go to