956

State v. District Court of Second Judicial
Dist. of Silver Bow County (Mont.). 516
State v. District Court of Second Judicial
Dist. of Silver Bow County (Mont.).
State v. Druxinman (Wash.).
State v. Dyck (Kan.)..

State v. Garbe (Wash.).

State v. Gillespie (Wyo.).

State v. Glindemann (Wash.).

State v. Heitman (Kan.).

State v. Houghton (Or.)..
State v. Houghton (Or.).
State v. Hume (Wash.).
State v. Ireland (Idaho).
State v. Jones (Idaho).
State v. Keerl (Mont.).
State v. Levy (Idaho).
State v. Mjelde (Mont.)

Tate, Pueblo Realty Trust Co. v. (Colo. Sup.)

402

862

646

410

38

34

425

338

595

(Cal.)

665

(27 Nev. 299)

In re BOYCE. (No. 1,647.) (Supreme Court of Nevada. Jan. 11, 1904.) EIGHT-HOUR LAW-CONSTITUTIONALITY-STATUTES-EXPEDIENCY-POWER OF COURTS.

1. The act of February 23, 1903 (St. 1903, p. 33, c. 10), providing an eight-hour day for all workingmen in mines, smelters, and mills for the reduction of ores, is not void, under section 1 of article 1 of our state Constitution, guarantying to citizens the right to acquire and possess property; nor is the statute in conflict with section 21 of article 4, which provides that, in all cases where a general law can be made applicable, all laws must be general and of uniform operation throughout the state.

2. Nor is the act mentioned inimical to the fourteenth amendment to the federal Constitution, which provides that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the Uni ed States; nor shall any state deprive any person of life or liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law."

3. The people, and through them the Legislature, have supreme power in all matters of government where not prohibited by constitutional limitations; and, while the powers of the federal government are restricted to those delegated, those of the state government embrace all that are not forbidden.

4. All acts of the Legislature are presumed to be valid until it is clearly shown that they violate some constitutional restriction.

5. The Legislature has inherent authority, under the general police power of the state, to enact laws for the promotion of the health, safety, and welfare of the people, and its arm cannot be stayed when exercised for these purposes.

6. If the restriction of the hours of labor be deemed a regulation or limitation on the right to acquire property, the occupations to which the act applies are not considered healthful; and it was therefore within the power and diseretion of the Legislature to enact the statute for the protection of the health and prolongation of the lives of the workingmen affected, and the resulting welfare of the state.

7. Questions relating to the wisdom, policy, and expediency of statutes are for the people's representatives in the Legislature assembled, and not for the courts, to determine.

Belknap, C. J., dissenting.
(Syllabus by the Court.)

In the matter of the application of William G. Boyce for writ of habeas corpus. Writ denied.

2. See Constitutional Law, vol. 10, Cent. Dig. §§ 628, 846. 75 P.-1

F. M. Huffaker, for petitioner. James G. Sweeney, Atty. Gen., H. F. Bartine, F. P. Langan, and John H. Murphy, for the State. Alfred Chartz, amicus curiæ.

TALBOT, J. Plaintiff was arrested, convicted, and sentenced for working in an underground mine more than eight hours in one day, contrary to the provisions of an act passed by our last Legislature which provides:

"Section 1. The period of employment of working men in all underground mines or workings shall be eight hours per day, except in cases of emergency where life or property is in imminent danger.

"Sec. 2. The period of employment of working men in smelters and in all institutions for the reduction or refining of ores or metals shall be eight hours per day, except in cases of emergency where life or property is in imminent danger.

"Sec. 3. Any person who violates either of the preceding sections of this act, or any person, corporation, employer or his or its agent, who hires, contracts with, or causes any person to work in an underground mine or other underground workings, or any smelter or any other institution or place for the reduction or refining of ores or metals for a period of time longer than eight hours during one day unless life or property shall be in imminent danger shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than one hundred dollars, nor more than five hundred dollars, or imprisonment in the county jail not more than six months, or by both such fine and imprisonment.

"Sec. 4. This act shall take effect sixty days from and after its passage."

St. Nev. 1903, p. 33, c. 10.

Upon his failure to pay the fine of $100 imposed, he was committed to the custody of the sheriff. He applies to this court for his liberty, and on his behalf it is urged that his conviction is void because the statute conflicts with section 1 of article 1 of our state Constitution, which declares that "all men are, by nature, free and equal, and have certain inalienable rights, among which are

those of enjoying and defending life and liberty; acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness," and that the act is inimical to the fourteenth amendment to the federal Constitution, which declares that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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."

Although the constitutionality of this eighthour law is now challenged before us for the first time, and questions of much interest and great import are involved, the fundamental principles which govern the determination of its validity have heretofore been recognized and enunciated by this court and by the Supreme Court of the United States, the earthly tribunals having final jurisdiction in this commonwealth; and the purpose, force, and validity of similar statutes have been carefully considered by that court and others in several states. It will be seen that the act does not attempt in any way to regulate the amount of wages which an employer shall pay, or an employé receive, for services by the day or otherwise performed. The language forbids any person from working in underground mines, smelters, or mills for the reduction of ores more than eight hours per day, and the penalty is imposed alike on the man who labors in those places longer than the time prescribed, and on the owner who hires, and thereby encourages an infraction of the statute by others in his service. If he worked more than eight hours in his own mine, he would be subject to the same punishment as the man who labors for others, and the effect of the statute is to prevent all persons from working in the places named more than the designated number of hours. The employer is not required to pay any more per hour for the labor or value he receives than he paid previous to the passage of the act. He may hire as many men as he may choose, and he and the employé are as free to fix the compensation for services performed on the basis of their actual value as before. Both are prohibited from having the latter work more than eight hours per day in the employments effected, but if loss, temporary or otherwise, be occasioned by this curtailment of labor, it is apparent that the statute does not require it to be borne by the employer. Labor properly directed creates wealth, and all honest toil is noble and commendable. The right to acquire and hold property guarantied by our constitution is one of the most essential for the existence and happiness of man, and for our purposes here we may consider it to be the cornerstone in the temple of our liberties, and that it implies and includes the right to labor. It may also be granted that labor, the poor man's patrimony, the creator

of wealth, and upon which all must depend for sustenance, is the highest species of property, and the right to toil is as sacred and secure as the millions of the wealthy; but individual rights, however great, are subject to certain limitations necessary for the good of others and the community, and inherent in every well-regulated government. While we are not forgetful of the important rights and constitutional guaranties of the individual, they are, at the most, only branches of the common tree, while the welfare of the state, which includes the protection of the health and lives of the people in their various industrial pursuits, is the trunk, without which the tree could not stand or bear fruit. The public good and the health of a considerable portion of our population, when placed in the balance, must outweigh and turn the scale, regardless of slight inconveniences and reasonable restrictions which individuals may suffer. This principle is of greater importance to every one than his more direct personal rights, for, without the prevalence and enforcement of this doctrine, no government could sustain itself and extend protection to its citizens. Broadly speaking, the right to acquire and hold property, which presupposes the one to labor at all ordinary pursuits, is subordinate to this greater obligation not to injure others, individually or collectively, and to contribute and aid in the support of the government in all its legitimate objects, among which we may consider the protection of the health and lives of that large portion of the people in this state who delve in the earth in search of the precious metals that help enrich the commerce of the world, and who there and in the smelters and ore reduction works come in contact with poisonous minerals, and breathe dust, foul air, and obnoxious fumes and gases. In this connection it should be remembered that the statute applies to underground mines, and not to placer claims, or to men working in the open above the surface. That a large proportion of our population are engaged in the pursuits in which the hours of labor are restricted is a matter of general knowledge. The Legislature in 1875 declared the mining, milling, and smelting of ores to be for the public use, and, when necessary for these purposes, authorized the taking of private property by way of eminent domain. Comp. Laws, § 283. And in 1887 they declared that mining was the paramount interest of the state, and authorized condemnation proceedings for its promotion in certain instances. Comp. Laws, § 281.

We cannot close our eyes, and deny that employment in the places named in the statute is unhealthful, when it is so commonly known that men contract rheumatism and miner's consumption working underground in powder smoke, and damp, bad air; that they become leaded from the fumes in smelters; and that the most of those em