health, safety, and welfare are sacrificed or neglected, the state must suffer.

"We are of the opinion that the act in question was a valid exercise of the police power of the state, and the judgments of the Supreme Court of Utah are therefore affirmed."

In People v. Lochner (Sup.) 76 N. Y. Supp. 399, the Supreme Court of New York said: "The police power of the state is the power which enables it to promote the health, comfort, safety, and welfare of society. It is very broad and far-reaching, but it is not without its limitations. The line between the valid exercise of the police power and the invasion of the private rights is clearly drawn by Judge Earl in his opinion in Re Jacobs, 98 N. Y. 110, 50 Am. Rep. 636. He says: 'Generally it is for the Legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety; and while its measures are calculated, intended, convenient, and appropriate to accomplish those ends, the exercise of its discretion is not subject to review by the courts. But they must have some relation to these ends. If the act and the Constitution can be construed so as to enable both to stand, and each can be given a proper and legitimate office to perform, it is the duty of the court to adopt such legislation. The Legislature, under the police power, may certainly regulate or even prohibit the carrying on of any business in such manner and in such place as to become dangerous or detrimental to the health, morals, or good order of the community.' Judge Vann, in discussing the statute entitled 'An act to regulate barbering on Sunday,' in People v. Havnor, 149 N. Y. 204, 43 N. E. 544, 31 L. R. A. 689, 52 Am. St. Rep. 707, says: 'As barbers generally work more hours each day than most men, the Legislature may well have concluded that legislation was necessary for the protection of their health.' And at page 203, 149 N. Y., and page 544, 43 N. E., 31 L. R. A. 689, 52 Am. St. Rep. 707, he says: 'It is to the interest of the state to have strong, robust, healthy citizens, capable of self-support, of bearing arms, and of adding to the resources of the country. Laws to effect this purpose, by protecting the citizen from overwork, and requiring a general day of rest to restore his strength and preserve his health, have an obvious connection with the public welfare.' It was held in People v. Warden of City Prison, 144 N. Y. 536, 39 N. E. 688, 27 L. R. A. 718, that 'the restraint of personal action is justified when it manifestly tends to the protection of the health and comfort of the community, and no constitutional guarantee is then violated.' In Health Department of City of New York v. Rector of Trinity Church, 145 N. Y. 32, 39 N. E. 833, 45 Am. St. Rep. 579, the court laid down the rule that the Legislature, in the exercise of its power to conserve the public health,

safety, and welfare, may direct that certain improvements or alterations shall be made in tenant houses at the owners' expense, and that suitable appliances be supplied to receive and distribute a supply of water for domestic use. Judge Peckham, in discussing the constitutionality of the act (page 43, 145 N. Y., and page 836, 39 N. E., 45 Am. St. Rep. 579), says: 'Laws and regulations of a police nature, though they may disturb the enjoyment of individual rights, are not unconstitutional, though no provision is made for such disturbances. They do not appropriate private property for public use, but simply regulate its use and enjoyment by the owner.' In Tied. Lim. Police Power, 181, the author states: '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 earner, but likewise the capitalist and employers themselves, from yielding to the warnings of nature, and obeying the instinct of self-preservation by resting periodically from labor.' If the statute under consideration invades the right of property and the liberty of the individual, then many of the statutes of this state that have been held to be constitutional, and their enactment within the police power of the state, are subject to the same criticism. The statute in question does not restrict the right of the defendant to carry on his business, or to engage as many persons as he sees fit in such business, but it simply prohibits him from requiring or compelling his employés to work more than ten hours in any one day, or more than sixty hours in any one week. In other words, the statute does not prohibit any right, but regulates it; and there is a wide difference between regulation and prohibition-between prescribing the terms by which the right may be enjoyed, and the denial of that right altogether. The defendant is not deprived of any right or privilege which is not denied to others in a similar business. The provisions of the statute in question are directed to all persons engaged in the bakery business. It neither confers special privileges, nor makes unjust discrimination. All who are engaged in that business are entitled to its benefits and subjected to its restrictions."

The opinions in California and Ohio holding that statutes limiting the hours of labor on public works were unconstitutional, although not in point, may no longer be considered of weight, in the face of the recent decision to the contrary by the Supreme Court of the United States in the Kansas case. The employment was not shown or claimed to endanger health or life, nor could this be said of all the various occupations covered by the Nebraska act. When such strong considerations of public policy demand, it is not difficult to distinguish in principle between the cases relating to avocations unhealthfu and dangerous, and those which are not, and

we are unaware that any court where the conditions are the same has rendered an opinion contrary to the views we hold and express, excepting in Re Morgan, 26 Colo. 415, 58 Pac. 1071, where the Supreme Court of that state took occasion to criticise the decision in Holden v. Hardy, and held contrary to the lucid opinion of the United States Supreme Court in that case, declaring that the protection of the health and lives of employés in mines and smelters was within the police power of the state, and that the Utah statute, from which ours is taken was valid, and not objectionable as class legislation. Nor are we prepared to agree with the bald assertion in the Colorado opinion that the state may not protect the individual against injury to himself, but we do not wish to be understood as placing the decision here on such narrow ground. Under the common law the man who tries to commit suicide and fails may be punished for the attempt to take his own life. A perusal of the decision in Re Morgan would lead to the inference that the Utah Supreme Court was not affirmed by the Supreme Court of the United States in Holden v. Hardy, when three courts, including the latter at different times, have asserted to the contrary. The Utah Constitution not only does not, but if a different construction be claimed for it, as was done in the Colorado case, it could not, as against the fourteenth amendment, to which all conflicting provisions of state Constitutions, as well as statutes, must yield, convey any authority for legislation abridging the rights, privileges, or immunities of citizens, or for depriving any person of property or liberty without due process of law, or for denying to any person the equal protection of the laws. The opinion in Re Morgan implies a warrant in the Utah Constitution which did not exist in Colorado, as a basis of the opinion of the Supreme Court of the United States, when, under well-known elementary principles, the Utah Constitution was of no more force against the federal Constitution and its amendments than the Colorado statute. It was the conclusion of the court in Re Morgan that the statute "unjustly and arbitrarily singled out a class of persons, and imposed upon them restrictions from which others similarly situated and substantially in the same condition were exempt, and that it was not a valid exercise of the police power of the state." As we have seen, the United States Supreme Court held differently on both these propositions, when the prohibitions which may relate to them are as broad in controlling under the fourteenth amendment as under the Constitution of Colorado. The conflict in these cases is evident, and it is apparent that the Colorado court had no different and substantial reason for deciding contrarily to the Supreme Court of the United States. When, as held by the highest court in the land, the power of the Legislature, as applied to a similar statute in Utah, cannot

be stayed by the fourteenth amendment, we must conclude that it is not nullified by the state Constitution-an instrument less potential, and not broader in its relevant guaranties.

Notwithstanding the attempt of the Supreme Court of Colorado to discredit and overrule the doctrines announced by the Supreme Court of the United States in Holden v. Hardy, the latter tribunal has continued to affirm those principles, and in later decisions has stated regarding the case:

Orient Insurance Company v. Daggs, 172 U. S. 563, 19 Sup. Ct. 283, 43 L. Ed. 552: "It is sufficient to say that there are certain immutable principles of justice which inhere in the very idea of free government, which no member of the Union may disregard, as that no man shall be condemned in his person or property without due notice and an opportunity of being heard in his defense. These principles were extended to the right to acquire property and to enter into contracts with respect to property, but it was said, 'This right of contract, however, is itself subject to certain limitations which the state may lawfully impose in the exercise of its police duties.' The legislation sustained was an act of the state of Utah making the employment of workingmen in all underground mines and workings, and in smelters and all other institutions for the reduction and refining of ores or metals, eight hours per day, except in cases of emergency, where life or property shall be in imminent danger. The violation of the statute was made a misdemeanor. It was undoubtedly a limitation on the right of contract-that of the employer and that of the employed-enforced by a criminal prosecution and penalty on the former, and on his agents and managers. It was held a valid exercise of the police powers of the state." Citing Holden v. Hardy.

Railway v. Paul, 173 U. S. 409, 19 Sup. Ct. 421, 43 L. Ed. 746: "Inasmuch as the right to contract is not absolute, but may be subjected to the restraints demanded by the safety and welfare of the state, we do not think that conclusion, in its application to the power to amend, can be disputed on the ground of infraction of the fourteenth amendment." Citing Holden v. Hardy.

Williams v. Fears, 179 U. S. 274, 21 Sup. Ct. 129, 45 L. Ed. 186: "And so as to the right to contract. The liberty, of which the deprivation without due process of law is forbidden, 'means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a suc

cessful conclusion the purposes above mentioned; although it may be conceded that this right to contract in relation to persons or property or to do business within the jurisdiction of the state may be regulated, and sometimes prohibited, when the contracts or business conflict with the policy of the state, as contained in its statutes.' Allgeyer v. Louisiana, 165 U. S. 578, 589, 591 [17 Sup. Ct. 427, 41 L. Ed. 832]; Holden v. Hardy, 169 U. S. 366 [18 Sup. Ct. 383, 42 L. Ed. 780]."

In Austin v. Tennessee, 179 U. S. 369, 21 Sup. Ct. 134, 45 L. Ed. 224, a statute of that state prohibiting the importation and sale of cigarettes: "While as was said in Holden, v. Hardy, 169 U. S. 366, 392 [18 Sup. Ct. 388, 42 L. Ed. 780], 'the police power cannot be put forward as an excuse for oppressive and unjust legislation, it may be lawfully resorted to for the purpose of preserving the public health, safety, and morals, or the abatement of public nuisances; and a large discretion is necessarily vested in the Legislature to determine, not only what the interests of the public require, but what means are necessary for the protection of such interests.' Thus, while in Railroad Company v. Husen, 95 U. S. 465 [24 L. Ed. 527], it was held that a statute of Missouri, prohibiting the driving or bringing of any Texas, Mexican, or Indian cattle into the state was in conflict with the interstate commerce clause of the Constitution, it was subsequently held that the introduction of diseased cattle might be prohibited altogether, or subjected to such regulations as the legislature chose to impose. Railway v. Haber, 169 U. S. 613 [18 Sup. Ct. 488, 42 L. Ed. 878]."

Knoxville Iron Co. v. Harbison, 183 U. S. 21, 22 Sup. Ct. 4, 46 L. Ed. 55: "In Holden v. Hardy, 169 U. S. 366 [18 Sup. Ct. 383, 42 L. Ed. 780], the validity of an act of the state of Utah regulating the employment of workingmen in underground mines, and fixing the period of employment at eight hours per day, was in question. There, as here, it was contended that the legislation deprived the employers and employés of the right to make contracts in a lawful way and for lawful purposes; that it was class legislation, and not equal or uniform in its provisions; that it deprived the parties of the equal protection of the laws, abridged the privileges and immunities of the defendant as a citizen of the United States, and deprived him of his property and liberty without due process of law. But it was held, after full review of the previous cases, that the act in question was a valid exercise of the police power of the state, and the judgment of the Supreme Court of Utah sustaining the legislation was affirmed."

Short v. Mining Co., 20 Utah, 24, 57 Pac. 721, 45 L. R. A. 603: "The statute above referred to was held constitutional by the court in State v. Holden, 14 Utah, 71 [46 Pac. 756, 37 L. R. A. 103], and the Supreme

Court of the United States affirmed such decision in 169 U. S. 366 [18 Sup. Ct. 383, 42 L. Ed. 780], holding that the act in question was a valid exercise of the police power of the state of Utah."

Similar conclusions are stated in People v. Lochner (Sup.) 76 N. Y. Supp. 401.

We think the better reasoning and correct distinction are with the Supreme Court of the United States, and the cases in line with its decisions. As we have already shown, the objection to the statute as being special legislation was held to be untenable by that court, and its opinion based squarely on the fact that the Legislature, in the exercise of its police power, could, by limiting the hours of labor, provide for the protection of the health of the men employed in underground mines and smelters. If the statute had been objectionable as class legislation, that court would have held it to be a denial of the equal protection of the laws under the fourteenth amendment to the federal Constitution. Of necessity, many laws must refer to certain classes, such as those governing towns, cities, various occupations, of which the saloon business has been cited as an instance, quarantine laws to prevent the spread of different diseases peculiar to animals and people and different localities, safety devices; and generally a health regulation must be limited, as a matter of fact, if not in direct statutory terms, to that class which will be affected, for no others could receive protection. It is necessary that the law affect all persons alike in the same class and under similar conditions. These requirements are met by the statute for it controls all alike, and extends to every man who engages in underground mining, or in the smelting and milling of ores, and becomes subject to the dangers incident to those occupations. In sustaining a statute requiring the closing of saloons between 12 at night and 6 o'clock in the morning, this court said: "The act is not local or special, in the sense of the constitutional restriction upon this subject. It applies to all saloons and gaming houses throughout the state which come within the class mentioned in the act, and, as to such classes and places of business, it is of uniform operation throughout the state." Ex parte Livingston, 20 Nev. 289, 21 Pac. 322.

In Wenham v. State, 91 N. W. 421, 58 L. R. A. 825, the Supreme Court of Nebraska held that an act prohibiting females from laboring more than 10 hours per day, or 60 hours per week, in manufacturing and certain other establishments, was within the police power of the state, and not objectionable as class legislation; and it is said in the opinion: "It would seem at first blush as though a law having the effect to interfere with the business of the one, or shorten the hours of labor of the other, would be repugnant to these constitutional provisions. It must be conceded, however, that every property holder is secured in his title there

to, and holds it under the implied rule and understanding that its use may be so regarded and restricted that it shall not be injurious to the equal enjoyment of others having the equal right to the enjoyment of their property, or to the rights of the community in which he lives. All property in this state is held subject to rules regulating the common good and the general welfare of our people. This is the price of our advanced civilization, and of the protection afforded by law to the right of ownership, and the use and enjoyment of the property itself. Rights of property, like other social and conventional rights, are subject to reasonable limitations in their enjoyment, and to such reasonable restraints and regulations by law as the Legislature, under the governing and controlling power vested in them by the Constitution, may think expedient." To the same effect, and upholding a similar statute, is State v. Buchanan, 70 Pac. 52, 59 L. R. A. 342, a Washington case.

It may be assumed that, at the time of the adoption of our state Constitution, underground mining had not progressed to such extent that the dangers to health incident were so apparent and well understood as today, and consequently that no provision was made for or against such legislation as that before us, and no consideration given the subject. Time and the light of experience and the progress of the age have shown the desirability of various enactments for the promotion of the happiness and good of the people, regarding which Legislators and statesmen were formerly unmindful. As new conditions and necessities arise in the affairs of men, the law must advance to meet them.

For the reasons indicated, we conclude that it was within the power and discretion 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. The petitioner is remanded to custody.

FITZGERALD, J. (concurring). The question for determination is, does the eighthour enactment of the last session of the Nevada Legislature violate the Nevada Constitution? True, it is claimed in the brief of counsel for petitioner that the said enactment violates also the Constitution of the United States, in its fourteenth amendment, but this contention was abandoned at the oral argument; and the Supreme Court of the United States, which is the supreme authority as to what may constitute a violation of that Constitution, has held that such an enactment does not contravene the national Constitution.

Counsel claim that the enactment violates the Constitution of Nevada (1) in section 21 of article 4, as to generality and uniformity of laws; (2) in section 17 of article 4, as to multiplicity of subjects; (3) in sec

tion 20 of article 4, as to local and special laws; and (4) in section 1 of article 1, as to (a) class legislation; and (b) its "Bill of Rights," as to, first, personal liberty; and, second, as to acquiring property.

While counsel have cited the foregoing sections as violated by the enactment in question, they have not, in their arguments, kept the discussion on each point separate; but several points are mingled together in their discussion. Hence the discussion here will have, to some extent, to follow the same method. The said points will, however, be separately discussed as far as, under the circumstances, may be practicable.

Section 20 of article 4 provides: "The Legislature shall not pass local or special laws" in certain cases therein named; but the enactment in question here does not seem to come under any of them, unless it be this one: "For the punishment of crimes and misdemeanors." If that be the contention, it will receive attention further on.

Section 21 provides that "in all cases enumerated in the preceding section [see section 20] and in all other cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the state." Does counsel claim that a health law could "be made general and of uniform operation throughout the state"; that is, applicable to wholesome and unwholesome employments alike, if there are employments wholesome and employments unwholesome? If so, cases cited in the briefs oppose the contention.

Section 17 of article 4 is, "Each law enacted by the Legislature shall embrace but one subject, and matter properly connected therewith, which subject shall be briefly express ed in the title," etc. The title of this act is as follows: "An act regulating the hours of employment in underground mines and smelters, and ore reduction works, and providing penalties for violation thereof." Does this enactment violate this section as being multifarious in its title? Counsel, though citing the section as violated by the act's title, pay very slight attention to the point in their argument. This fact and the subject itself justify only a brief reference to it here. It is thought that neither the title nor the body of the act violates said section.

This brief reference to the sections of the Constitution claimed to be violated is made to show that all that were cited to the court by counsel received the court's attention. The main contention of counsel will now be considered: Section 1 of article 1, called by counsel the "Bill of Rights," is: "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." The contention is that the enactment of 1903 violates this section, as (1) interfering with petitioner's "liberty" (that is,

T

his "liberty to contract"); and (2) his right of "acquiring * * property." These are the two precise questions in this case. And here, too, counsel have not chosen to discuss each point separately, but have mingled them together in a general manner. Therefore the brief discussion here to be made will be somewhat similar. One remark, however, will be made, to wit, that although courts of great respectability have, it seems, held that the word "liberty," in other Constitutions similar to ours, in said section 1 of article 1, refers to the "right to contract" or "liberty to contract," is it, after all, entirely clear that it does? It would seem that the notion conveyed by the word "liberty" might ordinarily be deemed to be somewhat different from the word "contract," and also the "right to liberty" and the "right to contract" somewhat different from each other. But be that as it may, now to the points thus sharply put to issue:

The question presents itself in two aspects: (1) Its general aspect (that is, in reference to legislative enactments upon the right or liberty of all citizens "to contract in reference to their labor," and the right of all citizens to "acquire property"); and (2) the rights of a special class or special classes of citizens in these respects. The first or general aspect of the question does not arise in the matter now in hearing, and therefore will not be discussed. But the second aspect, to wit, the special one of the legislative power to regulate or restrain contracting as to laboring in underground mines and about smelters and reduction works, does arise, and will be considered.

On the specific question of such regulation and restraint as to laboring in underground mines and about smelting and reduction works but two cases have been cited by counsel. These are the case of State v. Holden, 14 Utah, 71, 46 Pac. 756, 37 L. R. A. 103, and the case of In re Morgan, 26 Colo. 415, 58 Pac, 1071, 47 L. R. A. 52, 77 Am. St. Rep. 269, and these two cases are directly antagonistic to each other. True, in addition to these two cases there are in Colorado (In re Labor Bill, 21 Colo. 29, 39 Pac. 328, and In re House Bill, 21 Colo. 32, 39 Pac. 431) judicial responses to legislative inquiries to the same effect as was the decision of the Colorado court in In re Morgan. But those responses were not made after argument by counsel, and do not themselves contain argument, but merely assertion. Therefore the case in In re Morgan is essentially, as stated above, the only case in point cited by counsel that was precisely antagonistic to the case cited from Utah.

Before considering these cases, let it be remarked that the legislative power to regulate and restrain the hours of labor in employments other than those mentioned in the Nevada statute has been before numerous appellate courts of the Union, and that the decisions thereon are not uniform; some hold

ing such regulation and restraint constitutional, and others unconstitutional. Therefore whatever aid could be gained from analogy in decisions in other cases would be divided aid-partly in favor of petitioner, and partly against him; but it is believed the preponderance in number and reason is against him.

As counsel for petitioner place great reliance on In re Morgan, that case will be examined. Here a puzzling statement appears. The chief justice in the opinion first gives the enactment of the Colorado Legislature in question in the case, which is the same as the one in question in the Utah Case, and also in the case now before us; and, secondly, the clause of the Colorado Constitution claimed to be by it violated, which clause is essentially the same as the clause in the Nevada Constitution, and also as the clause in the Utah Constitution (it is not here overlooked that another clause is in the Utah Constitution enjoining upon its Legislature the enactment of health laws as to laborers in mines, etc.); and then he says that it is "practically admitted to be true that this act contravenes the constitutional provision quoted in the statement. Let us see if, notwithstanding this conflict, it can be justified as a valid exercise of the police power." Curious admission. If admitted, it must have been by the counsel in the case who were endeavoring in their arguments to uphold the enactment of the Colorado Legislature; and, after admitting that the enactment contravened the Constitution, how could counsel, in reason, ask the court to uphold such contravening enactment, under either the police power or under any other power of the Legislature? If the enactment contravened the Colorado Constitution, it would seem that was an end of the matter. Saying or assuming that it did so violate was a petitio principii. It begged the whole question.

Again the Colorado court in In re Morgan, says: "If, in our Constitution there was, as there seems to be in that of Utah, a specific affirmative provision enjoining upon the General Assembly the enactment of laws to protect the health of the class of workingmen therein enumerated, it might be that acts reasonably appropriate to that end would not be obnoxious to that provision of our Constitution forbidding class legislation, for it could hardly be said that a classification made by the Constitution itself was arbitrary or unfair, or that it clashed with another provision of the same instrument inhibiting class legislation."

Why could not a classification made by a Constitution be "arbitrary" and "unfair”? Clearly such classification might in reality be arbitrary and unfair, but it probably would not lie in the mouths of justices constituting a court under such Constitution to nullify it because of such arbitrariness and unfair

ness.

In the paragraph just above quoted does