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party who produces it, and it is for him to distinguish his own property or lose it."

It may be argued that, in its last analysis, this is but another

way of saying that the burden of proof is on the defendant. And no doubt such, in the end, will be the practical result in many cases. But such burden is not imposed by law; nor is it so shifted until after the plaintiff has proved the existence of profits attributable to his invention and demonstrated that they are impossible of accurate or approximate apportionment. If then the burden of

eparation is cast on the defendant it is one which justly should be borne by him, as he wrought the confusion.

7. This conclusion would apparently result in a decree in favor of the appellant. But such an order, under the peculiar facts of this case, would operate to deprive the defendant of the right to a ruling on the exceptions filed to the report. The Master held that the entire commercial value of the transformer was due to the invention covered by Claim 4, and that therefore all the profits belonged to the Westinghouse Company. The court, on the other hand, found that the defendant's additions were not infringements and had contributed to the profits, and that because of the failure to make a separation the plaintiff was entitled only to nominal damages. For this reason it did not specifically pass on defendant's exceptions. Other questions of law and fact involved in the accounting were not considered. Neither the court nor the Master discussed the question. Apportionment and the record does not afford satisfactory data for entering a final decree. This no doubt arises from the fact that both parties relied so entirely upon their theory that the burden was on the other, that facts were not proved which might otherwise have been established. The decree is therefore reversed and the case remanded, with power to hear and determine motions to amend the pleadings and with directions that the case be recommitted to a Master for a new hearing on

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all the questions involved in the original reference, and, on evidence already submitted and such additional testimony as may be offered, for further proceedings not inconsistent with this opinion.






No. 204. Argued March 11, 1912.-Decided June 7, 1912.

While the Fourteenth Amendment protects the citizen in his right to

engage in any lawful business, it does not prevent legislation intended to regulate useful occupations, which because of their nature and

location, may prove injurious or offensive to the public. The Fourteenth Amendment does not prevent a municipality from

prohibiting any business which is inherently vicious and harmful. The Fourteenth Amendment does not prevent a State from regulating

or prohibiting a non-useful occupation which may become harmful to the public, and the regulation or prohibition need not be postponed

until the evil is flagrant. An ordinance prohibiting the keeping of billiard halls is not unconsti

tutional under the Fourteenth Amendment, either as depriving the owner of the hall of his property without due process of law or as

denying him the equal protection of the laws. Where, in the exercise of the police power, the municipal authorities

by ordinance determine that a certain class of resorts should be prohibited as harmful to the public, the courts cannot except from the operation of the statute one of the class affected on the ground that his particular place does not produce the evil aimed at by the

ordinance. One cannot be heard to complain of his money loss by reason of the

legislating out of existence of a business in which he had invested and which is not protected by the Federal or state constitution and which he knew was subject to police regulation or prohibition.

Argument for Plaintiff in Error.

225 U.S.

A classification in a statute regulating billiard halls based onų hotels

having twenty-five rooms is reasonable; and the owner of a billiard hall, not connected with a hotel, is not denied equal protection of the laws by an ordinance prohibiting keeping billiard halls for hire because hotels having twenty-five rooms can maintain a billiard hall

for their regular guests. One who does not keep a hotel with less than the specified number

of rooms, cannot be heard to complain that a statute denies the owners of the smaller hotels the equal protection of the laws, it not appearing that the provision was inserted for purposes of evasion or

that the ordinance was unequally enforced. The fact that one of a class excepted from the operation of a police

ordinance on complying with a condition, does not comply therewith, does not render the statute unconstitutional as against the classes upon which it operates, but renders the person violating the

condition subject to the penalties of the ordinance. The ordinance of South Pasadena, California, passed in pursuance of

police power conferred by the general law of the State, prohibiting the keeping of billiard halls for hire, except in the case of hotels having twenty-five rooms or more for use of regular guests, is not unconstitutional under the Fourteenth Amendment either as depriving the owners of billiard halls not connected with hotels of their property without due process of law, or as denying them equal protection

of the laws. 155 California, 322, affirmed.

The facts, which involve the constitutionality under the Fourteenth Amendment of a police law of California regulating billiard halls, are stated in the opinion.

Mr. Alfred S. Austrian, with whom Mr. Levy Mayer was on the brief, for plaintiff in error:

The police power may be exercised to protect the public health, morals, safety and the general welfare, but it is at all times subject to the constitutional limitations that it may not arbitrarily take away the lawful rights of a citizen. Lawton v. Steele, 152 U. S. 133, 137; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 558; Dobbins v. Los Angeles, 195 U. S. 223; Yick Wo v. Hopkins,

225 U.S.

Argument for Plaintiff in Error.

118 U. S. 356; C., B. & Q. R. R. v. Illinois, 200 U. S. 561, 592, 593.

Whether a particular regulation is a valid exercise of the police power is ultimately a judicial, not a legislative, question. Dobbins v. Los Angeles, 195 U. S. 223, 235; Mugler v. Kansas, 123 U. S. 622, 661;G., C. & S. F. Ry. Co. v. Ellis, 165 U. S. 150, 154; Lochner v. New York, 198 U.S. 45, 60.

If a business may be so conducted as to be harmful to the public welfare, but is not necessarily so, the legislature, under its police power, may regulate, but cannot prohibit, such business. Cases supra; State v. Hall, 32 N. J. L. 158, 159; Pfingst v. Senn, 94 Kentucky, 556; S. C., 23 S. W. Rep. 358; State v. McMonies, 75 Nebraska, 443; S. C., 106 N. W. Rep. 454; Zanone v. Mound City, 103 Illinois, 552, 558.

If a thing is not in fact a nuisance per se it cannot be made so by a mere declaration of the legislative will expressed in an ordinance. Yates v. Milwaukee, 10 Wall. 497, 505; Boyd v. Board, 117 Kentucky, 199; S. C., 77 S. W. Rep. 669; Board v. Norman, 51 La. Ann. 736; S. C., 25 So. Rep. 401; Hume v. Cemetery, 142 Fed. Rep. 552, 565.

A billiard and pool room is not a nuisance per se; it is not necessarily harmful to the public welfare. State v. McMonies, 75 Nebraska, 443; Ex parte Murphy, 8 Cal. App. 440; Ex parte Meyers, 7 Cal. App. 528; Pfingst v. Senn, 94 Kentucky, 556; State v. Hall, 32 N. J. L. 158, 159; Breninger v. Belvidere, 44 N. J. L. 350; Morgan v. State, 64 Nebraska, 369.

Even if an ordinance prohibiting all billiard and pool rooms were valid, this ordinance is unconstitutional in that it confers privileges and immunities on some citizens which it denies to others and the distinctions and classification sought to be drawn are arbitrary, are not based on natural grounds of reasonableness or public policy


Argument for Defendant in Error.

225 U.S.

and do not tend to promote the public welfare. L. S. & M. S. R. R. v. Smith, 173 U. S. 684; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 558, 563; Cotting v. Godard, 183 U. S. 79, 112; Re Yot Yot Sang, 75 Fed. Rep. 983; Nichols v. Watter, 37 Minnesota, 264, 271; McCue v. Sheriff, 48 Minnesota, 236; Lappin v. District of Columbia, 22 App. D. C. 68, 78; Fiscal Court v. Cox Co., 132 Kentucky, 738; Bailey v. People, 190 Illinois, 28, 37; Yick Wo v. Hopkins, 118 U. S. 356; G., C. & S. F. Ry. v. Ellis, 165 U. S. 150, 155, 159, 165; People v. Warden, 157 N. Y. 116; Boyd v. Board, 117 Kentucky, 199.

Mr. John E. Carson, with whom Mr. Lynn Helm was on the brief, for defendant in error:

Municipalities in the State of California, in the exercise of the police power conferred upon them by $ 11, Art. XI of the state constitution, may either regulate or prohibit, and under such power they may prohibit a thing which is not a nuisance per se. Cemetery Ass'n v. San Francisco, 140 California, 226; Ex parte Murphy, 8 Cal. App. 440; S.C., 97 Pac. Rep. 199; Ex parte Lacey, 108 California, 326.

The conducting and keep of billiard and pool rooms for hire or public use is a constant menace to the public peace and morals and they may be regulated by control and regulation or entirely prohibited. Goytino v. McAleer, 88 Pac. Rep. 991; Ex parte Myers, 6 Cal. App. 273; Ex parte Murphy, supra; City of Tarkio v. Cook, 120 Missouri, 1; Ex parte Shrader, 33 California, 279; Ex parte Tuttle, 91 California, 589; Cemetery Ass'n v. San Francisco, 140 California, 226; Clearwater v. Bowman, 72 Kansas, 92; State v. Thompson, 160 Missouri, 333; Tanner v. Albion, 5 Hill (N. Y.), 121; Cooley's Const. Lim. (7th ed.) 884; Hall v. State, 34 S. W. Rep. 22; Webb v. State, 17 Tex. App. 205; State v. Jackson, 39 Missouri, 420; Rex v. Hall, 2 Keb. 846; Fertilizing Co. v. Hyde Park, 97 U. S. 659; Mugler v. Kansas, 123 U. S. 669; Crowley v. Christensen,

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