Ex Parte Boyce

75 P. 1, 27 Nev. 299

Opinions

By the Court,

Talbot, J.:

Petitioner was arrested, convicted, and sentenced for work ing 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 eases 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.” (Stats. 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 I 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 eight-hour 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 employee 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 employee 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 affected, 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 Ipy 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 breath 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, sec. 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, sec. 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 employed in one of the largest quartz mills in the state during the past several years became afflicted in from a few to several months with fine particles of flinty dust, which, with the inflation and contraction in breathing, cut the lungs, and resulted in premature and early death. Wo are not prepared to say that the mining, milling, and smelting of ores are not vocations so unhealthy and hazardous that they may not come under the protecting arm of the legislatoe; but to recognize these conditions, and pass measures for their amelioration, and which may protect the health and prolong the lives of the men so employed, we think, is within the legitimate powers of the lawmaking branch of our government. As we will indicate later, the Supreme Courts of Utah and the United States have held these occupations to be unhealthful in that state, and there is no apparent reason why they are not equally so here. If these matters were uncertain when tlier existence is necessary to sustain the law, the doubt should be resolved in favor of the statute, for, as held by this court in several decisions, its validity will be presumed until it is clearly shown to be unconstitutional. Justice Harlan, in delivering the opinion of the Supreme Court of the United States a few weeks since in the case involving the Kansas law making-eight hours a day for all engaged on public work, state, city, or county — a different question than that involved here'— made these pertinent statements: "So, also, if it be said that a statute like the one before us is mischievous in its tendencies, the answer is that the responsibility therefor rests upon the legislators, not upon the courts. No evils arising from such legislation could be more far-reaching than those that might come to our system of government if the judiciary, .abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and, upon grounds merely of justice or reason and wisdom, annul statutes that had received the sanction of the people’s representatives. We are reminded by counsel that it is the solemn duty of the courts, in cases before them, to regard the constitutional rights of the citizen against merely arbitrary power. That is unquestionably true. But it is equally true, indeed, the public interests imperatively demand — that legislative enactments be recognized and enforced by the courts, as embodying the will of the people, unless they are plainly and palpably, and beyond all question, in violation of the fundamental law of the constitution.”

In Wallace v. Mayor and City of Reno, 73 Pac. 531, 27 Nev. 71, we held that the people, and through them the legislature, had supreme power in all matters of government, where not restricted by constitutional limitations; and, adopting the language of the Supreme Court of the United States, we said: "Whatever differences of opinion maj exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health and property of the citizens, and to the preservation of good order and the public morals. The legislature cannot, by any contract, divest itself of the power to provide for these objects. They belong emphatically to that class of objects which demand the application of the maxim, 'Salus populi suprema est lex,’ and they are to be attained and provided for by such appropriate means as the legislative discretion may devise. All rights are held subject to the police power of the state.”

The cases holding that the legislature may pass measures for the protection of the health, safety, and lives of the citizens are too numerous to require citation. These have been enacted and upheld in a variety of forms which limit in a greater or less degree the control and acquisition of property. Quarantine regulations, state and national, for the protection of the many and in restraint of the individual, and affecting people and various animals, prevail generally. The use of safety devices has been enforced in mining, mills, and factories, and on railroads. By ordinance, vestibules are required on street cars to protect motormen from the inclemency of the weather. Various trades are prohibited or regulated, so as not to injure the health of those employed or others. A proportion of private property is exacted by way of taxation for the support of schools, asylums, hospitals, and for other public and beneficial purposes, present and future. More directly, laws have been sustained shortening the hours of labor in bakeries, barber shops, and laundries — places less unhealthy and affecting a smaller class than mines and smelters — and for women in manufacturing establishments. Considerations peculiar to sex have been advanced in some instances in support of the latter, but to have strong, healthy men, instead of sickly and disabled ones, without earning and self-supporting capacity, and resultant widows and orphans dependent upon private and public charity, is quite as important to the state in time of peace or war; and the health and lives of all the people, wherever endangered, should receive care and protection.

Of the statute we have under consideration, sections 1 and 2 are copied literally, and section 3 substantially, from an act found in the Session Laws of Utah for 1896, at page 219, c. 72, which was sustained as being not unconstitutional by the Supreme Court of that state and of the United States. (State v. Holden, 14 Utah, 71, 46 Pac. 756, 37 L. R. A. 103; Id., 14 Utah, 96, 46 Pac. 1105, 37 L. R. A. 108; Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780; Short v. Mining Co., 20 Utah, 20, 57 Pac. 720, 45 L. R. A. 603.)

The Utah Bill of Bights, in slightly varying language, contains the same guaranty as ours for acquiring and holding property, but section 6 of article NVI in the constitution of that state directs that "the legislature shall pass laws to provide for the health and safety of employees in factories, smelters and mines.” This must be regarded as a command to the legislature there on a subject in regard to which our constitution is silent, but the validity of the statute under challenge depends upon power which may exist without the command. This direction to the legislature would imply and supply power if it did not otherwise exist, but, as we have already seen, the authority to provide for the health, safety, and welfare of the citizen is inherent in the police power of the legislature, without any express provision. Our constitution being silent in that regard, our legislature could exercise the power at their discretion, while there the command made action obligatory. Here the legislature is the uninstructed general agent of the people, free to exercise its own judgment in matters coming within the police powers of the state; and the power necessary to sustain the validity of the statute exists here as well as there, and would exist there regardless of the command. It should be remembered that the Utah constitution does not direct the legislature to regulate the hours of labor in mines and smelters, but only to provide for the health and safety of employees therein, and that this law in that state can be sustained only as a health regulation, such as are within the general police powers, regardless of the constitutional command, for otherwise it is not authorized any more there than here. The extent of the command is for the legislature to provide for the health of these employees. Every legislature is authorized to provide for the health of the people, where endangered, and for their welfare in other ways. The power is as inherent here as it is complete there, and, if the curtailment to eight of the hours of labor in the mines and smelters in Utah promotes the health of the employees, ergo it does the same here. Since the constitution of Utah confers no power that is not possessed by our legislature, and the conditions in mines and smelters may not be considered materially different there from what they are here, it is presumed that when our legislature adopted this statute it adopted the construction which had been placed upon it at the time of its adoption by the ¡Supreme Court of that state and the United States. It was said in State v. Robey, 8 Nev. 320, that "it is well settled that when a statute has received a judicial construction, and is afterwards adopted by another state, the construction as well as the terms of the statute will be deemed adopted.” To the same effect are Williams v. Glasgow, 1 Nev. 533, and McLane v. Abrams, 2 Nev. 190; and in Gould v. Wise, 18 Nev. 254, 3 Pac. 30, it was held that the reenactment of the statute after an authoritative construction by the courts, and in that case by the United States District Court, was a legislative adoption of the court’s construction.

The questions involved have been carefully considered and ably discussed in a number of decisions, from which we quote (State v. Holden, supra):

"If the power to pass the law is conceded, the court cannot set it aside because it may deem its enactment unnecessary or injudicious, or because the court may think that experience has proven it so, or because the court may think itself more sagacious than the legislature, and can therefore see more clearly that the law will retard, rather than promote, progress and prosperity, and will be a detriment to the common good when actually applied to human affairs amid the conditions of the future.

"This brings us to the question, Is the first section of the statute, limiting the period of employment of laboring men in underground mines to eight hours per day, except in cases of emergency, where life or property is in imminent danger, calculated to protect the health of such laboring men1? The effort necessary to successful mining, if performed upon the surface of the earth, in pure air and in the sunlight, prolonged beyond eight hours, might not be injurious, nor affect the health of ablebodied mén. When so extended beneath the surface, in atmosphere laden with gas, and sometimes with smoke, away from the sunlight, it might injuriously affect the health of such persons. It is necessary to use artificial means to supply pure air to men laboring any considerable distance from the surface. That being so, it is reasonable to assume that the air introduced, when mixed with the impure air beneath the surface, is not as healthful as the free air upon the surface. The fact must be conceded that the breathing of pure air is wholesome, and that the breathing of impure air is unwholesome. We cannot say that this law, limiting the period of labor in underground mines to eight hours each day, is not calculated to promote health; that it is not adapted to the protection of the health of the class of men who work in underground mines. While the provision of the constitution under consideration makes it the duty of the legislature to enact laws to protect the health and to secure the safety of men working in underground mines, and in factories and smelters, it does not prohibit the legislature from enacting other laws protecting such classes, to promote the general welfare. The authority of the general government is ascertained from the powers delegated, while those of the state government are ascertained from those not prohibited. This leaves the state legislature in the possession of all the lawmaking power not prohibited to it by the constitution of the United States, or the laws made in pursuance of it, or by the state constitution. The enactment of some laws is made mandatory. The enactment of others is left to the discretion of the legislature as the public welfare may demand.

"The fourteenth amendment of the federal constitution forbids the denial to any7 class of persons of the equal protection of the laws by any state, and we have no doubt that class legislation is forbidden. But some pursuits are attended with peculiar hazard and perils, the injurious consequences from which may7 be largely prevented by precautionary7 means, and laws may be passed calculated to protect the classes of people engaged in such pursuits. It is not necessary7 to extend the protection to persons engaged in other pursuits not attended with similar dangers. To them the law would be inappropriate and idle. So, if underground mining is attended with dangers peculiar to it, laws adapted to the protection of such miners from such danger should be confined to that class of mining, and should not include other employments not subject to them. And if men engaged in underground mining are liable to be injured in their health or otherwise by too many hours’ labor each dayq a law to protect them should be aimed at that peculiar wrong. In this way7 laws are enacted to protect people from perils from the operation of railroads, by7 requiring bells to be rung and whistles sounded at road crossings, and the slacking of the speed of trains in cities. So the sale of liquors is regulated to lessen the evils of the liquor traffic, and other classes of business are regulated by appropriate laws. In this way laws are designed and adapted to the peculiarities attending each class of business. By' such laws different classes of people are protected by various acts and provisions. In this way various classes of business are regulated, and the people protected by appropriate laws from dangers and evils that beset them, safety is secured, health preserved, and the happiness and welfare of humanity promoted. All persons engaged in business that may be attended by peculiar injury to health or otherwise if not regulated or controlled should be subject to the same law; otherwise the law should be adapted to the special circumstances.

"An ordinance of the city and county of San Francisco prohibited the washing and ironing of clothes in public laundries and washhouses within certain prescribed limits of the city and county from ten o’clock at night until six o’clock on the morning of the following day; and one Soon Hing was fined and imprisoned for a violation of it, and he petitioned for a writ of habeas corpus, on the ground that the ordinance was void, because it discriminated between the classes of laborers engaged in the laundry business and those engaged in other kinds of business, and it discriminated between laborers beyond the designated limits and those within them; that it deprived the petitioner of the right to labor, and, as a necessary consequence, of the right to acquire property; and that the board had no power to pass it. The writ was denied by the lower court, and the judgment was brought before the Supreme Court of the United States, and affirmed by that court. Among other things, that court said in its opinion: 'The specific regulations for one kind of business which may be necessary for the protection of the public can never be the just ground of complaint because like restrictions are not imposed upon other business of a different kind. The discriminations which are open to objection are those where persons engaged in the same business are subject to different restrictions, or are held entitled to different privileges under the same conditions. It is only then that the discriminations can be said to impair that equal right which all can claim in the enforcement of the laws.’ (Soon Hing v. Crowley, 113 U. S. 703 [5 Sup. Ct. 730, 28 L. Ed. 1145]; Barbier v. Connolly, 313 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923).

"Judge Cooley says: 'Whether a statute is constitutional or not is always a question of power; that is, a question whether the legislature, in the particular case, in respect to the subject-matter of the act, the matter in which its object is to be accomplished, and the mode of enacting it, has kept within the constitutional limits, and observed the constitutional limits. In any case in which this question is answered in the affirmative, the courts are not at liberty to inquire into the proper exercise of the power. We must assume that the legislative discretion has been properly exercised.’ (Cooley, Const. Lim. 6th ed. p. 220.)

"The Supreme Court of Massachusetts, in the case of Com. v. Hamilton Mfg. Co., 120 Mass. 383, held that a law declaring that a woman should not be employed at labor by any person, firm, or corporation in any manufacturing establishment more than ten hours in any one day, except in certain cases, and in no case more than sixty hours a week, was constitutional and valid. The court said: 'It does not forbid any person, firm, or corporation from employing as many persons or as much labor as such person, firm, or corporation may desire; nor does it forbid any person to work as many hours a day or a week as he chooses. It merely provides that, in an employment which the legislature has evidently deemed dangerous to some extent.to health, no woman shall be engaged in labor more than ten hours a day or sixty hours a week. There can be no doubt that such legislation can be maintained, either as a health or police regulation, if it were necessary to resort to either of these sources for power. This principle has been so frequently recognized in this commonwealth that reference to the decisions is unnecessary.’

" The section of the statute of which the constitutionality is involved in this case includes all employees and employers engaged in working underground mines. None are omitted who may be subject to the peculiar conditions that attend such mining. And we are not authorized to hold that the law in question is not calculated and adapted in any degree to promote the health and safety of persons working in mines and smelters. Were we to do so, and declai-e it void, we would usurp the powers intrusted by the constitution to the lawmaking power.”

In affirming tbe decision of the Supreme Court of Utah, the Supreme Court of the United States, in Holden v. Hardy, made a clear and elaborate statement, which is peculiarly applicable here, and of which we reproduce a part of the most direct paragraphs:

"This right of contract, however, is itself subject to certain limitations which the state may lawfully impose in the exercise of its police powers. While this power is inherent in all governments, it has doubtless been greatly expanded in its application during the past century, owing to an enormous increase in the number of occupations which are dangerous, or so far detrimental o the health of employees as to demand special precautions for their well-being and protection, or the safety of adjacent property. While this court has held, notably in the cases Davidson v. New Orleans, 96 U. S. 97 [24 L. Ed. 616], and Yick Wo v. Hopkins, 118 U. S. 356 [6 Sup. Ct. 1064, 30 L. Ed. 220], tliaUthe 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, or morals, or the abatement of public nuisances, and á large discretion 'is necessarily vested in the legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests.’ (Lawton v. Steele, 152 U. S. 136, 14 Sup. Ct. 501, 38 L. Ed. 385.)

" The extent and limitations upon this power are admirably stated by Chief Justice Shaw in the following extract from his opinion in Commonwealth v. Alger, 7 Cush. 53, 84:

"'We think it is a settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that its use may be so regulated that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. Bights of property, like all-other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient.’

"This power, legitimately exercised, can neither be limited by contract, nor bartered away by legislation.

" While this power is necessarily inherent in every form of government, it was, prior to the adoption of the constitution, but sparingly used in this country. As we were then almost purely an agricultural people, the occasion for any special protection of a particular class did not exist. Certain profitable employments, such as lotteries and the sale of intoxicating liquors, which were then considered to be legitimate, have since fallen under the ban of public o'pinion, and are now either altogether prohibited, or made subject to stringent police regulations. The power to do this has been repeatedly affirmed by this court. (Stone v. Mississippi, 101 U. S. 814 [25 L. Ed. 1079]; Douglas v. Kentucky, 168 U. S. 488 [18 Sup. Ct. 199, 42 L. Ed. 553]; Giozza v. Tiernan, 148 U. S. 657 [13 Sup. Ct. 721, 37 L. Ed. 599]; Kidd v. Pearson, 128 U. S. 1 [9 Sup. Ct. 6, 32 L. Ed. 346]; Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. Ed. 620.)

"While the business of mining coal and manufacturing iron began in Pennsylvania as early as 1716, and in Virginia, North Carolina, and Massachusetts even earlier than this, both mining and manufacturing were carried on in such a limited way, and by such primitive methods that no special laws were considered necessary, prior to the adoption of the constitution, for the protection of the operatives; but, in the vast proportions which these industries have since assumed, it has been found that they can no longer be carried on with due regard to the safety and health of those engaged in them without special protection against the dangers necessarily incident to these employments. In consequence of this, laws have been enacted in most of the states designed to meet these exigencies, and to secure the safety of persons peculiarly exposed to the dangers. Within this general category are ordinances providing for fire escapes from hotels, theaters, factories, and other large buildings, a municipal inspection of boilers, and appliances designed to secure passengers upon railways and steamboats against the dangers necessarily incident to these methods of transportation. In states where manufacturing is carried on to a large extent, provision is made for the protection of dangerous machinery against accidental contact, for the cleanliness and ventilation of working rooms, for the guarding of well holes, stairways, elevator shafts, and for the employment of sanitary appliances. In others, where mining is the principal industry, special provision is made for the shoring up of dangerous walls, for ventilation shafts, bore holes, escapement shafts, means of signaling the surface, for the supply of fresh air, and the elimination, as far as possible, of dangerous gases, for safe means of hoisting and lowering cages, for a limitation upon the number of persons permitted to enter a cage, that cages shall be covered, and that there shall be fences and gates around the top of shafts, besides other similar precautions.

"These statutes have been repeatedly enforced by the courts of the several states, their validity assumed, and, so far as we are informed, they have been uniformly held to be constitutional.

"In Daniels v. Hilgard, 77 Ill. 640, it was held that the legislature had power, tinder the constitution, to establish police regulations for the operating of mines and collieries, and that an act providing for the health and safety of persons employed in coal mines, which required the owner or agent of every coal mine or colliery employing ten men or more to make or cause to be made an accurate map or plan of the workings of such coal mine or colliery, was not unconstitutional, and that the question whether certain requirements are a part of a system of police regulations adopted to aid in the protection of life and health was properly one of legislative determination, and that a court should not lightly interfere with such determination unless the legislature had manifestly transcended its province. See, also, Litchfield Coal Co. v. Taylor, 81 Ill. 590.

In Commonwealth v. Bonnell et al., 8 Phila. 534, a law providing for the ventilation of coal mines, for speaking tubes, and the protection of cages, was held to be constitutional, and subject to strict enforcement. (Commonwealth v. Conyngham, 66 Pa. 99; Durant v. Lexington Coal Min. Co., 97 Mo. 62.)

"But if it be within the power of the legislature to adopt such means for the protection of the lives of its citizens, it is difficult to see why precautions may not also be adopted for the protection of their health and morals. It is as much for the interest of the state that the public health should be preserved as that life should be made secure.

"Upon the principles above stated, we think the act in question may be sustained as a valid exercise of the police power of the state. The enactment does not profess to limit the hours of all workmen, but merely those who are employed in underground mines, or in the smelting, reduction, or refining of ores or metals. • These employments, when too long pursued, the legislature has judged to be detrimental to the health of the employees; and, so long as there are reasonable grounds for believing that this is so, its decisions upon this subject cannot be reviewed by the courts.

"While the general experience of mankind may justify us in believing that men may engage in ordinary employments more than eight hours per day without injury to their health, it does not follow that labor for the same length of time is innocuous when carried on beneath the surface of the earth, where the operative is deprived of fresh air and sunlight, and is frequently subjected to foul atmosphere and a very high temperature, or to the influence of noxions gases generated by the processes of refining or smelting.”

Continuing, the United States Supreme Court said:

"We concur in the following observations of the Supreme Court of Utah in this connection in its opinion in No. 2:

"' The conditions with respect to health of laborers in underground mines doubtless differs from those in which they labor in smelters and other reduction works on the surface. Unquestionably the atmosphere and other conditions in mines and reduction works differ. Poisonous gases, dust, and impalpable substances arise and float in the air in stamp-mills, smelters, and other works in which ores containing metals, combined with arsenic or other poisonous elements or agencies, are treated, reduced, and refined; and there can be no doubt that prolonged effort day after day, subject to such conditions and agencies, will produce morbid, noxious, and often deadly effects in the human system. Some organ isms and systems will resist and endure such conditions and effects longer than others. It may be said that labor in such conditions must be performed. Granting that, the period of labor each day should be of a reasonable length. Twelve hours per day would be less injurious than fourteen, ten than twelve, and eight than ten. The legislature has named eight. Such a period was deemed reasonable. The law in question is confined to the protection of that class of people engaged in labor in underground mines, and in smelters and other works wherein ores are reduced and refined. This law applies only to the classes subjected by their emplojunent to the peculiar conditions and effects attending underground mining and work in smelters, and other works for the reduction and refining of ores. Therefore it is not necessary to discuss or decide whether the legislature can fix the hours of labor in other employments. Though reasonable doubts may exist as to the power of the legislature to pass a law, or as to whether the law is calculated or adapted to promote the health, safety, or comfort of the people, or to secure good order or promote the general welfare, we must resolve them in favor of the right of that department of government. But the fact that both parties are of full age and competent to contract does not necessarily deprive the state of the power to interfere where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself.’ The state still retains an interest in his welfare, however reckless he may be. The whole is no greater than the sum of all the parts, and when the individual 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. lie 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 daj 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 gmarantee-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, 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 caixy 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 employees 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 vocations unhealthful and dangerous, and those which are not, and we are unaware that any court where the conditions are the same hás 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 employees 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 Be 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 hold by the highest court in the land, the power of the legislature, as applied to a similiar 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 successful conclusion the purposes above mentioned; although it maybe 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 [38 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 employees 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 ten hours per day, or sixty 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 thereto, 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 sxich extent that the dangers to health incident were so apparent and well understood as to-day, 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.