Ex Parte Dickey

77 P. 924, 144 Cal. 234, 1904 Cal. LEXIS 679

Opinions

HENSHAW, J.

By this writ the petitioner attacks the constitutionality of an act of the legislature defining the duties and liabilities of employment agents, making a violation of the act a misdemeanor, and fixing penalties therefor (Stats. 1903, p. 14), and in particular section 4 of this act, under which he was charged with and convicted of misdemeanor.

Section 4 reads as follows: “It shall be unlawful for an employment agent in the state of California to receive, directly or indirectly for registration made or for information or assistance such as is described in section 2 hereof, any money or other consideration which is in value in excess of ten per cent of the amount earned, or prospectively to be earned, by the person for whom such registration is made or to whom such information is furnished, through the medium of the employment regarding which such registration, information, or assistance is given, during the first month of such employment; provided, that said value shall not be in excess of ten per cent of the amount actually prospectively to be earned in such employment when it is mutually understood by the agent and person in this section mentioned, at the time when said information or assistance is furnished, that said employment is to be for a period of less than one month. ’ ’

Whether or not the act be a valid exercise of the police power is the single question here calling for determination.

As to the scope of the legislative exercise of the police power, the supreme court of the United States in the recent case of Holden v. Hardy, 169 U. S. 366, discussing the question of the right of one to pursue an ordinary and legitimate vocation, to acquire property, and to make contracts to that end, says: “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 to 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 that 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, or 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 measures are necessary for the protéetion of such interests. ’ ’ ’ Judge Cooley on Constitutional Limitations, 7th edition, page 837, declares: “The limit to the exercise of the police power in these cases must be this: The regulation must have reference to the. comfort, safety, or welfare of society.” In the same connection this court has said (Sonora v. Curtin, 137 Cal. 583): “A police regulation or restraint is for the purpose of preventing damage to the public or to third persons. There are certain lines of business and certain occupations which require police regulation because of their peculiar character, in order that harm may not come to the public or that the threatened danger may be averted. Where the profession or business is not dangerous to the public, either directly or indirectly, it cannot be subjected to any police regulation whatever which does not fall within the power of taxation for revenue.” It appears, therefore, that the due exercise of the police power is limited to the preservation of the public health, safety, and morals, and that legislation which transcends these objects, whatever other justification it may claim for its existence, cannot be upheld as a legitimate police regulation.

The business in which this defendant is engaged is not only innocent and innocuous, but is highly beneficial, as tending the more quickly to secure labor for the unemployed. There is nothing in the nature of the business, therefore, that in any way threatens or endangers the public health, safety, or morals. Nor, indeed, is the purpose of this statute to regulate' in these regards, or in any of them. The declared purpose and the plain effect of the above-quoted section is to limit the right of an employment agent in making contracts, a right free to those who follow other vocations, and arbitrarily to fix the compensation which he may receive for the services which he renders.

Here, then, is laid down a most drastic rule governing the conduct of a man in the prosecution of a harmless, legitimate, and beneficial business. Under the constitution of the United States and of this state the protection guaranteed in the possession of property and in the pursuit of happiness is extended, as of necessity it must be, to cover the right to acquire property, and the right to acquire property must and does include the employment of proper means to that end. Says Judge Cooley (Constitutional Limitations, 7th ed., p. 889): “The general rule undoubtedly is that any person is at liberty to pursue any lawful calling, and to do so in his own way, not encroaching on the rights of others. This general right cannot be done away.” And this court has said (Ex parte Newman, 9 Cal. 517): “The right to protect and possess property is not more clearly protected by the constitution than the right to acquire. The right to acquire must include the right to use the proper means to attain the end. The right itself would be impotent without the power to use its necessary incidents. The legislature, therefore,cannot prohibit the proper use of the means of acquiring property, except the peace and safety of the state require it. ’ ’ In strict accord with this is the language of the supreme court of the United States in Holden v. Hardy, 169 U. S. 366: “As the possession of property, of which a person cannot be deprived, doubtless implies that such property may be acquired, it is safe to say that a state of law which undertakes to deprive any class of persons of the general power to acquire property would also be obnoxious to the same provision "(due process of law). Indeed, we may go a step further, and say that, as property can only be legally acquired as between living persons by contract, a general prohibition against entering into contracts with respect to property, or having as their object the acquisition of property, would be equally invalid. ’ ’ And, says Judge Cooley, treating of this same subject-matter: “The doubt might also arise whether a regulation made for one class of citizens, entirely arbitrary in its character, and restricting their rights, privileges, or legal capacities in a manner before unknown to the law, could be sustained, notwithstanding its generality. Distinctions in these respects must rest upon some reason upon which they can be defended—like the want of capacity in infants and insane persons; and if the legislature should undertake to provide that persons following some specified lawful trade or employment should not have capacity to make contracts, or to receive conveyances, or to build such houses as others were allowed to erect, or in any other way to make such use of their property as was permissible to others, it can scarcely be doubted that the act would transcend the due bounds of legislative power, even though no express constitutional provision could be pointed out with which it would come in conflict. To forbid to an individual or a class the right to the acquisition or enjoyment of property in such manner as should be permitted.to the community at large, would be to deprive them of liberty in particulars of primary importance to their ‘pursuit of happiness’; and those who should claim a right to do so ought to be able to show a specific authority therefor, instead of calling upon others to show how and where the authority is negatived.”

The application of these principles to the statute under consideration leads to the following irresistible conclusion: The petitioner is engaged in a harmless and beneficial business. As part of his “property” in that business are the services that he renders in obtaining employment for those seeking it. It is not compulsory upon any one to employ him, and whoso seeks to avail himself of his services is at .liberty to reject them if the terms of the contract for compensation are not satisfactory to him. This right of contract common to the followers of all legitimate vocations is an asset of the petitioner in his chosen occupation, and, as has been said, is a part of the property in the enjoyment of Which he is guaranteed protection by the constitution. By the act in question he is arbitrarily stripped of this right of contract, and deprived of his property, and left, in following his vocation and in pursuit of his livelihood, circumscribed and hampered by a law not applicable to his fellow men in other occupations. Such legislation is of the class discussed by Judge Cooley in the paragraph above quoted, “entirely arbitrary in its character, and restricting the rights, privileges, or legal capacities” of one class of citizens “in a manner before unknown to the law.” For such legislation, as he very justly adds, those who claim its validity should be able to show a specific authority therefor, “instead of calling upon others to show how and where the authority is negatived.”

And where, it may be asked, could the line be drawn, if the legislature, under the guise of the exercise of its police power, should thus be permitted to encroach upon the rights of one class of citizens ? Why should not the butcher and the baker, dealing in the necessaries of life, be restricted in their right of contract, and, consequently, in their profits, to ten, five, or one per cent? Why should not the contractor, the merchant, the professional man, be likewise subjected to such paternal laws, and why might not the legislature fix the price and value of the services of labor ? The law is clearly one of those the danger of whose enactment was foreshadowed by this court in Ex parte Jentzsek, 112 Cal. 468, when it said: “So, while the police power is one whose proper use makes most potently for good, in its undefined scope and inordinate exercise lurk no small danger to the republic. For the difficulty which is experienced in defining its just limits and bounds affords a temptation to the legislature to encroach upon the rights of citizens with experimental laws, none the less dangerous because well meant.”

We have not, in this discussion, been called upon to consider adjudications from any sister states, for the reason that no such enactments as this have been passed by their legislatures, or, if passed, have come before their courts for review. We have been referred to no cases by the respondent. In Illinois, however, an act not dissimilar in character was passed, requiring that all coal produced in the state should be weighed on scales at the mines, and that such weight should be taken as a basis for computing the wages of the operators, and prohibiting the owners and employees from contracting for labor on any other basis. In Millet v. People, 117 Ill. 294, 1 the defendant was convicted of having failed to furnish a track-scale as provided in the act, and he appealed. In stating the proposition the supreme court of Illinois said: “The question is thus presented whether it is competent for the general assembly to single out owners and operators of coal mines, as a distinct class, and provide that they shall bear burdens not imposed on other owners of property or employers of laborers, and prohibit them from making contracts which "it is competent for other owners of property or employers of labor to make.” The court in its discussion quoted Judge Cooley, as above, and, in declaring the law invalid, said: “What is there in the condition or situation of the laborer in the mine to disqualify him from contracting in regard to the price of his labor, or in regard to the mode of ascertaining the price ? And why should the owner of the mine, or the agent in control of the mine, not be allowed to contract in respect to matters as to which all other property-owners and agents may contract?”

There are but two classes of legislation standing upon the boobs which bear any similarity to the law here under consideration, but an examination of those classes discloses that the similarity is superficial and not substantial. The first is found in the laws against usury, not recognized in this state, saving in the particular case of pawnbrokers, who are forbidden to charge more*than two per cent a month interest. But usury laws, without regard to their wisdom, are a heritage to us from the common law, which we have adopted as the basis of our jurisprudence, and had their origin in the somewhat spiritual and theological notion that it was against the law of God that a thing which was by nature unfruitful should be made to bear fruit, and from time immemorial have been upheld as police regulations. (Ex parte Lichtenstein, 67 Cal. 329. 1 )

The second is the law of Congress, apparently impairing the right of contract, in declaring that no agent, attorney, or other person engaged in preparing, presenting, or prosecuting any claim under the provisions of the Pension Act shall demand, receive, or retain for his services any sum greater than ten dollars, and making a violation of the act a misdemeanor. But the constitutionality of the act is upheld by the supreme court of the United States upon the express ground that no pensioner has a vested legal right to his pension. The pensions are the bounties of the government which Congress has the right to, give, withhold, distribute, or recall at its discretion, and, being at liberty so to give or withhold, “may prescribe who shall receive it, and determine all the circumstances and conditions under which any application therefor shall be prosecuted. No man has a legal right to a pension, and no man has a legal right to interfere in the matter of obtaining pensions for himself or others. ’ ’ (Frislie v. United States, 157 U. S. 160.)

For the foregoing reasons the provision of the act under consideration is declared void, and the prisoner is discharged from custody.

McFarland, J., Van Dyke, J., Lorigan, J., Angellotti, J., concurred.

1 57 Am. Rep. 869.

1 56 Am. Rep. 713.