The opinion
CUSHMAN, District Judge.
I dissent from the opinion of the majority of the court in one important particular. While agreeing with them that this cause comes within the exception to the general rule forbidding the injunction of criminal proceedings, and agreeing that the act attacked does not violate the eleventh amendment to the Constitution, and while agreeing further that the employment agency business may be regulated to any reasonable extent, I dissent from the conclusion that the act in question is an act to regulate, reasonably or otherwise, this business, as it clearly appears to be one destroying and prohibiting the business of such agencies, where neither public health, sáfety, nor morals are concerned. If such business includes in it no harmful element, but when properly conducted, is alone beneficial, then, under the Constitution, neither Legislature nor electorate can strike it down, or prohibit it To do so violates the fourteenth amendment to the Constitution, and deprives those in that business of their liberty and property without due process of law.
The majority opinion holds that the act is one for the regulation, *705 and not prohibition, of. employment agencies. The preamble of the act provides:
“An act to prohibit the collection of fees for the securing of employment or furnishing information leading thereto and fixing a penalty for violation thereof.”
Section 2 provides:
“It shall be unlawful for any employment agent, his representative, or any other person to demand or receive either directly or indirectly from any person seeking employment, or from any person on his or her behalf, any remuneration or fee whatsoever for furnishing him or her with employment or with information leading thereto.”
Tn the official publication of the secretary of the state of Washington of the initiative acts voted on at the election November 3, 1914, with the arguments for and against, there appears the initiative in question. It is headed as follows:
“An act to be submitted to the legal voters of the state of Washington for their approval or rejection at the general election to be held on Tuesday, the third day of November, 1914, proposed by Initiative Petition No. 8, filed in the office of the secretary of state, July 3, 1914, commonly known as Abolishing Kmployment Offices Measure.”
The business of employment agencies consists of remuneration for finding employment for those who seek it, or informing them where it can be found. To say that the tailing away of any remuneration or fee for this service is regulation, and not prohibition, of the business, is to lose sight of what business is. Take away the remuneration for conducting it, and there is no business left. It would then become only a benevolent agency.
Upon the argument, the only suggestion made that the act did not prohibit business was that, under it, employers might still pay the employment agencies a fee for seeking employes, and thereby the business continue. There are two essential fallacies in this argument:
The affidavits filed show that the only income of the complainants is derived from fees charged the laborers for whom they seek employment. First, the business, as established and carried on, is one for the sale of labor, or to find a sale for labor, and not to buy it. Labor differs from other commodities in this: The laborer may, on opportunity, sell his own labor; but, necessarily, busied with his toil in a complex commercial system such as ours, his opportunity is poor compared with that of an experienced and established agency engaged in the business of finding opportunities for employment. Whatever business is considered and analyzed, it is one of sale. Before there can be a sale, there must be something to sell. Uniformly, a buyer buys for his needs, but a seller’s business is to sell. Where buying is part of a business, it is merely a preparation for sale.
The second fatal weakness in this argument is that, if this act forbidding the taking of a fee from the employe is valid, another act may forbid the taking of one from the employer. Thus, by admitting the validity of this act, the power is conceded, not only to fell the trunk., but to destroy the root and branch. This is not regulation. The only support—if it may be so termed—in the record for the position that this act is one of regulation, and not prohibition, is found in the affi *706 davits filed and presumably prepared by the Attorney General, wherein the act is painstakingly referred to as one growing out of the need for regulation of this business. The denial to a man of the right to sell .his labor, the denial of. the right to hire some one to-sell his labor, and, as a.necessary corollary, the right of the agent to sell his services for the securing of such employment, is prohibition of the business. If you forbid an agent to take a fee for the house he rents or sells, you necessarily stop his business.
There has been no contention nor holding that there is aught save good in an employment agency honestly conducted. Upon consideration, it will be conceded that few callings could be more worthy than finding honest employment, and thereby honest independence, for a man who wants to work and who cannot find the opportunity. An agency not inherently harmful, which secures labor for the unemployed, is beneficial. In re Dickey, 144 Cal. 234 , 77 Pac. 924 , 66 L. R. A. 928, 103 Am. St. Rep. 82 , 1 Ann. Cas. 428, the Supreme Court of California held unconstitutional a statute limiting the charges which the owner of an employment agency might make for his services. In the course of the opinion, it is said:
“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.” 144 Cal. at page 236 , 77 Pac. at page 925 , 66 L. R. A. at page 929, 130 Am. St. Rep. at page 83, 1 Ann. Cas. at page 429.
The Supreme Court of the state of Washington, in Spokane v. Macho, 51 Wash. 322 , 98 Pac. 755 , 21 L. R. A. (N. S.) 263, 130 Am. St. Rep. 1100 , in holding the employment agency business legitimate and beneficial, said:
“It cannot be denied that the business of the employment agent is a legitimate business, as much so as is that of the banker, broker, or merchant; and under the methods prevailing in the modern business world, it may be said to be a necessary adjunct in the prosecution of business enterprises.”
In Williams v. Fears, 179 U. S. 270 , 21 Sup. Ct. 128, 45 L. Ed. 186 , the court, in considering the employment agency business, said:
“The court [state court] called attention to the fact that, while previous acts had required a license, this act provided for a specific tax on the occupation of emigrant- agents in common with very many other occupations, the declared purpose of the levy being for the support of the government, and ruled that the question of whether the tax was so excessive as to amount to a prohibition on the transaction of that business, did not arise, and, indeed, was not raised [as in Little v. Tanner (D. C.) 208 Fed. 605 ]. * * * But this act is a taxing act. * * * The individual laborer is left free to come and go at pleasure, and to make such contracts as he chooses, while those whose business it is to induce persons to enter into labor contracts and to change their location, though left free to contract, are subjected to taxation in respect of *707 their business as other citizens are. * * * The general legislative purpose is plain, and the intention to prohibit this particular business cannot properly be imputed from the amount of the tax payable by those embarked in it, even if we were at liberty on this record to go into that subject. It would seem, moreover, that the business itself is of such nature and importance as to justify the exercise of the police power in its regulation. We are not dealing wiih single instances, but with a general business, and it is easy to see that, if that business is not subject to regulation, the citizen may be exposed to misfortunes from which he might otherwise be legitimately protected.” 179 U. S. at pages 273, 274, 275, 21 Sup. Ct. at pages 129, 130 ( 45 L. Ed. 186 ).
In the case of State v. Moore, 113 N. C. 697 , 18 S. E. 342 , 22 L. R. A. 472, the court held unconstitutional a law because of the excessive fee required by a statute of North Carolina from emigrant agents, who differ from employment agents only in that the emigrant agent employs persons to do work out of the state in which they are employed. The court held such business not inherently harmful to the public, and that it could be regulated, but not prohibited, by an exercise of the police power. When the interest the state has in the welfare of its citizens is considered, together with the fact that, without their employment and afforded opportunity for production, it could not exist, and the danger to the state in large numbers of unemployed, it is clear that the employment agency business is affected with a public interest, and that, if, the law may be considered as a reasonable regulation, it should be upheld, but it is clear that it is not a regulation oí the business, but the prohibition of the business.
If it be considered as regulation, it cannot be held reasonable, because it goes beyond the necessities of the case. All that is contended for is that the system, as conducted, has been at fault, that there has been collusion between agencies and managers of employers, and that employment agencies have resorted to various forms of artifices, false representations, and fraud in dealing with employes, for the purpose of extorting money and fees from such applicants, making false statements to applicants as to the amount of wages they would secure and as to other particulars concerning the promised employment. These, defects and faults do not inhere in the business itself, but are the faults and wrongs of certain individuals engaged in that business. It is true, if you sink the ship, you rid yourself of the barnacles on it? bottom; but it is not reasonably necessary.
However many agencies may exist for the finding of employment for men who want it, as long as there are unemployed, there is no reasonable excuse for the elimination of any business carried on for that purpose. The right to contract is not only the essence of, liberty, but is a property right. This is a lawful business, arbitrarily and without reasonable cause prohibited. If the business, as conducted, is wrong, the regulation or prohibition should go to such conduct and not to the business.
•‘It Is novel legislation, indeed, that attempts to take away from all the people the right to conduct a given business because there are wrongdoers in it, from whose conduct the people suffer. * * * Nor can the contention be tolerated that because there have been, in times past, dishonest persons engaged in the ticket brokerage business, with the result that frauds have been perpetrated on both travelers and transportation companies, therefore the Legislature can deprive every citizen engaged therein of the ‘liberty’ to fur *708 ther conduct such' business. Stringent rules undoubtedly may be enacted to punish those who are guilty of dishonest practices in the conduct of such a business and the machinery of the law put, in motion for its rigorous enforcement ; but to cut up, root and branch, a business that may be honestly conducted, to the convenience'of the public and the profit of the persons engaged in it, is beyond legislative power. If the law were otherwise, no trade, business, or profession could escape-destruction at the hands of the Legislature if a situation should arise that would stimulate it to exercise its power, for in every field of endeavor can be found men that seek profit by fraudulent processes. Transportation tickets have been forged it is said; so have notes, checks, and bank bills. Railroad companies are no more bound to honor forged tickets than the alleged maker of a forged note is bound to pay it. An innocent person who suffers by parting with his money on a forged ticket has his remedy against the vendor, just the same as has the bank that discounts a forged note. Such instances might be multiplied, but it would serve no good purpose, for it is well known that no business can be suggested through which innocent parties may not be occasionally victimized. But because of that fact honest men cannot be prevented from engaging in their chosen occupations.” People v. Warden, 157 N. Y. 116, 123, 131, 132 , 51 N. E. 1006, 1008, 1011 , 43 L. R. A. 264, 268, 271, 68 Am. St. Rep. 763 , 767, 774.
All of the cases referred to in the majority opinion are either cases in which the court has upheld laws regulating the conduct of a lawful business, or regulating or prohibiting, a business found to inherently have in itself essential elements of harm. None of the cases cited go as far as the present decision. While there may be language in certain of them that, taken in its broadest sense and divorced from consideration of the facts of the cause in which the language was used, might include the present holding, yet, when viewed in the light of the facts of the case in which it was used, in none of them does it do so.
In Petit v. Minnesota, 177 U. S. 164 , 20 Sup. Ct. 664, 44 L. Ed. 716 , a law was upheld forbidding labor on the Sabbath, except works of charity and necessity; such decision being on the ground that the legislation was not only in the interest of public morals, but of public
In Gundling v. Chicago, 177 U. S. 183 , 20 Sup. Ct. 633, 44 L. Ed. 725 , an ordinance was upheld requiring licenses in order to sell cigar-
Holden v. Hardy, 169 U. S. 366 , 18 Sup. Ct. 383, 42 L. Ed. 780 , upheld an act providing an eight-hour day in mines and smelters, upon the ground that those employments were dangerous and unhealthy. This was a law of regulation.
Barbier v. Connolly, 113 U. S. 27 , 5 Sup. Ct. 357, 28 L. Ed. 923 , upheld an ordinance forbidding the operation of laundries within certain city limits at night, on the ground that it tended to secure the public safety and lessen the danger from conflagration.
C., B. & Q. Ry. v. Drainage Commissioners, 200 U. S. 561 , 26 Sup. Ct. 341, 50 L. Ed. 596 , 4 Ann. Cas. 1175, did not involve the constitutionality of a state law. The holding was that, where a railroad bridge was necessarily destroyed in enlarging .the drainage capacity of a stream for the betterment of public health and other conditions, the destruction of the bridge was not the taking of property in the constitutional sense, that it was an incidental injury to the right of private property, and that it was only for the taking of property for a pub- *709 lie purpose that compensation must first be made under the Constitution. Neither was the railroad taken nor its business prohibited.
Otis v. Parker, 187 U. S. 606 , 23 Sup. Ct. 168, 47 L. Ed. 323 , upheld the validity'of a provision in the Constitution of California that all contracts for the sale of shares of capital stock of corporations on margin should be void. This case in reality follows the case of Booth v. Illinois, 184 U. S. 425 , 22 Sup. Ct. 425, 46 L. Ed. 623 , as is shown by the reasoning of the court in Otis v. Parker:
■ “We cannot .say that there might not be conditions of public delirium in which at least a temporary prohibition of sales on margins would be a salutary thing. Still less can we say that there might not be conditions in which it reasonably might bo thought a salutary thing, even if we disagreed with flic opinion. Of course, if a man can buy on margin, he can launch into a much more extended venture than where he must pay the whole price at once. If lie pays the whole price, he gets the purchased article, whatever its worth may rum out to be. But if he buys stocks on margin he may put all his property into the venture, and being unable to keep his margins good if the stock market goes down, a slight fall loaves Mm penniless, with nothing to represent Ms outlay, except that he has had the chances of a bet. There is no doubt that purchases on margin may be and frequently are used as a means of gambling for a great gaiii or a loss of all one has. It Is said that in California, when the Constitution was adopted, the whole people were buying mining stocks in this way with the result of infinite disaster.” 187 U. S. at pages 609, 610, 28 Sup. Ct. page 170 [ 47 L. Ed. 323 ].
The court said in Booth v. Illinois:
“The argument then is that the statute directly forbids the citizen from pursuing a calling which, in itself, involves no element of immorality, and therefore by such prohibition it invades Ms liberty as guaranteed by the supreme law of the land. Does this conclusion follow from the premise stated? Is it true that the Legislature is without power to forbid or suppress a particular kind of business, whore such business, properly and honestly conducted, may mot, In itself, be immoral? We think not. A calling may not in itself be immoral, and yet the tendency of what is generally or ordinarily or often done in pursuing that calling may be towards that which is admittedly immoral or pernicious. If, looking at all the circumstances that attend, or which may ordinarily attend, the pursuit of a particular calling, the state thinks that certain admitted evils cannot be successfully reached unless that calling be actually prohibited, the courts cannot interfere, unless, looking through mere forms and at the substance of the matter, they ean say that the statute enacted professedly to protect the public morals has no real or substantial relation to that object, but is a clear, unmistakable infringement of rights secured by the fundamental law. Mugler v. Kansas, 123 U. S. 623, 601 [8 Sup. Ct. 273, 31 L. Ed. 205 ]; Minnesota v. Barber, 136 U. S. 313, 320 [10 Sup. Ct. 862, 34 L. Ed. 455 ]; Brimmer v. Rebman, 138 U. S. 78 [11 Sup. Ct 213, 34 L. Ed. 862 ]; Voight v. Wright, 141 U. S. 62 [11 Sup. Ct. 855, 35 L. Ed. 638 ], We cannot say, from any facts judicially known to the court, or from the evidence in this case, that the prohibition of options to sell grain at a future time has, in itself, no reasonable relation to the suppression of gambling grain contracts in. respect of which the parties contempla te only a settlement on the basis of differences in the contract and market prices. Perhaps the Legislature thought that dealings in options to sell or buy at a future time, although not always or necessarily gambling, may have the effect to keep out of the market, while the options lasted, the property which is the subject of the options, and thus assist purchasers to establish, for a time, what are known as ‘corners.’ whereby the ordinary and regular sales or exchanges of such property, based upon existing prices, may be interfered with, and persons who have in fact no grain, and do not care to handle any, enabled to practically control prices. Or the Legislature may have thought that options to soil or buy at a future time were, iti their essence, mere speculations in prices and tended to foster a spirit <>f gambling. In all this the Legislature of the state may have been mistaken. *710 If so, the mistake was not such as to justify the conclusion that the statute was a mere cover to destroy a particular kind of business not inherently harmful or immoral. It must be assumed that the Legislature was of opinion that an effectual mode to suppress gambling grain contracts was to declare illegal all options to sell or buy at a future time. The court is unable to say that the means employed were not appropriate to the end sought to be attained, and which it was competent for the state to accomplish.” 184 U. S. at pages 429, 430, 22 Sup. Ct. at page 427 [ 46 L. Ed. 623 ].
Patterson v. Bark Eudora, 190 U. S. 169 , 23 Sup. Ct. 821, 47 L. Ed. 1002 , upheld a federal law prohibiting the payment of seamen’s wages in advance. This was upheld under the commerce clause of the Constitution, and is essentially a regulation, and not prohibition, of employment.
Knoxville Iron Co. v. Harbison, 183 U. S. 13 , 22 Sup. Ct. 1, 46 L. Ed. 55 , upheld a law requiring, under certain conditions, redemption in cash by the employer of store orders given the employé. This was a regulation of the relation and dealings between employer and employé.
Austin v. Tennessee, 179 U. S. 343 , 21 Sup. Ct. 132, 45 L. Ed. 224 , upheld a law forbidding the sale of cigarettes, on the ground that it was not unreasonable to suppose that such law was designed for the protection of public health.
Halter v. Nebraska, 205 U. S. 34 , 27 Sup. Ct. 419, 51 L. Ed. 696 , 10 Ann. Cas. 525, upheld an act forbidding the use of any representation of the National flag for advertising purposes. The flag is the nation’s, and both the state and nation are bound to protect and cherish it. It would not be unreasonable to conclude that anything that lessened regard for the nation’s emblem—as making an advertising medium of it—would have in it an element of danger to the public. Such a law would not prohibit a lawful and beneficial business, but rather regulate the advertisement of the-business.
Jacobson v. Massachusetts, 197 U. S. 11 , 25 Sup. Ct. 358, 49 L. Ed. 643 , 3 Ann. Cas. 765, upheld a compulsory vaccination law. Such a law affects the public health and safety, and the liberty of the individual is subject to needs to that end to be determined by the Legislature.
Missouri, Kansas & Texas Ry. Co. v. May, 194 U. S. 267 , 24 Sup. Ct. 638, 48 L. Ed. 971 , had to do with the equal protection clause and is not in point.
In Schmidinger v. City of Chicago, 226 U. S. 578 , 33 Sup. Ct. 182, 57 L. Ed. 364 , Ann. Cas. 1914B, 284, where the constitutionality of an ordinance of the city of Chicago was upheld which fixed the weights at which bread might be sold, the ordinance was one of regulation. In the course of the opinion, it is said:
“It has not fixed the price at which bread may be sold. It has only prescribed that the standard weight must be found in the loaves of the sizes authorized.”
Stich ordinance was one of pure regulation, as much so as the fixing of weights and measures has always been considered.
In Central Lumber Co. v. South Dakota, 226 U. S. 157 , 33 Sup. Ct. 66, 57 L. Ed. 164 , a law was upheld prohibiting unfair discrimination in sales or prices in different localities, substantially under the *711 same conditions. The. Legislature did not prohibit the business, but condemned certain conduct in it.
Rosenthal v. New York, 226 U. S. 260 , 33 Sup. Ct. 27, 57 L. Ed. 212 , Ann. Cas. 1914B, 71, upheld a law requiring junk dealers to make diligent inquiry as to the legal right of sellers to certain kinds of property sold to them. The business was not forbidden.
Murphy v. California, 225 U. S. 623 , 32 Sup. Ct. 697, 56 L. Ed. 1229 , 41 L. R. A. (N. S.) 153, upheld an ordinance prohibiting the keeping of billiard halls, on the ground that the keeping of a billiard hall had a harmful tendency in and of itself, independent of the manner of its conduct, and therefore could be legally prohibited.
Noble State Bank v. Haskell, 219 U. S. 104 , 31 Sup. Ct. 186, 55 L. Ed. 112 , 32 L. R. A. (N. S.) 1062, Ann. Cas. 1912A, 487, upheld an act subjecting state banks to assessments for a depositors’ guaranty fund. This was regulation, but not prohibition, of a lawful business.
C., B. & Q. R. R. Co. v. McGuire, 219 U. S. 549 , 31 Sup. Ct. 259, 55 L. Ed. 328 , upheld an act prohibiting contracts limiting liability for injuries; the contract being made in advance of the injury received. This act was limited to railroads, which are common carriers. The prohibition was that of a contract that had in itself the seeds of oppression. It was a regulation between employer and employe, and not: a prohibition of employment. This law was upheld as one incidental to the protection of public health. The court said:
“If I,ho Legislature may require the use of safety devices, it may prohibit agreements to dispense with them. If it may restrict employment in mines and smelters to eight hours a day, it may make contracts for longer service unlawful. In such ease the interference with the right to contract is incidental to the main object of the regulation, and if the power exists to accomplish the latter, the interference is justified as an aid to its exercise.” 219 U. S. at page 570, 31 Sup. Ct. at page 2071 [ 35 L. Ed. 328 ].
Kidd Dater Co. v. Musselman Grocer Co., 217 U. S. 461 , 30 Sup. Ct. 606, 54 L. Ed. 839 , upheld a sales in bulk act requiring tradesmen making sales in bulk of their stock in trade to give notice to the creditors. This was only a sale regulation, tending to prevent fraud. It did not deny the right of sale, but only prescribed the manner.
Welch v. Swasey, 214 U. S. 91 , 29 Sup. Ct. 567, 53 L. Ed. 923 , upheld a statute regulating the height of buildings in commercial and residence, portions of a city. This was a regulation in the interest of public safety.
McLean v. Arkansas, 211 U. S. 539 , 29 Sup. Ct. 206, 53 L. Ed. 315 , upheld an act requiring coal to be measured for payment of the miner before screening, where the contract of employment measured the pay of the miner by the quantity mined. The court said:
“TMs law does not prevent the operator from screening the coal before it is sent to market; it does not prevent a contract for mining coal by the day, week or month. * * *
“We are unable to say, in the light of thp conditions shown in the public inquiry referred to, and in the necessity for such laws, evinced in the enactments of ihe Legislatures of various states, that this law had no reasonable relation to the protection of a large class of laborers in the receipt of their just lues and the promotion of the harmonious relations of capital and labor engaged in a great industry in the state.
*712 “Laws tending to prevent fraud and to require honest weights and measures in the transaction of business have frequently been sustained in the courts, although in compelling certain modes of dealing they interfere with the freedom of contract.” 211 U. S. at pages 548, 550, 29 Sup. Ct. at pages 208, 209 [ 53 L. Ed. 315 ].
This, too; was regulation.
In Powell v. Pennsylvania, 127 U. S. 678 , 8 Sup. Ct. 992, 1257, 32 L. Ed. 253 , the court held that oleomargarine might itself be reasonably considered a counterfeit calculated to deceive the buying public, and that it was a legislative question to determine whether the ingredients of this substance, as generally sold, were harmful to the health of the public. In the course of the opinion the court said:
- “Whether the manufacture of oleomargarine, or imitation butter, of the kind described in the statute, is, or may be, conducted in such a way, or with such skill and secrecy, as to baffle ordinary inspection, or whether it involves such danger to the publiqhealth as to require, for the protection of the people, the entire suppression of the business, rather than its regulation in such manner as to permit the manufacture and sale of articles of that class that do not contain noxious ingredients, are questions of fact and of public policy which belong to the legislative department to determine.” 127 U. S. at page 685 , 8 Sup. Ct. at page 996 [ 32 L. Ed. 253 ].
There is nothing in the present case that can be said to be similar in any way to these conditions. There is nothing in the business of an employment agency inherently wrong, or tending towards wrong. It will probably always be that some of the unemployed will be poor, friendless, and among strangers, and therefore to be imposed upon with less danger than those more fortunately situated; but this fact does not show that the tendency of the business is in any way harmful. It simply affords' the dishonest man in the business an opportunity to practice oppression. A business is not to be prohibited because persons affected by it are likely to be unfortunate. Given opportunity and a dishonest inclination in any business, imposition and fraud are likely to follow. Is it to be, therefore, held that all that is necessary to warrant the abolition of a business is that a large part of those affected by it are, in certain respects, subject to imposition?
That this initiative measure violates the fourteenth amendment to the Constitution in the respect pointed out is shown by the following authorities:
“Tbe liberty mentioned in that amendment 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.” Allgeyer v. Louisiana, 165 U. S. 578, 589 , 17 Sup. Ct. 427, 431 [ 41 L. Ed. 832 ],
“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 law which undertakes to deprive any class of persons of the general power to acquire property would also be obnoxious to the same provision. Indeed, we may go a step further, and say that, as property can oijly 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 acquisi *713 tion of property, would be equally invalid.” Holden v. Hardy, 169 U. S. 366, 391 , 18 Sup. Ct. 383, 387 [42 L. R. A. 780].
“life, liberty, property, and equal protection of the laws, as grouped together in the Constitution, are so related that the deprivation of any one may lesson or extinguish the value of the others. In so far as a man is deprived of the right to labor, his liberty is restricted, his capacity to earn wages and acquire property is lessened, and he is denied the protection which the law affords those who are permitted to work. Liberty means more than freedom f rom servitude; and the constitutional guaranty is an assurance that the citizen shall be protected in the right to use his powers of mind and body in any lawful calling.” Smith v. Texas, 233 U. S. 630 , 34 Sup. Ct. 681, 58 L. Ed. 1129 .
In Lochner v. New York, 198 U. S. 45 , 25 Sup. Ct. 539, 49 L. Ed. 937 , 3 Ann. Cas. 1133, holding unconstitutional a statute of New York fixing the hoürs of labor for bakers, it is said:
“We think that there can be no fair doubt that the trade of baker, in and of itself, is not an unhealthy one to that degree which would authorize the Legislature to interfere with the right to labor, and with the right of free contract on the part of the individual, either as employer or employe. In looking through statistics regarding all trades and occupations, it may be true chat the trade of a baker does not appear to be as healthy as some other trades, and is also vastly more healthy than still others. To the common understanding the trade of a baker has never been regarded as an unhealthy one. Very likely physicians would not recommend the exercise of that or of any other trade as a remedy for ill health. Some occupations are more healthy than others, but we think there are none which might not come under the power of the Legislature to supervise and control the hours of working therein, if the mere fact that the occupation is not absolutely and perfectly healthy is to confer that right upon the legislative department of the government. It might be safely affirmed that almost all occupations more or less affect the health. There must be more than the more fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty. It is unfortunately true that labor, even in any department, may possibly carry with it the seeds of unhealthiness. But are wo all, on that account, at the mercy of legislative majorities? A printer, a tinsmith, a locksmith, a carpenter, a cabinetmaker, a dry goods clerk, a bank’s, a lawyer’s, or n physician’s clerk, or a clerk in almost any kind of business, would all come under the power of the Legislature, on this assumption. No trade, no occupation, no mode of earning one’s living, could escape this all-pervading power, and Ihe acts of the Legislature In limiting the hours of labor in all employments would be valid, although such limitation might seriously cripple the ability of the laborer to support himself and his family. In our large cities there are many buildings into which the sun penetrates for but a short time in each day, and these buildings are occupied by people carrying on the business of bankers, brokers, Lawyers, real estate, and many other kinds of business, aided by many clerks, messengers, and other employes. Upon the.assumption of the validity of this act under review, it is not possible to say that an act, prohibiting lawyers’ or bank clerks, or others, from contracting to labor for their employers more than eight hours a day, would bo invalid. It might be said that it Is unhealthy to work more than that number of hours in an apartment lighted by artificial light during the working hours of the day; that the occupation of the bank clerk, the lawyer’s clerk, the real estate clerk, or the broker’s clerk in such offices is therefore unhealthy, and the Legislature in Its paternal wisdom must therefore have the right to legislate on the subject of and to limit the hours of such labor, and if it exercises that power and Its validity be questioned, it is sufficient to say it has reference to the public health, it has reference to the health of the employes condemned to labor day after each day in buildings where the sun never shines, it is a health law, and therefore it is valid, and cannot he questioned by the courts.
“It is also urged, pursuing the same line of argument, that it is to the interest of the state that its population should be strong and robust, and therefore any legislation which may be said to tend to make people healthy must *714 be valid as health laws, enacted under the police power. If this be a valid argument and a justification for this kind of legislation, it follows that the protection of the federal Constitution from undue interference with liberty of person and freedom of contract is visionary, wherever the law is sought to be justified as a valid exercise of the police power. Scarcely any law but might find shelter under such assumptions, and conduct, properly so called, as well as contract, would come under the restrictive sway of the Legislature. Not only the hours of employes, but the hours of employers, could be regulated, and doctors, lawyers, scientists, all professional men, as well as athletes and artisans, could be forbidden to fatigue their brains and bodies by prolonged hours of exercise, lest the fighting strength of the state be impaired. We mention these extreme cases because the contention is extreme. We do not believe in the soundness of the views which uphold this law. On the contrary, we think that such a law as this, although passed in the assumed exercise of the police power, and as relating to the public health, or the health of the employes named, is not within that power, and is invalid. The act is not, within any fair meaning of the term, a health law, but is an illegal interference with the rights of individuals, both employers and employes, to make contracts regarding labor upon such terms as they may think best, or which they may agree upon with the other parties to such contracts. Statutes of the nature of that under review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual, and they are not saved from condemnation by the claim that they are passed in the exercise of the police power and upon the subject of health of the individual whose rights are interfered with, unless there be some fair ground, reasonable in and of itself, to say that there is material danger to the public health or to the health of the employés, if the hours of labor are not curtailed. If this be not clearly the case, the individuals, whose rights are thus made the subject of legislative interference, are under the protection of the federal Constitution regarding their liberty of contract as well as of person; and the Legislature of the state has no power to limit their right as proposed in this statute. All that it could properly do has been done by it with regard to the conduct of bakeries, as provided for in the other sections of the act, above set forth. These several sections provide for the inspection of the premises where the bakery is carried on, with regard to furnishing proper washrooms and water-closets, apart from the bakeroom, also with regard to providing proper drainage, plumbing, and painting. The sections, in addition, provide for the height of the ceiling, the cementing or tiling of floors, wheje necessary in the opinion of the factory inspector, and for other things of that nature. Alterations are also provided for, and are to be made where necessary in the opinion of the inspector, in order to comply with the provisions of the statute. These various sections may be'wise and valid regulations, and they certainly go to the full extent of providing for the cleanliness and the healthiness, so far as possible, of the quarters in which bakerieS are to be conducted. Adding to all these requirements a prohibition to enter into any contract of labor in a bakery for more than a certain number of hours a week is, in our judgment, so wholly beside the matter of a proper, reasonable, and fair provision as to run counter to that liberty of person and of free contract provided for in the federal Constitution.” 198 U. S. at pages 59-62, 25 Sup. Ct. at pages 544, 545 [ 49 L. Ed. 937 , 3 Ann. Cas. 1133]; Bessette v. People, 193 Ill. 334 , 62 N. E. 215 , 56 L. R. A. 558.
The purpose of a statute must be determined from the natural and legal effect of the language employed; and whether it is or is not repugnant to the Constitution of the United States must be determined from the natural effect of such statute when put into operation, and not from its proclaimed purpose. Minnesota v. Barber, 136 U. S. 313 , 10 Sup. Ct. 862, 34 L. Ed. 455 ; 3 Interst. Com. R. 185; Brimmer v. Rebman, 138 U. S. 78 , 11 Sup. Ct. 213, 34 L. Ed. 862 ; 3 Interst. Com. R. 485; Yick Wo v. Hopkins, 118 U. S. 356 , 6 Sup. Ct. 1064, *715 30 L. Ed. 220 ; State ex rel. Ritchey v. Smith, 42 Wash. 237, 247 , 84 Pac. 851 , 5 L. R. A. (N. S.) 674, 114 Am. St. Rep. 114 , 7 Ann. Cas. 577; Butchers’ Union, etc., Co. v. Crescent City Live Stock, etc., Co., 111 U. S. 746 , 4 Sup. Ct. 652, 28 L. Ed. 585 ; Dent v. West Virginia, 129 U. S. 114, 121, 122 , 9 Sup. Ct. 231, 233,( 32 L. Ed. 623 ). In the latter case it is said:
"It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose, subject only to sucli restrictions as are imposed upon all persons of like age, sox, and condition. This right may in many respects be considered as a distinguishing feature of our republican institutions. Here all vocations are open to every one on like conditions. All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or, as it is sometimes termed, the estate acquired in them, that is, the right to continue their prosecution, is often of great value to the possessors, and cannot be arbitrarily taken from them, any more than their real or personal property can be thus taken.” Lochner v. New York, 198 U. S. 45, 53 , 25 Sup. Ct. 539, 49 L. Ed. 937 , 3 Ann. Cas. 1133; Jones v. Leslie, 61 Wash. 107, 110 , 112 Pac. 81 , 48 L. R. A. (N. S.) 893, Ann. Cas. 1912B, 1158; Adair v. U. S., 208 U. S. 161, 172 , 28 Sup. Ct. 277, 52 L. Ed. 436 , 13 Ann. Cas. 764; In re O’Neil, 41 Wash. 174, 184 , 83 Pac. 104 , 3 L. R. A. (N. S.) 558, 6 Ann. Cas. 869.
In Little v. Tanner (D. C.) 208 Fed. 605, 609 , the court, in using the language quoted in the majority opinion:
“It is plainly manifest that no merchant could afford to pay the sum of 86,000 annually for the mere privilege of giving away trading stamps or allowing discounts on his cash sales. But if this were the only objection to the act it may he that the courts would be powerless to enjoin its execution
—did not intend to concede that a lawful business could be prohibited by the Legislature, for the holding is directly to the contrary. The sense in which the language quoted is used is shown by the sentences immediately preceding and following the quotation:
“The court is fully satisfied from a bare inspection of the act, without more, and without considering the affidavits on file, that it is and was intended to be prohibitive of the business methods against which it is directed. * * * The power of taxation rests npou necessity, and is inherent in every independent state. It is as extensive as the range of subjects over which the government extends; it is absolute and unlimited, in the absence of constitutional limitations and restraints, and carries with it the power to embarrass and destroy.”
That the holding of the court was that a lawful and beneficial business could not be prohibited by an act of the Legislature is shown by the following from that opinion:
“Is there any just basis for the classification hero attempted? We discover none. The legality of what is generally known as the trading stamp business has been very generally affirmed by the courts.” 208 Fed. at page 610 .
The effect of this decision is that, the state itself, through its courts, having held the trading stamp business lawful, it was not necessary for the federal court in such a cause to reinvestigate that question; that its legality would be tansn for granted, where the Legislature had sought to prohibit it; and that, it being certain that such a lawful business may not be directly prohibited, it cannot be accomplished indirectly under color of a revenue measure.
*716 In State v. Moore, 113 N. C. 697, 707 , 18 S. E. 342, 346 , 22 L. R. A. 472, 475, it was said:
“The general scope and tendency of the act, in connection with the exaction of the very large license fee, induce us to believe that, viewed as a police regulation, it is so far restrictive and prohibitory as to contravene those fundamental principles we have enunciated, and which are intended to protect the citizen in the pursuit of an occupation not inherently dangerous or harmful to the public. It may be regulated, but it cannot be indirectly prohibited, by an exercise of the police power.”
There is more reason for holding the law valid prohibiting the use of trading stamps than the law in the present case, for, while there is no element in the employment agency business itself which can be said to have within it a wrongful tendency, yet in the case of the trading stamps, given away by merchants with purchases, it may plausibly be contended there is present in the scheme itself that condition that encourages the members of the buying public to believe that they are “getting something for nothing,” which is itself the dangerous element in all gambling. The act in question cannot be brought by analogy within the familiar cases regarding intoxicating liquors, oleomargarine, minors working at certain employments, limiting the hours of work by women, women working in saloons, minors entering poolrooms, maintenance of race tracks, contracts with minors, trading stamps and the like.
It will be noted that the initiative measure does not denounce the employment agency business as harmful, but simply declares:
“That the system of collecting fees from the workers for furnishing them with employment, or with, information leading thereto, results frequently in their becoming the victims of imposition and extortion.” People v. Warden, 157 N. Y. 116 , 51 N. E. 1006 , 43 L. R. A. 264, 268, 271, 68 Am. St. Rep. 763 .
It is true that very few cases are found where the highest court of the land has declared a law enacted by a state under color of its police power unconstitutional; but this cannot be considered an argument, for occasions where Legislatures have overlooked the fact that their function is to render more,secure men in their lawful callings, and not to deny them the right to engage therein, are scarcer still than such decisions.
It is said in the majority opinion that the state is qualified to legislate concerning local conditions, but the right of the laborer to work, to sell his labor for bread, and to hire some one to find him a place to work and to sell it, smacks more of fundamental and primary principles than of local or temporary conditions. Misfortune -and dishonesty are of neither time nor place. Primarily the Legislature is the judge of such conditions, but its act will not stand where it is palpably in excess of the legislative power.
To disregard concrete examples of the effect or scope of a ruling or holding, if extended to other instances under like conditions, is to leave one in the realm of pure abstraction to find the right and wrong. Great care is necessary to avoid the danger of arguing from analogy, but it is as necessary to look forward to determine the possible effect of a ruling or holding as it is to look back along the line of precedents, in order to determine whether we are keeping within proper bounds. *717 The only thing that prevents case law becoming a wilderness of single instances is the fact that, given the same essential elements and reasons, the same rule will apply and result.
This law goes beyond what is reasonable in a remedy when it goes beyond the disease and deprives the patient of life. If the individual grocer defrauds his customers, by his weights or otherwise, no one would contend that the business of the grocer should be prohibited. If this law may he upheld, it is not perceived why some other equally well-meaning Legislature or electorate might not, with better reason, upon recital that the negro was in certain respects inferior to the white race, and was liable to be imposed upon by the dishonest white man, forbid all contracts between negroes and white men.
If this act be valid, may not one be that recites that upon frequent occasions labor leaders have exploited the members of their organizations for their own benefit, and that therefore all labor organizations should be prohibited—even while every one concedes the essential benefits which result from them, when honestly conducted? It would follow that an act was likewise valid which recited that frequently newspapers have become agencies for foisting upon the public worthless nostrums, and that therefore all newspapers should be prohibited, because of the wrongful manner in which certain ones were conducted.
To say that this is a far-fetched illustration, and that nothing of the kind is likely to happen under our system, is to beg, or rather confess, the point. The argument that the press, because it is a great engine in forming public opinion, will always be able to afford its own protection, defeats itself, for the position to be maintained is that the majority, upon consideration, should control.
But the rightful exercise of this power rests upon consideration, the weighing of the right and wrong by the majority, and by each individual of the majority. The strength of the press is in propaganda. The merchant or agent is one; his customers are many. If his customers are dissatisfied, and his right depend upon relative strength in a propaganda, his protest is drowned by the clamor of the many in opposition to him. So this argument would affirm that rights should be protected by the volume of appeal to the majority, and not by the righteousness of any consideration of such majority.
Courts will disregard the plea that a legislative act is an arbitrary and unreasonable exercise of power, where it is merely shown that one of equal, though of less conspicuous, guilt is let go free, while such other is condemned. Such plea is one of evasion, and not of justification. It is a prayer, not for the equal protection of the law, but for an equal license or indulgence under the law. It may be easier and simpler to prohibit a business than regulate or prohibit wrong conduct in it; but where neither public health, safety, nor tnorals are concerned, for doubtful convenience sake in' such case to say “Thou shalt not,” alike to right and wrong, to the wicked and the just, is to fail in the assertion of that for which laws and government were borne.
For the foregoing reasons I dissent.