and is not unconstitutional as depriving the parent of the right to the custody and service of the child, and the child of the right to follow a lawful occupation. Gray, J., says:

The question we shall determine upon this appeal is whether the statute under which the appellant was arrested violates any just and personal rights secured to her by the constitution of the State. If it is such an interference with the legal relation of parent and child as exceeds the limits within which the legisla ture, exercising the sovereign power of the State, may regulate and control that relation, then it is the duty of the courts to declare its unconstitutionality; but, if it is within a proper and legitimate exercise of legislative functions, the courts may not interfere. This question falls within those which are classified under the head of the police power of the State. The extent of the exercise of that power, with which the legislature is invested, and which it has so freely exerted in many directions, within constitutional limits, is a matter resting in discretion, to be guided by the wis dom of the people's representatives. It is difficult, if not impossible, to define the police power of a State, or, under recent judicial decisions, to say where the constitutional boundaries limiting its exercise are to be fixed. It is a power essential to be conceded to the State, in the interest, and for the welfare, of its citiWe may say of it that when its operation is in the direction of so regulating a use of private property, or of so restraining personal action, as manifestly to secure or to tend to the comfort, prosperity, or protection of the community, no constitutional guaranty is violated, and the legislative authority is not transcended. But the legislation must have some relation to these ends; for, to quote the expressions of Mr. Justice Field in the Slaughterhouse Cases, 16 Wall. 36, "under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded." In People v. King, 110 N. Y. 418, 18 N. E. Rep. 245, it was well observed by Judge Andrews: "By means of this power the legislature exercises a supervision over matters affecting the common weal.

zens.

It may be exerted whenever necessary to secure the peace, good order, health, morals, and general welfare of the community, and the property of its exercise, within constitutional limits, is purely a matter of legislative discretion, with which courts cannot interfere." The assumption of the exercise of this extraordinary and very necessary power has been the subject of severe criticism in the opinions of judges, when it has been sought thereby to regulate and con trol in the interest of the public the conduct of corporate or individual business transactions. Munn v. State of Illinois, 94 U. S. 113, may be referred to as starting a current of authority in this country. But no such criticism can find just grounds for caviling at legislation whose ends clearly tend to promote the health or moral well-being of the members of society. To that class of legislation this statute belongs. By preventing the exhibition of children of tender and immature age upon the theatrical or other public stage, the legislature is exercising that right of supervision and control over the child which in every civil. ized State inheres in the government, and which nothing in the legal relations of parent and child should be deemed to forbid. The proposition is indisputable that the custody of the child by the parent is within legislative regulation. The parent, by natural law, is entitled to the custody and care of the child, and, as its natural guardian, is held to the performance of

certain duties. To society, organized as a State, it is a matter of paramount interest that the child shall be cared for, and that the duties of support and education be performed by the parent or guardian, in order that the child shall become a healthful and useful member of the community. It has been well remarked that, the better organized and trained the race, the better it is prepared for holding its own. Hence it is that laws are enacted looking to the compulsory education by parents of their children, and to their punishment for cruel treatment, and which limit and regulate the employment of children in the factory and the workshop, to prevent injury from excessive labor. It is not, and cannot be, disputed that the interest which the State has in the physical, moral, and intellectual well-being of its members warrants the implication and the exercise of every just power which will result in preparing the child, in future life, to support itself, to serve the State, and, in all the relations and duties of adult life, to perform well and capably its part.

In the brief of the able counsel who appears for the people, and whose earnest efforts in behalf of the cause of humanity and of mercy have so distinguished him, the discussion of the subject upon these lines is quite full and interesting. Indeed, the learned counsel for the appellant does not, in the main, contest the right and the duty of the State to protect, and to promote by adequate legislation, the health and morals of its citizens, but bases his arguments here upon the proposition, substantially, that the legislature cannot take from parents the right to employ their children in any lawful occupation, not indecent or immoral, or dangerous to fife, limb, health, or morals. That proposition may be readily conceded. It is true enough that if the court could say that this legisla tion was an arbitrary exercise of the legislative power, depriving the parent of a right to a legitimate use of his child's services,--that, while ostensibly for the promotion of the well-being of children, in reality it strikes at an inalienable right or at the personal liberty of the citizen, and but remotely concerned the interests of the community,-it would be its duty to so pronounce, and to declare its invalidity. But this legislation has no such destructive effect or tendency. It does not deprive the parent of the child's custody, nor does it abridge any just rights. It interferes to prevent the public exhibition of children, under a certain age, in spectacles or performances which, by reason of the place or hour, of the nature of the acts demanded of the child performer, and of the surroundings and circumstances of the exhibition, are deemed by the legislature prejudicial to the physical, mental, or moral well being of the child, and hence to the interests of the State itself. Take the facts of this case, and they seem sufficiently to warrant the interference of the law. It is not necessary to reason upon them. The scanty dress of the ballet dancer, the pirouetting and the various other described movements with the limbs, and the vocal efforts cannot be said to be without possible prejudice to the physical condition of the child, while in the glare of the footlights, the tinsel surroundings, and the incense of popular applause, it is not impossible that the immature mind should contract such unreal views of existence as to unfit it for the stern realities and exactions of later life. The statute is not to be construed as applying only when the exhibition offends against morals or decency, or endangers life or limb, by what is required of the child actor. Its application is to all public exhibitions or shows. That any and all such shall be deemed prejudicial to the interests of the

child, and contrary to the policy of the State to permit, was for the legislature to consider and say.

The right to personal liberty is not infringed upon because the law imposes limitations or restraints upon the exercise of the faculties with which the child may be more or less exceptionally endowed. The inalienable right of the child or adult to pursue a trade is indisputable; but it must be not only one which is lawful, but which, as to the child of immature years, the State or sovereign, as parens patriæ, recognizes as proper and safe. It is not the strict moralist's view, dictated by prejudice, but the view from the standpoint of a member of the body politic, which ranges the judgment in support of legislative interference to restrain the parent from permitting an employment of the child under circumstances deemed unsuited to its proper mental, moral, or physical development. In the judgment of the legislature it was deemed as unsuitable for the youth of the community, under a certain age, to dance or to perform in public exhibitions in the ways mentioned as it was deemed unsuitable for them to work in the factory, except under certain limitations as to age, hours, etc.

We have not overlooked certain cases referred to by the appellant's counsel to show the invalidity of this legislation as an exercise of the police power of the State, or to show a violation of constitutional rights. They establish that the legislature has no right, under the guise of protecting health or morals, to enact laws which, bearing but remotely, if at all, upon these matters of public concern, deprive the citizen of the right to pursue a lawful occupation. Such were In re Jacobs, 98 N. Y. 98; People v. Marx, 99 N. Y. 377, 2 N. E. Rep. 29; People v. Gillson, 109 N. Y. 389, 17 N. E. Rep. 343; People v. Rosenberg, 138 N. Y. 410, 34 N. E. Rep. 285. We are referred to some cases in Illinois, but they are neither applicable nor authoritative upon the question before us.

In the Michigan case it was held that Pub. Acts Mich. 1893, prohibiting barbers from conducting their business on Sunday, is not in conflict with Const. Mich. art. 6, § 32, providing that no person shall be deprived of his liberty or property without due process of law, nor Const. U. S. Amend. 14, guarantying to all persons equal protection of the laws, but is a valid police regulation. gomery, J., says:

Mont

It is urged that the act is invalid because it conflicts with article 6 of section 32 of the constitution of this State, which provides among other things, that no person shall be deprived of life, liberty, or property without due process of law, and for the further reason that it is in conflict with the fourteenth amendment of the United States, which provides that "no State shall make or enforce any law which shall abridge the privileges or immunities of the 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 the laws." It is conceded that the State, in the exercise of its police power, has the right to enact Sunday laws, and that it also has the right to provide for the regulation and restriction of those engaged in an employment which, in and of itself, may prove harmful to the community, such as the liquor traffic. But it is contended that the business of conducting a barber shop is not of this class, and

that it is in the nature of class legislation to prohibit this business under more severe penalties than those provided for the conduct of other legitimate business on Sunday. We do not deem the act in question open to such objection. By class legislation, we understand such legislation as denies rights to one which are accorded to others, or inflicts upon one individual a more severe penalty than is imposed upon another, in like case, offending. In Cooley on Constitutional Limitations (page 482), it is said: "Laws public in their objects may, unless express constitutional provision forbids, be either general or local in their application. They may embrace many subjects or one, and they may extend to all citizens, or be confined to particular classes, as minors or married women, bankers or traders, and the like. The legis

lature may also deem it desirable to prescribe peculiar rules for the several occupations, and to establish distions in the rights, obligations, duties, and capacities of citizens. The business of common carriers, for instance, or of bankers, may require special statutory regulations for the general benefit; and it may be matter of public policy to give laborers in one business a specific lien for their wages, when it would be impracticable or impolitic to do the same for persons engaged in some other employments. If the laws be otherwise unobjectionable, all that can be required, in these cases, is that they be general in their application to the class or locality to which they apply; and they are then public in character, and of their propriety and policy the legislature must judge." In Liberman v. State, 26 Neb. 464, 42 N. W. Rep. 419, an ordinance of the city prohibited the keeping open of any business house, bank, store, saloon, or office, excepting telegraph offices, express offices, photograph galleries, railroad offices, telephone offices, hotels, restaurants, cigar stores, eating houses, ice-cream parlors, drug stores, etc. It was contended that the ordinance was open to the objection that it did not operate upon all citizens alike; that the respondent was compelled to close his place of business on Sunday, while drug stores, tobacco houses, and others in competition in business, were not required to do so. But the court held the act valid. In the present case it may have been the judgment of the legislature that those engaged in the particular calling were more likely to offend against the law of the State providing for Sunday closing than those engaged in other callings. If so, it became a question of policy as to whether a more severe penalty should not be provided for engaging in that particular business on Sunday than that inflicted upon others who refuse to cease from their labors one day in seven.

Another question which naturally presents itself, but which has not been discussed by respondent's counsel, is whether the law is open to the objection that it is class legislation, for the reason that those who observe the seventh day of the week as the Sabbath are excepted from its provisions. It has been held in one case (City of Shreveport v. Levy, 26 La. Ann. 671) that such a provision is unconstitutional because it discriminates between religious sects. But we find that such an exception to the general statute of this State relative to the observance of Sunday has been in force since 1846. See How. Ann. St. § 2021. And, while this question has never been directly passed upon, the validity of the act in question has been assumed in a large number of cases. A similar question was raised in Johns v. State, 78 Ind. 332, and it was held not to conflict with a provision of the constitution which reads: "The general assembly shall not grant to any citizen, or to any class of citizens,

privileges or immunities which, upon the same terms, shall not belong equally to all citizens." It was said: "The [framers of the statute meant to leave it to the consciences and judgments of the citizens to choose between the first and seventh day of the week. One or the other of these days, they must refrain from common labor. Which it shall be is to be determined by their own consciences. It was not the purpose of the lawmakers to compel any class of conscientious persons to abstain from labor upon two days in every week." The Supreme Court of Ohio has gone so far as to hold that a statute which did not contain such an exception was for that reason unconstitutional. See Cincinnati v. Rice, 15 Ohio, 225; Canton v. Nist, 9 Ohio St. 439.

The better reason for maintaining the police power to prohibit citizens from engaging in seculiar pursuits on Sunday is the necessity of such regulation as a sanitary measure. As to those employments which are noiseless, and harmless in themselves, and conducted in a manner not calculated to offend those who, from religious scruples, observe Sunday as the Lord's day, this necessity appears to be the only valid source of legislative power; and this is based upon the fact that experience has demonstrated that one day's rest is requisite for the health of most individuals, and not all individuals possess the power to observe a day of rest of their own volition. As is well said by Mr. Tiedeman: "If the law did not interfere, the feverish, intense desire to acquire wealth, so thoroughly characteristic of the American nation, would ultimately prevent, not only the wage earners, but likewise the capitalists and employers themselves, from yielding to the warnings of nature, and obeying the instincts of self-preservation, by resting periodically from labor, even if the mad pursuit of wealth should not warp their judgment and destroy this instinct. Remove the prohibition of law, and this wholesome sanitary regulation would cease to be observed." Tied. Lim. (Police Power) 181.' In Cooley's Constitutional Limitations (page 477), it is said: "It appears to us that, if the benefit of the individual is alone to be considered, the argument against the law which he may make who has already observed the first day of the week is unanswerable. The obligation to cease from secular pursuits on one day of the week does not discriminate either in his favor or against him."

We think the statute under consideration is within the police power of the State, and not in conflict with any express provision of the constitution, and that it does not conflict with the fourteenth amendment of the constitution of the United States.

TRIAL-VERDICT BY LOT-NEW TRIALEVIDENCE OF OFFICER.-It was decided by the Supreme Judicial Court of Massachusetts in Wright v. Abbott, that the officer in charge of the jury can testify to what he heard said and done by the jury in the jury room to show that the verdict was decided by lot. Field, C. J., says:

The single question in this case is whether, on a motion for a new trial on account of the alleged misconduct of the jury, it is competent for a deputy sheriff who had the charge of the jury during their deliberations in the jury room to testify to what he heard said and done by the jury in the jury room, for the pur

pose of showing that the jury decided the case by lot, or by the drawing of a ballot from a hat in which ballots had been put,-some marked for the plaintiff, and some for the defendant. It is certainly not the duty of an officer in charge of a jury to listen to the deliberations of a jury, but, if he does, his testimony cannot be excluded on the ground that his knowledge was obtained in this manner, if it is otherwise competent. The rule excluding testimony of the conduct of jurors in the jury room when deliberating upon a verdict ought to have some limits. It seems that in England it has been finally settled that the affidavit of a juror will not be received to show that the verdict was determined by lot. Vaise v. Delaval, 1 Term R. 11; Owen v. Warburton, 1 Bos. & P. (N. R.) 326; Straker v. Graham, 7 Dowl. 223, 225. The weight of authority in this country, also, is that the affidavits or the testimony of jurors to show such a fact will not be received. Dana v. Tucker, 4 Johns. 487; Cluggage v. Swan, 4 Bin. 150; Brewster v. Thompson, 1 N. J. Law, 32. Grinnell v. Phillips, 1 Mass. 540, is regarded as overruled in Woodward v. Leavitt, 107 Mass. 453, 462. It has always been held that if a verdict is obtained by resorting to chance, or by drawing lots, it will be set aside. Mitchell v. Ehle, 10 Wend. 595; Donner v. Palmer, 23 Cal. 40; Ruble v. McDonald, 7 Iowa, 90; Birchard v. Booth, 4 Wis. 67; Dorr v. Fenno, 12 Pick. 520; Forbes v. Howard, 4 R. I. 364. In Vaise v. Delaval, ubi supra, where a verdict was obtained by tossing up, Lord Mansfield said: "The court cannot receive such an affidavit from any of the jurymen themselves, in all of whom such conduct is a very high misdemeanor; but in every such case the court must derive their knowledge from some other source, such as from some person having seen the transaction through a window, or by some other means." In Wilson v. Berryman, 5 Cal. 44, the verdict was what is called a "quotient verdict:" and the court, while conceding that the affidavit of a juror could not be received, admitted the affidavit of the undersheriff that the affidavit of the juror was true. Either the law that a verdict must be set aside if determined by lot is nugatory, because the fact cannot be proved, or there must be a possible means of proving it. If, on grounds of public policy, the affidavits or the testimony of jurors concerning what took place in the jury room is excluded, as well as evidence of their subsequent declarations on the subject, still we are of opinion that independent evidence should be admitted, and that the evil consequences to be apprehended from admitting such evidence are less than the cousequences of forbidding all inquiry into such a matter. We think that the presiding justice properly refused to rule as requested.

VOID AND VOIDABLE CORPORATE STOCK.

The distinction between "void" and what may be called "voidable stock" in the law of corporations has been made in some late cases and should be borne in mind by those who have occasion to examine into the rights and liabilities of shareholders in defunct corporations. The cases support the doctrine that absolutely void stock confers no rights

and entails no liabilities in the hands of the holder even as against corporate creditors. This is the case, for instance, where a corporation issues or increases its stock without power so to do. The statutes of many of the States contain restrictions upon the power of corporations to increase capital stock above a certain amount.1 Where such statutes exist stock issued by a corporation above the amount authorized is absolutely and wholly void, for it is well settled that a corporation has no implied authority to alter the amount of its capital stock where the charter has definitely fixed the capital at a certain sum. The shares of a corporation can neither be increased nor diminished in number or in their nominal value unless this be expressly authorized by the company's charter or by an act of the legislature. Where, however, a corporation has power to issue or increase its stock, the statute prescribing certain forms and procedure to that end, stock issued or increased without complying with that procedure presents simply a question of irregularity of issue. In such case the stock is simply voidable and as against creditors or in the hands of one who has received and exercised ownership as a stockholder, will carry with it liability for assessments, etc., this doctrine being maintained upon the ground of estoppel. But as against stock void for want of power to issue there can be, in the nature of things, no such thing as an estoppel. The cases well illustrate this distinction. The leading one is Scoville v. Thayer, decided by the United States Supreme Court in 1880. That was a suit by an assignee in bankruptcy representing creditors on unpaid subscriptions in a Kansas corporation whose capital stock originally $100,000, was attempted to be increased under the forms of law to $200,000, 300,000 and 400,000, the stock sued on being a part of the third and fourth issue,

3

1 For instance the statutes of Kansas and Texas read that "any corporation may increase its capital stock to any amount not exceeding double the amount of its authorized capital, etc."

2 1 Morawetz on Corporations, § 434; Smith v. Goldsworthy, 4 Q. B. 430; N. Y., etc. R. R. Co. v. Schuyler, 34 N. Y. 30; Sutherland v. Olcott, 95 N. Y. 93; Salem Mill Dam Co. v. Ropes, 6 Pick. 23; Knowlton v. Con-. goess, etc. Spring Co., 14 Blatch. 364; Scoville v. Thayer, 105 U. S. 143; Granger Life, etc. Ins. Co. v. Kamper, 73 Ala. 325; 2 Beach on Corporations, § 468; 1 Cook on Stockholders, § 281.

3 105 U. S. 143.

and there being a Kansas statute restricting the increase of stock to double the original capital. It also appeared that the defendant had attended meetings of stockholders at which the increase of stock, alleged to be illegal was voted for. The holding of the court was that certificates of stock of an incorporated company issued in excess of the limit imposed by its charter are void and the holder of them is not entitled to the rights nor subject to the liabilities of a holder of authorized stock, and that he is not estopped to set up the invalidity of such unauthorized stock as a defense to an action by creditors against him to recover the balance unpaid thereon, by the fact that he attended the meeting at which it was voted to issue the same or that he received and held certificates therefor. Mr. Justice Woods who delivered

the opinion says: "It is well settled that a corporation has no implied power to change the amount of its capital as prescribed in its charter, and that all attempts to do so are void. In this case the attempt to increase the stock of the company beyond the limit fixed by its charter was ultra vires. The increased stock itself was therefore void. It conferred on the holders no rights and subjected them to no liabilities. If the stock of the first and second issues had been held by one set of holders and the stock of the third and fourth by another, in a contest between them the latter would have been excluded from all participation in the management of the company or in its profits. To decide that the holders of stock issued ultra vires have the same rights as the holders of authorzed stock, is to ignore and overrides the limitations and prohibitions of the charter. We think it follows that if the holder of such spurious stock has none of the rights, he can be subjected to none of the liabilities of a holder of genuine stock. His contract to pay for spurious shares is without consideration and cannot be enforced. It is insisted; however, that the defendant having attended by proxy the meetings at which the increase of the stock beyond the limit imposed by law was voted for, and having received certificates for the stock thus voted for * he is now estopped from denying the validity of the stock and his obligation to pay for it in full. We think that he is not estopped to set up the nullity of the unauthorized stock.

It is true that it has been held by this court that a stockholder cannot set up informalities in the issue of stock which the corporation had the power to create (citing the Upton cases). But those were cases where the increase of the stock was authorized by law. The increase itself was legal and within the power of the corporation, but there were simply informalities in the steps taken to effect the increase. These it was held were cured by the acts and acquiescence of the defendant. But here the corporation being absolutely without power to increase its stock above a certain limit, the acquiescence of the shareholder can neither give it validity nor bind him or the corporation." After citing some English and also some New York cases, the court concludes that "upon the principles stated in these authorities, we are of opinion that the defendant is not estopped by any acts of his, to assert the invalidity of the stock isued in excess of the limit authorized by the charter and to deny his liability thereon."

The principle announced in that case and the distinctions made are upheld by authority and have been repeatedly recognized and applied. In N. Y. and N. H. R. R. Co. v. Schuyler, it was held that spurious stock attempted to be created in excess of the legal capital of an incorporated company forms no part of the capital stock and is void. In Railway Co. v. Allerton,5 the Supreme Court of the United States held that attempts on the part of directors of a corporation to increase its capital stock beyond the limit fixed by the charter are void, even though the charter gives in terms the right to "increase from time to time at the pleasure of said corporation." The court says: "A change so organic and fundamental as that of increasing the capital stock of a corporation beyond the limit fixed by the charter cannot be made by the directors alone, unless expressly authorized thereto. Changes in the purpose and object of an association or in the extent of its constituency or membership involving the amount of its capital stock, are necessarily fundamental in their character, and cannot, on general principles, be made without the express or implied consent of the

4 34 N. Y. 30.

5 18 Wall 233.

*

members." In Lathrop v. Kneeland, it was held by the New York Supreme Court, that where all the capital stock of a corporation is subscribed for and taken, at the time the articles of incorporation are filed, no subsequent subscribers, by merely writing their names in the corporation book and affixing a number of shares to their respective names, can acquire a right to any shares of stock or become by such an act stockholders of the corporation and liable as such for its debts; that a corporation cannot increase its capital stock at will in any manner or to any extent unless it is authorized to increase the same by its charter and then only in the manner prescribed, and that where one subscribed for stock as above, it was held he was not estopped from denying that he was a stockholder. In McCord v. O. & M. R. R. Co., the Supreme Court of Indiana hold that there can be no recovery against a subscriber to additional unauthorized stock of a corporation. The Supreme Court of Pennsylvania hold in Mount Holly Paper Co.'s Appeal, that stock fraudulently issued in excess of the number of shares authorized by the charter are null and void; in People's Bank v. Kurtz, that the bona fide holder of a fraudulent certificate representing an over issue of stock of a corporation has a right of action for damages against the corporation, and in Wright's Appeal, 10 that overissued shares of stock in a corporation are invalid and valueless. In Bruff v. Mali," the New York Court of Appeals hold that overissued certificates of stock are spurious and void, and give the a stockholder. The purchaser no rights as case of Veeder v.

Mudgett, 12

before ques

the same court presented the tion of the effect of irregularities in complying with statutory provisions, providing for increasing of stock, and it was very properly held that in such case the stockholder was estopped from questioning the validity of the increase. The following language of Finch, J., aptly shows the distincttion herein before made. "The authorities for this doctrine (estoppel in case of defective

646 Barb. 432.

7 13 Ind. 220. 99 Pa. St. 513.

9 Id. 344.

10 Id 425.

11 36 N. Y. 200.

12 95 N. Y. 295.