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that there is a limit to the exercise of this power, and that it is not an unlimited arbitrary power, which would enable the legislature to prohibit a business, the prosecution of which inflicts no damage upon others. But the difficulty is experienced, when an attempt is made to lay down a general rule, by which the validity of a particular regulation may be tested. There can be no objection raised to such a regulation, unless it contravenes some constitutional provision. - The State legislatures have the power, unless there be something in their own constitution to prohibit it, of entirely abolishing or placing under restrictions any trade or profession, which they may think expedient.” 1
It is a matter of great doubt, whether in any of the State constitutions there is any special limitation upon the power of the legislature to regulate and enjoin the prosecution of trades and occupations, and if there is any limitation it must be inferred from the general clauses, such as “ every man has an inalienable right to life, liberty, and the pursuit of happiness,” or “no man shall be deprived of his life, liberty and property, except by due process of law.” No man's liberty is safe, if the legislature can deny him the right to engage in a harmless calling; there is certainly an interference with his right to the pursuit of happiness in such a case; and such a prohibition would be a deprivation of his liberty "" without due process of law.” Judge Cooley says: in this connection: “What the legislature ordains and the constitution does not prohibit must be lawful. But if the constitution does no more than to provide that no person shall be deprived of life, liberty, or property, except by due process of law, it makes an important provision on this subject, because it is an important part of civil liberty to have the right to follow all lawful employments." 2 If these general
i Austin o. State, 10 Mo. 591.
2 Cooley on Torts, p. 277. “No proposition is now more firmly settled than that it is one of the fundamental rights and privileges of every American citizen to adopt and follow such lawful industrial pursuits, not
constitutional provisions contain the only limitations upon the legislative power to regulate employments, in order to determine what are the specific limitations which these provisions impose, it will be necessary to refer to the limitations upon the police power in general.
It has already been determined that, in the exercise of the police power, personal liberty can be subjected to only such restraint as may be necessary to prevent damage to others or to the public. Police power, generally, is limited in its
injurious to the community, as he may see fit. Slaughterhouse Cases, 16 Wall. 106; Corfield v. Coryell, 4 Wash. C. C. 380; Matter of Jacobs, 98 N. Y. 98. The term 'liberty,' as protected by the constitution, is not cramped into a mere freedom from physical restraint of the person of the citizen, as by incarceration, but is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by the Creator, subject only to such restraints as are necessary for the common welfare. In the language of Andrews, J., in Bertholf o. O'Rielly (74 N. Y. 515), the right to liberty embraces the right of man
to exercise his faculties and to follow the lawful avocations for the support of life,' and as expressed by Earl, J., in In re Jacobs (98 N. Y. 98), "one may be deprived of his liberty, and his constitutional right thereto violated, without the actual restraint of his person. Liberty in its broad sense, as understood in this country, means the right not only of freedom from servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation.'” People v. Marx, 99 N. Y. 377, 386. “The evidence in favor of the petitioner is abundant and of the highest kind that the article he sells, forbidden by the Missouri statute, is wholesome. It is not so much urged that anything in the constitution of Missouri forbids or limits its power in this respect by express language, as that the exercise of such a power in regard to a property shown to be entirely innocent, incapable of any injurious results or damage to the public health and safety, is an unwarranted invasion of public and private rights, an assumption of power without authority in the nature of our institutions, and an interference with the natural rights of the citizen and the public, which does not come within the province of legislation. The proposition has great force, and in the absence of any presentation of the motives and circumstances, which governed the legislature in enacting the law, we should have dificulty in saying it is unsound." Justice Miller, In re John Brosnahan, Jr., 4 McCrary, 1.
1 See ante, $ 30.
exercise to the enforcement of the maxim, sic utere tuo ut alienum non lædas.
Whenever, therefore, the prosecution of a particular calling threatens damage to the public or to other individuals, it is a legitimate subject for police regulation to the extent of preventing the evil. It is always within the discretion of the legislature to institute such regulations when the proper case arises, and to determine upon the character of the regulations. But it is a strictly judicial question, whether the trade or calling is of such a nature, as to require or justify police regulation. The legislature cannot declare a certain employment to be injurious to the public good, and prohibit it, when, as a matter of fact, it is a harmless occupation. “ The position, however, is taken on the part of the State, that it is competent for the legislature, whenever it shall deem proper, to declare the existence of any property and pursuit deemed injurious to the public, nuisances, and to destroy and prohibit them as such ; and that such an action of the legislature is not subject to be reviewed by the courts. We deny this position. We deny that the legislature can enlarge its power over property or pursuits by declaring them nuisances, or by enacting a definition of a nuisance that will cover them. Whatever it has a right by the constitution to prohibit or to confiscate, it may thus deal with, without first declaring the matter to be a nuisance; and whatever it has not a right by the constitution to prohibit and confiscate, it cannot thus deal with, even though it first declare it a nuisance."'? It is also a judicial question whether the police regulation extends beyond the threatened evil, and prohibits that which involves no threatening danger to the public. If it is unconstitutional to impose police regulations upon an innocent calling, it must be likewise unconstitutional to place an occupation under police restraint beyond what is necessary to dissipate the threatening evil.
i See ante, $ 1. 3 Beebe v. State, 26 Ind. 501.
The legislature has the choice of means to prevent evil to the public, but the means chosen must not go beyond the prevention of the evil, and prohibit what does not cause the evil. To illustrate, the keeping of a public gambling house is in itself a public evil, and the legislature may place it under whatever police control it may see fit, even to the extent of prohibiting the keeping of them.
But the profession of medicine is a proper and necessary calling, and if pursued only by men, possessed of skill, instead of threatening public evil, is of the highest value to a community. The only evil, involved in the prosecution of that calling, is that which arises from the admission of incompetent men into the profession. The police regulation of the practice of medicine must, therefore, be confined to the evil, and any prohibition or other restrictive regulation which went beyond the exclusion of ignorant or dishonest men, would be unconstitutional. The police regulation of trades and professions, must, therefore, be limited to such restrictions and limitations as may be necessary to prevent damage to the public or to third persons. Keeping these general rules in mind, we will now consider the various methods of police interference with employments.
§ 86. Prohibition as to certain classes.
- A calling may be generally harmless, when prosecuted by some classes of persons, and very harmful when engaged in by others. Thus, for example, it can readily be seen that the keeping of billiard saloons, of bar-rooms, and other public resorts by women, will prove highly injurious to the public morals, while there is no such peculiar danger arising from the keeping of such places by men. A law which prohibited women from engaging in these occupations would be for that reason justifiable under the constitutional limitations.
i See Blair v. Kilpatrick, 40 Ind. 312, in which it was held that the granting of liquor licenses to men only, did not violate the constitutional provisions against the granting of special privileges. But under the constitution of California, which provides that no person shall be disqualified by sex from pursuing any lawful vocation, it was held that a similar regulation, excluding females from employment in certain kinds of drinking saloons, was unconstitutional. Matter of Maguire, 57 Cal. 604 (40 Am. Rep. 125).
Regulations have also been sustained, which were designed to prevent men of bad repute from engaging in employments, which from their nature are likely to become public nuisances, if conducted without safeguards. Thus it has been common, for this reason, to require hackmen, and keepers of places of public resort, to take out a license, and to give security for their good behavior or testimonials of good character. It has also been held that “the State may forbid certain classes of persons being employed in occupations which their age, sex, or health renders unsuitable for them, as women and young children are sometiines forbidden to be employed in mines and certain kinds of manufacture.' In so far as the employment of a certain class in a particular occupation may threaten or inflict damage upon the public or third persons, there can be no doubt as to the constitutionality of any statute which prohibits their prosecution of that trade. But it is questionable, except in the case of minors, whether the prohibition can rest upon the claim that the employment will prove hurtful to them. Minors are under the guardianship of the State, and their actions can be controlled so that they may not injure themselves. But when they have arrived at majority they pass out of the state of tutelage, and stand before the law free from all restraint, except that which may be necessary to prevent the infliction by them of injury upon others. It may be, and probably is, permissible for the State to prohibit pregnant women
i Cooley Const. Law, p. 231. In Com. v. Hamilton Manfg. Co., 120 Mass. 383, it was held that a statute prohibiting the employment of all persons under eighteen, and of all women in laboring in any manufacturing establishment more than 60 hours per week (Mass. Stat. 1874), violates no contract implied in the granting of a charter to any manufacturing company, nor any right reserved under the constitution to any citizen, and may be maintained as a health or police regulation.