to be an unpardonable reiteration to make any further reference to it. But the principle thus enunciated is the key to every problem arising out of the exercise of police power. Applied to the question of prohibition of trades and occupations, it declares unwarranted by the constitution any law which prohibits altogether an occupation, the prosecution of which does not. necessarily, and because of its unenviable character, work an injury to the public. It is not sufficient that the public sustains harm from a certain trade or employment, as it is conducted by some who are engaged in it. Nor is it sufficient that all remedies for the prevention of the evil prove defective, which fall short of total prohibition. Because many men engaged in the calling persist in so conducting the business that the public suffer, and their actions cannot otherwise be effectually controlled, is no justification of a law which prohibits an honest man from conducting the business. in such a manner as not to inflict injury upon the public. In order to prohibit the prosecution of a trade altogether, the injury to the public, which furnishes the justification for such a law, must proceed from the inherent character of the business. Where it is possible to conduct the business without harm to the public, all sorts of police regulations may be instituted, which may tend to suppress the evil. Licenses may be required, the most rigid system of police inspection may be established, and heavy penalties may be imposed for the infractions of the law; but if the business is not inherently harmful, the prosecution of it cannot rightfully be prohibited to one who will conduct the business in a proper and circumspect manner. Such an one would "be deprived of his liberty " without due process of law.

With this understanding of the constitutional limitations. upon the police control of employments, it is not difficult to test the constitutionality of the various laws enacted in different States, which prohibit the prosecution of certain trades and professions.

It has been maintained in a previous section,1 that police power does not extend to the punishment of vice. No law can make vice a crime, unless it becomes by its consequence a trespass upon the rights of the public. But while this may be true, no man can claim the right to make a trade of vice. A business that panders to vice may and should be strenuously prohibited, if possible. Fornication is a most grievous and common vice. Under this view of the limitations of police power, it could not be made a punishable offense, although it would be commendable as well as permissible to prohibit the keeping of houses of ill-fame." Gambling of every kind is an evil, a vice, which cannot consistently be punished, except indirectly by a refusal of the courts to enforce gambling contracts; but the State may prohibit and punish the keeping of gambling houses, and lotteries, and the sale of lottery tickets. And it is the same in respect to every vice. Vice, as vice, is not subject to police regulation, but a business may always be prohibited, whose object is to furnish means for the indulgence of a vicious propensity or desire.

8

Fraud is a trespass upon the rights of others, and may, therefore, always be punished. When, therefore, a business consists necessarily in the perpretation of a fraud, the business may be prohibited, although fraud furnishes no justification for the prohibition of a business, which is not necessarily fraudulent, but which only affords abundant. facilities for the commission. Thus it has been held within the constitutional limitations of the power of a State legis

1 See ante, § 68.

2 State v.

Williams, 11 S. C. 288; Childers v. Mayor, 3 Sneed, 356. 3 See ante, § 99.

4 Freleigh v. State, 8 Mo. 606; State v. Sterling, Ib. 797; Terry v. Olcott, 4 Conn. 442; Ex parte Blanchard, 9 Nev. 101; Kohn v. Koehler, 21 Hun, 466; Hart v. People, 26 Hun, 396. See State v. Phalen, 3 Harr. 441, in which it is held that an act, prohibiting lotteries, cannot act retrospectively, so as to affect a lottery which is carried on under special grant of the legislature

lature to prohibit the sale of adulterated milk, even though the adulteration is made with harmless materials, such as pure water. It may be said that a perfectly bona fide sale may be made of adulterated milk, but the position is hardly sustainable. Adulteration is essentially fraudulent, and serves no good purpose, and the sale of the adulterated article of food may be rightfully prohibited, although it produces no unwholesome effect. Sugars are now very commonly adulterated by the use of a harmless substance called glucose. There can be no doubt of the power of the State to make the sale and manufacture of adulterated sugar a misdemeanor, but the great difficulty, that is experienced in detecting and suppressing this mode of adulteration, would not justify the absolute prohibition of the sale and manufacture of sugars.

Of late years statutes have been enacted in several States, notably Indiana and Pennsylvania, which prohibit the sale of railroad tickets, except by the authorized agents of the railroads and the bona fide purchaser of an unused ticket or portion of a ticket, the object of the statutes being to put an end to the business of the so-called ticket "scalpers" or brokers, and the Pennsylvania statute makes it compulsory upon the railroad company to redeem an unused ticket or portion of a ticket. It has been held in both States that the law was constitutional. In both cases the law was justified as a measure for the prevention of fraud upon the railroads and upon purchasers. The preamble to the Pennsylvania statute was as follows: "Whereas numerous frauds have been practiced upon unsuspecting travelers by means of the sale by unauthorized persons of rail

1 Legislature has the power in an act forbidding the sale of impure or adulterated milk, to fix a standard by which it shall be judged. People v. Cipperly, Ct. App. N. Y., Feb. 5, 1886; State v. Smythe, 14 R. I. 100 (51 Am. Rep. 344); Commonwealth v. Waite, 9 Allen, 264; Common. wealth v. Farren, 9 Allen, 489; Polenskie v. People, 73 N. Y. 65.

2 Fry v. State of Indiana, 63 Ind. 552 (18 Am. Law Reg. (N. 8.) 425); Commonwealth v. Wilson, 14 Phila. (Pa.) 384.

way and other tickets, and also upon railroads and other corporations by the fraudulent use of tickets, in violation of the contract of their purchase," etc. It is not contended that the business of ticket brokerage is in itself of a fraudulent character. The business can be honestly conducted by honest man. It is only claimed that in its prosecution the business presents manifold opportunities for the commission of fraud. As has already been stated, the police regulation of an employment may extend to any length that may be necessary for the prevention and suppression of fraud in its pursuit; but an honest man cannot be denied the privilege of conducting the business in an honest and lawful manner because dishonest men are in the habit of practicing gross and successful frauds upon those with whom they have dealings. If that were a justifiable ground for abolishing any business, many important, perhaps some of the most beneficial, employments and professions could be properly prohibited. There is no profession or employment, that furnishes more abundant opportunities for the practice of frauds upon defenseless victims than does the profession of the law, and that profession has its ample proportion of knaves among its votaries, although the proportion is very much smaller than is popularly supposed. But it would be idle to assert that, because of the frequency of fraudulent practices among lawyers, the State could abolish the profession and forbid the practice of the law. There is no difference in principle between the two cases. The business of ticket brokerage does afford many opportunities for fraud and deceit, and it may on that account be placed under strict police surveillance. But the business serves a useful end, when honestly conducted, and the constitutional liberty of the ticket broker is violated, when he is prohibited altogether from carrying on his business.

A still stronger ground for the total prohibition of a trade or business is when the thing offered for sale is in some

way injurious or unwholesome. It is not enough that the thing may become harmful, when put to a wrong use. It must be in itself harmful, and incapable of a harmless use. Poisonous drugs are valuable, when properly used, but they may work serious injuries, by being improperly used, even to the extent of destroying life. But it would hardly be claimed that, on that account, their sale could be prohibited altogether. Safeguards of every kind can be thrown around the sale of them, so that damage will not be sustained from an improper use of them, but that is the limit of the police control of the trade. Thus, for example, opium is a very harmful drug, when improperly used, and it is all the more dangerous because the power of resistance diminishes rapidly in proportion to the growth of the habit of taking it as a stimulant, and a miserable, degraded death is the usual end. An opium eater or smoker, not only brings down ruin upon himself, but inflicts misery upon all who stand in more or less intimate relation with him. The habit is a most dangerous vice. But on the other hand, opium is a very useful, and indispensable drug. Many a poor sufferer has had his descent to the grave made easy and painless by the judicious use of this drug. Shall the sale of opium be prohibited altogether simply because some men are apt to misuse it to their own injury? The law can prohibit the keeping of houses where those who are addicted to the opium habit are entertained with the opium pipe; the law may subject the sale of opium to such regulations as may be calculated to diminish the temptation to acquire this evil habit, but the sale of the drug for proper purposes cannot be prohibited. It is possible that the sale of opium or other poisonous drugs may be prohibited to all except those who, like physicians and druggists, furnish in their professional char

1 State v. Ah Sam, 15 Nev. 27 (37 Am. Rep. 454; State v. Ah Chew, 16 Nev. 50 (40 Am. Rep. 488).