It is claimed that the law should be upheld as a health law, and was adopted for that purpose by the legislature in its exercise of the police power. The police power is inherent in the legislature, and founded upon the duty of the state to protect life, health, and property of the community, and to preserve good order and morality. Professor Tiedeman, in his treatise upon the subject, says: "The police power of the government, as understood in the constitutional law of the United States, is simply the power of the government to establish provisions for the enforcement of the common as well as civil law maxim, `Sic utere tuo, ut alienum non lædas.'"
This police power of the state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the state. According to the maxim, "Sic utere tuo, ut alienumnon lædas," it being of universal application, it must, of course, be within the range of legislative action to define the mode and manner in *Page 361 which every one may use his own as not to injure others.
In Lawton v. Steele, 152 U. S. 136,14 Sup. Ct. 500, 38 L. Ed. 385, the court said: "The extent and limits of what is known as the `police power' has been a fruitful subject of discussion in the appellate courts of nearly every state in the Union. It is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of. whatever may be regarded as a public nuisance. Under this power it has been held that the state may order the destruction of a house falling to decay or otherwise endangering the lives of passers-by; the demolition of such as are in the path of a conflagration; the slaughter of diseased cattle; the destruction of decayed or unwholesome food; the prohibition of wooden buildings in cities; the regulation of railways and other means of public conveyance, and of interments in burial grounds; the restriction of objectionable trades to certain localities; the compulsory vaccination of children; the confinement of the insane, or those afflicted with contagious diseases; the restraint of vagrants, beggars, and habitual drunkards; the suppression of obscene publications and houses of ill fame; and the prohibition of gambling houses and places where intoxicating liquors are sold. Beyond this, however, the state may interfere whenever the public interests demand it; and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests. To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations."
In the Matter of Jacobs, 98 N. Y. 98, 50 Am. Rep. 636, where the court had under consideration a law of New York *Page 362 prohibiting the manufacture of cigars and the preparation of tobacco in any form in tenement houses, after citing decisions to show that the police power is not without limitation, and that in its exercise the legislature must respect fundamental rights guaranteed by the constitution, it said: "If this were otherwise the power of the legislature would be practically without limitation. In the assumed exercise of the police power in the interests of the health, the welfare, or the safety of the public, every right of the citizen might be invaded, and every constitutional barrier swept away. Generally it is for the legislature to determine what laws or regulations are needed to protect the public health and secure the public comfort and safety, and while its measures are calculated, intended, convenient, and appropriate to accomplish these ends, the exercise of its discretion is not subject to review by the courts. But they must have some relation to these ends. Under the guise of police regulations, personal rights and private property cannot be arbitrarily invaded, and the determination of the legislature is not final or conclusive. If it passes an act ostensibly for the public health, and thereby destroys or takes away the property of a citizen, or interferes with his personal liberty, then it is for the courts to scrutinize the act and see whether it really relates to, and is convenient and appropriate to promote, the public health. * * * To justify this law, it would not be sufficient that the use of tobacco may be injurious to some persons, or that its manipulation may be injurious to those who are engaged in its preparation and manufacture, but it would have to be injurious to the public health." Again: "When a health law is challenged in the courts as unconstitutional, on the ground that it arbitrarily interferes with personal liberty and private property without due process of law, the courts must be able to see that it has, at least, in fact, some relation to the public health; that the public health is the end actually aimed at; and that it is appropriate and adapted to that end."
To justify the law, it is not sufficient that underground mining and working in smelters may be injurious to the men employed in the mines or smelters, but it must be injurious to the public health. It is not claimed that the law is injurious in this respect. If this law is beneficial to the *Page 363 men working in underground mines and smelters — and that is insufficient, under the authorities — it is so only in a remote degree. Rheumatism, miners' consumption, and lead poisoning, it is said, are the maladies to which men affected by this law are exposed. It is difficult to understand how these afflictions may be prevented by its provisions. Lead poisoning and miners' consumption are caused by inhaling fumes from the smelters, or dust in the deep mines. Any daily exposure for a materially less time than eight hours may result in their contraction. In its most favorable aspect, the statute is not helpful to these men, except that shorter hours of labor tend to preserve the system, while longer hours produce exhaustion and its consequent ill effects. I think the statute was adopted by the legislature in conformity to the trend of legislation throughout the country, shortening the hours of labor in many industrial pursuits, and not as a health regulation.
The principle upon which the police power is exercised by the legislature is based upon the maxim, "So use your own as not to injure others," the literal transaction of which is, "Enjoy your own property in such a manner as not to injure that of another person." (Broom's Legal Maxims, p. 364.) "Any law which goes beyond that principle — which undertakes to abolish rights, the exercise of which does not involve an infringement of the rights of others, or to limit the exercise of rights beyond what is necessary to provide for the public welfare and personal security — cannot be included in the police power of the government. It is a governmental usurpation, and violates the principles of abstract justice, as they have been developed under our republican institutions." (Tiedeman, sec. 1.) The maxim can only be invoked in the support of laws for the protection of the public health, and not for the protection of an individual against himself. There can be no more justification for such a law than laws prohibiting men from working in the manufacture of white lead, because they are apt to contract lead poisoning, or to prohibit occupation in certain parts of iron smelting works, because the lives of men so engaged are materially shortened. (Tiedeman, sec. 86.)
In the case of In re Morgan, 26 Colo. 426,58 Pac. 1071, *Page 364 47 L.R.A. 52, 77 Am. St. Rep. 269, a statute similar to the one now under consideration was held unconstitutional. After determining that the statute violated the bill of rights, which guarantees to all persons the natural rights of acquiring, possessing, and protecting property, the court proceeded, in an admirable discussion, to the consideration of the question whether the law was a proper exercise of the police power to protect the public health, as follows: "Were the object of the act to protect the public health, and its provisions reasonably appropriate to that end, it might be sustained, for in such a case even the constitutional right of contract may be reasonably limited. But the act before us is not of that character. In selecting a subject for the exercise of the police power, the legislature must keep within its true scope. The reason for the existence of the power rests upon the theory that one must so use his own as not to injure others, and so as not to interfere with or injure the public health, safety, morals, or general welfare. How can one be said injuriously to affect others or interfere with these great objects by doing an act which confessedly visits its consequences on himself alone? And how can an alleged law that purports to be the result of an exercise of the police power be such in reality, when it has for its only object not the protection of others, or the public health, safety, morals, or general welfare, but the welfare of him whose act is prohibited, when, if committed, it will injure him who commits it, and him only? * * * In this we must not be understood as limiting the legislature where the facts justify apparent discrimination in passing the health laws affecting only certain classes. Indeed, laws having for their object the protection of small portions of a community have been upheld, as in Fertilizing Co. v. Hyde Park, 97 U. S. 659 [24 L. Ed. 1036], when a nuisance, obnoxious probably only to a part of a village, was abated; but what we mean to decide is that in a purely private lawful business, in which no special privilege or license has been granted by the state, and the carrying on of which is attended by no injury to the general public, it is beyond the power of the legislature, under the guise of the police power, to prohibit any adult man who desires to work thereat from working more than eight hours *Page 365 a day, on the ground that working longer may, or probably will, injure his own health."
Holden v. Hardy, 169 U. S. 366,18 Sup. Ct. 383, 42 L. Ed. 780, a decision of the Supreme Court of the United States, in which a statute of the State of Utah similar to the one now under consideration was upheld as not being in conflict with the provisions of thefourteenth amendment to the constitution of the United States, is referred to as an authoritative ruling in support of the law. The constitution of the State of Utah (article XVI, sec. 6) declares, among other things, "that the legislature shall pass laws to provide for the health and safety of employees in factories, smelters and mines," and further provides, in the succeeding sections, that "the legislature by appropriate legislation shall provide for the enforcement of the provisions of this article."
In Holden v. Hardy, it is said: "The Supreme Court of Utah was of opinion that, if authority in the legislature were needed for the enactment of the statute in question, it was found in that part of article XVI of the constitution of the state which declared that the legislature shall pass laws to provide for the health and safety of employees in factories, smelters, and mines." We have no such constitutional provision, and for this reason the case of Holden v. Hardy is inapplicable as an authority here. The only question in that case was whether the statute of Utah violated the provisions of thefourteenth amendment to the constitution of the United States, and the consideration in the opinion of the question of the extent to which the police power may be exercised tinder the provisions of the state constitution was not a federal question, and therefore without the jurisdiction of that court, but was one to be determined only by the courts of the State of Utah.
In People v. Budd, 117 N. Y. 1, 22 N. E. 670,682, 5 L.R.A. 559, 15 Am. St. Rep. 460, Judge Peckham said: "In matters pertaining to its proper construction [the constitution of the State of New York], our decision is final, excepting that if, as construed by us, the constitution or our laws deny the existence of some right or privilege claimed by a party by virtue of the federal constitution or laws, our decision is reviewable by the federal court, not for the purpose of *Page 366 reviewing our construction of our constitution or laws, but to see whether, under the constitution or laws as construed by us, any right or privilege existing by virtue of the federal constitution or laws has been violated or denied, and, if so, to give it effect notwithstanding the state law or constitution."
In Barbier v. Connolly, 113 U. S. 27,5 Sup. Ct. 357, 28 L. Ed. 923, Judge Field said: "In this case we can only consider whether the fourth section of the ordinance of the city and county of San Francisco is in conflict with the constitution and laws of the United States. We cannot pass upon the conformity of that section with the requirements of the constitution of the state. Our jurisdiction is confined to the federal question involved."
In the Morgan case, supra, the Supreme Court of Colorado was urged to follow the decision in the Holden-Hardy case, as controlling upon it. After fully considering that decision, and conceding that in the construction of federal questions it is the duty of state courts to be governed by the decisions of the Supreme Court of the United States, the court said: "If the language used by that august tribunal in Holden v. Hardy is to be understood as limiting or defining how far a state legislature may go in the exercise of the police power without transcending any of the limits prescribed by the federal constitution, we agree with counsel for petitioner that it was needful to the ascertainment of the question before the court. But if it is not to be thus restricted, and if it was employed with the view of determining what are the true limits of the police power of a state under the provisions of the constitution of that state, the remarks in that connection are wholly obiter, and not authority in that court itself, much less in any other jurisdiction. (Wadsworth v. U. P. Railway Co., 18 Colo. 610 [33 Pac. 515, 23 L.R.A. 812, 36 Am. St. Rep. 309];Carroll v. Carroll's Lessee, 16 How. 275 [14 L. Ed. 936]: 2 Black on Judgments, sec. 611.)"
Section 1 of article I of the constitution of this state declares: "All men are, by nature, free and equal, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness." Substantially the same principles *Page 367 are embodied in the Declaration of Independence and in the constitutions of the states. "Among these inalienable rights, as proclaimed in the Declaration of Independence," said the Supreme Court of the United States in ButcherUnion Co. v. Crescent City Co., Ill U. S. 757,4 Sup. Ct. 660, 28 L. Ed. 285, "is the right of men to procure their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties so as to give them their highest enjoyment. The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all communities from time immemorial, must therefore be free in this country to all alike upon the same conditions. The right to pursue them without let or hindrance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright. It has been well said that, `the property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.' (Adam Smith's Wealth of Nations, bk. 1, c. 10.)"
In the same case Bradley, J., said: "I hold that the liberty of pursuit — the right to follow any of the ordinary callings of life — is one of the privileges of a citizen of the United States," of which he cannot be deprived without invading his right to liberty, within the meaning of the constitution. And again: "There is no more sacred right of citizenship than the right to pursue unmolested a lawful employment in a lawful manner. It is nothing more or less *Page 368 than the sacred right of labor." (Live Stock Assn. v. Crescent City Co., 1 Abb. (U. S.) 399, Fed. Cas. No. 8408.)
In People v. Gillson, 109 N. Y. 389,17 N. E. 343, 4 Am. St. Rep. 465, the court said: "The following propositions are firmly established and recognized: A person living under our constitution has the right to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit. The term `liberty,' as used in the constitution, is not dwarfed into 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 his Creator, subject only to such restraints as are necessary for the common welfare. `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."
In Ritchie v. People, 155 Ill. 101,40 N. E. 457, 29 L.R.A. 79, 46 Am. St. Rep. 315, the court, in considering a statute similar in principle, said: "It substitutes the judgment of the legislature for the judgment of the employer and employee in a matter about which they are competent to agree with each other. It assumes to dictate to what extent the capacity to labor may be exercised by the employee, and takes away the right of private judgment as to the amount and duration of the labor to be put forth in a specified period. When the legislature thus undertakes to impose an unreasonable and unnecessary burden upon any one citizen or class of citizens, it transcends the authority intrusted to it by the constitution, even though it imposes the same burden upon all other citizens or classes of citizens. * * * Liberty, as has already been stated, includes the right to make contracts as well with reference to the amount and duration of labor to be performed as concerning any other lawful matter. Hence the right to make contracts is an inherent and inalienable one, and any attempt to unreasonably abridge it is opposed to the constitution."
My conclusion is that the constitutional right of employer *Page 369 and employee is destroyed by the express terms of the act, in this: that its provisions undertake to prevent employer and employee from making their own contracts concerning underground mining and work in smelters, or in any institution or place for the reduction or refinining of ores or metals, and that it is not a valid exercise of the police power, as a health regulation.
I therefore dissent from the judgment of the court.