The question for determination is, does the eight-hour enactment of the last session of the Nevada Legislature violate the Nevada constitution? True, it is claimed in the brief of counsel for petitioner that the said enactment violates also the constitution of the United States, in its fourteenth amendment, but this contention was abandoned at the oral argument; and the Supreme Court of the United States, which is the supreme authority as to what may constitute a violation of that constitution, has held that such an enactment does not contravene the national constitution.
Counsel claim that the enactment violates the constitution of Nevada (1) in section 21 of article IV, as to generality and uniformity of laws; (2) in section 17 of article IV, as to multiplicity of subjects; (3) in section 20 of article IV, as to local and special laws; and (4) in section 1 of article I, as to (a) class legislation; and (b) its "Bill of Rights," as to, first, personal liberty; and, second, as to acquiring property.
While counsel have cited the foregoing sections as violated by the enactment in question, they have not, in their arguments, kept the discussion on each point separate; but several points are mingled together in their discussion. Hence the discussion here will have, to some extent, to follow the same method. The said points will, however, be separately discussed as far as, under the circumstances, may be practicable.
Section 20 of article IV provides: "The legislature shall not pass local or special laws" in certain cases therein named; but the enactment in question here does not seem to come under any of them, unless it be this one: "For the punishment of crimes and misdemeanors." If that be the contention, it will receive attention further on. *Page 353
Section 21 provides that "in all cases enumerated in the preceding section [see section 20] and all other cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the state." Does counsel claim that a health law could "be made general and of uniform operation throughout the state"; that is, applicable to wholesome and unwholesome employments alike, if there are employments wholesome and employments unwholesome? If so, cases cited in the briefs oppose the contention.
Section 17 of article IV is: "Each law enacted by the legislature shall embrace but one subject, and matter properly connected therewith, which subject shall be briefly expressed in the title," etc. The title of this act is as follows: "An act regulating the hours of employment in underground mines and smelters, and ore reduction works, and providing penalties for violation thereof." Does this enactment violate this section as being multifarious in its title? Counsel, though citing the section as violated by the act's title, pay very slight attention to the paint in their argument. This fact and the subject itself justify only a brief reference to it here. It is thought that neither the title nor the body of the act violates said section.
This brief reference to the sections of the constitution claimed to be violated is made to show that all that were cited to the court by counsel received the court's attention. The main contention of counsel will now be considered: Section 1 of article I, called by counsel the "Bill of Rights," is: "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." The contention is that the enactment of 1903 violates this section, as (1) interfering with petitioner's "liberty," (that is, his "liberty to contract"); and (2) his right of "acquiring * * * property." These are the two precise questions in this case. And here, too, counsel have not chosen to discuss each point separately, but have mingled them together in a general manner. Therefore the brief discussion here to be made will be somewhat similar. One remark, however, *Page 354 will be made, to wit, that although courts of great respectability have, it seems, held that the word "liberty," in other constitutions similar to ours, in said section 1 of article I, refers to the "right to contract" or "liberty to contract," is it, after all, entirely clear that it does? It would seem that the notion conveyed by the word "liberty" might ordinarily be deemed to be somewhat different from the word "contract," and also the "right to liberty" and the "right to contract" somewhat different from each other. But be that as it may, now to the points thus sharply put to issue:
The question presents itself in two aspects: (1) Its general aspect (that is, in reference to legislative enactments upon the right or liberty of all citizens "to contract in reference to their labor," and the right of all citizens to "acquire property"); and (2) the rights of a special class or special classes of citizens in these respects. The first or general aspect of the question does not arise in the matter now in hearing, and therefore will not be discussed. But the second aspect, to wit, the special one of the legislative power to regulate or restrain contracting as to laboring in underground mines and about smelters and reduction works, does arise, and will be considered.
On the specific question of such regulation and restraint as to laboring in underground mines and about smelting and reduction works but two cases have been cited by counsel. These are the case of State v. Holden,14 Utah, 71, 46 Pac. 756, 37 L.R.A. 103, and the case of In reMorgan, 26 Colo. 415, 58 Pac. 1071, 47 L. R, A. 52, 77 Am. St. Rep. 269: and these two cases are directly antagonistic to each other. True, in addition to these two eases there are in Colorado (In re Labor Bill,21 Colo. 29, 39 Pac. 328, and In re House Bill,21 Colo. 32, 39 Pac. 431) judicial responses to legislative inquiries to the same effect as was the decision of the Colorado court in In re Morgan. But those responses were not made after argument by counsel, and do not themselves contain argument, but merely assertion. Therefore the case in Inre Morgan is essentially, as stated above, the only case in point cited by counsel that was precisely antagonistic to the case cited from Utah.
Before considering these cases, let it be remarked that the *Page 355 legislative power to regulate and restrain the hours of labor in employments other than those mentioned in the Nevada statute has been before numerous appellate courts of the Union, and that the decisions thereon are not uniform; some holding such regulation and restraint constitutional, and others unconstitutional. Therefore whatever aid could be gained from analogy in decisions in other cases would be divided aid — partly in favor of petitioner, and partly against him; but it is believed the preponderance in number and reason is against him.
As counsel for petitioner place great reliance on In reMorgan, that case will be examined. Here a puzzling statement appears. The chief justice in the opinion first gives the enactment of the Colorado Legislature in question in the case, which is the same as the one in question in the Utah case, and also in the case now before us; and, secondly, the clause of the Colorado Constitution claimed to be by it violated, which clause is essentially the same as the clause in the Nevada Constitution, and also as the clause in the Utah Constitution (it is not here overlooked (hat another clause is in the Utah Constitution enjoining upon its legislature the enactment of health laws as to laborers in mines, etc.); and then he says that it is "practically admitted to be true that this act contravenes the constitutional provision quoted in the statement. Let us see if, notwithstanding this conflict, it can be justified as a valid exercise of the police power." Curious admission. If admitted, it must have been by the counsel in the case who were endeavoring in their arguments to uphold the enactment of the Colorado Legislature; and, after admitting that the enactment contravened the constitution, how could counsel, in reason, ask the court to uphold such contravening enactment, under either the police power or under any other power of the legislature? If the enactment contravened the Colorado Constitution, it would seem that was an end of the matter. Saying or assuming that it did so violate was a petitio principii. It begged the whole question.
Again the Colorado court in In re Morgan, says: "If, in our constitution there was, as there seems to be in that of Utah, a specific affirmative provision enjoining upon the *Page 356 general assembly the enactment of laws to protect the health of the class of workingmen therein enumerated, it might be that acts reasonably appropriate to that end would not be obnoxious to that provision of our constitution forbidding class legislation, for it could hardly be said that a classification made by the constitution itself was arbitrary or unfair, or that it clashed with another provision of the same instrument inhibiting class legislation."
Why could not a classification made by a constitution be "arbitrary" and "unfair"? Clearly such classification might in reality be arbitrary and unfair, but it probably would not lie in the mouths of justices constituting a court under such constitution to nullify it because of such arbitrariness and unfairness.
In the paragraph just above quoted does not the Colorado court — that court so much relied upon by those assailing the enactment in question in this court — practically admit that such an enactment as this is a "reasonably appropriate" health regulation? It was only the "health" of the workmen that the Utah Constitution commanded its legislature to enact laws to protect. It did not say how this health was to be protected. The Utah Legislature deemed protection of miners by regulating and controlling the hours of daily labor "reasonably appropriate" protection, and the Utah Supreme Court likewise held it "reasonably appropriate" and valid. It may be added here that the United States Supreme Court also has held such legislation appropriate and valid. (See infra.)
Now, in essence, precisely the same situation existed in Colorado at the time of the decision in In re Morgan as did in Utah at the time of the decision in State v. Holden, and as does now in this state, By universal consent of courts and text-writers on the law, the legislature has, without express constitutional grant authorizing it, the power to protect the health of the people over whom it has jurisdiction. Therefore, as a question of legislative power, there is not a particle of difference, in essence, between the situation under the Utah Constitution and that under the Colorado and the Nevada. Constitutions. And the question here is purely one of legislative power. The expediency, propriety, or wisdom *Page 357 of the enactment is not before this court. If the legislature has the constitutional power to make the enactment, this court has no power to annul the enactment; and should it, under the case supposed, do so, it could be justly charged with usurpation of power. And courts, the conservating governmental branch under the constitution or fundamental principles of government, should be most careful not themselves to set the example of usurping power. Let it, however, be said that courts should be equally scrupulous and fearless in preventing others from infractions upon the constitution which they are sworn to support, protect, and defend. Then, under the direct decision of the Utah Supreme Court that an eight-hour law is a reasonably appropriate provision to protect the health of those engaged in underground mining, and those in and about smelting and reduction works, and the pregnant admission of the Colorado Supreme Court to the same effect, and, again, the direct affirmance of the same doctrine by the Supreme Court of the United States in the following cases in that court:Holden v. Hardy, 169 U. S. 36G, 18 Sup. Ct, 383,42 L. Ed. 780; Orient Insurance Company v. Daggs,172 U. S. 564, 19 Sup. Ct. 281, 43 L. Ed. 552; St. Louis IronMountain Railway v. Paul, 173 U. S. 409,19 Sup. Ct. 419, 43 L. Ed. 746; Williams v. Fears,179 U. S. 274, 21 Sup. Ct. 128, 45 L. Ed. 186; Austin v. Tennessee, 179 U. S. 349, 21 Sup. Ct. 132,45 L. Ed. 224; and Knoxville Iron Co. v. Harbison,183 U. S. 21, 22 Sup. Ct. 1, 46 L. Ed. 55 — what of precedent there is in the decisions of other courts is in favor of the validity of the law.
It cannot be said that these decisions of the United States Supreme Court were obiter. They were necessary to the decision of the cases. The contention was that the Utah enactment was in violation of the fourteenth amendment to the United States Constitution, as (1) abridging the privileges and immunities of citizens of the United States; (2) depriving persons of liberty and property without due process of law; and (3) denying persons within its jurisdiction the equal protection of the laws. The court held, in effect, that the Utah enactment did no one of these three things. Why? Because it was a legitimate police regulation. Why a legitimate police regulation? Because it was based on a *Page 358 consideration of health; that laborers in underground mines and those in smelters could reasonably and properly be made into a class, and the health of that class protected by legislative enactment. Had the foundation been imaginary, the court could not have so held. But the foundation (that is, the consideration of health) being real, proper and reasonable, the court logically and legally upheld the enactment. The fourteenth amendment was violated unless the enactment was a legitimate police regulation, and it was not a legitimate police regulation unless the enactment was based on a legitimate health classification. Therefore the United States Supreme Court directly holds this to be a legitimate health regulation. I cannot say that I am so fully and completely equipped in the doubtful science of medicine as to be able to say that I know that it is not such a reasonably appropriate provision. This is the full extent to which it is necessary to go in this case. Then, too, not a decision of a court that mentions the subject but says that a court cannot set aside an enactment of a legislature unless the enactment is, beyond doubt, in violation of the constitution under which both the court and the legislature act. Can it be said that, under the showing above made, there is not a doubt that the enactment in question here is beyond all doubt in violation of the constitution of the State of Nevada? It seems to me that it cannot be so said. Therefore I conclude that this enactment is not unconstitutional as being a violation of the "health" element of the Nevada Bill of Rights.
Now to the "class legislation" element in the enactment: Counsel, in their arguments in this case, have mingled the "class legislation" objection implied, they say, in the bill of rights, and the "class legislation" inhibited in subsequent parts of the constitution, to wit, sections 20 and 21 of article IV, and perhaps it may be permissible for me to do the same. Here it cannot truly be said that all class legislation is bad. Decisions by the hundred and by the thousand may easily be found that hold some class legislation is constitutional and valid. Such are too numerous to need citation of instances. The only question is, is there, or is there not, a real foundation — a foundation in fact, in the nature of things — for the class made? If there is such a foundation to support a legislative *Page 359 enactment, then that enactment is constitutional and valid; but, if not, then it is unconstitutional, and therefore void. Should legislators so far forget their duty to God and to man, and so far disregard the oath of office taken by them to support, protect, and defend the constitution — the only instrument that gives them any power to act at all legislatively — as to join together in an enactment persons or things on a mere imaginary something that has no existence in the natures or situations of those persons or those things, and say that those persons or those things must be governed by said enactment, then it would be class legislation; and at least contrary to sections 20 and 21, above mentioned, and possibly, also, to the bill of rights, in section 1 of article I. But of the latter I do not desire at this place to discourse. For does it not seem that when provision so ample against class legislation, local and special, as that contained in sections 20 and 21 of article IV of the Nevada Constitution, is made, the inhibitions of the bill of rights, in section 1 of article I, were aimed at other evils? Be that as it, may, I conclude that the enactment of the Nevada Legislature in question here is not in violation of the Nevada Constitution, as being "class legislation" of the objectionable kind inhibited in section 20 or 21, or of the objectionable kind that may possibly be inhibited in the bill of rights of section 1 of article 1, if there be therein any such inhibition.
In support of this conclusion may be cited the direct decision of the Utah Supreme Court that workers in underground mines and workers in smelters and reduction works may with sound reason be made into classes, and the health of those classes protected by the legislature. To the same effect is impliedly the decision of the court most relied on in argument here, to wit, the Colorado Supreme Court, in In re Morgan. For I think I have above shown that the opinion in the Colorado case impliedly, at least, admits that, with a constitutional provision like that in the Utah Constitution, such legislation might be valid, and also further shown that, in essence, the additional provision of the Utah Constitution did not at all change the situation. True, the Colorado court held such legislation unconstitutional and void; but it would seem that after the facts stated, and after the admissions made *Page 360 by it, its conclusion against the validity of the enactment before it was a non sequitur.
In addition, as stated above, I cannot say that my knowledge of medical science is so complete that I can, in conscience, say that I know that workers in underground mines or workers in smelters and reduction works are not engaged in unhealthy employments. The legislature of Nevada, at its session in 1903, impliedly said they were such, and legislated for the protection of such workers; and I cannot, under the reason of the thing, and the authority of the Utah Supreme Court and that of the United States Supreme Court, to say nothing of the pregnant admission of the Colorado Supreme Court (may I be permitted to explain that I mean an admission that is pregnant with a principle that is destructive of the final conclusion to which that court came?), say that the said enactment of the Nevada Legislature for that purpose was, beyond doubt, a violation of the constitution of Nevada.
For the foregoing reasons I concur in the conclusion of Justice TALBOT that the enactment in question here is not a violation of the constitution of Nevada, and also in the order that the petitioner be remanded to custody.