(concurring) — The proof in this case shows, without contradiction, that the factory conducted by the defendant is clean and wholesome, and is in no way a menace to the health of the employees; and if a correct solution of this particular case depended upon, the evidence alone, the act could hardly be sustained. But admitting that the legislature cannot pass a law which arbitrarily and unreasonably impairs the right of contract, it does not follow that courts' are at liberty to disregard the legislative will, unless the facts and conditions upon which it bases its judgment are so well understood that they can take judicial notice or knowledge of them. In other words, where the facts depend upon proof, I think it is competent for the legislature to pass *649a labor law covering any particular industry, and that the law will be binding upon the courts regardless of the showing that might be made in any particular case. If it were otherwise, we would have a law for “special cases,” and we could not depend upon general laws, for the obvious reason that the legislature could not pass a law with any assurance that it would be general in its application.
I have not found the rule to be stated in any of the books exactly as I have stated it, but the difficulty of applying any other rule may be illustrated. For instance, the supreme court of the United States, as well as many of the state courts, has held a law limiting the number of hours an underground miner can work to be constitutional; while the supreme court of Colorado held directly to the contrary. On the other hand, the supreme court of Nebraska has held that, although a law limiting the hours of labor as to men will not be sustained unless health and safety require it, most any kind of a law will be sustained as to women because of her sex and dependent relation. Although varying in statement, this distinction runs through the cases. We find it in the decisions of the supreme court'of the United States. Lockner v. New York, supra, is an example of the one view, and Muller v. Oregon, supra, cited in Judge Crow’s opinion, is a type of the other. Authorities almost without number might be referred to. But it is not cases, but the principle to which I would refer, and until the supreme court of the United States decides otherwise, I am willing to hold — for I believe it is the only consistent thing for a court to do — that in all cases pertaining to the police power, the legislature is supreme unless the general application of the law does violence to the common knowledge of men, in which event a court might properly intervene. If there can be a difference of opinion, the judgment of the legislative body must prevail.
I regret that my associates have deemed it necessary to uphold the exception to the law in so far as it relates to *650women employed in fruit and vegetable canneries. I have grave doubt as to the validity of this exception. The exception, in so far as it applies to women employed in fish canning establishments, is upon surer ground, and would probably be sustained upon a direct attack. It was unnecessary to hold the exception, or any part of the exception, good in this case, for the defendant can have no interest beyond the body of the law. I am mindful of the legislative direction: “If it shall be adjudicated that the foregoing proviso and exception shall be unconstitutional and invalid for any reason, an adjudication of invalidity of said proviso or any part thereof shall not affect the validity of the act as a whole, nor any part thereof.” Under the ordinary rule of interpretation, as we have heretofore understood and applied it, such direction would not be held to influence the court in any way; the rule being that, if the exception were declared invalid, as appellant contends it is, the whole act would be avoided, under the theory that the legislature would not have passed the act without the exception. Yet I see no objection to the legislature changing this rule of interpretation, and saying in terms to the courts that it was its intention to pass a law limiting hours of labor for women, and that it has made the act broad enough to include the excepted class, and if the courts upon consideration of the law find the exception to be without sustaining reason, the whole law shall not be declared bad because of uncertainty as to legislative intent, but the exception shall be regarded as if it had not been written. Although contrary to precedent and practice, the idea seems to me to be a wholesome one, and a right well within the power of the legislature. Granting this power to the legislature, I believe that the exception of women employed in fruit and vegetable canning establishments cannot be sustained, and that they can work eight hours and no more. For the exception, in so far as it refers to them, is based, not upon the health, safety, or welfare of the women employees, but upon the necessities of the employer; that is *651to say, if he is engaged in putting up perishable stuff and might lose money by putting on more employees or working them more than the prescribed number of hours, he can violate the law at will. Laws like the one under review are passed and sustained on the theory that they better the condition of human beings. The exception makes the condition (perish-ability) of the fruit or vegetable the test, rather than the health, welfare, or safety of the employee. The exception is unreasonable and should not have our approval.
I know of no case, and I think none will be found, which would approve the application of the rule of police power in such a Case. I concur in the holding of my associates that defendant is within the law, but I would not have sustained the exception in the particular noted. I would hold the law to be general in its application, except in so far as women employed in fish packing establishments are concerned.