I concur in the judgment. I am not prepared to sa,y, however, that the supervisors cannot, by proper legislation, prevent females from pursuing avocations which, although permissible to men, involve a propinquity of the sexes under such circumstances as may lead directly to immoral results, or to the desecration of the prudent reserve between members of the opposite sexes, which it is the province of wise legislation to encourage. It has always been understood that the prevention of such results was a proper exercise of the police power of the State. By such legislation the woman (or the man, as the case may be) is not prohibited from pursuing any lawful business, vocation, or profession “ on account of her sex ”; she is prohibited because of the immorality or indecency connected with the business. For example: There might be very good reason why women (and not men) should be employed as attendants at a bathing establishment to which their own sex alone have admission ; but if a law should be enacted prohibiting the employment of females as attendants at public baths—frequented by men only—would it be adjudged that the law was unconstitutional because persons would thereby be prohibited from pursuing a vocation “ on account of sex ” ? The Constitution provides that no persons shall be prohibited from pursuing any lawful business merely because of his or her sex, but it does not prohibit the Legislature from declaring certain conduct unlawful, even though it may constitute a “ business.” The Constitution does not, in my view, deny the power to enact such legislation as • may prevent the intrusion of men into the conjoint pursuit with women of occupations which considerations of decency and morality require should be carried on by the latter separately, and vice versa. It is possible that the Legislature is not permitted to indulge in an over-refined sense of propriety—amounting to mere sentimentalitv—and thus exclude females from taMng part in honest occupations simply because they have in the past ordinarily been carried on solely by men, and may therefore seem, in the prejudiced eyes of a more fortunate portion of the community, to detract from the modest reserve and retirement of the sex. But when competent legislative author*611ity has declared that the pursuit of certain occupations by females impinges upon public decency, or, in its consequences, may involve a violation of public morality, I think the Courts can declare the law unconstitutional only when it clearly appears that indecency and immorality are not connected with, nor a consequence of, the prosecution of such occupations by females.
But while I am not prepared to agree that § 18 of article xx of the Constitution prohibits any law or ordinance which would prevent the presence of women, as attendants or otherwise, at liquor “ saloons, bar-rooms,” etc., I agree that petitioner should be discharged, because I am of opinion that the ordinance (under which petitioner has been prosecuted) is void, in that it is unreasonable, of ambiguous import, and not of uniform operation. The practice which, in effect, is declared to be deleterious to the public welfare is the presence of females as waiters or attendants upon the guests at any place where malt, vinous, or spirituous liquors “are used or sold,” and the presence of females in such places during certain hours of the night. The very presence of females at such places in the night being prohibited, their presence in the capacity of waiters is prohibited. Yet the ordinance contains the exception, that where the wife or daughter “ may happen to be in attendance,” she may pursue without punishment the avocation from which her sisters are debarred. The ordinance further prohibits the presence of women at public balls where liquors are sold, provided the ball “ is not given for the purpose of evading the provisions of the ordinance.” This last clause would seem to prohibit the presence of women at public balls where the dancing is a pretext, and the real purpose is to secure the presence of women where liquor was sold. But if this is its meaning, the ordinance again fails of uniformity, since the presence of women, or even their service as attendants, is not prohibited in places which are not really established with an intent to secure profit from them as “ hotels or restaurants or grocery stores,” but which take on the outward pretense of such—the object being simply the sale of intoxicating agents.
I concur in the judgment.