(dissenting): Believing, as I do, that no recent decision of this court is comparable in its consequences to the public at large, especially the business and” commercial world, with that just announced in this case ; convinced beyond all reasonable doubt that legislation so drastic in terms, tending in such large measure to make criminal the otherwise innocent, every-day affairs of life,, should not be upheld by this court; and fully satisfied beyond all escape from the conviction that the act itself in express terms involves more of personal liberty and the rights of private property in turpitude and crime than has any prior act ever upheld by this court; and also convinced that the process of reasoning employed in the opinion for the purpose of upholding the act is inherently and radically false in principle and dangerous in .conclusion, I refuse to concur therein, and respectfully state my reasons therefor.
A careful reading of the opinion will disclose the fact that the validity of the act in question is first at*269tempted to be maintained by tacitly admitting the language of the act to be in violation of the fourteenth amendment to the federal constitution, but upholding its validity by excluding from its condemnation those cases which the court may deem to have been in excess of the legislative power, upon the theory that the legislature did not intend to include such cases.as would impair the validity of the act; and by denying appellant the right to question the validity of the act under which he has been tried, convicted, and sentenced, upon the ground that under the facts charged against him he does not belong in the category of cases which the court should exclude by construction, and therefore he cannot be heard to complain of his punishment or challenge the validity of the act under which he is punished. That this is a fair construction of the language employed, and the true ground upon which the opinion is based, will appear from the first and second points of the syllabus and the corresponding portions of the opinion, and from the further fact that the law as stated in the syllabus, and the argument employed in the opinion, can have no place in this casé if it be not admitted that the act in certain respects is unconstitutional and void.
If it be within the province of the courts thus to separate the valid from the void provisions of the statute by construction, and give force to the valid, so ascertained, and reject the void, it is difficult to comprehend why any legislative act should be declared void in toto. What the legislature creates void, the courts, the final arbiters of the power of the legislature to create, can reconstruct, separate, and make good. It is a settled rule that courts shall resolve all doubts in favor of the constitutionality of the statute challenged, and in all cases where possible, consis*270tently with the rules of law, uphold the validity of the statute. Hence, if the doctrine announced in this case be sound, in no case should an entire act be overthrown by the courts. On thé contrary, it would become the duty of the court to reject those provisions beyond the constitutional power of the legislature to include in an act as not intended by the legislature to be included, because beyond' its power to do so, and enforce the remainder. Is this doctrine sound in principle and fortified by authority ? It is the settled rule of interpretation of statutes that the words employed by the law-making power ar'e to be first consulted. When their meaning is clear, plain, and unambiguous, there is no room left for interpretation; Mr. Black, in his work on Interpretation of Laws, section 43,. says:
“But it must be observed that the presumption of constitutionality, like all the other presumptions of this class, is available only in case of doubt or ambiguity. The courts cannot revise or correct an act of the legislature' in order to make it conform to the constitution. If it is plainly and palpably invalid, it is their duty to so declare it. Where the language is not ambiguous, and the meaning is clear and obvious, an unconstitutional consequence cannot be avoided by forcing upon the language of the act a meaning which, upon a fair test, is repugnant to its terms.”
The first section of the act in question creates and-defines the offense. The parts are interdependent and inseparable, constituting one general scheme. All acts therein prohibited are made alike criminal. There is no attempt at classification. All acts inhibited are alike criminal; all persons violating the act alike criminals. In such case the entire section must stand or fall together. Separation is impossible. Either all is good or all bad. Mr. Justice Field, in Norton v. *271Shelby County, 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178, said :
‘ ‘ An unconstitutional act is not a law ; it confers no rights ; it imposes no duties ; it affords no protection ; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.”
I have no desire to dispute the familiar and well-recognized rule of law, that when part of a statute is constitutional and part is unconstitutional, that which is constitutional will, if capable of separation and independent enforcement, be separated and enforced, and that which is unconstitutional be rejected. This is a principle so well recognized and of such every-day-application in courts of justice that a citation of authorities in its support is unnecessary and inappropriate. I dispute neither the existence nor the soundness of this rule in cases where applicable. What I do deny is its application to this case, and the manner in which it-is applied to the case. The writer of the opinion, after stating the rule and its exception, states the extension of the rule applied in this case, as follows :
“However, the rule is not limited to such instances. It applies as 'well to exclude from the operation of the statute subjects and classes of things lying without the legislative intent, although comprehended within the general terms of the act, as it does to exclude parts of the verbal phraseology.”
He makes application of the extension of the rule in the following manner:
“He cannot be heard to object to the statute merely because it operates oppressively upon others. The hurt must be to himself. The case, under appellant’s contention as to this point, is not a case of favoritism in the law. It is not a case of exclusion of classes who ought to have been included, the leaving out of *272which constitutes a denial of the equal protection of the law, but it is the opposite of that. • It is a case of the inclusion of those who ought to have been excluded. Hence, unless appellant can show that he himself has been wrongly included in the terms of the law, he can have no just ground of complaint. This is fundamentally and decisively settled.”
This is not the first instance in which it has been attempted to uphold the validity of an enactment beyond the constitutional power by limiting the scope of the act by construction, and thus eliminating the provisions in conflict with the organic law. But limitation by construction is not separation. It is merely an attempt on the part of the court both to make and enforce laws without the aid of the legislative branch of the government. Chief Justice Waite, in United States v. Reese et al., 92 U. S. 214, 23 L. Ed. 563, said of this doctrine :
“There is no attempt in the sections now under consideration to provide specifically for such an offense. If the case is provided for at all, it is because it comes under the general prohibition against any wrongful act or unlawful obstruction in this particular. We are, therefore, directly called upon to decide whether a penal statute enacted by congress, with its limited powers, which is in general language broad enough to cover wrongful acts without a's well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which congress may rightfully prohibit and punish. For this purpose, we must take these sections of the statutes as they are. We are not able to reject a parfwhich is unconstitutional, and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not. The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there. Each of the sections must stand as a *273whole, or fall altogether. The language is plain. There is no room for construction, unless it be as to the effect of the' constitution. The question, then, to be determined is, whether we can introduce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only.
“It tuould certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government. The courts enforce the legislative will when ascertained, if within the constitutional grant of power. Within its legitimate sphere, congress is supreme, and beyond the control of the courts ; but if it steps outside of its constitutional limitations, and attempt's that .which is beyond its reach, the courts are authorized to, and, when called upon in due course of legal proceedings, must annul its encroachments upon the reserve power of the states and the people.
“To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is not part of our duty.”
Mr. Justice Matthews, in delivering the opinion in the Virginia Coupon Cases, 114 U. S. 270, 5 Sup. Ct. 903, 29 L. Ed. 185, says:
“It'is undoubtedly true that there may be cases' where one part of a statute may be enforced as constitutional, and another be declared inoperative and void, because unconstitutional; but these are cases where the parts are so distinctly separable that each can stand alone, and where the court is able to see, and to declare, that the intention of the legislature was that the part pronounced valid should be enforceble, even though the other part should fail. To hold otherwise would be to substitute for the law intended by the legislature one they may never have been willing by itself to enact. An illustration of this principle is found in the Trade-mark Cases, 100 U. S. 82, 25 *274L. Ed. 550, where an act of congress which, it was claimed, would have been valid as a regulation of commerce,with foreign nations and among the states, was held to be void altogether, because it embraced all commerce, including that between the citizens of the same state, which was not within the jurisdiction of congress, and its language could not be restrained' to that which was subject to the control of congress. ‘If we should/ said the court in that case, ‘in the case before us undertake to make, by judicial construction, a law which congress did not make, it is quite probable we should do what, if the matter were now before that body, it would be unwilling to do.’”
In the case of Baldwin v. Franks, 120 U. S. 678, 7 Sup. Ct. 656, 763, 32 L. Ed. 766, Chief Justice Waite, in delivering the opinion, said :
“It is now said, however, that in t,hat case the conspiracy charged was by persons in a state against a citizen of the United States and of the’ state, to deprive him of the protection he was entitled to under the laws of that state, no special rights or privileges arising under the' constitution, laws or treaties of the United States being involved; and it is argued that, although the section be invalid so far as such an offense is concerned, it is good for the punishment of those who conspire to deprive aliens of the rights guaranteed to them in a state, by the treaties of the United States. In support of this argument, reliance is had on the well-settled rule that a statute may be in part constitutional and in part unconstitutional, and tliat under some circumstances the part which is constitutional will be enforced, and only that which is unconstitutional rejected. To give effect to this rule, however, the parts — that which is constitutional and that which is unconstitutional — must be capable of separation, so that each may be read by itself. This statute, considered as a statute punishing conspiracies in a state, is not of that character, for in that connection it has no parts Within the meaning of the rule. Whether it is separable, so that it can be *275enforced in a territory, though not in a state, is quite another question, and one we are not now called on to decide. It provides in general terms for the punishment of all who conspire for the purpose of depriving any person, or any class of persons, of the equal protection of the laws, or of equal privileges or immunities under the laws. A single provision, which makes up the whole section, embraces those who conspire against citizens as well as those who conspire against aliens — those who conspire to deprive one of his rights under the laws of a state, and those who conspire to deprive him of his rights under the constitution, laws or treaties of the United States. The limitation which is sought must be made, if at all, by construction, not by separation. This, it has often been decided, is not enough.”
See, also, Sutherland on Statutory Construction, section 173 ; Trade-mark Cases, 100 U. S. 82, 25 L. Ed. 550 ; United States v. Harris, 106 U. S. 629, 1 Sup. Ct. 601, 27 L. Ed. 290; Wynehamer v. The People, 13 N. Y. 378; Meshmeier v. The State, 11 Ind. 482.
Nor are the cases cited and relied on by the writer of the opinion to support the doctrine announced in conflict with the views here expressed. The cases of Supervisors v. Stanley, 105 U. S. 305, 26 L. Ed. 1044, and Commonwealth v. Gagne, 153 Mass. 205, 26 N. E. 449, 10 L. R. A. 442, arose upon a conflict between legislative acts, state and federal, no question of conflict between a legislative act and the organic law being involved. In none of the cases cited did the decision turn upon the power of the court to separate and eliminate froqi a legislative act by construction those cases provided for by the terms of the act which would render it in conflict with the organic law.
It certainly needs no argument to satisfy the mind, no citation of authorities to support the contention, *276that, if the act in question in express terms strikes down personal rights guaranteed to all by the federal constitution, in so doing the act is completely and utterly void, and an appellant tried, convicted and punished under this void act can assert its invalidity, although it may appéar from the charge contained in the information and the evidence at the trial that he might be convicted under a proper law. Mr. Justice Wood, delivering the opinion of the court in United States v. Harris, supra, commenting upon and applying the decision in United States v. Reese, supra, said :
“The indictment in the case charged two inspectors of a municipal election in the state of Kentucky with refusing to receive and count at such election the vote of William Garner, a citizen of the United States, of African descent. It was contended by the defendants that it was not within the constitutional power of congress to pass the section upon which the indictment was based. The attempt was made by the counsel for the United States to sustain the law as warranted by the fifteenth amendment to the constitution of the United States. But this court held it not to be appropriate legislation under that amendment. The ground of the decision was that the sections referred to were broad enough not only to punish those who hindered and delayed the enfranchised colored citizen from voting, on account of his race, color, or previous conditionof servitude, but also thosewho hinderedor delayed thefreetuhite citizen. The court, speaking by the chief justice, said : •‘It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government. The courts enforce the legislative will, when .ascertained, if within the constitutional grant of power. But if congress steps outside of its constitutional limitation and attempts that which is beyond its reach, the courts are authorized to, and when called *277upon must, annul its encroachment upon the reserved rights of the states and the people.’” (Page 642.)
This precise question was considered also in Wyne-hamer v. The People, supra, in which Mr. Justice Johnson said:
“The prohibitions of the first section, taken together, and they form but a single scheme and are to be enforced by the same penalties, cannot, therefore, in my judgment, be upheld, at least in respect to property which had been acquired while there was no prohibition against the acquisition of such property. The. future acquisition the legislature might, in my opinion, control, and I am not disposed to deny that .they could have subjected such future acquisitions to the prohibitions this act imposes. But in this act they have made no discrimination. The provisions extend, and were clearly meant to extend, to all liquors. It is no part of the proof to make out the offense according to the statute, to show that the liquors were acquired after the prohibitions became operative, nor is the fact that they were previously acquired any defense under the statute. The only way of defending against it, on the ground in question, is by ashing to have it declared void. Laws in relation to civil rights are sometimes held to be unconstitutional, in so far as they affect the rights of certain persons, and valid in respect to others. This is done mainly upon the ground that the courts will not construe them to relate to such cases as the legislature had not power to act upon. To statutes creating criminal offenses, such a rule of construction ought not to be applied, and L cannot find any trace of its ever having been applúd. It is of the highest importance to the administration of criminal justice, that acts creating crime should be certain in their terms, and plain in their application ; and it would be in no small degree unseemly that courts should be called upon, in administering the criminal law, to adjudge an act creating offenses at one time valid and at another time void. It must, 1 think, stand as it has been enacted, or not stand at all.”
*278The statute under consideration is criminal. The acts condemned and punished thereby were neither criminal nor unlawful at common law. The rule of strict construction applies in this case with all its force. The cases cited in the opinion in support of the doctrine announced are civil cases. An examination will show their inapplicability in this case. That the rule of separation of valid from void, rejecting the void and upholding the good by construction, employed in this case, is wrong in principie, I have no doubt. That the appellant may be heard to question the power of the legislature to enact the law under which he stands convicted, I do not doubt. To hold that he may is sound in reason and fully settled by the authorities above cited.
But it is contended by the writer of the opinion that there is a distinction between federal and state legislation ; that congress possesses only such legislative power as is expressly granted by the federal constitution, whereas the legislature of the state possesses all legislative power not expressly withheld by the constitution of the state. Therefore, the reasoning employed in the above cases, construing federal statutes as opposed to the federal constitution, is inapplicable to the case at bar, and the case of Waters-Pierce Oil Company v. Texas, 177 U. S. 28, 42, 20 Sup. Ct. 518, 44 L.Ed. 657, is relied upon to support the contention made. Such reasoning is more to be admired for its ingenuity than to be commended for its logic. While the rule governing the power of national and state legislatures to legislate is correctly stated, yet it does not follow that a different rule of construction is to be employed in arriving at a conclusion as to the validity of an act challenged as obnoxious to the federal constitution. That constitution is the supreme law of the land, *279equally binding upon this court and the federal supreme court. The fourteenth amendment does not touch upon federal legislation, but is an express limitation upon legislation by a state. If the act in question is violative of its prohibitive provisions it is void, and that is an end of it. The question before us, which should be squarely 'met, is, whether the act under consideration contravenes the federal constitution, and not whether this court may attempt to hew round it by the process of specious reasoning employed. The case cited is not in point, and does not touch upon the question at issue here. The question involved in the Waters-Pierce Oil Company case, and the only one, was the power of the state of Texas to impose conditions upon a foreign corporation desiring to transact business in that state. The question sought to be raised by counsel for plaintiff in error in that case is the one raised in the case at bar. The authorities relied on here are the authorities cited there. It was ruled in that case, not that the contention here made is untenable or the authorities cited unsound or inapplicable to the question, but that the question here at issue was not involved in that case.
It is also worthy of remark here that the able counsel representing the state, neither in their voluminous briefs nor at the oral argument, made mention of the doctrine applied by the court. Nor have counsel for appellant been heard upon this proposition.
Is the act of 1897 within the legislative power of the state, constitutional, and valid? What may be the extent of power possessed by the state over gimsi-public corporations engaged in the performance of a public service, or what the power of congress to control and regulate such servants of the public under the interstate-commerce clause of the federal *280constitution, is not the question in controversy. The power of the state to prevent the formation of monopolies and combinations tending to monopoly, and exercising control over them to prevent public oppression, is not the subject under consideration. The power of the state to prohibit such combinations as may to an unreasonable extent restrain trade or commerce, or may unreasonably restrict competition in trade, commerce, manufacturing, or business, is not the question at issue. By the act in question the legislature has attempted to prohibit, by combinations of capital, skill, or acts, all restraint upon trade and commerce and all restriction upon trade, commerce, ihanufacturing, or transportation, whether such restriction is in its nature and extent such as may be reasonable and necessary to the self-preservation and protection of the parties engaged from financial ruin or oppressive to the public. Unbridled competition, which is in effect a license to the strong to destroy and obliterate the weak, is .commanded. With the public policy of this act, whether wise or unwise, we have no concern. With the power of the legislature to enact this law, and the duty of the courts to command its enforcement or deny its validity as opposed to the fundamental law of the land, we are concerned.
The right of the legislature, in the exercise of what is called the police power of the state, to restrain and prohibit monopolies and combinations tending to monopoly, is freely granted. The power of the legislature to prohibit such restrictions upon trade and commerce as are in their nature unreasonable, and to condemn such restraints upon competition in trade and commerce as are unreasonable, oppressive, and injurious to the public, is also admitted. But that, in a free government, the right of two or more persons, *281firms or corporations transacting commercial or other business, drawn into unreasonable and destructive competition, threatening financial ruin, to agree one with the other to restore and maintain the price of their goods at or above cost, having in view the laudable and reasonable purpose of averting financial self-destruction, every right-minded man must concede. A denial of such right is a denial of the right of self-defense, is oppression, is tyranny. Yet, that such an agreement -is clearly within the prohibition of the act in question is not open to dispute. The right of two or any number of persons engaged in agriculture to agree that they will combine and place their agricultural products in elevators and storehouses, and that they will not sell the same until a certain price is obtained, which price will net them a profit for their labor, is founded upon such natural justice as to be beyond the reach of legislative power to prohibit. Yet such right is by the act denied. Many of the states have exercised the power of fixing, for those engaged in transportation, such maximum and minimum rates of carriage as shall not be exceeded, under penalty of the law. Yet any combination of those engaged in transportation to charge only the minimum rate so fixed is, in terms, prohibited by this act. Other examples may be given ad libitum. Upon an examination of the act, others will occur to the mind ad infinitum. All combinations, justifiable or unjustifiable, reasonable or unreasonable, necessary or unnecessary, beneficial or oppressive to the public, are alike prohibited and made criminal. ■Under this act, the fact that the prohibited agreement was made for justifiable ends, or for self-preservation, is no defense.
May such an act exist in a free country? Will such an act be enforced in a free government? Any *282student at all familiar with history will recall the baneful and disastrous effect of kindred legislation in England, Italy, and other European countries, where the legislative power operates untrammeled by a written constitution. It is useless in the consideration of this question to attempt a citation or review of the many authorities in this country making application of the provision found in the fourteenth amendment to the federal constitution to such legislation. The English authorities have no application, because announced under no written constitution. The source of power relied on to support this act and all others of kindred character is the police power of the state, but this power has, and of necessity must have, its limitations. That the police power, or any power of the state, authorizes the act in question, I deny. I deny it because it is an unwarranted abridgment of personal liberty; because it takes away private property without due process of law; because it denies equal protection under the law, without justifiable ends. A legislature may become as much a tyrant as a czar or a king.
“By the term ‘liberty,’ as used in the provision, something more is meant than mere freedom from physical restraint or the bonds of a prison. It means freedom to go where one may choose, and to act in such a manner, not inconsistent with the equal rights of others, as his judgment may dictate for the promotion of his happiness ; that is, to pursue such callings and avocations as may be most suitable to develop his capacities and give to them their highest enjoyment.” (Mr. Justice Field, in Munn v. Illinois, 94 U. S. 118, 24 L. Ed. 77.)
The federal constitution declares :
“This constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under *283the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary, notwithstanding.”
The fourteenth amendment to the constitution is :
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
Guizot, in his lectures on Government, says :
“Liberties are nothing until they have become rights, positive rights, formally recognized and consecrated ; rights, even when recognized, are nothing so long as they are not entrenched within guaranties ; and, lastly, guaranties are nothing so long as they are not maintained by forces independent of them in the limit of their rights ; surround rights by guaranties ; entrust the keeping of those rights to forces independent of them ; such are the necessary steps in the progress towards a free government.”
Mr. Justice Field, in Slaughter-house Cases, 16 Wall. 36, 21 L. Ed. 394, quoting from Live-stock &c. Association v. The Crescent City &c. Company, 1 Abb. 398, said :
“It is one of the privileges of every American citizen to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit, without unreasonable regulation or molestation.”
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 nor less than the sacred right of labor.”
Mr. Eddy, in his work on Combinations, section 681, says :
“Any extension of the police power beyond the pre*284serving of peace and order in the community and the protection of life, health and morals of the individual, is a departure so radical as to be absolutely destructive of all limitations upon the exercise of the power. If the state can go beyond considerations affecting the peace and order of the community and the life, health or morals of the individual, and intervene for reasons of a purely social or economic nature, then there are no limitations whatsoever upon the power of legislatures to intervene and in their discretion dictate terms upon which various contracts shall be made and different occupations pursued.”
In Frorer et al. v. The People, 141 Ill. 171, 31 N. E. 395, 16 L. R. A. 492, it was said :
“Other instances of statutory regulations of private rights are in lien laws in favor of homesteaders, mechanics, etc. ; limitation laws ; the statute of frauds, and other statutes relating to evidence ; laws in regard to pleadings ; exemption laws and insolvent laws. But these all relate, not to the power to contract in regard to matters of general right, but to the remedy for the enforcing of contracts, as to which the legislature may make such regulations as the public welfare seems to demand, so long as, under pretense of regulating the remedy, it does not impair the right itself.” , .
In Braceville Coal Co. v. The People, 147 Ill. 66, 37 Am. St. Rep. 206, 35 N. E. 62, 22 L. R. A. 340, it was held:
“Constitutional liberty means not only freedom of the citizen from servitude and restraint, but includes the right of every man to be free in the use of his powers and faculties, and to adopt and pursue such avocation or calling as he may choose, subject only to the restraints necessary to secure the common welfare.”
In the opinion it was said:
“The fundamental principle upon which liberty is based in free and enlightened goyernment is equality *285under the law of the land. It has, accordingly, been everywhere held that liberty, as that term is used in the constitution, means not only freedom of the citizen from servitude and restraint, but is deemed to embrace the right of every man to be free in the use of his powers and faculties and to adopt and pursue such avocation or calling as he may choose, subject only to the restraints necessary to secure the common welfare. (Frorer v. The People, 141 Ill. 171; Perry v. Commonwealth, 155 Mass. 117 ; People v. Gillson, 109 N. Y. 389 ; Live-stock Association v. Crescent City, 1 Abb. 398 ; Slaughter-house Cases, 16 Wall. 36; Godcharles v. Wigeman, 113 Pa. St. 431; State v. Goodwill, 33 W. Va. 179.)
“Property, in its broader sense, is not the physical thing which may be the subject of ownership, but is the right of dominion, possession and power of disposition which may be acquired over it; and the right of property, preserved by the constitution, is the right not only to possess and enjoy it, but also to acquire it in any lawful mode or by following any lawful industrial pursuit which the citizen, in the exercise of the liberty guaranteed, may choose to adopt.”
In Ritchie v. The People, 46 Am. St. Rep. 315, 155 Ill. 98, it was held :
“Statutes passed in pursuance of the police power must have some relation to the end sought to be accomplished. Where the ostensible object is to secure the public comfort, welfare, and safety, the statute must appear to be adapted to that end. It cannot invade the rights of persons and property under the guise of a mere police regulation when such is not the effect.”
In the opinion it was said:
“But it is claimed on behalf of the defendant in error that this section can be sustained as an exercise of the police power of the state. The police power of the state is that power which enables it to promote the health, comfort, safety and welfare of society. Iti is very broad and far-reaching, but is not without its limitations. Legislative acts passed in pursuance *286of it must not be in conflict with the constitution, and must have some relation to the ends sought to be accomplished ; that is to say, to the comfort, welfare or safety of society. Where the ostensible object of an enactment is to secure the public comfort, welfare, or safety, it must appear to be adapted to that end; it cannot invade the rights of person and property under the guise of a mere police regulation, when it is not such in fact; and, where such an act takes away the property of a citizen or interferes with his personal liberty, it is the province of the courts to determine whether it is really an appropriate measure for the promotion of the comfort, safety and welfare of society. (Lake View v. Rosehill Cem. Co., 70 Ill. 191; In re Jacobs, 98 N. Y. 98; The People v. Gillson, 109 id. 389.) ”
Mr. Justice Harlan, in declaring the anti-trust act of the state of Illinois unconstitutional and void, in the recent case of Connolly v. The Union Sewer Pipe Company, supra, said:
“The question of constitutional law, to which we have referred, cannot be disposed of Jjy saying that the statute in question may be referred to what are called the police powers of the state, which, as often stated by this court, were not included in the grants of power to the general government, and therefore were reserved to the states when the constitution was ordained. But as the constitution of the United States is the supreme law of the land, anything in the constitution or statutes of the states to the contrary notwithstanding, a statute of a state, even when avowedly enacted in the exercise of its police powers, must yield to the law. No right granted or secured by the constitution of the United States can be impaired or destroyed by a state enactment, whatever may be the source from which the power to pass such enactment may have been derived. ‘ The nullity of any act inconsistent with the constitution is produced by the declaration that the constitution is the supreme law.’ The state has undoubtedly the power, by appropriate *287legislation, to protect the public morals, the public health, and the public safety, but, if by their necessary operation, its regulations looking to either of those ends amount to a denial to persons within its jurisdiction of the equal protection of the laws, they must be deemed unconstitutional and void. (Gibbons v. Ogden, 9 Wheat. 1, 210 ; Sinnot v. Davenport, 22 How. 227; M. K. & T. Ry. Co. v. Haber, 169 U. S. 618.”)
True, in that case the act under consideration was declared void because denying equal protection under the law; but if the police, power of the state of Illinois was insufficient to uphold the law because that act contravened the fourteenth amendment to the federal constitution, how may it be contended that the same source of power relied on here will uphold this act which deprives the citizen of his property. without due process of law — that is, arbitrarily denies to those engaged in certain branches of trade and business the right to contract with relation to that business and their private property ; arbitrarily denies the right so to conduct their business as they may choose without injury to others ; arbitrarily and unreasonably interferes with the liberty of private contracts not injurious to the public morals, public health or public safety? It was said by Judge McPherson, in Niagara Fire Ins. Co. v. Cornell, 110 Fed. 816, in declaring the anti-trust act of Nebraska unconstitutional and void upon this precise ground :
“If we cannot acquire property, then we have a government of socialism. And how can we acquire property, or enjoy the property we do have, without the right of contract ? If this law is valid, two or more farmers cannot agree that they will not sell their wheat to a neighboring mill for less than so much per bushel. Two or more farmers cannot agree that the live-stock feeder shall not have their corn, *288only at a certain price. Blacksmiths cannot agree that they will charge so much for shoeing horses. Nothing can be agreed to by the manufacturer, the farmer, the gardener, the contractor, consumer or laborer to prevent the reduction of price. Can it be possible that such legislation is valid ? If it is valid, then what becomes of the provision, ‘No man shall be deprived of equal protection of the law,’ or of that other provision, ‘No man shall be. deprived of life, liberty or property without due process of law’ ?”
As was said by Judge Catron in Wally v. Kennedy, 2 Verg. 554, and Vansant v. Waddel, 2 id. 270 :
“The rights of every individual must stand or fall by the same rule or law, that governs every other member of the body politic, or land, under similarcircumstances ; and every partial, or private law, which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void. Were it otherwise, odious individuals or corporate bodies would be governed by one law, the mass of the community, and those who made the law, by another ; whereas a like general law, affecting the whole community equally, could not haye been passed.” (Page 555.) '
“The idea of a people, through their representatives, making laws whereby are swept away the life, liberty and property of one or a few citizens, by which neither the representatives nor their other constituents are willing to be bound, is too odious to be tolerated in any government where freedom has a name. Such abuses resulted in the adoption of magna charta in England, . . . which is, and for centuries has been, the foundation of English liberty. Its infraction was a leading cause why we separated from that country, and its value as a fundaméntal rule for the protection of the citizen against legislative usurpation was the reason of its adoption as a part of our constitution.” (Page 270.)
The argument made that the colossal aggregations *289of capital and rapid formation of gigantic industrial trusts of recent years have created public alarm and wide-spread apprehension of danger, calling forth public clamor for enactments of the character in question by the legislature, and their enforcement by the courts, if true, is without merit here. There is no safety to the citizen where the convictions of lawmakers and the settled principles of the law, as enunciated by the courts as well, melt away before the hot breath of public clamor.
Again, from the information it cannot be determined upon what act of the. legislature the prosecution in this case is based. At the trial the court not only gave the jury in his charge the anti-trust act of 1897 above discussed, but also in his instructions gave to the jury the unlawful trust and combination act, chapter 175, Laws of 1887, found in chapter 145, General Statutes of 1897 (Gen. Stat. 1901, §§ 2427-2429), quoted at length in the opinion. By instruction-number 4 the jury were directed as follows :
“ Gentlemen of the jury, you are instructed that if you find from the evidence that the defendant, E. J. Smiley, did, on or about the 20th day of November, 1900, unlawfully enter into an agreement, contract, and combination, in the county of Rush and state of Kansas, with certain partnerships, companies, corporations of grain dealers and grain buyers in the town of Bison, in the said county and state, and you further find that the said parties were competitive grain buyers, dealers, and buyers, to pool and fix the price the said grain dealers and buyers should pay for grain at the said place, and to divide between them the net earnings of the said grain dealers and grain buyers, and to prevent competition in the purchase and sale of grain among the said dealers and buyers, that would be a violation of chapter 145, and you should so find, and find the defendant guilty.”
*290That this act of 1887 is clearly unconstitutional and void, because denying equal protection under the law, is scarcely a debatable question. It singles out one class of persons engaged in domestic trade and commerce from the general class, and makes acts done by them criminal which, if done by other members of the general class, remain innocent. That such legislation cannot be upheld is not only in effect conceded in the opinion, but is conclusively settled by authority.
In Connolly v. Union Sewer Pipe Company, supra, it was said :
“We conclude this part of the discussion by saying that to declare that some of the class engaged in domestic trade or commerce shall be deemed criminals if they violate the regulations prescribed by the state for the purpose of protecting the public against illegal combinations formed to destroy competition and to control prices, and that others of the same class shall not'be bound to regard those regulations, but may combine their capital, skill or acts to destroy competition and to control prices for their special benefit, is so manifestly a denial of the equal protection of the laws that further or extended argument to establish that position would seem to be unnecessary." (See, also, In re Grice, 79 Fed. 627 ; Niagara Ins. Co. v. Cornell, supra.)
,The validity of this act of 1887 is directly and pointedly challenged by the record, and urged upon this court by counsel in their briefs and at the oral argument, yet this question is disposed of as wholly immaterial and harmless error. By what means this court ascertained what influence the charge of the court upon the act of 1887 had upon the minds of the jury is not shown. How it determined the jury would have convicted had this portion of the charge been omitted is no.t clear. The defendant is engaged in the grain business; the act of 1887 is directed *291against grain dealers ; the conspiracy charged in the information is one with grain dealers; the unlawful acts charged therein relate solely to the grain trade ; all the evidence found in the record pertains to the grain business ; and yet escape is made'from the consideration of the validity of the act of 1887 because, in the judgment of the court, the defendant might have been tried and convicted under the act of 1897. Section 286 of the criminal codé (Gen. Stat. 1901, §5681) provides:
“The judge must charge the jury in writing, and the charge shall be filed among the papers of the cause. In charging the jury, he must state to them all matters of law which are necessary for their information in giving their verdict."
This court-has held that the failure of a trial court, although not requested so to do, fully to instruct the jury upon the law governing the case, under the above section, is material error. (The State v. Grubb, 55 Kan. 678, 41 Pac. 951.) By a parity of reasoning, and upon general principles, it must be true that the action of a trial court upon a criminal prosecution' instructing the jury to ascertain and determine the guilt of the defendant by a statute which is not the law, but is unconstitutional and void, is equally erroneous, and reversible error.
The conviction in this case should be set aside.