The plaintiffs are held in custody by the defendant for alleged violations of chapter 23, Laws of Utah, 1915. They, on applications for a writ of habeas corpus, asked to be discharged on alleged grounds of invalidity of the act, that the subject pf the act is not clearly expressed in the title, and that the act contravenes the fourteenth amendment to the Constitution of the United States, and the state Constitution, forbidding special legislaion where a general law can be made applicable.
The Constitution provides that the subject of acts shall be clearly expressed in the title. There is a subject expressed in this title. It is, “An act to regulate the 1 working hours of all employees of mercantile establishments. ’ ’ The act itself provides, section 1:
“That all mercantile and commercial houses, either wholesale or retail, or both, in the cities of ten thousand population and over, shall close at six o’clock in the evening of every business day of the year, except for the period of six business days immediately preceding December 25, of each year.”
Section 2:
“This act exempts all commercial and mercantile houses that deal exclusively in, or whose major portion of stock consists of foodstuffs, meats and other provisions of a perishable nature; which are regarded as, and are, public necessities. ’ ’.
Section 3:
‘' That this act also exempts drug stores, which are regarded as, and are, public necessities.”
It is thus seen that the title of the act is to regulate the working hours of employees of - mercantile establishments; but when we look to the body of the act, we find nothing concerning such a subject, but find one wholly different, a subject fixing a closing hour for mercantile and commercial houses.
The act is defended on the ground that it is a police measure and that as such it was competent for the Legislature to fix and regulate working hours of employees of mercantile and commercial houses and establishments. As has been seen, the act itself in no manner relates to such a 2 subject. If, however, that be the intent, then does the act contravene the fourteenth amendment to the Constitution of the United States. That very clearly is shown by the case of Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937, 3 Ann. Cas. 1133. There, the State of New York forbade the employment of bakers longer than ten hours per day. The Supreme Court of the United States held the act bad, because it abridged the right to contract. The act there, as here, was defended as a police measure; but the court held that it in no manner related to public health, morals, safety, or general welfare, nor to the health, morals, or safety of those engaged in the business. One of the plaintiffs is a merchant engaged in selling men’s clothing, furnishing goods, boots, shoes, jewelry, etc., in Salt Lake City. He conducted his business without help. The other plaintiff is engaged in selling cigars at retail in Salt Lake City. Both of them sold goods after six o’clock p. m. That, and that only, constitutes the alleged violation. It also is averred and admitted that commercial houses, or establishments in Salt Lake City, and in other cities of 10,000 or more population, and exempt under the act, deal 'in and sell, after six o ’clock, the same kind of goods dealt in and sold by the plaintiffs after that hour. Whether the act be viewed as expressed in the title, or as indicated in the body of the act, we do not see how it can be defended as a police measure. The business conducted by the plaintiffs does not affect the health or safety of those engaged in it. Nor is the act directed to enterprises affecting health,
We also think the act special legislation. It only applies to cities of 10,000 population or over. Business houses or commercial establishments in other cities and towns may keep open at all hours of the day or night, and sell anything not otherwise forbidden by law. The act further exempts drug stores, and commercial houses dealing exclusively 3 in, or whose major portion of stock consists of, foodstuffs, meats, and provisions of a perishable nature. Under the act, such establishments or houses can keep open and sell anything after six o’clock. That is, a hardware, jewelry, book, dry goods, clothing, or cigar store, and many other stores cannot keep open or sell anything after six o’clock. But a drug store, or a store whose major portion of stock is foodstuffs, can keep open after six o’clock, and sell anything not otherwise forbidden by law. Drug stores are not restricted after six o’clock to the sale of drugs merely, nor are food stores to food and provisions. They are privileged to sell, and under the admitted facts, do keep open and sell, after six o’clock, the same things the plaintiffs are forbidden to sell after that hour. Clearly that is special legislation, and the granting of privileges forbidden by the Constitution. We therefore think the act bad on all three grounds.
We think it also offends against constitutional rights to enjoy, acquire and possess property, the most valuable of which is that of alienation, the right to vend and sell. Theré are things the sale of which may be restricted, 4 regulated, or even prohibited by the Legislature, and enterprises which may be restricted, regulated and controlled. But such legal interference must rest on the police power of the state to promote or preserve public health, public morals, public safety, public convenience, and general welfare. The act here has no such purpose, and in no sense tends to promote or preserve public health, morals, peace, order, safety, con-
The writs are granted, and the plaintiffs permitted to go without day.