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this article directed (section 6) that "the legislature shall pass laws to provide for the health and safety of employees in factories, smelters and mines.” Acting under this general authority the legislature passed during its first session a statute making eight hours a day the period of employment in mines and smelters, “except in cases of emergency where life or property is in imminent danger,” and penalizing violations as misdemeanors. Test cases were brought before the supreme court of the state in the same year, and the act was sustained as regards both mines and smelters. The cases were promptly appealed to the supreme

" court of the United States, which rendered its decision, also sustaining the law, on February 28, 1898. The following abstract

? of these decisions indicates sufficiently the grounds upon which they rested.

In its first decision' sustaining the law, so far as it applies to mines, the supreme court of Utah quotes at length from the labor article of the constitution to show that the protection of labor is one of the functions of the legislature. It then describes the nature of underground mining to show that a limitation on the hours of work for miners is a proper health measure. “We cannot say,” it concludes, “that this law, limiting the hours of labor in underground mines to eight hours each day, is not calculated to promote health.” Turning, then, to the question whether the act interferes with constitutional rights, it justifies the measure as imposing a proper restraint on personal liberty and as free from the taint of special or class legislation. “Some pursuits," it declares,

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are attended with peculiar hazards and perils, the injurious consequences from which may be largely prevented by precautionary means, and laws may be passed calculated to protect the classes of people engaged in such pursuits. It is not necessary to extend the protection to persons engaged in other pursuits not attended with similar dangers. To them the law would be inappropriate and idle. So, if underground mining is attended with dangers peculiar to it, laws

1 Holden v. Hardy (Oct. 29, 1896), 46 Pacific Reporter, p. 756; State v. Holden (Nov. 11, 1896), 46 Pacific Reporter, p. 1105.

? Holden v. Hardy, 18 Supreme Court Reporter, p. 383. 8 46 Pacific Reporter, p. 756.

adapted to the protection of such miners from such danger should be confined to that class of mining, and should not include other employments not subject to them. Believing this to be the case, the court upholds the law. Finally, it shows by citations from the decisions of other courts that the act may be defended as a legitimate exercise of the police power.

The second decision of the Utah court sustains, by a similar line of reasoning, the part of the act applying to smelters. It alludes briefly to the noxious gases that must be inhaled by persons engaged in this industry and concludes that a restriction on the hours of employment is a proper health regulation. "Twelve hours a day would be less injurious than fourteen, ten than twelve, and eight than ten. The legislature has named eight. Such a period was deemed reasonable." After a brief reference to the peculiar constitutional provisions of Utah in regard to labor, it adds:

Nor do we wish to be understood as intimating that the power to pass the law does not exist in the police powers of the state. The authority to pass laws calculated and adapted to the promotion of the health, safety or comfort of the people, and to secure the good order of society and the general welfare, undoubtedly is found in such police powers. The act may thus be defended as consonant with the labor article of the state's constitution and also as a legitimate exercise of the police power, shared by all the states.

The decision of the federal supreme court affirming the judgments of the supreme court of Utah was delivered by Mr. Justice Brown, Justices Brewer and Peckham dissenting. It is especially valuable because it presents a comprehensive review of earlier decisions interpreting the fourteenth amendment and outlining the scope of the police power of the states. The parts immediately applicable to the Utah statute are summarized in the following extracts.

After showing that the mining industry has long been recognized as one requiring regulation to protect the lives of miners, it continues:

! 46 Pacific Reporter. p. 1105.

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But if it be within the power of the legislature to adopt such means for the protection of the lives of its citizens, it is difficult to see why precautions may not also be adopted for the protection of their health and morals. . . . With this end in view . . . laws have been enacted limiting the hours during which women and children shall be employed in factories; and while their constitutionality, at least as applied to women, has been doubted in some of the states, they have been generally upheld. . . . Upon the principles above stated, we think the act may be sustained as a valid exercise of the police power of the state. . . . [The employments of mining and smelting], when too long pursued, the legislature has judged to be detrimental to the health of the employees; and, so long as there are reasonable grounds for believing that this is so, its decision upon this subject cannot be reviewed by the federal courts. While the general experience of mankind may justify us in believing that men may engage in ordinary employments more than eight hours per day without injury to their health, it does not follow that labor for the same length of time is innocuous when carried on beneath the surface of the earth, where the operator is deprived of fresh air and sunlight, and is frequently subjected to foul atmosphere and a very high temperature or to the influence of noxious gases generated by the processes of refining or smelting.' It then quotes with approval a considerable part of the decision of the Utah court in the second case referred to above, closing with the sentence:

Though reasonable doubts may exist as to the power of the legislature to pass a law, or as to whether the law is calculated or adapted to promote the health, safety or comfort of the people, or to secure good order or promote the general welfare, we must resolve them in favor of the right of that department of government.

Continuing it says:

The legislature has also recognized the fact, which the experience of legislators in many states has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are, to a certain extent, conflicting. The former naturally desire to obtain as much labor as possible from their employees, while the latter are often induced by the fear of discharge to conform to regulations which their judgment, fairly exercised, would

1 18 Supreme Court Reporter, pp. 383 et seq.

pronounce to be detrimental to their health or strength. In other words, the proprietors lay down the rules, and the laborers are practically constrained to obey them. In such cases self-interest is often an unsafe guide, and the legislature may properly interpose its authority.

It may not be improper to suggest in this connection that although the prosecution in this case was against the employer of labor, who apparently, under the statute, is the only one liable, his defence is not so much that his right to contract has been infringed upon, but that the act works a peculiar hardship to his employees, whose right to labor as long as they please is alleged to be thereby violated. The argument would certainly come with better grace and greater cogency from the latter class. But the fact that both parties are of full age, and competent to contract, does not necessarily deprive the state of the power to interfere, where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself. The state still retains an interest in his welfare, however reckless he may be. The whole is no greater than the sum of all the parts, and when the individual health, safety and welfare are sacrificed or neglected, the state must suffer.

The federal supreme court thus not only endorses the reasoning of the supreme court of Utah at every point, but it adds important considerations of its own, all favorable to the constitutionality of the statute. It recognizes that mining and smelting are peculiarly dangerous and unhealthful employments. It sees no reason why the police power should not embrace the protection of health and morals as well as that of life and property. It approves of restrictions on hours as means of protecting health. On these grounds the act is well sustained. But it goes further. It believes that large discretion in the exercise of the police power should be left to the legislative branch of the government; that employers and employees sometimes bargain on unequal terms and that at such times the legislature may properly interfere; finally, that the legislature has the right, when this is the case, to protect a man even "against himself.”'

In laying down the above principles the court had in mind, of course, the limitations imposed by the fourteenth amendment, not those contained in the state constitutions. How little immediate influence its reasoning had upon the minds of some of the judges of the state courts was illustrated a year later (July 17

1899), when the supreme court of Colorado rendered a decision declaring unconstitutional an act copied word for word from the Utah eight-hour law. A brief summary of this decision' will show that, at least at one point, the Colorado court disagrees in principle with the United States supreme court.

At the outset the decision alludes to the history of the Utah statute, but tries to minimize the significance of the decisions sustaining it by connecting them with the peculiar provisions of Utah's constitution. After pointing out that there are no similar provisions in the constitution of Colorado, it proceeds to demonstrate that such a law is not a legitimate exercise of the police power by the following reasoning: Were the object of the act to protect the public health, and its provisions reasonably appropriate to that end, it might be sustained; for in such a case even the constitutional right of contract may be reasonably limited. But the act before us is not of that character. In selecting a subject for the exercise of the police power, the legislature must keep within its true scope.

The reason for the existence of the power rests upon the theory that one must so use his own as not to injure the public health, safety, morals or general welfare. How can an alleged law that purports to be the result of an exercise of the police power be such in reality when it has for its only object, not the protection of others, or the public health, safety, morals or general welfare, but the welfare of him whose act is prohibited, when, if committed, it will injure him who commits it, and him only?

That this view is squarely opposed to that of the United States supreme court that the legislature may protect a man even “against himself" is obvious. As Professor Freund says, in commenting upon the above decision:

The right to choose one course of action even to the extent of incurring risks, where others are not concerned, is a part of individual lib

1

58 Pacific Reporter, p. 1071. The sequel of this decision was an amendment to the Colorado constitution expressly conferring upon the legislature the power which the state supreme court denied to it. This was submitted to the people on March 14, 1901, and adopted the following year. How close a connection this embittered struggle to secure the eight-hour day may have had with the sanguinary labor troubles from which Colorado has recently suffered, only those on the ground can judge.

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