Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-01-24

In Health Department Of the City
of New York y Rector of Trinity
Church, AS N. Y. 80. 80 N. E. S33, IS
Am. st. Rep. $40, the court laid down
the rule that the Legislature, in the
exercise Of its power to conserve the
public health, safety and welfare, may
direct that certain improvements or
alterations shall be made in tenant
houses at the owners expense, and
that suitable appliances be supplied
to receive and distribute supply Of
water for domestic use. Judge Peck
ham, in discussing the constitutional
Wy of the act (page 43, AS N. Y. and
page S36, 80 N. E., As Am. st. Req.
579), says:
Laws and regulations Of a police
nature though they may disturb the
enjoyment of individual rights, are not
unconstitutional, though no provision
Is made for such disturbances. They
do not appropriate private property
for public use, but simply regulate
its use and enjoyment by the owner.
In Tied Linn. Police Power, 181, the
author states:
IF the law did not interfere. the
feverish intense desire to acquire
wealth, melting q relentless rivalry
and competition, would ultimately pre-
vent not only the wage Garner, but
likewise the capitalist and employers
themselves, from yielding to the warn
ings of nature, and Obeying the in
stinct Of self-preservation by resting
periodically from labor.
'|1f the Statute under consideration
invades the right of property and the
liberty Of the individual, then many Of
the Statutes Of this State that have
been held to be constitutional. and
} their enactment within the police pow
er of the State. are subject to the
same criticism. The Statute in quest
: ion does not restrict the right of the
defendant to carry on his business, or
to engage as many persons as he sees
: fit in such business, but it simply pro-
hibits him from requiring or COMPEL
ing his employees to work more than
> ten hours in any one day, or more than
!. sixty hours in any one week In other
I words the Statute does not prohibit
any right, but regulates it; and there
is a wide difference between regula-
1 ton and prohibition-between pre-
4 scribing the terms by which the right
i may be enjoyed, and the denial of that
:, right altogether. The defendant is not
:. deprived OF any right or privilege
4 which is not denied to others in a SIM
liar business The provisions Of the
,, Statute In question are directed to all
:. persons engaged in the bakery bust
;. ness. 1t neither cOnfers special privi-
:. leges, nor makes unjust discrimination
}, All who are engaged in that business
are entitled to its benefits and sub
e jected to its restrictions"
', The opinions in California and Ohio
- holding that statutes limiting the
:, hours Of labor on public works were
unconstitutional, although not in point
:, may no longer be considered of weight
- in the face of the recent decision tc
- the contrary by the Supreme Court u
- the United States in the Kansas case
o. The employment was not shown OF
- claimed to endanger health or life
ID nor could this be said Of all the vari
r. GUS occupations covered by the Ne
20 braska Act. When such strong consil
st erations Of public policy demand, it i,
~. not difficult to distinguish in princi
Il. pie between the cases relating to ave
r.. cations unhealthful and dangerous
"A and those which are not, and we ar
M unaware that any court where tn,
n conditions are the same has rendere
an opinion contrary to the views "
hold and express, excepting in r.
1e Morgan, rs Colorado, where the ST.
", VI preme Court Of that State took occs
NC sion to criticise the decision in Hode
" v. Hardy and held contrary to the !,
cid opinion Of the United States s,
~ ~. preme Court in that case declarin
that the protection of the health an
lives OF employees in mines and SINE
ls tiers was within the police power &
'te the State, and that the Utah Statut
ell from which ours is taken was vail
nd and not Objectionable as class legisl;
us ton. Nor are we prepared to agre
ilu with the bold assertion in the Color;
ne do opinion that the State may ne
ar protect the individual against injur
on to himself, but we do not wish to 1
III. understood as placing the decisio
here en- such narrow ground. Und.
ne the Common Law, the man who tr.s
~. ~. to commit suicide and fails may +
~. punished for the attempt to take b
w own life. A perusal Of the decision
go Re Morgan would lead to the inferens
~ that the Utah Supreme Court was n,
20 affirmed by the Supreme Court Of II
-. United States in Holden " Hard
-, 70, when three courts, including the Ia
~ ter at different times, have asserte
to the contrary
In The Utah Constitution not only do,
nor not, but if different construction
is claimed for it, as was done in the Col
lea RADIO case, it could not, as against Il
the Fourteenth Amendment, to which q
ate conflicting provisions of State Cons
of buttons, as we'll as Statutes, mu
in yield, convey any authority for leg
BUS lation abridging the rights, privileg
ais. or immunities of citizens, or for d
privng any person of property or Ii
;ta- erty without due process of law,
var for denying to any person the equ
ay- protection of the laws. The opinion
81 Re Morgan implies a warrant in tt
W: Utah Constitution which did not e
ore list in Colorado as a basis for the I
the inicn of the Supreme Court of Il
led United States, when under well know
the elementary principles the Utah CO
stitution was of no more force again
age the Federal Constitution and its a.
Am endments than the Colorado Statu'