Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-10-10
Opinion on Rehearing.

corpus.
Opinion on Rehearing.
In the petition for rehearing it is
said that we determined that the pc
titioner's Imprisonment was not in
violation of the civil rights guaran-
teed to him by the Constitution of
the State of Nevada. but that we did /
not decide the question raised as to
whether his detention was in violation
of the rights guaranteed to him under |
the Fourteenth Amendment to the J
Constitution of the United States, and \
as to whether he was imprisoned with !
out due process Of law, and whether |
his fine was excessive. Thepetition |
further states:
THAT since the rendition of the
opinion of the Supreme Court Of the
State of Nevada, declaring an eight
hour law constitutional under the po-
lice power of the State. that the ST. !
preme Court of the United States has
declared such law unconstitutional, in
the case of LOchner VS.. State Of New
York, on the ground that no State
can deprive any person of life, liberty
or property without due process of
law and the right to purchase or to
sell the labor is part of the liberty
protected by the agreement, unless
there are circumstances which ex-
clude the right and the general right
to make contract in relation to his
business is part of the liberty of the
individual protected by the Fourteenth
amendment to the Constitution
statistics were quoted to show that
fhn Of r.
ticularly unhealthy, showing that out
side evidence can be introduced to
vary the judgment of the Legislature.
Justice Harlan, in dissenting, said 1t
was the most important decision rem
dered by the Supreme Court of the
United States within a century, prov
ing that the case of Holden v. Hardy
did not decide the question of the right
of men sui juris to contract one with
the other.
THAT your petitioner is not fully
informed of the decision of the Su
preme Court ofo the United States in
the case of Lochner v. State of New
York, but believes the same to be
controlling in the case at bar
At the time the rehearing was
ordered the press dispatches in
Dictated that the Supreme Court
of the United State had ret
versed the decision of the New
York Court of Appeals in the Lochner
case, but the publication of the full
text of the decision had not arrived.
From a review of the case. 25 Sup.
Ct. R. 539, it appears that the New
York statute providing ten hour day
for bakers was upheld by the Oneida
County Court, by three of the five
Judges of the Supreme Court and by
four of the seven justices of the Court
of Appeals of that State, and that 1t
was finally declared unconstitutional
by five of the nine justices of the
Supreme Court of the United States
1t will besee that twelve Of these
judges deemed the Act valid and that
ten of them considered it uncOnstitu.
tional. The decisions being by bare
majority in every court through which
the case passed no question has
ever presented. a sharper diversity
of opinion among able jurists
than the validity of this statute con-
corning bakers. The same can not be
said regarding the acts limiting the
hours of labor in mines and mills fol
the reduction of ores. The Legislative
enactment from which ours is copied
was sustained by the full bench in
Utah and by seven of the mine justices
Of the Supreme Court of the United
States in Holdenv. Hardy.
The Supreme Court of Missouri. il
the Cantwell case, unanimously up
held the law, making an eight houl
day for under ground miners in tina
State, and all agreed that testimon!
tending to show that the work was no
unhealthy could not be received tt
overthrow the statute. The only de
cision found to the contrary is thu
strained one in re Morgan which lei
TO so much trouble, suffering AM
loss of life in Colorado. The opinions
of the majority as well as those o
the minority in the Lochner case
refer to and approve the decision il
Holden " Hardy, which sustains tn
Utah Act similar to ours, and Justic
Brown who wrote the opinion Of tn
Court in the last named case con
Cured with the majority in the Other
The Court of last resort was carefu
to distinguish between the two
In the decision of the United State
Supreme Court in Lochner v. Ney
York it is said:
among the later cases where tn
state law HAS UcCA upuCiu W III
court is that of Holden v. Hardy, 16
u. S. 366, AZ l.. Ed. $50, '1S Sup. Ct
1888. A provision in the Act of tn
Legislature of Utah was there unde
consideration. the Act limiting tn
employment of workmen in all unde'
ground mines or workings to eigh
hours per day except in cases 9
emergency wherel ife or property is i
imminent danger. 1t also limited tn
hours Of labor in smelling and othe
institutions for the reduction or n
fining of ores or metals to eight hour
per day except in like cases OF emel
gency. The Act was held to be a vail
exercise of the police powers OF tn
State. It was held that the kind 9
employment and the character OF tn
employees in such kinds OF labor, wer
such as to make it reasonable an