in which he can earn an honest living. On the contrary, such service is useful, commendable, and in great demand." He quoted with approval the opinion in the California case of In re Dickey, 144 Cal. 234 [Bul. No. 57, p. 693], which characterizes the business as "not only innocent and innocuous, but highly beneficial." The extent of the business of the plaintiffs, who furnished positions for 90,000 persons in one year, and received applications from at least 200,000 laborers, is referred to. Continuing, Justice McReynolds said:

A suggestion on behalf of the State that while a pursuit of this kind "may be beneficial to some particular individuals or in specific cases, economically it is certainly nonuseful, if not vicious, because it compels the needy and unfortunate to pay for that which they are entitled to without fee or price, that is, the right to work," while possibly indicative of the purpose held by those who originated the legislation, in reason gives it no support.

Because abuses may, and probably do, grow up in connection with this business, is adequate reason for hedging it about by proper regulations. But this is not enough to justify destruction of one's right to follow a distinctly useful calling in an upright way. Certainly there is no profession, possibly no business, which does not offer peculiar opportunties for reprehensible practices; and as to every one of them, no doubt, some can be found quite ready earnestly to maintain that its suppression would be in the public interest. Skillfully directed agitation might also bring about apparent condemnation of any one of them by the public. Happily for all, the fundamental guaranties of the Constitution can not be freely submerged if and whenever some ostensible justification is advanced and the police power invoked.

The general principles by which the validity of the challenged measure must be determined have been expressed many times in our former opinions. It will suffice to quote from a few.

Only a portion of one of the quotations made at this point in the opinion is here reproduced:

The legislature, being familiar with local conditions, is, primarily, the judge of the necessity of such enactments. The mere fact that a court may differ with the legislature in its views of public policy, or that judges may hold views inconsistent with the propriety of the legislation in question, affords no ground for judicial interference. unless the act in question is unmistakably and palpably in excess of legislative power.

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If there existed a cendition of affairs concerning which the legis lature of the State, exercising its conceded right to enact laws for the protection of the health, safety, or welfare of the people, might pass the law, it must be sustained; if such action was arbitrary interference with the right to contract or carry on business, and having no just relation to the protection of the public within the scope of legislative power, the act must fail. McLean v. Arkansas, 211 U. S. 539, 547, 548, 29 Sup. Ct. 206 [Bul. No. 81, p. 419].

The opinion concludes as follows:

We are of opinion that Initiative Measure No. 8, as construed by the Supreme Court of Washington, is arbitrary and oppressive, and

that it unduly restricts the liberty of appellants, guaranteed by the fourteenth amendment, to engage in a useful business. It may not therefore be enforced against them.

Mr. Justice McKenna dissented on the ground that "the law in question is a valid exercise of the police power of the State directed against a demonstrated evil." A dissenting opinion of considerable length was prepared by Mr. Justice Brandeis, Mr. Justice Holmes. and Mr. Justice Clarke concurring. Mr. Justice Brandeis referred to the frequently expressed doctrine that "The action of the legislature is final unless the measure adopted appears clearly to be arbitrary or unreasonable or to have no substantial relation to the objects to be attained," and added that these facts and conditions can not "be determined by assumptions or by a priori reasoning. The judgment should be based upon the consideration of relevant facts, actual or possible ex facto jus oritur" (the law arises from the fact).

In carrying out this method of inquiry into the facts, the evils, the remedies, the conditions in the State of Washington, and the fundamental problems were discussed in order, with numerous citations from Government reports and from studies of the questions of unemployment and the procurement of employment. The sources cited included Bulletins Nos. 68, 119, 192, and 211 of the Bureau of Labor Statistics; the report and testimony submitted to Congress by the United States Commission on Industrial Relations; reports of the Washington State Bureau of Labor; the American Labor Legislation Review, etc. Thus the economic grounds for the act were brought under review and the actual facts and conditions involved considered. The concluding division of the opinion, under the head "The Fundamental Problem," is quoted in full, exclusive of footnotes giving citations and quotations from the authorities for the statements made:

The problem which confronted the people of Washington was far more comprehensive and fundamental than that of protecting workers applying to the private agencies. It was the chronic problem of unemployment-perhaps the gravest and most difficult problem of modern industry-the problem which, owing to business depression, was the most acute in America during the years 1913 to 1915. In the State of Washington the suffering from unemployment was accentuated by the lack of staple industries operating continuously throughout the year and by unusual fluctuations in the demand for labor, with consequent reduction of wages and increase of social unrest. Students of the larger problem of unemployment appear to agree that establishment of an adequate system of employment offices or labor exchanges is an indispensable first step toward its solution. There is reason to believe that the people of Washington not only considered the collection by the private employment offices of fees from employees a social injustice, but that they considered the elimination of the practice a necessary preliminary to the establishment of a constructive policy for dealing with the subject of unemployment.

It is facts and considerations like these which have led the people of Washington to prohibit the collection by employment agencies of fees from applicants for work. And weight should be given to the fact that the statute has been held constitutional by the Supreme Court of Washington and by the Federal district court (three judges sitting)-courts presumably familiar with the local conditions and

needs.

In so far as protection of the applicant is a specific purpose of the statute, a precedent was furnished by the act of Congress, December 21, 1898 (30 Stat. 755), which provides, among other things:

"If any person shall demand or receive, either directly or indirectly, from any seaman or other person seeking employment as seaman, or from any person on his behalf, any remuneration whatever for providing him with employment, he shall for every such offense be liable to a penalty of not more than one hundred dollars." In so far as the statute may be regarded as a step in the effort to overcome industrial maladjustment and unemployment by shifting to the employer the payment of fees, if any, the action taken may be likened to that embodied in the Washington workmen's compensation law (sustained in Mountain Timber Co. v. Washington, 243 U. S. 219, 37 Sup. Ct. 260 [Bul. No. 224, p. 252]), whereby the financial burden of industrial accidents is required to be borne by the employers.

As was said in Holden v. Hardy, 169 U. S. 366, 387, 18 Sup. Ct. 383 [Bul. No. 17, p. 625]:

In view of the fact that from the day Magna Charta was signed to the present moment amendments to the structure of the law have been made with increasing frequency, it is impossible to suppose that they will not continue and the law be forced to adapt itself to new conditions of society, and particularly to the new relations between employers and employees as they arise."

In my opinion, the judgment of the district court should be af

firmed.

FACTORY REGULATIONS-FIRE ESCAPES CRIMINAL RESPONSIBILITY OF TENANT-People v. Shevitz et al., Supreme Court of New York, Appellate Division, First Department (Apr. 13, 1917), 164 New York Supplement, page 603.-Hyman Shevitz was convicted of having unlawfully conducted a factory in a building which did not conform to the requirements of section 79b of the Labor Law of New York State in respect to fire escapes and exits. The respondent argued on the appeal that, as the exits complained of were outside the workplace occupied by him, it could not be said that there was a failure to observe the provisions of the section "within his holding." The court, however, pointed out that the section provides in its first sentence, "No factory shall be conducted in any building heretofore erected unless such building shall conform to the following requirements." The conviction was affirmed, Judge Scott in the opinion saying further:

The evidence showed that the loft occupied by defendant had access to no means of exit such as are required by the statute; consequently no point within the loft occupied by defendant and used by him as a factory is or can be within 100 or 150 feet "from the entrance to one such means of exit." It follows that the factory is unlawfully conducted in this loft, and the defect is within the defendant's holding. This makes him responsible and punishable for a violation of section 79b, and under section 1275 of the Penal law his offense is a misdemeanor.

It may be, as urged in defendant's behalf, that the defects in the building were not such as he was called upon or authorized to remedy; but, even so, it does not serve to excuse him. He need not have established his factory in a building which did not comply with the law; but, having done so, he can not escape the consequences.

HOURS OF LABOR OF WOMEN-CONSTITUTIONALITY OF STATUTE— EXEMPTION OF RAILROAD RESTAURANTS-State v. Le Barron, Supreme Court of Wyoming (Jan. 18, 1917), 162 Pacific Reporter, page 265.-William I. Le Barron was charged with having employed a woman in his restaurant for more than 10 hours in one day. The statute prohibits the employment of women in certain establishments, including restaurants, for more than 10 hours, but excepts railroad restaurants. The contention of the respondent was that this was an improper classification, which made the statute void as in contravention of the fourteenth amendment to the Federal Constitution, and similar provisions of the State constitution. It was held that the statute was unconstitutional, in so far as it applied to restaurants, for the reason given, and the case was returned to the district court from which it had been certified for the answering of questions relating to this subject. Judge Beard delivered the opinion, from which the following extracts are taken:

As to classifications which are permitted and which do not violate constitutional provisions, it is the uniform rule that the reason for the classification must inhere in the subject-matter, and must be natural and substantial, and must be one suggested by necessity, by such difference in the situation and circumstances of the subjects as to suggest the necessity or propriety of different legislation with respect to them.

Keeping in mind the purpose of the act under consideration-the protection of the health of females employed in restaurants by a regulation of the hours of their employment-there is nothing appearing either upon the face of the act, the pleadings, or in our own observation (if we may take that into consideration) rendering restaurants operated by railroad companies any more healthful to females therein employed than in those conducted by private individuals or other companies or corporations. It is a matter of common and general knowledge that most of the female employees in restaurants are waitresses, and the kind and character of the labor performed in 64919-18-Bull. 246

each is the same. A waitress in a restaurant operated by a railroad company is entitled to the same consideration in law and the same safeguards to her health as one employed in a restaurant conducted by a department store or a private individual.

At this point the opinion quotes from other opinions, and points out that the fact that railroad restaurants are a convenience for the traveling public and for railroad employees has no bearing on the classification, which in order to be valid must be based on a difference in the healthfulness of the employment. In the concluding portion Judge Beard says further:

We are of the opinion that the statute in question arbitrarily and without any substantial basis therefor discriminates between those engaged in the same class of business; that it deprives restaurant keepers, other than railroad companies, of the equal protection of the law and imposes upon them and their employees burdens not imposed upon railroad companies engaged in the same class of business and in substantially the same situation; that it is class legislation and does not operate uniformly upon all of the same class, and in so far as it applies to the hours of labor in restaurants-that being the only question before us-it is unconstitutional and void.1

HOURS OF SERVICE-RAILROADS-COMPUTATION OF TWENTY-FOUR HOUR PERIOD-United States v. Missouri Pacific Ry. Co., United States Circuit Court of Appeals, Eighth Circuit (June 15, 1917), 244 Federal Reporter, page 38.-This action was brought to recover penalties for violations of the Hours of Service Act. The railway company objected to several counts of the complaint on the ground that the prosecution had adopted an erroneous method of computing the 24-hour period. The dispute was illustrated by the facts in the third count. The employee Coughlin's regular hours were from 7 a. m. to 4 p. m., so that he was employed the nine hours which the law fixes as the limit. On September 6, 1914, he remained on duty from 7 a. m. until 1.30 p. m., when he was definitely excused from duty until 3 p. m., at which hour he again went on duty and worked until 5.10 p. m. The next day he worked the regular hours. By starting to compute the 24-hour period at 3 p. m. on the former day, the prosecuting officers calculated that the operator exceeded the legal maximum by 1 hour and 10 minutes. The company contended that the computation should be made from 7 a. m., the time when in regular course the man entered upon his work. Judge Carland, who delivered the opinion of the majority, ruled that the method adopted by the railroad company was the proper one, saying in part:

In the Congressional Record for March 3, 1907, vol. 41, p. 4543, it appears that while Senator Patterson was speaking on this same statute he asked Senator Flint, who was acting as spokesman for the

1An amendment of 1917 extends the law to females employed in restaurants of all classes, thus avoiding the fault of classification pointed out in this case.