law of the land." The police power must be exercised subject to the foregoing provisions of both the Federal and the State Constitutions; and the law passed in the exercise of such power must tend toward the preservation of the lives, the health, the morals and the welfare of the community. 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 compensation for such disturbance. They do not appropriate private property for public use, but simply regulate its use and enjoyment by the owner.

The fundamental distinction between police power and eminent domain is that in the latter property or an easement therein is taken from the owner and applied to public use because the use or enjoyment of such property or easement therein is beneficial to the public. In the exercise of the police power the owner is denied the unrestricted use or enjoyment of his property, or his property is taken from him, because his use or enjoyment of such property is injurious to the public welfare.1 In determining whether social legislation is justified resource is usually had to the police power of the State. The Legislature must determine whether the necessity exists to correct certain evils.

Among the important subjects that are affected by police power regulations are the following:

I. Limitation of the Hours of Labor.
II. Minimum Wage Legislation.

III. Sale of Fuel by Municipalities.

IV. Regulation of Trades and Professions.
V. Pure Food Laws.

VI. Social Insurance.

I. LIMITATION OF THE HOURS OF LABOR.

A. Regulation of Labor of Women and Children.

The subject of the hours of labor of employed persons has been legislated upon for many years and for a variety of reasons. The earliest laws on the subject dealt with the employment of children, later including women in their scope.

1 Nichols, The Law of Eminent Domain, 2d ed., I, 54.

The basis of such laws was primarily that the individuals affected were wards of society, but later decisions as to women had regard for the functions of motherhood and the dependence of the nation for its future welfare upon the conservation of the health of its women.1 In the language of Mr. Chief Justice Rugg in Commonwealth v. John T. Connor Co., 222 Mass. 299, 301, "The constitutionality of statutes limiting the hours of labor of women has been upheld, commonly on the ground that woman is under an industrial disability by reason of sex, that her physical structure and the duty of maternity place her at a disadvantage, that her strength and vitality are likely to be impaired by confining and exacting labor under adverse conditions, and that thus the public welfare is injured by affecting deleteriously the vigor of mothers and through them the virility of the race. This reasoning applies quite as strongly

where the labor is not purely physical but is also mental."

In 1876 the Massachusetts Supreme Judicial Court, in the case of Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383, sustained a law prohibiting the labor of women and children for more than sixty hours per week in manufacturing establishments. In 1912 the Massachusetts Supreme Judicial Court held that the provisions of St. 1909, Chap. 514, Sec. 48, limiting the time during which women and children may be employed in manufacturing and mechanical establishments to fifty-six hours in each week and to ten hours in each day "unless a different apportionment of the hours of labor is made for the sole purpose of making a shorter day's work for one day of the week," etc., were constitutional. Commonwealth v. Riley, 210 Mass. 387. At page 390 Mr. Chief Justice Rugg said: "The constitutionality of a statute restricting the hours of employment of women and children in a single manufacturing service was upheld in 1876 by this Court. . . . There can be no doubt as to the constitutionality of such a statute in its application to minors, who are not sui juris, and are in some respects wards of the State . . . (page 391). Whatever may be the bounds fixed by the natural and constitutional rights to freedom of all individuals, including women, to the power of the Legislature to determine maximum

1 Muller v. Oregon (1908), 208 U. S. 412.

hours of labor for women, it is clear that the present statute does not transgress those bounds." This decision was affirmed in 1914 by the Federal Supreme Court.1

In 1915 the provision of St. 1913, Chap. 758, that "no woman shall be employed in laboring in any factory or workshop, or in any manufacturing, mercantile, mechanical establishment, telegraph office or telephone exchange, or by any express or transportation company more than ten hours in any one day; and in no case shall the hours of labor exceed fifty-four in a week . . . was construed by the court in Commonwealth v. John T. Connor Company, supra. The constitutionality of that statute was not questioned, but there is a valuable statement by Chief Justice Rugg of the grounds on which the constitutionality of statutes limiting the hours of labor has been upheld. The Federal Supreme Court in Muller v. Oregon, 208 U. S. 412, sustained the constitutionality of a ten-hour law for women in any mechanical establishment or factory or laundry.

In 1914 the same court in Sturges v. Beauchamp, 231 U. S. 320, sustained the Illinois Child Labor Law as an exercise "of the protective power of government." The same year (1914) the Federal Supreme Court sustained an Ohio nine-hour statute. Hawley v. Walker, 232 U. S. 718.

In 1915 the United States Supreme Court in Miller v. Wilson, 236 U. S. 373, and in Bosley v. McLaughlin, 236 U. S. 385, sustained the extremest regulations of hours of labor for women to date - California statutes limiting the labor of women in certain pursuits to forty-eight hours per week. Mr. Justice Hughes, speaking for the court at page 382 in Miller r. Wilson, supra, said: "It is manifestly impossible to say that the mere fact that the statute of California provides for an eight-hour day, or a maximum of forty-eight hours a week, instead of ten hours a day or fifty-four hours a week, takes the case out of the domain of legislative discretion. This is not to imply that a limitation of the hours of labor of women might not be pushed to a wholly indefensible extreme, but there is no ground for the conclusion here that the limit of the reasonable exertion of protective authority has been overstepped."

1 Riley v. Massachusetts (1914), 232 U. S. 671.

The New York Court of Appeals in People v. Schweinler, 214 N. Y. 395 (1915), sustained a statute prohibiting night work for women and with courageous frankness expressly overruled People v. Williams, 189 N. Y. 131.1 At page 401 the court said: "Impairment caused by exhaustion or even ordinary weariness must be repaired by normal and refreshing sleep and rest if health and efficiency are to be preserved." "Surely it is a matter of vital import to the State that the health of thousands of women working in factories should be protected and safeguarded from any drain which can reasonably be avoided. This is not only for their own sakes, but, as is and ought to be constantly and legitimately emphasized, for the sake of the children whom a great majority of them will be called upon to bear and who will almost inevitably display in their deficiencies the unfortunate inheritance conferred upon them by physically broken-down mothers."

B.

Regulation of Labor in Dangerous Employments.

It is evident that the grounds for laws affecting adult males must differ from those controlling in the regulations solely for women and children, and the movement for general regulations of this nature has been extremely slow. Beginning with mines (Maryland, 1884, Wyoming, 1889) legislation was addressed to an industry in which there were peculiar hazards to life and health which have secured for those employed in it a quite general restriction to an eight-hour day. Such laws are constitutional (Holden v. Hardy [1898], 169 U. S. 366), not because of their effect on the public welfare in its larger aspect, but because they protect the individual workman from the injurious effects of protracted hours of labor under unhealthful conditions. Such laws are valid, therefore, rather as health than as labor laws.

Railroad employment next came under legislative direction, beginning with Minnesota (1885) and Ohio (1890). The Ohio statute was declared unconstitutional by a subordinate court (no appeal apparently having been taken), on the same grounds that the Supreme Court of Colorado rejected a law of that

1 See article by Professor Frankfurter, entitled 'Hours of Labor and Realism in Constitutional Law," Harvard Law Review, XXIX, 353.

State dealing with employees in mines, i.e., that such laws interfere with private business and the right of individuals. to control their own affairs. However, the safety of the public no less than the welfare of the employees is involved in legislation limiting the hours of labor on railroads, and Congress has acted (1907) to restrict the hours of service that may be required or permitted where the movement of trains is involved, this act being held to be within the power of Congress. Baltimore & Ohio R.R. Co. v. Interstate Commerce Commission (1911), 221 U. S. 612.1

In this Commonwealth there is a statute limiting hours of employment for street railway employees (St. 1913, Chap. 833), but its constitutionality has never been passed upon. In 1902 there was an advisory opinion of the justices of the Rhode Island Supreme Court declaring constitutional a ten-hour statute for employees operating street railways. (1902) Re Ten Hour Law for Street Railway Corporations, 24 R. I. 603.

C. Regulations of Hours of Labor in General.

The Massachusetts Supreme Court in 1915, in Commonwealth v. Boston & Maine R.R., 222 Mass. 206, was called upon to consider the constitutionality of the following provision (St. 1914, Chap. 746): "Employees in and about steam railroad stations in this Commonwealth designated as baggagemen, laborers, crossing tenders and the like, shall not be employed for more than nine working hours in ten hours' time; the additional hour to be allowed as a lay-off." The court followed Lochner v. New York, 198 U. S. 45,2 and held that the statute was in violation of the Fourteenth Amendment to the Constitution of the United States as an unwarranted interference with freedom of contract in regard to the hours of labor in an ordinarily healthy occupation.

Mr. Chief Justice Rugg, speaking for the court at page 208, said: "The main contention of the defendant is that the statute as thus construed is unconstitutional. The agreed facts show that there is nothing inherently unhealthy about the work which the employee did. It was performed half in

1 See Wilson v. New (Adamson Eight-hour law), supra.

* See Bunting v. Oregon, supra. The later decision is now the authoritative guide for State and Federal courts.