laws of this state relating to the practice of dentistry (Session Laws 1901, p. 315, amending the dentistry act of 1893) fell within the exercise of the police power of this state, and hence were not unconstitutional on the ground of infringement of individual rights. At page 497 in this volume, it is observed in the opinion of the court that,

"The wisdom of such regulations, pertaining not only to dentistry, but also to the practice of medicine and surgery, is apparent. It is of the highest importance to the state that suffering and afflicted humanity shall not be subjected to the care and treatment of unlearned and unskilled persons. In its effort to prevent such a misfortune to its people, the state may adopt a standard for the test of fitness to engage in the work of what should be a learned profession."

No argument is needed to show that the practice of the above professions is closely related to the health and comfort and welfare of the people. In fact, it is a matter of common knowledge that the practice of medicine and surgery by unskilled parties may seriously affect or endanger the very life of individuals treated or operated upon. The exercise of the police power by the state, within its proper sphere, is well calculated to promote and safeguard the public welfare and subserve the best interests of society. But this power, however comprehensive it may be under our fundamental law, has its limitations. In In re Jacobs, 98 N. Y. 108, 110, Earl, J.,

says:

"The limit of the power cannot be accurately defined, and the courts have not been able or willing definitely to circumscribe it. But the power, however broad and extensive, is not above the Constitution. . . . Generally it is for the legislature to determine what laws and regulations are needed to protect the public health

and secure the public comfort and safety, and while its measures are calculated, intended, convenient and appropriate to accomplish these ends, the exercise of its discretion is not subject to review by the courts. But they must have some relation to these ends. Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded."

Again, in Slaughter-House Cases, 16 Wall. 36, 87, Mr. Justice Field observes:

"All sorts of restrictions and burdens are imposed under it [the police power], and when these are not in conflict with any constitutional prohibitions, or fundamental principles, they cannot be successfully assailed in a judicial tribunal. But under the pretense

of prescribing a police regulation the state cannot be permitted to encroach upon any of the just rights of the citizen, which the constitution intended to secure against abridgement.

It may be stated, as a general principle of law, that it is the province of the legislature to determine whether the conditions exist which warrant the exercise of this power; but the question, what are the subjects of its exercise, is clearly a judicial question. One may be deprived of his liberty, and his constitutional rights thereto may be violated, without the actual imprisonment or restraint of his person. "Liberty" in its broad sense, as understood in this country, means the right, not only of freedom from actual servitude, imprisonment, or restraint, but the right of one to use his faculties in all lawful ways, to live and work when he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation. All laws, therefore, which impair or trammel these rights-which limit him in his choice of a trade. or profession are infringements upon his fundamental rights of liberty, which are under constitutional protection.

In People ex rel. Nechamcus v. Warden of City Prison, 144 N. Y. 529, 39 N. E. 686, 27 L. R. A. 718, the court held, that Chap. 602, Laws of 1892 of the state of New York, which provided for the creation of a board for the examination of plumbers, and which prohibited any person to exercise the calling of a master plumber without passing an examination before such board, was a valid exercise of the police power, for the reason that the work of plumbing is essential to the comfort and health of the inhabitants of cities. This decision was rendered by a divided court. Three members of the above court dissented. Justice Peckham, who afterwards became an associate justice of the supreme court of the United States, delivered a strong dissenting opinion in which the following language occurs:

"The legislature might probably provide for a sanitary inspection of plumbing work, and thus secure a kind of work, as to its system and sufficiency, which might fairly be said to tend towards the protection of the health of the general public. But the trade of the practical plumber is not one of the learned professions, nor does such a tradesman hold himself out in any manner as an expert in the science of 'sanitation,' nor is any such knowledge expected of him, and this act, when practically enforced, may or may not exact it of him."

Assuming, for the purpose of the present controversy, that the propositions announced by the majority of the court in the New York case last cited are good law, still, we think that there is a marked distinction between the business of plumbers and that of horseshoers, in the matter of the pursuit of their respective avocations in cities. The plumber's business may concern and directly affect the health, welfare, and comfort of the inhabitants who have occasion to call such services into action in the community in which he plies his vocation, while the pur

suit of the trade of a horseshoer, under ordinary circumstances and normal conditions, would have no such effect.

The supreme court of the United States in Allgeyer v. Louisiana, 165 U. S. 589, 17 Sup. Ct. 427, in defining the word "liberty" as the same appears in the fourteenth amendment of the Federal Constitution, uses this language:

"The liberty mentioned in that amendment means not only the right of the citizen to be free from mere physical restraint of his person by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that puropse to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned."

The opinion of the court in that case was delivered by Mr. Justice Peckham, who wrote the dissenting opinion in People v. Warden of City Prison, supra, as above noted. The only cases directly upon the point are from Illinois and New York, in each of which an enactment similar to the one here in question is held unconstitutional, as being an arbitrary interference with personal liberty and private property of the citizen without due process of law. Bessette v. People, 193 Ill. 334, 62 N. E. 215, 56 L. R. A. 558; People v. Beattie, 89 N. Y. Supp. 193.

It seems to us that these cases state the correct rule. We conclude, therefore, that the act complained of cannot be sustained as a legitimate exercise of the police power, under the fundamental law of this state, and that the prayer of petitioner must be granted. The petitioner is discharged.

Syllabus.

[36 Wash.

[No. 5025.

Decided December 20, 1904.]

SIMON SWENSON et al., Respondents, v. GEORGE A. STOLTZ et al., Appellants.1

NEGOTIABLE INSTRUMENTS - INDORSEMENT — GUARANTY ORAL GUARANTY FOR VALUE, NOT AFFECTED BY WANT OF INDORSEMENT, The negotiable instrument law of 1899, p. 347, §§ 30, 31, and 49, providing for negotiation by indorsement, does not affect an oral guaranty made by the payee in transferring a promissory note without indorsing the same since § 49 vests the title in the transferee without indorsement and the guaranty is an original obligation independently of the note, raising no question between the maker and the holder of the note.

NEGOTIABLE INSTRUMENTS-FRAUDS, STATUTE OF ORAL GUAR ANTY. The oral guaranty of a promissory note, made by the payee upon negotiating the same for value received, is not within the statute of frauds, and is a binding contract independently of the note.

SAME STATUTE LIMITING LIABILITY TO PERSONS WHOSE SIGNATURES APPEAR ON INSTRUMENT. Section 18 of the negotiable instrument law (Laws 1899, p. 347) limiting liability to persons whose signatures appear upon the instrument, and intended to operate as a statute of frauds, has no application to oral guaranties made by the payee upon transferring a note for value received, since that is an original and absolute obligation, to which the note is merely incidental and collateral.

COMMUNITY PROPERTY LIABILITY-JUDGMENT CONFORMITY TO VERDICT-ORAL GUARANTY OF HUSBAND-VERDICT AGAINST HUSBAND-FAILURE TO FIND LIABILITY OF COMMUNITY. In an action against a husband and wife upon the oral guaranty of the hus band, made by him upon transferring a note for value received, in which action recovery is sought against the husband personally and against the property of the community, and the only question submitted to the jury was the personal liability of the hus band, upon which they returned a verdict against the husband without passing upon the community liability, it is error to enter judgment upon the verdict against the community composed of the husband and wife, since such judgment does not conform to the verdict, as required by Bal. Code § 5115.

1 Reported in 78 Pac. 999.