34. Power of Congress.

The power of congress is very much more restricted than the power of the state legislatures. It has no inherent power, but has such powers only as have been expressly or impliedly conferred upon it by the instrument to which it owes its existence, -the constitution of the United States.107 The constitution

108

also contains some express limitations upon its powers. Congress has the power to legislate for the territories and for the District of Columbia.109

35. Power of Territorial Legislatures.

The territorial legislatures are created by congress, and have such powers only as are conferred upon them by congress in the act by which they are created,—the organic act,—and by acts of congress supplemental thereto. By act of congress, the legislative power in the territories is vested in a governor and legislative assembly, and "extends to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States."110

36. Constitutional Limitations-In General.

The legislature cannot legally enact any law in violation of constitutional limitations. Such a statute is absolutely void.111

107 Const. U. S. art. 1, §§ 8, 9, and the amendments; U. S. v. Arjona, 120 U. S. 479; U. S. v. Coombs, 12 Pet. (U. S.) 72.

108 Const. U. S. art. 1, § 9.

109 Const. U. S. art. 1, § 8; Reynolds v. U. S., 98 U. S. 145, Beale's Cas. 179; Reynolds v. People, 1 Colo. 179.

110 Rev. St. U. S. § 1851. And see Reynolds v. People, 1 Colo. 179; Territory v. Yarberry, 2 N. M. 391.

111 A statute declaring it a crime to exercise any fundamental right guarantied by the constitution, as the right of suffrage, or the free exercise of religious worship, or which, without any reason, deprives a person of life, liberty, or property, is absolutely void. See Barker v. People, 3 Cow. (N. Y.) 686, 15 Am. Dec. 322, 326; In re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; People v. Marx, 99 N. Y. 377, 2 N. E. 29, 52 Am. Rep. 34; Northwestern Mfg. Co. v. Wayne Circ. Judge, 58 Mich.

In the following sections we shall consider particular provisions of the various constitutions. Before doing so, it is well to understand the leading principles by which the courts are governed in determining whether they are violated.

1. If a statute is clearly unconstitutional, the courts must declare it void, and refuse to enforce it. They have no discretion in such a case. 112

2. They should pay great respect, however, to the deliberate judgment of the legislature as to the constitutionality of a statute, and no statute should be declared unconstitutional unless its unconstitutionality is clear beyond any reasonable doubt.113

3. The courts do not sit in review of the discretion of the legislature in matters which are within its power, nor determine upon the expediency, wisdom, or propriety of its action in such matters.114

Form of Statutes and Requirements as to Enactment.--There are a number of provisions in the various constitutions with respect to the form of acts and mode of enacting them, as, for example, the provisions that an act shall be passed by both houses of the legislature, that it shall be signed by the speaker of the house and the president of the senate, and that it shall be presented to the governor for his approval, etc., and the provision

381, 25 N. W. 372, 55 Am. Rep. 693. And see the cases hereafter more specifically cited.

112 In re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; Frorer v. People, 141 Ill. 172, 31 N. E. 395; Ex parte Kuback, 85 Cal. 274, 24 Pac. 737; People v. Gillson, 109 N. Y. 389, 17 N. E. 343; State v. Scougal, 3 S. D. 55, 51 N. W. 858.

113 Per Allen, J., in People v. Albertson, 55 N. Y. 50, 54. And see Powell v. Com., 114 Pa. 265, 7 Atl. 913, affirmed in 127 U. S. 678.

A doubt as to the constitutionality of a law stamps it as constitutional. State v. Foster, 22 R. I. 163, 46 Atl., 833, 50 L. R. A. 339; State v. Ide, 35 Wash. 576, 77 Pac. 961.

114 People v. Albertson, supra; State v. Addington, 77 Mo. 110; Com. v. Colton, 8 Gray (Mass.) 488; Powell v. Com., 114 Pa. 265, 7 Atl. 913, affirmed in 127 U. S. 678; People v. Worden Grocer Co., 118 Mich. 604, 77 N. W. 315; State v. Foster, 22 R. I. 163, 46 Atl. 833, 50 L. R. A. 339; McCray v. U. S., 195 U. S. 27, ante, note 106.

that no act shall embrace more than one subject, and that this subject-matter shall be expressed in its title. Statutes which violate such a provision are void.115 This question is not at all peculiar to penal statutes, and need not be further considered.116 Local and Special Laws.-In the absence of constitutional restrictions, the legislature has the power to declare that certain acts committed in a particular locality shall constitute a criminal offense, and be punished, although such acts would not be criminal if committed in another locality or section of the state.117 But it has no such power if the constitution declares that laws. shall be uniform and equal throughout the state.118

37. Due Process of Law in General.

It is provided in the constitution of the United States that no state shall "deprive any person of life, liberty, or property without due process of law," and there are similar provisions in the various state constitutions. This provision is most frequently invoked against laws relating to procedure. It has also been invoked, however, to defeat statutes making acts criminal, and in this connection it may be shortly considered here.

38. Right to Follow Lawful Business or Occupation.

It has been held repeatedly that the right to liberty guarantied by the constitution embraces the right of a man "to exercise his faculties and to follow a lawful avocation for the support of life."119 It embraces "the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or

115 See Moody v. State, 48 Ala. 115, 17 Am. Rep. 28; People v. Starne, 35 Ill. 142, 85 Am. Dec. 348; People v. Campbell, 8 Ill. 466; Miller v. State, 3 Ohio St. 475; State v. Platt, 2 S. C. 150, 16 Am. Rep. 647. 116 See Am. & Eng. Enc. Law, tit. "Statutes."

117 People v. Hanrahan, 75 Mich. 611, 42 N. W. 1124.

118 See Am, & Eng. Enc. Law, tit. "Statutes."

119 Bertholf v. O'Reilly, 74 N. Y. 515, 30 Am. Rep. 323; State v. Dodge, 76 Vt. 197, 56 Atl. 983.

avocation."120

It follows that a penal statute which, by making an act a crime, arbitrarily prohibits a man from following a lawful trade or business, and which is not sustainable as a reasonable exercise of the police power of the state, is unconstitutional and void.121

In a New York case, a statute making it a misdemeanor to manufacture cigars, in cities of more than five hundred thousand inhabitants, in any tenement house occupied by more than three families, except on the first floor of houses on which there might be a store for the sale of cigars and tobacco, was held unconstitutional, as an unreasonable interference with a man's right to follow a lawful avocation.122 For the same reason it has been held that the legislature cannot constitutionally deprive a person of the right to carry on the business of banking, other than that of issuing paper to circulate as money,' or prohibit the sale of any article of food, or offer to sell, upon any representation or inducement that anything else will be delivered as a gift, prize, premium, or reward to the purchaser. 124

123

Such statutes are not within the police power of the state. While it is for the legislature generally to determine what laws and regulations are needed to protect the public health and serve the public comfort and safety, and the exercise of its discretion in this respect is not subject to review by the courts, a statute, to be upheld as an exercise of the police power, must have some relation to these ends. The rights of property cannot be invaded

120 In re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636.

121 In re Jacobs, supra; People v. Marx, 99 N. Y. 377, 2 N. E. 29, 52 Am. Rep. 34; Frorer v. People, 141 Ill. 171, 31 N. E. 395; State v. Goodwill, 33 W. Va. 179, 10 S. E. 285; Braceville Coal Co. v. People, 147 Ill. 66, 35 N. E. 62; State v. Ramseyer (N. H.) 58 Atl. 958; In re Aubrey, 36 Wash. 308, 78 Pac. 900; Bessette v. People, 193 Ill. 334, 62 N. E. 215, 56 L. R. A. 558; State v. Dodge, 76 Vt.. 197, 56 Atl. 983. 122 In re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636.

123 State v. Scougal, 3 S. D. 55, 51 N. W. 858.

124 People v. Gillson, 109 N. Y. 389, 17 N. E. 343; Young v. Com., 101 Va. 853, 45 S. E. 327; State v. Dalton, 22 R. I. 77, 46 Atl. 234, 48 L. R. A. 775, 84 Am. St. Rep. 818; State v. Dodge, 76 Vt. 197, 56 Atl. 983.

under the guise of a police regulation for the protection of health, etc., when it is manifest that such is not the object of the regulation.125

39. Right to Make Contracts.

Under the police power of the state, laws may be enacted restricting personal rights of enjoyment of property, when necessary for the comfort, safety, and welfare of society, but the legislature cannot, under the guise of the police power, unnecessarily and unreasonably interfere with the right of persons to make contracts and acquire property. The privilege of contracting is both a liberty and a property right, within the meaning of the constitution, and cannot be abridged by penal laws, unless they can be supported as a valid exercise of the police power.126

For this reason it has been held that the legislature cannot make it an offense for employers of weavers to impose a fine or withhold wages of their employes for imperfections in their work,127 or for contractors doing work for a city to employ any person to work more than eight hours a day, or to employ Chinese laborers, 128 or require persons to pay wages weekly,' deprive coal miners and those employing them of the right to fix upon the weight of coal mined, or the amount due for mining the same, in any manner mutually satisfactory.130

or

125 People v. Gillson, 109 N. Y. 389, 17 N. E. 343; Lochner v. New York, 198 U. S. --, Adv. Sheets U. S. 539, 25 Sup. Ct. 539; State v. Ramseyer (N. H.) 58 Atl. 958.

126 Frorer v. People, 141 Ill. 172, 31 N. E. 395; Millett v. People, 117 Ill. 294, 7 N. E. 631; Braceville Coal Co. v. People, 147 Ill. 66, 35 N. E. 62; State v. Goodwill, 33 W. Va. 179, 10 S. E. 285.

127 Com. v. Perry, 139 Mass. 198, 29 N. E. 656.

128 Such a statute, said the court, is an attempt to prevent persons from employing others in a lawful business, and paying them for their services, and is a direct interference with their right to make and enforce contracts, not sustainable as an exercise of the police power. Ex parte Kuback, 85 Cal. 274, 24 Pac. 737.

129 Braceville Coal Co. v. People, 147 Ill. 66, 35 N. E. 62. 130 Harding v. People, 160 I11. 459, 43 N. E. 624.

C. & M. Crimes-4.