ual "liberty" without due process of law; and abolished slavery and involuntary servitude. Yet the term "liberty," thus freely used, is nowhere defined in the constitution; it is left for judicial interpretation.

If the citizen be unlawfully imprisoned, his constitutional protection is adequate, and the writ of habeas corpus restores him to his "liberty." If he publish his ideas upon government, or its abuses, he cannot be held to answer criminally for the expression of his views, since it is a part of his "freedom of speech" to criticise, with decency, whatever he deems objectionable in the conduct of government; although he may be made to answer in damages if the publication be false and malicious or actionable as a libel per se.2 When, however, he attempts to conduct his business or profession in the manner best pleasing to himself, he is met by statutory regulations which he asserts are subversive of his "freedom" as a citizen. May his objection be well founded? In the light of decisions and judicial utterances in the United States, does the term "liberty," as used in the Federal Constitution, include the right to pursue a vocation free from unreasonable regulations by state statute?

Blackstone, in his Commentaries, regards "liberty" as embracing merely the "power of locomotion, of changing situation, or moving one's person to whatever place one's inclination may direct without imprisonment or restraint, unless by due course of law."3 It is probable that the thirty-ninth article of Magna Charta, upon which the Fourteenth Amendment to the constitution was principally based, comprehended in this word only freedom of the person from restraining force, and we are not without declarations by courts in this country, to the effect that "liberty" refers to the right of locomotion and absence of illegal personal restraint. In

1 Cooley's Const. Limitations (6 Ed.), 518; Cooley's Principles of Const. Law, 304, 306, 307.

King v. Root, 4 Wend. (N. Y.) 113; Lewis v. Few, 5 Johns. 1; Burke v. Mascarich, 81 Cal. 302, 22 Pac. Rep. 673; Randall v. Evening News, 79 Mich. 266. 7 L. R. A. 390, 44 N. W. Rep. 763; Upton v. Hume, 24 Oreg. 420, 33 Pac. Rep. 810.

31 Blackstone's Com. 134.

41 Blackstone's Com. 127, 140.

5 In re Marshall, 102 Fed. Rep. 324; City of St. Louis v. Roche, 128 Mo. 541, 31 S. W. Rep. 915; Pinkerton v. Verberg, 78 Mich. 573, 7 L. R. A. 507, 44 N. W. Rep. .579.

the United States it has been held, however, that, broadly interpreted, the term signifies the right not only of freedom from actual servitude, imprisonment, or restriction, but the right of every man to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling; and that all laws which impair or trammel these rights, which limit one in his choice of a trade or profession, or confine him to work or live in a specified locality, or restrain his otherwise lawful movements, are infringements upon his fundamental rights of liberty, which are, nevertheless, subject to reasonable regulation by the legislature under its so-called "police," or paternal, power. In

a later decision of the same court, the significance of the word is "not cramped into a mere freedom from physical restraint of the person of the citizen, as by incarceration, but is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare."7

Whatever may have been the original meaning of this term, when the constitution and earlier amendments were adopted, its purport has been settled by federal and state courts, and must now be understood to embrace the right to follow a calling or conduct a trade

6 In re Jacobs, 98 N. Y. 98.

7 People v. Marx, 99 N. Y. 377. Accord: see, Slaughter House Cases, 16 Wall. 36, per Bradley and Swayne, J. J.; Butchers Union Co. v. Crescent City Co., 111 U. S. 746, per Bradley and Field, J. J.; Powell v. Pennsylvania, 127 U. S. 678, per Field, J.; Hooper v. California, 155 U. S. 648, 662; Allgeijer v. Louisiana, 165 U. S. 578, 588; Helena v. Dwyer, 64 Ark. 424, 39 L. R. A. 266, 42 S. W. Rep. 1071; Ex parte Jentzsch, 112 Cal. 408, 32 L. R. A. 664, 44 Pac. Rep. 803; Frorer v. People, 141 Ill. 171, 31 N. E. Rep. 395; Braceville Coal Co. v. People, 147 Ill. 66, 22 L. R. A. 340, 35 N. E. Rep. 62; Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79, 40 N. E. Rep. 454; Bailey v. People, 190 Ill. 28, 54 L. R. A. 838; Kuhn v. Detroit, 70 Mich. 534, 38 N. W. Rep. 470; State v. Loomis, 115 Mo. 307, 21 L. R. A. 789, 22 S. W. Rep. 350; State v. Julow, 129 Mo. 163, 172, 29 L. R. A. 297, 31 S. W. Rep. 781; Low v. Rees Co., 41 Neb. 127, 145, 24 L. R. A. 402, 59 N. W. Rep. 362; People v. Gillison, 109 N. Y. 390, 17 N. E. Rep. 343; People v. Rosenburg, 138 N. Y. 410, 416, 34 N. E. Rep. 285; People v. Warden City Prison, 157 N. Y. 116, 51 N. E. Rep. 1006; People v. Coler, 166 N. Y. 1, 59 N. E. Rep. 716; Buffalo v. Collins Baking Co., 39 N. Y. (App. Div.) 434; Palmer v. Tingle, 55 Ohio St. 423, 45 N. E. Rep. 313; Godcharles v. Wigeman, 113 Pa. St. 431, 437, 6 Atl. Rep. 654; State v. Goodwill, 33 W. Va. 179, 6 L. R. A. 621, 10 S. E. Rep. 285.

free from legislative control except in so far as the public necessities require the imposition of restrictions. What, then, is the scope of the legislative power over trades and professions, and within what limits may every man feel secure from interference when he embarks his capital in business?

The state is intimately concerned with the health of the community. If a particular trade threatens to occasion illness among those connected in anywise with it, the danger may be forestalled by statute.

Upon the same ground, among others, are the acts justified, requiring a license for the practice of medicine, dentistry, pharmacy, plumbing, and the like; as are also the statutes confining to one locality the slaughter of cattle or the sale of meat, 10 and those limiting the number of successive hours or days during which laborers shall be employed.11 Not only is the sovereign concerned with the health of the inhabitants, but their comfort and enjoyment of life are matters of the utmost importance; and, if unduly interfered with, the people may invoke the legislative power, although life and health be not endangered. Hence it is that any business which is likely to become a nuisance may be prohibited from thickly settled localities. 12

The state is parens patriae, and when the morals of the people are involved, it may, in

8 Stolz v. Thompson, 44 Minn. 271, 46 N. W. Rep. 410 (requiring labels on alum baking powder); Ex parte Bryd, 84 Ala. 17, 4 So. Rep. 397 (sale of meat); Newsom v. Galveston, 76 Tex. 559, 7 L. R. A. 797, 13 S. W. Rep. 368 (sale of meat); State v. Snow, 81 Iowa, 642, 11 L. R. A. 355, 47 N. W. Rep. 777; People v. Ewer, 36 N. E. Rep. 4 (N. Y.), 141 N. Y. 129, 25 L. R. A. 794 (children as ballet dancers).

9 Dent v. West Virginia, 129 U. S. 114 (physician); Gray v. Connecticut, 159 U. S. 74, 77 (pharmacist); Hawker v. People, 18 Sup. Ct. Rep. 573 (physician); State v. Webster, 150 Ind. 607, 50 N. E. Rep. 750 (physician); People v. Phippin, 70 Mich. 6, 37 N. W. Rep. 888 (physician); Singer v. Maryland, 72 Md. 464, 8 L. R. A. 551, 19 Atl. Rep. 1044 (plumber); State v. Hathaway, 115 Mo. 36, 47, 21 S. W. Rep. 1081; State v. Heineman, 80 Wis. 253, 49 N. W. Rep. 818 (pharmacist).

10 Slaughter House Cases, 16 Wall. 36; Ash v. People, 11 Mich. 347; Buffalo v. Webster, 10 Wend. 102; Jacksonville v. Ledwith, 26 Fla. 163, 206, 9 L. R. A. 69, 7 So. Rep. 885.

11 Holden v. Hardy, 169 U. S. 366; Commonwealth v. Hamilton Co., 120 Mass. 383; People v. Havnor, 149 N. Y. 195, 37 L. R. A. 689, 43 N. E. Rep. 541 (writ of error dismissed in 170 U. S. 408).

19 Boyd v. Alabama, 94 U. S. 645; Fertilizing Co. v. Hyde Park, 97 U. S. 659.

the exercise of this paternal right, materially interfere with the freedom of conducting certain trades or callings. If the business in question be deemed of doubtful utility, from an ethical standpoint, it may be subjected to rigid regulations; 18 and if public opinion, expressing itself through the legislature, considers the occupation a positive detriment to the morals of the community, it may be proscribed altogether.14 In the event that a particular occupation is necessarily hazardous and imperils the life, limbs or property of those engaged in it, the rights of the public override those of the individual conducting the dangerous business, and the latter may be compelled to mitigate the hazard by such reasonable means as are indicated by law. 15

The safety of the citizen respecting his property is further protected by laws whose object is to secure him from fraud and imposition. The manufacture and sale of food products, harmless in themselves, or of other merchandise, may be forregulated by statute,

bidden

since the tendency of their sale is to mislead the public into purchasing an inferior article instead of the one of a higher grade which they suppose they are obtaining. 16 The acts prohibiting the sale of adulterated milk are

18 Ex parte Smith and Keating, 38 Cal. 702 (amusements in saloons forbidden); Daniels v. State, 150 Ind. 348, 50 N. E. Rep. 74 (regulating saloons); Trasiger v. Gray, 73 Md. 250, 9 L. R. A. 780, 20 Atl. Rep. 905 (regulating saloons); State v. Considine, 16 Wash. 358, 47 Pac. Rep. 755 (Wash.) (forbidding employment of females in saloons).

14 Beer Co. v. Massachusetts, 97 U. S. 25: Stone v. Mississippi, 101 U. S. 814; In re Rahrer, 140 U. S. 545; State v. Woodward, 89 Ind. 110; Lincoln v. Smith, 27 Vt. 328, 346; Reynolds v. Geary, 26 Conn. 179.

15 Barber v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, 113 U. S. 703; Smith v. Alabama, 124 U. S. 465; Missouri Ry. Co. v. Mackey, 127 U. S. 205; Minn. Ry. Co. v. Herrick, 127 U. S. 210; Nashville Ry. Co. v. Alabama, 128 U. S. 96; Minn. Ry. Co. v. Emmons, 149 U. S. 364: N. Y. R. R. Co. v. Bristol, 151 U. S. 556; Chicago Ry. Co. v. Pontius, 157 U. S. 209; Tullis y. R. R. Co., 175 U. S. 348; Ex parte Moynier, 65 Cal. 33, 2 Pac. Rep. 728; Daniels v. Hilgard, 77 Ill. 640; Durant v. Lexington Co., 97 Mo. 62, 10 S. W. Rep. 484; Thorpe v. Rutland Co., 27 Vt. 149.

16 Powell v. Penn., 127 U. S. 678; Plumley v. Mass 155 U. S. 461; In re Brosnahan, 18 Fed Rep. 62; Humes v. Ft. Smith, 93 Fed. Rep. 857; State v. Addington, 77 Mo. 110; State v. Addington, 12 Mo. App. 214; People v. Arensberg, 105 N. Y. 123, 11 N. E. Rep. 277; Commonwealth v. Paul, 170 Pa. 284, 24 Atl. Rep. 78, 30 L. R. A. 396 (reversed in 171 U. S. 1).

20

similarly supported upon the doctrine last above stated, rather than by the theory that the health of the public demands such interdictions of the traffic. 17 Under the same branch of legislative power fall those enactments forbidding the refilling of stamped and registered bottles with other contents, after the original liquids, purchased from the manufacturer, have been withdrawn, 18 laws regarding pawn shops, 19 and money brokers, 2 and the so-called "Truck-Store Acts" prohibiting the payment of employees by any check or order upon a company store, requiring payment in cash or its equivalent. 21 By the same principle are justified the familiar acts requiring a license from peddlers before they may ply their trade. As said by the Federal Supreme Court in considering the purpose of such a regulation: "Its object, in requiring peddlers to take out and pay for licenses, and to exhibit their licenses on demand, to any peace officer or to any citizen householder of the county, appears to have been to protect the citizens of the state against the cheats and frauds, or even thefts, which, as the experience of ages has shown, are likely to attend itinerant and irresponsible peddling from place to place, and from door to door."'22

The legislative right of interference with trade or business is not confined to the exercise of the "police power," as above classified. In numerous cases where none of the foregoing principles applies, laws have been upheld which lay heavy burdens upon industry and traffic, notably, by fixing the rates to be charged in such business. In such instances, as in those above cited, there is a conflict between the interests of the pub

17 Commonwealth v. Waite, 11 Allen, 264; People v. West, 106 N. Y. 293, 12 N. E. Rep. 610; State v. Smyth, 14 R. I. 100; Polinsky v. People, 73 N. Y. 70; Com. v. Carter, 132 Mass. 12.

18 Mullins v. People, 24 N. Y. 399; People v. Cannon, 139 N. Y. 32, 34 N. E. Rep. 759. But see Bell v. Gaynor, 36 N. Y. Supp. 122.

19 Grand Rapids v. Braudy, 105 Mich. 670, 32 L. R. A. 116, 64 N. W. Rep. 29.

20 Baker v. State, 54 Wis. 368, 12 N. W. Rep. 13.

21 Hancock v. Yaden, 121 Ind. 366, 6 L. R. A. 576, 23 N. E. Rep. 253; State v. Peel Coal Co.,36 W. Va. 802,819, 15 S. E. Rep. 1000. But see Contra State v. Loomis, 115 Mo. 307, 21 L. R. A. 789, 22 S. W. Rep. 350.

22 Emert v. Missouri, 156 U. S. 296; Fichlen v. Shelly Co. District, 145 U. S. 1; Brennan v. Titusville, 156 U. S. 296; Chicago v. Bartee, 100 Ill. 51, 61; Martin v. Rosedale, 130 Ind. 109, 112, 29 N. E. Rep. 410.

lic and those of the individual, and the latter yield. If the business be operated under a franchise or license, and not as a matter of common right, it is subject to control by the law-making power, as in the case of ferries or the sale of intoxicants.23 If the business be one to which the right of eminent domain is incident, or if it be aided by taxation, the state justly retains the implied power to regulate rates; for the business is peculiarly "public" in the sense that those who conduct it are virtually exercising powers possessed by the state itself, and delegated to the individual or corporation. Were such powers

not subject to regulation for the public interest, the state would be enabled to abdicate the important trust devolving upon it, namely, the just supervision and control of whatsoever may impair the common rights of the people.24

A further class of business activities within the power of regulation by the state comprises those in which privileges are granted in the public highways. Here, also, the exceptional rights possessed by the grantee are necessarily controlled by the legislative power, lest they be used oppressively, 25 and in cases where exclusive privileges are granted by the state (in their nature constituting a monopoly), the legislature may regulate their exercise for the benefit of the public who are the real beneficiaries under the grant.26 If the business in question be intimately connected with the welfare of the people, whether from the fact that it can affect many lines of commerce to their detriment, or because a virtual monopoly exists (though not specially created by the legislature), or because the business is one pertaining to the necessaries of life, it may be controlled by law to some extent. Hence it is held that the business of grain and other warehousemen is "public" in its nature, since its vital relationship to many departments of trade demands that warehouse charges be

23 Com. v..Covington Bridge, 21 S. W. Rep. 1042 (Ky.); Wiggins Co. v. E. St. Louis, 107 U. S. 365; Tugwell v. Eagle Co., 74 Tex. 480, 9 S. W. Rep. 120, 13 S. W. Rep. 654; Cooley's Princ. Const. Law, p. 259.

24 Peik v. N. Y. Ry. Co., 94 U. S. 164; C. B. &. Q. R. R. Co. v. Iowa, 94 U. S. 155; R. R. Commission Cases, 116 U. S. 307; Dow v. Biedelman, 125 U. S. 680; Chicago Ry. Co. v. Wellman, 143 U. S. 339: Smith v. Ames, 169 U. S. 466; Wellman v. Ry. Co., 83 Mich. 592, 47 N. W. Rep. 489.

25 N. O. Gas. Co. v. La. Light Co., 115 U. S. 650. 26 Slaughter House Cases, 16 Wall. 36.

regulated by statute.27 Likewise the rates charged by water companies are a subject for statutory regulation, especially when the supply is controlled by a monopoly;28 and the same rule has been applied to statutes controlling natural and artificial gas companies, 29 to public mills, 30 telephone companies, telegraph companies, 32 and stock yard companies. 33

Any classification of the powers of the legislature must necessarily be incomplete. After all is said, there remains a residuum of authority in the state to be summoned into activity only when the necessity for its exercise arises. It becomes, therefore, as impossible to declare in what direction this power may next move as it is to foretell the varied opinion of future legislators as to what will conduce to the public welfare. We can only say this or that regulation has been deemed justifiable to the lawmaking and law interpreting branches of government, on grounds of general policy. When, therefore, a law is upheld forbidding the removal or transportation of cotton in the seed between sunset and sunrise of the succeeding day, except for storage, or prohibiting rebating of insurance premiums by agents, or regulating the hours on Sunday when barbers may serve their customers, or prohibiting such labor altogether upon the first day of the week, 36 or regulating the weight of bread

27 Munn. v. Illinois, 94 U. S. 113; Budd v. N. Y., 143 U. S. 517; Brass v. Stoeser, 153 U. S. 391. Nash v. Page, 80 Ky, 539; Del. R. R. Co. v. Central Stock Yards Co., 45 N. J. Eq. 50, 60, 6 L. R. A. 855, 17 Atl. Rep. 146; People v. Budd, 117 N. Y. 1, 5 L. R. A. 559, 22 N. E. Rep. 570, 682, affirmed in effect, 163 U. S. 517.

28 Spring Valley Water Works v. Schottler, 110 U. S. 347, 354; Spring Valley Water Works v. Bartlett, 16 Fed. Rep. 615.

2 Ohio Oil Co. v. Indiana, 177 U. S. 190; State v. Gas Co., 34 Ohio St. 572; Zanesville v. Gas Co., 47 Ohio St. 1, 23 N. E. Rep. 55; State v. Ohio Oil Co., 150 Ind. 21, 47 L. R. A. 627, 49 N. E. Rep. 809.

30 State v. Edwards, 86 Me. 102, 25 L. R. A. 504, 29 Atl. Rep. 947.

31 Hockett v. State, 105 Ind. 250, 5 N. E. Rep. 178; Central Union Co. v. State, 118 Ind. 194, 19 N. E. Rep. 604; Webster Telephone Case, 17 Neb. 126, 22 N. W. Rep. 237; State v. Telephone Co., 46 Ohio St. 296.

32 C. and P. Tel. Co. v. B. and O. Tel. Co., 66 Md. 399, 7 Atl. Rep. 809.

33 Cotting v. Kansas City Stock Yards Co., 79 Fed. Rep. 679; Same v. Same, 82 Fed. Rep. 850.

34 Davis v. State, 68 Ala. 58.

$5 People v. Formosa, 131 N. Y. 478, 30 N. E. Rep. 492.

36 Petit v. Minn. 177 U. S. 164; State v. Petit, 74

It is not to be supposed, however, that personal liberty in pursuing a chosen occupation is enjoyed at the mere whim or pleasure of legislators. There is no application of the power to regulate but has its recognized limitations. If, under the guise of a health provision, there is an unfair and arbitrary interference with trade, it is unconstitutional; not because it is unreasonable, for it is questionable if this objection alone will ever render a law invalid,11 but because it lays a burden upon the specific vocation without justification found in the public necessities and thereby deprives of their liberty the citizens engaged in such trade; 42 likewise a statute forbidding the use of gifts, premiums or trading stamps as an inducement for purchasers to buy is unconstitutional, if it applies to all gift enterprises irrespective of any lottery or gambling feature they may or may not contain; for such laws cannot be upheld on the theory that they promote the morals of the community, and their effect is oppressive and unjust. So, too, the public

Minn. 376, 77 N. W. Rep. 225: People v. Bellet, 99 Mich, 151, 22 L. R. A. 696, 57 N. W. Rep. 1094.

37 Mobile v. Yuille, 3 Ala. 137; People v. Wagoner, 86 Mich. 594, 13 L. R. A. 286, 49 N. W. Rep. 609. And see Paige v. Fazackerly, 36 Barb. 392. But see Contra Buffalo v. Collins Baking Co., 39 App. Div. (N. Y.) 434, 57 N. Y. Supp. 347.

State v. Freeman, 38 N. Y. 426.

39 Wheeler v. Russell, 17 Mass. 258, 281.

40 Eaton v. Kegan, 114 Mass. 433.

41 Cooley's Princ. Const. Law, 8, 166, 168, 245, Note 1; State v. Peel Splint Coal Co., 36 W. Va. 802, 811, 15 S. E. Rep. 1000.

42 Harding v. People, 160 Ill. 459, 43 N. E. Rep. 624; Eden v. People, 161 Ill. 296, 32 L. R. A. 659, 43 N. E. Rep. 1108; Chicago v. Netcher, 183 Ill. 104, 48 L. R. A. 261, 55 N. E. Rep. 707; Bailey v. People, 109 Ill. 28, 54 L. R. A. 838, 60 N. E. Rep. 98; In re Jacobs, 98 N. Y.

98.

People v. Gillson, 109 N. Y. 390, 17 N. E. Rep

safety cannot be made a cloak for unfair regulations whose object is plainly to drive one class of persons out of business and which cannot be supported as a police measure; a notable instance of which is the "laundry legislation" directed against the Chinese. 14 Neither can laws be justified upon the theory that they prevent imposition upon the public or upon large classes of individuals, if they operate to limit the free right to contract upon subjects not in themselves obnoxious to law or against the public interest. Hence enactments rendering void all waiver of damage for personal injuries executed by employees to their employers are unconstitutional, as an undue interference with the right of contract. 45 The same rule has been applied in some jurisdictions to laws forbidding the use of checks or orders on company stores in payment of wages, 46 and to statutes requiring payment of wages by corporations to be made each week. 47

Over against the large powers possessed by the state legislatures to control trade, stand the general prohibitions of the constitution, against interference with interstate commerce, the taking of private property without due process of law and depriving citizens of equal protection of the laws. Whether the regulation be by virtue of the "police power," for the sake of the public health, comfort, morals,

343; Com. v. Emerson, 165 Mass. 146; State v. Dalton, 48 L. R. A. 75, 22 R. I. 77, 46 Atl. Rep. 234; Long v. State, 74 Md. 565, 12 L. R. A. 425, 22 Atl. Rep. 4. But see Contra Humes v. Fort Smith, 93 Fed. Rep. 857; Lansburgh v. Dist. Columbia, 56 Alb. L. Jour. 488.

44 Stockton Laundry Case, 26 Fed. Rep. 611; In re Sam Kee, 31 Fed. Rep. 680; In re Hong Wah, 82 Fed. Rep. 523.

45 Shaver v. Penn. Co., 71 Fed. Rep. 931; Ramsey v. People, 142 Ill. 380, 17 L. R. A. 853, 32 N. E. Rep. 364; Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79, 40 N. E. Rep. 454; Harding v. People, 160 Ill. 459, 32 L. R. A. 445, 43 N. E. Rep. 624; Shaffer v. Union Co., 55 Md. 81; State v. Julow, 129 Mo. 163, 29 L. R. A. 257, 31 S. W. Rep. 781; Godcharles v. Wigeman, 113 Pa. St. 431, 6 Atl. Rep. 354; State v. Goodwill, 33 W. Va. 179, 181, 6 L. R. A. 621, 10 S. E. Rep. 285. And See Millett v. People, 117 Ill. 294, 7 N. E. Rep. 631; Jones v. Hotel Co., 79 Fed: Rep. 477.

46 Com v. Perry, 155 Mass. 117, 14 L. R. A. 325, 28 N. E. Rep. 1126; State v. Loomis, 115 Mo. 307, 21 L. R. A. 789, 22 S. W. Rep. 350. Contra Hancock v. Yaden, 121 Ind. 366, 6 L. R. A. 576, 23 N. E. Rep. 253.

47 Frorer v. People, 141 Ill. 171, 16 L. R. A. 492, 31 N. E. Rep. 395; Braceville Coal Co. v. People, 147, Ill. 66, 22 L. R. A, 340, 35 N. E. Rep. 62; Leep v. Ry. Co., 58 Ark. 407, 23 L. R. A. 264, 25 S. W. Rep. 75. But see Opinion of Justices, 163 Mass. 589.

safety, or protection against fraud and imposition, or be directed toward rights granted or secured by the state, or relate to public operations and branches of trade; if there be a substantial invasion of the powers of congress over interstate commerce or a denial of the rights of citizens of other states to trade within the particular state, the law is invalid. 48 So, if the "regulation" be palpably unreasonable and amounts to confiscation by practically destroying the value of the business, the constitutional provision against taking property without due process of law operates to defeat the legislation.49 Finally, although the public welfare may demand a broad scope for the exercise of the legislative function, in the final analysis it is the judge upon the bench and not the legislator in the general assembly who makes or unmakes law. No matter how firmly the latter may convince himself of its excellence, if the mind of the judge perceives no valid reason for sustaining a law restricting the freedom of exercising a trade or occupation, but such enactment appears to him arbitrary, unreasonable and oppressive, it will be declared void; for the "freedom" of the citizen rises supreme over the attempted infringement.50 The legislature may declare what it considers a reasonable regulation, and every presumption will be indulged in favor of the statute it enacts; but if it misjudge the public necessity, the question becomes judicial, not legislative, and the statute is annuled, that the "liberty" of the citizen may be protected. HENRY M. DOWLING.

Indianapolis, Ind.

48 Railroad Co. v. Husen, 95 U. S. 465; Minn. v. Barber, 136 U. S. 313; Brummer v. Rebman, 138 U. S. 78. 49 Georgia Banking Co. v. Smith, 128 U. S. 174 179; Chicago Ry. Co. v. Minn. 134 U. S. 418, 458; Reagan v. Farmers' Loan Co., 154 U. S. 362, 397, 399; St. Louis Ry. Co. v. Gill, 156 U. S. 649; Covington Co. v. Sandford, 164 U. S. 578, 592; Smyth v. Ames, 169 U. S. 466, 526; Toledo Ry. Co. v. Jacksonville, 67 Ill. 37.

50 Thomas v. Hot Springs, 34 Ark. 553 (restricting drumming for physicians); People v. Hagan, 71 N. Y. Supp. 461 (punishing sale of tickets by scalpers); Ruhstrat v. People, 185 Ill. 133, 49 L. R. A. 181, 57 N. E. Rep. 41 (forbidding use of United States flag for advertising).