erally speaking, the legislatures have no right to forbid or regulate such contracts by law if the parties are citizens of full age. The exceptions to this latter principle will be considered in the next section and the next chapter.

§ 4. The Police Power. This right to make any contract not immoral nor criminal is only limited in the United States by what is called "the police power of government;" that is, the right of the state and national legislatures to pass any laws, although regulating, or limiting, property, contract, or personal rights, which are clearly necessary to the safety, comfort, or wellbeing of society. It rests upon the legal maxim that a man must so use his own (property or rights) as not to injure others (in their persons, property, or rights). The power is indefinite in extent and incapable of definition; though a definition has often been attempted. Textbooks frequently adopt Judge Shaw's definition,' that it is "the power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the

Low v. Rees Printing Co, 59 N. W., 362.

1 Commonwealth v. Alger, 7 Cushing, 53, at pp. 84, 85.

subjects of the same "-not observing that this broad statement of the power may have been based upon the peculiar provision of the Massachusetts constitution (discussed ante, § 1) and therefore be no authority for other states. However, as Judge Shaw adds, "It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries or prescribe limits to its exercise."

This much is clear, that the power "is not above the constitution, but is bounded by its provisions; and if any liberty, or franchise, is expressly protected by any constitutional provision, it cannot be destroyed by any valid exercise by the legislature, or by the executive, of the police power;" and "if the legislature shall determine what is a proper exercise of its police power, the decision is subject to the scrutiny of the courts." And the object of the law must really be such health and safety of society, and its measures must have a visible relation to that end; the law will not allow property or personal rights to be invaded under the guise of a police regulation for the protection of health, or safety, when it is manifest the real object is something different.3

2 People v. Gillson, 109 N. Y., at p. 400 (differing here from the questions of the "reasonableness" of a law, discussed in § 1, note 5, above).

3 Low v. Rees Printing Co., 59 N. W., 368; Re Jacobs,

4

The various instances in which laws regulating the employment contract have been held unconstitutional, or constitutional, under the police power, form the special subject of the next chapter. The best way to define the police power generally is to mention a few of the principal subjects in which it has been maintained. These are health regulations; laws defining public nuisances and regulating noxious trades; building laws; liquor laws; Sunday laws; road, highway, and street regulations; wharf, levee, and drainage laws; and laws regulating charges of persons, or corporations in employments "affected with a public interest," 5 or which enjoy from the public special rights, privileges, grants, or monopolies; and in the domain of labor, general factory regulation. More questionable, in America at least, are laws imposing restrictions upon dealings with classes of persons, not minors, or women, supposedly unable to protect themselves, such as regulations governing minors, intelligence-offices, etc. The exception of laws protecting sailors comes hardly under the policepower doctrine, but rather from ancient custom coeval with the unwritten constitution itself; and the same may be said of the laws against usury.

98 N. Y., 98; Austin v. Murray, 16 Pick., 121, at p. 126; Watertown v. Mayo, 109 Mass., 315.

Mugler v. Kansas, 123 U. S., 624. 5 People v. Budd, 117 N. Y., 1.

But the branch of the police-power doctrine under which the greatest modern extension has happened, and the greatest future growth may be expected, peculiarly in laws affecting labor, or the employment relation, is that of fraud; the doctrine by which laws are justified which interfere with private rights in order to prevent a prevailing fraudulent imposition on the public generally, or upon any definite class of persons. Such are laws which require the employer to give the same notice of discharge to his employees that he requires of them; laws forbidding the screening of coal before weighing, to determine the miners' wages; the laws against adulterations of food, or imitations, like oleomargarine; and laws giving a special protection to claims for wages, or priority to labor liens.9

8

6

§ 5. Intimidation and Interference with the Employment Contract, Trades, and Lawful Occupations. It results directly from the general

6

See § 22.

7 See § 25.

8 Palmer v. State, 39 O. St., 236; Commonwealth v. Waite, 11 Allen, 264; Shivers v. Newton, 16 Vroom, 469 ; State v. Campbell, 64 N. H., 402; State v. Marshall, 64 N. H., 549; Weideman v. State, 56 N. W., 688. It must be noted that such laws, if the commodity be harmless, may, however, be unconstitutional as an interference with the interstate commerce. Re Worthen, 58 F. R., 467.

freedom of the labor contract (§ 3) that any attempt, even of a single individual, by violence, intimidation, or threats of injury to person or property, to control such employment contract, to prevent a man from working, or an employer from employing, or to obstruct or molest either party to a contract of employment in making it or carrying it out when made, is a civil wrong for which either party, if injured, may recover damages. Such is the law in the absence of any statute, both in England and this country.' But it is not, in the absence of statute, a criminal offence, unless it be more than a threat or mere civil trespass, and amounts to an assault or criminal destruction of property. In many states, however, as in England, it is made a criminal offence by statute. If the acts or threats are committed as part of a combination of two or three or more persons for the purpose of so interfering with the employment contract or its carrying out, the law is much stricter; in such cases even moral intimidation, such as ridicule, or persuasion to break or not to make the employment contract, may suffice to make the parties thereto guilty of conspiracy (see Chapter VIII., on Trade Conspiracies and Boycotts, and § 59).

1 Carew v. Rutherford, 106 Mass., 1. This law seems to apply even to intimidation of persons trading with the plaintiff. Tarleton v. McGawley, Peak N. P. C., 270.