validity of such laws may be tested. Each law of the kind involves the questions: (1) Is there a threatened danger? (2) Does the regulation invade a constitutional right? (3) Is the regulation reasonable?"

It is no longer in dispute that these laws may be and are upheld as proper exercise of the police powers when they affect, not the health of the community generally, but the health or welfare of operatives employed in any given vocation. The law is not to be condemned as special legislation because it does not affect all the people, provided it affects the welfare of a portion of the community, or of any indefinite number similarly situated. Therefore the power of the Legislature by general law to provide for the proper sanitation of factories, foundries, mills, and the like, does not call for discussion. It is no invasion of the right of the employer freely to contract with his employé to provide by general law that all employers shall furnish a reasonably safe place and reasonably wholesome surroundings for their employés.

The difficulty with the present law, however, is that it does not so provide, but that it is an attempt to confer upon a single person the right arbitrarily to determine, not only that the sanitary condition of a workshop or factory is not reasonably good, but to say whether, even if reasonably good, in his judgment its condition could be improved by the use of such appliances as he may designate, and then to make a penal offense of the failure to install such appliances. "The very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220.

Under the law here in question it matters not how unwholesome, how dangerous, how unsanitary the condition of any factory or workshop may be, the proprietor is guilty of no offense until the commissioner of the bureau of labor statistics has required him to use appliances which the commissioner himself shall designate, and he has refused so to do. Nor does it matter if the condition of such a workshop be reasonably wholesome for the uses of the operatives, if "dust, filaments, or injurious gases" are "liable to be inhaled" (and it is here the mere liability, and not the fact, of the inhalation which invites. the action of the commissioner), and if, in the opinion of the commissioner, such liability to inhalation could "to a great extent" be prevented, he may designate and prescribe the kind of appliance which in his judgment is suitable for such purpose, and it must be employed. But the judgment of the commissioner is not only the determinative factor in the proposition as to whether or not the condition of the factory may be improved "to a great extent," but under this law it is absolutely conclusive and binding upon the question of the appliances to be used; and thus it may result, as to three factories similarly situated,

which as to sanitation or the danger from inhalation are in precisely the same condition, that the proprietor of one may be guilty of no offense because he has not been notified by the commissioner to adopt any appliance, the proprietor of the second may be called upon to put into use some appliance at a trifling cost, while the proprietor of the third may have imposed upon him an expense for apparatus amounting to thousands of dollars. In short, arbitrarily, and within the declaration, not of the Legislature, but of the commissioner, no burden whatever may be imposed upon one institution, while the other, in obedience. to this law, may be subjected to a most onerous and even destructive expense. The Legislature, as we have said, may require the owners of factories and workshops to put their buildings in proper condition as to sanitation, may require them to provide reasonable safeguards against danger for the operatives, but it may not leave the question as to whether and how these things shall be done or not done at the arbitrary disposition of any individual.

By respondent reliance is placed on the case of Taylor v. Hughes, 62 Cal. 38. In that case section 637 of the Penal Code was under review. It provides that every owner of a dam' or other obstruction in any running water of this state, who after being ordered and notified by the fish commissioners to construct a fish ladder or to repair a fish ladder already constructed on such dam or other obstruction, according to the plans of the fish commissioners, fails to construct or repair such fish ladder within 30 days after such notice, is guilty of a misdemeanor. The application was for a writ of review in which was set forth the complaint, charging petitioner Taylor with a violation of this statute, and his conviction thereunder. The decision of this court, embraced in a single sentence, was to the effect that the application did not present grounds for the issuance of the writ. The distinction, however, between that case and the case at bar is broad. The running waters of the state of California are public property. One who obstructs them obstructs them under license or permission from the state, but only upon such conditions as to their use as the state may impose. It is therefore permissible for the state to impose such conditions upon that use as it may see fit, and in this case the requirement was that the person so obstructing the water should build an appliance to permit the free running of the fish up the stream. Here was no interference with private property; here was merely a condition imposed by the state upon a private individual as to his use of property, the title to which, and the right of fishery in which, remained in the public.

The same broad distinction exists between the case at bar and that of Health Department of City of New York v. Rector, etc., of Trinity. Church, 145 N. Y. 32, 39 N. E. 833, 27 L. R. A. 710, 45 Am. St. Rep. 579, also relied upon by respondent. In the latter case, section. 663 of the consolidation act of the city of New York required all tenement houses to be supplied with sufficient water on each floor, at one or more places, in sufficient quantity, by the owners, whenever they

were directed so to do by the board of health, making it a misdemeanor to fail to comply with the directions of the board. Here the only requirement was that a sufficient quantity of water should be supplied on each floor of the tenement building. To answer this law, it was necessary only to show that a sufficient quantity of water was supplied for the health and convenience of the tenants. The direction of the board of health, or its determination that the supply was insufficient, was not conclusive; for, as the court said in sustaining the validity of the law: "The citizen cannot under this act be punished in any way, nor can any penalty be recovered from him for an alleged noncompliance with any of its provisions or with any order of the board of health, without a trial. The punishment or penalty provided for in section 665 cannot be enforced without a trial under due process of law, and upon such trial he has an opportunity to show whatever facts would constitute a defense to the charge."

The manifest objection to this law is that upon the commissioner has been imposed, not the duty to enforce a law of the Legislature, but the power to make a law for the individual, and to enforce such rules of conduct as he may prescribe. It is thus arbitrary, special legislation, and violative of the Constitution.

For the foregoing reasons, the police court is directed to annul the proceedings touching the trial, conviction, and judgment against petitioner herein. 27

27 "The claim that the statute commits to the arbitrary discretion of the. Secretary of the Treasury the determination of what teas may be imported, and therefore in effect vests that official with legislative power, is without merit. We are of opinion that the statute, when properly construed, as said by the Circuit Court of Appeals, but expresses the purpose to exclude the lowest grades of tea, whether demonstrably of inferior purity, or unfit for consumption, or presumably so because of their inferior quality. This, in effect, was the fixing of a primary standard, and devolved upon the Secretary of the Treasury the mere executive duty to effectuate the legislative policy declared in the statute. The case is within the principle of Marshall Field & Co. v. Clark, 143 U. S. 649, 12 Sup. Ct. Rep. 495, 36 L. Ed. 294, where it was decided that the third section of the tariff act of October 1, 1890 (26 Stat. 567, c. 1244), was not repugnant to the Constitution as conferring legislative and treaty-making power on the President, because it authorized him to suspend the provisions of the act relating to the free introduction of sugar, molasses, coffee, tea, and hides. We may say of the legislation in this case, as was said of the legislation considered in Marshall Field & Co. v. Clark, that it does not, in any real sense, invest administrative officials with the power of legislation. Congress legislated on the subject as far as was reasonably practicable, and from the necessities of the case was compelled to leave to executive officials the duty of bringing about the result pointed out by the statute. To deny the power of Congress to delegate such a duty would, in effect, amount but to declaring that the plenary power vested in Congress to regulate foreign commerce could not be efficaciously exerted." Buttfield v. Stranahan, 192 U. S. 470, 496, 24 Sup. Ct. 349, 48 L. Ed. 525 (1904).

CHAPTER II

ADMINISTRATIVE DISCRETION

SECTION 8.-CONSTRUCTION OF POWERS

JACOB (TOMLINS) LAW DICTIONARY, LONDON, 1809, v. DISCRETION.

Where anything is left to any person to be done according to his discretion, the law intends it must be done with a sound discretion and according to law; and the Court of King's Bench hath a power to redress things that are otherwise done notwithstanding they are left to the discretion of those that do them. 1 Lil. Abr. 477.

Discretion is to discern between right and wrong, and therefore whoever hath power to act at discretion is bound by the rule of reason and law. 2 Inst. 56, 298.

And though there be a latitude of discretion given to one, yet he is circumscribed that what he does be necessary and convenient, without which no liberty can defend it. Hob. 258.

STATE v. JUSTICES OF INFERIOR COURT OF MORGAN COUNTY.

(Supreme Court of Georgia, 1854. 15 Ga. 408.)

Lester Markland applied to the inferior court of Morgan county for an order for a license to retail spirituous liquors in that county, having paid for such license, and being ready to give the bond and security required. The court refused to grant the license, on the ground. that the applicant was an unfit person to be so licensed-having been twice convicted of selling spirituous liquor to slaves, contrary to law. On hearing this return to a mandamus nisi, Judge Hardeman refused to make the mandamus absolute. This decision is assigned as

error.

STARNES, J.1 It is agreed that the first act on this subject, now of force in our state, was passed in 1791. This was entitled "An act for regulating taverns," etc. The first section provided that upon the petition of any person wishing to keep a tavern, or house,

1 Only a portion of the opinion is printed.

of entertainment, the justices of the inferior court, held for the county of such person's residence, shall "consider the convenience of such place intended for a tavern, and having regard to the ability of such petitioner to keep good and sufficient accommodations for travellers, their horses and attendants, may, at their discretion, grant a license,” etc., provided that the applicant should enter into bond, with sufficient security, "conditioned for the keeping an orderly and decent house, with good and sufficient accommodation for travellers," etc. The second section required the rates of charges to be fixed by the court. The third provided a penalty for retailing without license. The fourth fixed the price to be paid for such license; and the fifth repealed conflicting acts, and gave to the corporations of Savannah and Augusta the right to regulate licenses in those cities. *

*

*

Let us remark, also, that the limits of the discretion, by this act conferred upon the inferior court, are: (1) A consideration of the convenience of the locality intended for a tavern. (2) The ability of the petitioner to supply such tavern with proper accommodation for travellers, their horses and attendants. And that no discretion, whatever, is given the inferior court, by which to grant or refuse the license, according as the character of the applicant may be good or bad. The only provision which seems to have been contemplated, as a protection against the grant of such license, to a person of bad moral character, was the requirement of bond and security, for the keeping an orderly and decent house.

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Let the judgment be reversed.2

PEOPLE ex rel. SHEPPARD v. ILLINOIS STATE BOARD OF DENTAL EXAMINERS.

(Supreme Court of Illinois, 1884. 110 Ill. 180.)

This is an original proceeding in this court for a mandamus. The petition therefor is as follows:

"The petitioner, Isaac N. Sheppard, a citizen of the state of Illinois, residing in the city of Paris, county of Edgar, in said state, complaining, shows unto the court that he is twenty-one years of age; that he became a student at the Indiana Dental College, an institution duly organized under the laws of the state of Indiana, located at the city of Indianapolis, in said state, on the 3d day of October, 1881, said institution being a college for the purpose of educating persons in the theory and practice of dentistry and dental surgery; that he attended said college as a student, as aforesaid, during his two full terms thereof, and pursued a course of study in the theory and practice of dentistry and dental surgery during all that time at said college, and that he completed said course of study, and was graduated from said col

2 Compare State v. Hanlon, 24 Neb. COS, 612, 613, 39 N. W. 780 (1888).