of the facts now taken by the court is the one which was adopted by the court below and which was stated by the Interstate Commerce Commission. Strong, however, as is the admonition resulting from this situation, it is not strong enough to overcome the force of my conviction as to what the case really concerns and to overcome the belief that it is my duty at least to state the fact of my dissent.

MR. JUSTICE MCREYNOLDS took no part in the consideration and decision of this case.

MILLER v. WILSON, SHERIFF OF RIVERSIDE COUNTY, STATE OF CALIFORNIA.

ERROR TO THE SUPREME COURT OF THE STATE OF

CALIFORNIA.

No. 112. Argued January 12, 1915.-Decided February 23, 1915.

The liberty of contract guaranteed by the due process clause of the Fourteenth Amendment is freedom from arbitrary restraint-not immunity from reasonable regulation to safeguard the public interest. In determining the constitutionality of a state police statute the question is whether its restrictions have reasonable relation to a proper purpose; and reasonable regulations limiting the hours of labor of women are within the scope of legislative action. Muller v. Oregon, 208 U. S. 412; Riley v. Massachusetts, 232 U. S. 671; Hawley v. Walker, 232 U. S. 718.

While the limitation of the hours of labor of women may be pushed to an indefensible extreme, the limit of reasonable exertion of the protective authority of the State is not overstepped and liberty of contract unduly abridged by a statute prescribing eight hours a day or a maximum of forty-eight hours a week.

The legislature of a State is not debarred from classifying according to

Argument for Plaintiff in Error.

236 U. S.

general considerations and with regard to prevailing conditions, otherwise there could be no legislative power to classify.

The legislature is free to recognize degrees of harm and may confine its restrictions to those classes where it deems the need is greatest, and if the law hits an evil where it is most felt the prohibition need not be all embracing. Keokee Coke Co. v. Taylor, 234 U. S. 227. The statute of California of 1911 prohibiting the employment of women in certain businesses including hotels is not unconstitutional as to women employed in hotels, either as an unwarranted invasion of liberty of contract or as denying the equal protection of the law on the ground of unreasonable discrimination because of the omissions of certain classes of female laborers from its operation, or because the classification is based on the employé's business and not upon the character of the employé's work.

162 California, 687, affirmed.

THE facts, which involve the constitutionality under the Fourteenth Amendment of the Women's Eight Hour Labor Law of California, are stated in the opinion.

Mr. Frank P. Flint and Mr. Henry S. Van Dyke for plaintiff in error, submitted:

The restrictions imposed by the Act upon women and their employers as to their freedom of contract in certain designated employments are not reasonably necessary, and are not such a necessary invasion of freedom of contract as will be justified under the sanction of the police power or of any other constitutional power.

The legislation is not necessary to safeguard the health of any considerable class nor is it justified by the needs of the community as a whole. As in Ritchie v. Wyman, 214 Illinois, 509, the police power's exercise must be reasonable and not confiscatory, like a war power, and must be absolutely necessary to the public health or safety. Bierly's Police Power, p. 13; People v. Commonwealth, 9 Michigan, 285; Smiley v. McDonald, 42 Nebraska, 5; Railroad Co. v. State, 47 Nebraska, 549; Russell's Police Powers, p. 34.

236 U. S.

Argument for Plaintiff in Error.

And see Lawton v. Steele, 152 U. S. 133; Brannon's Fourteenth Amendment, pp. 172, 202.

The limitation to eight hours a day and particularly the limitation to forty-eight hours a week is unnecessary and unreasonable as applied to hotels and many of the other enumerated employments. To hold such legislation unconstitutional is to promote humanitarian legislation for women, for it makes possible such humanitarian legislation as is consistent with their liberty and their means of livelihood; while, on the contrary, the present law, as to many employments, by an unnecessary curtailment of their usefulness, and therefore of their earning capacity, does more harm than good. Lochner v. New York, 198 U. S. 45, 61; Ex parte Kuback, 85 California, 274.

There is nothing in the ordinary labor, by men of full age for more than eight hours a day, that calls for prohibition in the interest of the public health, the public safety, the public morals, or the public welfare. Lochner v. New York, supra.

This doctrine is affirmed by every court in the union having occasion to pass upon the question, except in certain cases on the women's employment acts which are bad on principle and on precedent. Seattle v. Smyth, 22 Washington, 327; In re Morgan, 26 Colorado, 415.

Only when an occupation possesses such characteristics of danger to health of those engaged therein as to justify the legislature in concluding that the welfare of the community demands a restriction, can the hours of labor for men be limited by legislative enactment. Re Martin, 157 California, 51, 55.

For the history of legislation and adjudication in this country on limitation of hours of employment for women, see Commonwealth v. Hamilton Mfg. Co., 120 Massachusetts, 383; Holden v. Hardy, 169 U. S. 366; Commonwealth v. Beatty, 15 Pa. Sup. Ct. 5; Wenham v. State, 65 Nebraska, 395; State v. Buchanan, 29 Washington, 604;

Argument for Plaintiff in Error.

236 U. S.

Muller v. Oregon, 208 U. S. 412; Commonwealth v. Riley, 97 N. E. Rep. 367; State v. Somerville, 122 Pac. Rep. 324; People v. Elerding, 98 N. E. Rep. 982; People v. Chicago, 100 N. E. Rep. 194; State v. Newman Lumber Co., 59 So. Rep. 923; Matter of Jacobs, 98 N. Y. 98; People v. Williams, 189 N. Y. 131; Low v. Rees Printing Co., 41 Nebraska, 127; Burcher v. People, 41 Colorado, 495.

The Act is vitiated by manifold and fatal discriminations, and is therefore unconstitutional.

The first and most obvious discrimination is the express exception of all women employed in harvesting fruit or vegetables. Several considerable classes of women employés, whose employments are in no wise distinguishable in any particulars from many of those included,—e. g., stenographers, clerks and assistants employed by the professional classes and all domestic servants, are totally omitted. Cotting v. Godard, 183 U. S. 79; Connolly v. Union Sewer Pipe Co., 184 U. S. 540.

The freedom to contract is protected from unreasonable restriction, similarly with every other proper freedom, by the Fourteenth Amendment. Allgeyer v. Louisiana, 165 U. S. 578-589; State v. Peel Splint Coal Co., 36 W. Va. 856; State v. Goodwill, 33 W. Va. 179; Barbier v. Connolly, 113 U. S. 27; Gulf &c. Ry. v. Ellis, 165 U. S. 150; Bell's Gap R. R. v. Pennsylvania, 134 U. S. 237; Low v. Rees Printing Co. (Neb.), 59 N. W. Rep. 362; Dougherty v. Austin, 94 California, 620; Darcy v. San Jose, 104 California, 642; Lodi v. State, 51 N. J. L. 402; Hellman v. Shoulters, 114 California, 147; Budd v. Hancock, 66 N. J. L. 135; Ex parte Sohncke, 148 California, 262, 267.

Statutes have been held unconstitutional as violating the constitutional inhibitions against special laws, the classification being held arbitrary and without reasonable basis in Slocum v. Bear Valley Co., 122 California, 555; Johnson v. Goodyear Mining Co., 127 California, 417; Krause v. Durbrow, 127 California, 681, 685; Beveridge v.

236 U. S.

Argument for Defendant in Error.

Lewis, 137 California, 619, 623; Ex parte Sohncke, 148 California, 262; Ex parte Westerfield, 55 California, 550, 552, 553.

As to the discrimination between hotels and boarding houses and as to what constitutes an inn or hotel see Pinkerton v. Woodward, 33 California, 557; Fay v. Pacific Improvement Co., 93 California, 253, 259; Schouler on Bailments, 253; Cromwell v. Stephens (N. Y.), 2 Daly, 15, 17, 23; Kelly v. Excise Comr's, 54 How. Prac. 327; Martin v. State Ins. Co., 44 N. J. Law, 495; 22 Cyc. 1070; 16 Am. and Eng. Ency. of Law, 510; Beale on Innkeepers and Hotels, pp. 24-25, etc.; Ex parte Jentzsch, 112 California, 468, 474.

Mr. William Denman and Mr. Louis D. Brandeis, with whom Mr. U. S. Webb, Attorney General of the State of California, and Mr. G. S. Arnold were on the brief, for defendant in error:

California has the power to prevent the gainful employment of women for over eight hours a day in hotels and hospitals, and such a restriction is not an unconstitutional denial of freedom of contract.

The limitation of the number of hours women must work in these two employments has a direct relationship to women's health, and hence to the health of the race as a whole, as well as the safety and health of those she serves.

Women are admittedly weaker than men in the struggle of economic competition and may be protected by legislative enactment against the oppressive bargaining or control of their employer, whether arising from cupidity or such a mistaken philanthropy as that of the hospital here, which admittedly works its undergraduate girl nurses the equivalent of twelve hours a day for a six day week to make a better showing of the number of poor people cared for.

The limitation of the number of hours of woman's labor in gainful occupations to not over a half of her waking time