delivered the opinion of the court:
Uрon complaint of the factory inspector appointed under the law hereinafter named, a warrant was issued by a justice of the peace of Cook County against plaintiff in error, and, upon his appearance and waiver in writing of jury trial, a trial was had resulting in a finding of guilty, and the imposition of a fine of $5.00, and costs. The complaint charged that, on a certain day in February, 1894, plaintiff in error employed a certain adult female of the age of more than eighteen years to work in a factory for more than eight hours during said day. The plaintiff in error took an appeal to the Criminal Court of Cook County, and waived a jury, and upon trial in that court before the judge without a jury, he was convicted and fined. The case is brought to this Court by writ of error for the purpose of reviewing such judgment of the Criminal Court.
Upon the trial of the cause the defendant below submitted written propositions to be hеld as law in the decision of the case. By these propositions the trial court was asked to hold, that the Act of the Legislature of Illinois, entitled “An Act to regulate the manufacture of clothing, wearing apparel, and other articles in this State, and to provide for the appointment of State inspectors to enforce the same, and to make an appropriation therefor,” approved June 17, 1893, (Laws of Ill. 1893, page 99), and each and every section thereof, is illegal and void, and contrary to and in violation of the constitutions of Illinois and of the United States. The court refused all of the propositions so submitted, and éxception was taken by the defendant.
The present prosecution, as is conceded by counsel on both sides, is for an alleged violation of section 5 of said Act. That section is as follows : “No female shall be employed in any factory or workshop more than eight hours in any one day or forty-eight hours in any one week.”
“Factory” or “workshop” is defined in section 7 of the Act as follows: “The words, ‘manufacturing establish-
ment,’ ‘factory, ’ or ‘workshop, ’ wherever used in this act, shall be construed to mean any place where goods or products are manufactured or repaired, cleaned or sorted, in whole or in part, for sale or for wages.”
Punishment for violation of the provisions of the Act is provided for by section 8 thereof in the following words: “Any person, firm or corporation, who fails to
comply with any provision of this act, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined not less than three dollars, nor more than one hundred dollars for each offense.”
The main objection urged against the Act, and that to which the discussion of counsel on both sides is chiefly directed, relates to the validity of section 5. It is con tended by counsel for plaintiff in error, that that section is unconstitutional as imposing unwarranted restrictions upon the right to contract. On the other hand, it is claimed by counsel for the People, that the act is a sanitary provision, and justifiable as an exercise'of the police power of the State.
Does the provision in question restrict the right to contract? The words, “no female shall be employed,” import action on the part of two persons. There must be a person who does the act of employing, and a person who consents to the act of being employed. Webster defines employment as not only “the act of employing,” but “also the state of being employed.” The prohibition of the statute is, therefore, twofold, first, that no manufacturer, or proprietor of a factory or workshop, shall employ any female therein more than eight hours in one day, and, second, that no female shall consent to be so employed. It thus prohibits employer and employee from uniting their minds, or agreeing, upon any longer service during one day than eight hours. In other words, they are prohibited, the one from contracting to employ, and the other from contracting to be employed, otherwise than as directed. “To be ‘employed’ in anything means not only the act of doing it, but also to be engaged to do it; to be under contract or orders to do it.” (United States v. Morris,
Is the restriction thus imposed an infringement upon the constitutional rights of the manufacturer and the employee? Section 2 of article 2 of the constitution of Illinois provides, that “no person shall be deprived of life, liberty or property, without due process of law.”
A number of cases have arisen within recent years in which the courts have had occasion to consider this provision, or one similar to it, and its meaning has been quite clearly defined. The privilege of contracting is both a liberty and property right. (Frorer v. The People,
This right to contract, which is thus included in the fundamental rights of liberty and property, cannot be taken away “without due process of law.” The words: “due process of law:” have been held to be synonymous with the words : “law of the land.” )The State v. Loomis, supra; Frorer v. The People, supra). Blackstone says: “The third absolute right, inherent in every Englishman, is that of property, which consists in the free use, enjoyment and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.” (1 Black. Com. page 138; Ex parte Jacobs,
We are not unmindful, that the right to contract may be subject to limitations growing out of the duties which the individual owes to society, to the public or to the government. These limitations are sometimes imposed by the obligation to so use one’s own as not to injure another, by the character of property as affected with a public interest or devoted to a public use, by the demands of public policy or the necessity of protecting the public from fraud or injury, by the want of capacity, by the needs of the necessitous borrower as against the demands of the extortionate lender. But the power of the legislature to thus limit the right to contract must rest upon some reasonable basis, and cannot be arbitrarily exercised. It has been said, that such power is based in every case on some condition, and not on the absolute right to control. Where legislative enactments, which operate upon classes of individuals only, have been held to be valid, it has been where the classification was reasonable, and not arbitrary. (Leep v. St. L., I. M. & S. Ry. Co. supra; The State v. Loomis, supra).
Applying these principles to the consideration of section 5, we are led irresistibly to the conclusion, that it is an unconstitutional and void enactment. While some of the language of the Act is broad enough to embrace within its terms the manufacture of all kinds of goods or products, other provisions are limited to the manufacture of “coats, vests, trousers, knee-pants, overalls, cloaks, shirts, ladies’ waists, purses, feathers, artificial flowers or cigars, or any wearing apparel of any kind whatsoever.” The Act is entitled “An Act to regulate the manufacture of clothing, wearing apparel and other articles,” etc. Under the rule of construction heretofore laid down by this Court, that general and specific words, which, are capable of an analogous meaning, being associated together, take color from each other, so that the general words are restricted to a sense analogous to the less general, it would seem that the general words: “and other articles:” should be restricted to a meaning analogous to the meaning of the words : “clothing, wearing ap: parel:” and, consequently, that they would only embrace articles of the same kind as those expressly enumerated. (First Nat. Bank of Joliet v. Adam,
But aside from its partial and discriminating character, this enactment is a purely arbitrary restriction upon the fundamental right of the citizen to control his or her own time and faculties. It substitutes the judgment of the legislature for the judgment of the employer and employee in a matter about which they are competent to agree with each other. It assumes to dictate to what extent the capacity to labor may be exercised by the employee, and takes away the right of private judgment as to the amount and duration of the labor to be put forth in a specified period. When the legislature thus - undertakes to impose an unreasonable and unnecessary burden upon any one citizen or class of citizens, it transcends the authority entrusted to it by the constitution, ,'even though it imposes the same burden upon all other .citizens or classes of citizens. General laws may be as tyrannical as partial laws. A distinguished writer upon constitutional limitations has said, that general rules may sometimes be as obnoxious as special, if they operate to deprive individual citizens of vested rights, and that, ■while every man has a right to require that his own controversies shall be judged by the same rules which are applied in the controversies of his neighbors, the whole community is also entitled, at all times, to demand the protection of the ancient principles which shield private rights against arbitrary interference, even though such interference may be under a rule impartial in its operation. (Cooley on Cons. Lim.—5 ed.—top page 434, marg. page 355 ; Bank of Columbia v. Okely,
An instance of the care, with which this.right to contract has been guarded, may be found in chapter 48 of the Revised Statutes of this State, where an Act, passed in 1867, makes eight hours of labor iu certain employments a legal day’s work, “where there is no special contract or agreement to the contraryand the second section of which Act contains the following provision: “nor shall any person be prevented by anything herein contained from working as many hours overtime or extra hours as he of she may agree.”
In Ex parte Kuback,
But it is claimed on behalf of defendant in error, that this section can be sustained as an exercise of the police power of the State. The police power of the State is that power which enables it to promote the health, comfort, safety and welfare of society. It is very broad and far reaching, but is not without its limitations. Legislative acts passed in pursuance of it must not be in conflict with the сonstitution, and must have some relation to the ends sought to be accomplished; that is to say, to the comfort, welfare or safety of society. Where the ostensible object of an enactment is to secure the public comfort, welfare or safety, it must appear to be adapted to that end; it cannot invade the rights of person and property under the guise of a mere police regulation, when it is not such in fact; and where such an act takes away the property of a citizen or interferes with his personal liberty, it is the province of the Courts to determine whether it is really an appropriate measure for the promotion of the comfort, safety and welfare of society. (Lake View v. Rosehill Cem. Co.
There is nothing in the title of the Act of 1893 to indicate that it is a sanitary measure. The first three sections contain provisions for keeping workshops in a cleanly state and for inspection to ascertain whether they are so kept. But there is nothing in the nature of the employment contemplated by the Act which is in itself unhealthy, or unlawful, or injurious to the public morals or welfare. Laws restraining the sale and use of opium and intoxicating liquor have been sustained as valid under the police power. (Ah Lim v. Territory,
It is not the nature of the things done, but the sex of the persons doing them, which is made the basis of the claim that the Act is a measure for the promotion of the public health. It is sought to sustain the Act as an exercise of the police power upon the alleged ground, that it is designed to protect woman on account of her sex and physique. It will not be denied, that woman is entitled to the same rights, under the constitution, to make contracts with reference to her labor as are secured thereby to men. The first section of the fourteenth amendment to the constitution of the United States provides: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.” It has been held that a woman is both a “citizen” and a “person” within the meaning of this section. (Minor v. Happersett,
The tendency of legislation in this State has been to recognize the rights of woman in the particulars here specified. The Act of 1867, as above quoted, by the use of the words, “he or she,” plainly declares that no woman shall be prevented by anything therein contained from working as many hours overtime or extra hours as she may agree ; and thereby recognizes her right to contract for more than eight hours of work in one day. An Act approved March 22,1872, entitled “An Act to secure freedom in the selection of an occupation,” etc., provides that “no person shall be precluded or debarred from any occupation, profession or employment (except military) on account of sex.” (1 Starr & Cur. Ann. Stat. page 1056). The Married Woman’s Act of 1874 authorizes a married woman to sue and be sued without joining her husband, and provides that contracts may be made and liabilities incurred by her and enforced against her to the same extent and in the same manner as if she were unmarried, and that she may receive, use and possess her own earnings, and sue for the same in her own name, free from the interference of her husband, or his creditors. (Rev. Stat. Ill. chap. 68, secs. 1, 6 and 7).
Section 5 of the Act of 1893 is broad enough to include married women and adult single women, as well as minors. As a general thing, it is the province of the legislature to determine what regulations are necessary to protect the public health and secure the public safety and welfare. But inasmuch as sex is no bar, under the constitution and the law, to the endowment of woman with the fundamental and inalienable rights of liberty and property which include the right to make her own contracts, the mere fact of sex will not justify the legislature in putting forth the police power of the State for the purpose of limiting her exercise of those rights, unless the courts are able to see, that there is some fair, just and reasonable connection between such limitation and the public health, safety or welfare proposed to be secured by it. (The People v. Gillson, supra).
Counsel for the people refer to statements in the text books, recognizing the propriety of regulations, which forbid women to engage in certain kinds of work altogether. Thus, it is said in Cooley on Constitutional Limitations, that “some employments * * * may be admissible for males and improper for females, and regulations, recognizing the impropriety and forbidding women engaging in them, would be open to no reasonable objection.” (5th ed. page 745). Attention is also сalled to the above mentioned Act of March 22, 1872, which makes an exception of military service, and provides that nothing in the Act shall be construed as requiring any female to work on streets, or roads, or serve on juries. But, without stopping to comment upon measures of this character, it is sufficient to say that what is said in reference to them has no application to the Act of 1893. That Act is not based upon the theory, that the manufacture of clothing, wearing apparel and other articles is an improper occupation for women to be engaged in. It does not inhibit their employment in factories or workshops. On the contrary, it recognizes such places as proper for them to work in by permitting their labor therein during eight hours of each day. The question here is not whether a particular employment is a proper one for the nse of female labor, but the question is whether, in an employment which is conceded to be lawful in itself and suitable for woman to engage in, she shall be deprived of the right to determine for herself how many hours she can and may work during each day. There is no reasonable ground—at least none which has been made manifest to us in the arguments of counsel—for fixing upon eight hours in one day as the limit within which woman can work without injury to her physique, and beyond which, if she work, injury will necessarily follow. But the police power of the State can only be permitted to limit or abridge such a fundamental right as the right to make contracts, when the exercise of such power is necessary to promote the health, comfort, welfare or safety of society or the public; and it is questionable whether it can be exercised to prevent injury to the individual engaged in a particular calling. The Court of Appeals of New York, in passing upon the validity of an Act “to improve the public health by prohibiting the manufacture of cigars and preparation of tobacco in any form in tenement houses,” etc., has said : “To justify this law it would not be sufficient that the use of tobacco may be injurious to some persons, or that its manipulation may be injurious to those who are engaged in its preparation and manufacture ; but it would have to be injurious to the public health.” (In re Jacobs, supra). Tiedeman, in his work on Limitations of Police Power, says: “In so far as the employment of a certain class in a particular occupation may threaten or inflict damage upon the public or third persons, there can be no doubt as to the constitutionality of any statute which prohibits their prosecution of that trade. But it is questionable, except in the case of minors, whether the prohibition can rest upon the claim that the employment will prove hurtful to them. * * * There сan be no more justification for the prohibition of the prosecution of certain callings by women, because the employment will prove hurtful to themselves, than it would be for the State to prohibit men from working in the manufacture of white lead because they are apt to contract lead poisoning, or to prohibit occupation in certain parts of iron smelting works, because the lives of the men so engaged are materially shortened.” (Sec. 86).
We are also referred to statements made in some of the text books to the effect, that the legislature may limit the hours of labor of women in manufacturing establishments. (Parker & Worthington’s Public Health and Safety, sec. 260; 18 Am. & Eng. Enc. of Law, page 753). These statements appear to be based entirely upon the decision of the Supreme Court of Massachusetts in Commonwealth v. Hamilton Manf. Co.
We cannot more appropriately close the discussion of this branch of the case than by quoting, and adopting as our own, the following words of the New York Court оf Appeals In In re Jacobs, supra: “When a health law is challenged in the courts as unconstitutional on the ground that it arbitrarily interferes with personal liberty and private property without due process of law, the courts' must be able to see that it has at least in fact some relation to the- public health, that the public health is the end actually aimed at, and that it is appropriate and adapted to that end. This we have not been able to see in this law (section), and we must, therefore, pronounce it unconstitutional and void. In reaching this conclusion, we have not been unmindful that the power which courts possess to condemn legislative acts which are in conflict with the Supreme law should be exercised with great caution and even with reluctance. But as said by Chancellor Kent (1 Com. 450): eIt is only by the free exercise of this power that courts of justice are enabled to repel assaults and to protect every part of the government and every member of the community from undue and destructive innovations upon their charter rights.”’
It is furthermore contended by plaintiff in error, that the Act of 1893 is void upon the alleged ground that it contains two distinct subjects, and that both of these are expressed in the title. The two constitutional provisions, which are invoked in favor of this position, are sections 13 and 16 of article 4. Section 13 is as follows : “No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.” Section 16 is as follows : “The General Assembly shall make no appropriation of money out of the treasury in any private law. Bills making appropriations for thе pay of members and officers of the General Assembly, and for the salaries of the officers of the government, shall contain no provision on any other subject.”
The two subjects, alleged to be contained in the Act and expressed in its title, are, first, the general subject of regulating the manufacture of clothing, wearing apparel and other articles, including the requirements as to cleanliness, inspection, employment of minors, keeping of registers of names, ages, residences, etc., appointment of inspectors, fixing their salaries, duties, terms of office, etc., and, second, the appropriation of money for the payment of the salaries of the inspectors. Section 9 of the Act provides that “the Governor shall, upon the taking effect of this act, appoint a factory inspector, at a salary of $1500 per annum, an assistant factory inspector, at a salary of $1000 per annum, and ten deputy factory inspectors, of whom five shall be women, at a salary of $750 per annum each. The term of office of the factory inspector shall be four years, and the assistant factory inspector and the deputy factory inspectors shall hold office during good behavior. Said inspector, assistant inspector and deputy inspectors shall be empowered to visit and inspect, at all reasonable hours, and as often as practicable, the workshops, factories and manufacturing establishments in this State where the manufacture of goods is carried on, and the inspectors shall report, in writing, to the Governor, on the fifteenth day of December, annually, the result of their inspections and investigation, together with such other information and recommendations as they may deem proper; and said inspectors shall make a special investigation into alleged abuses in any of such workshops whenever the Governor shall so direct, and report the result of the same to the Governor. It shall also be the duty of said inspector to enforce the provisions of this act, and to prosecute all violations of the same before any magistrate or any court of competent jurisdiction in the State.” Section 10 provides “that the following named sums, or so much thereof as may be necessary, respectively, for the purpbses hereinafter named, be and are hereby appropriated: First, §20,000 for the salaries of inspector, assistant inspector and the ten deputy factory inspectors, as hereinbefore provided; second, the sum of §8000 to defray traveling expenses and other necessary expenses incurred by said inspector, assistant factory inspector or deputy inspectors while engaged in the performance of their duties, not to exceed §4000 in any one year.”
The general rule is that, where an Act includes two distinct subjects and both are expressed in the title, the whole Act must be treated as void under such a provision as section 13, because it is impossible to choose between the two subjects, and hold the Act valid as to one and void as to the other. (Cooley on Const. Lim. 5th ed. top page 178; Sutherland on Stat. Cons. sec. 103). We are inclined to think that the body of the Act does embrace two subjects. The factory inspectors, provided for in the Act, must be regarded as State officers, or officers of the government.
Section 24 of article 5 of the constitution declares, that ‘fan office is a public position, created by the constitution or law, continuing during the pleasure of the appointing power, or for a fixed time, with a successor elected or appointed.” The duties of the inspectors are continuing, and are prescribed by statute, and not by contract, and some portion of the functions of government are committed to their charge. They seem to come within the definition of “officers,” as given in the constitution, and as laid down in the decisions of this Court. (Bunn v. The People,
The manifest intention of section 16 was to make the subject of appropriations for the pay of the members and officers of the legislature, and for the salaries of the officers of the government, a separate and distinct subject for legislative action. In a bill making appropriations for those objects, every provision is unconstitutional which proposes to do anything besides making such appropriations. (
In order to make the Act void under the constitutional prohibition contained in section 13, the two subjects must not only be contained in the body of the Act, but must also be expressed in its title. We do not think that we would be justified in holding that two subjects or objects are expressed in the title to this Act of 1893. Courts always give a liberal and not a hypercritical interpretation to this restriction. All matters are properly included in the Act, which are germane to the title. The constitution is obeyed, if all the provisions relate to the one subject indicated in the title, and are parts of it, or incident to it, or reasonably connected with it, or in some reasonable sense auxiliary to the object in view. It is not required, that the subject of the bill shall be specifically and exactly expressed in the title, or that the title should be an index of the details of the Act. Where there is doubt as to whether the subject is clearly expressed in the title, the doubt should be resolved in favor of the validity of the Act. An Act to incorporate a city may contain provisions for the raising of revenue for its government. An Act “concerning drainage” may include assessments upon lands benefited to pay the expense. (Suth. on Stat. Cons. secs. 82, 85, 86, 88, 92 to 96; Johnson v. The People,
Here, the main subject or purpose expressed in the title is the regulation of the manufacture of the articles therein named. The appointment of insрectors for the enforcement of such regulation, and the making of “an appropriation therefor,” are germane to the main subject, and a part of it. They merely amplify" the subject, and are incidental and auxiliary to the object contemplated by it. The title of the Act not only does not mention the pay of the legislature and the salaries of the government officers, but it does not mention the salaries of the inspectors. The word, “therefor,” does not necessarily imply that the appropriation is for the salaries of the' inspectors. Non constat, so far as the title expresses to the contrary, that the inspectors were not to act without salaries. The title can well be interpreted as referring to the expenses of enforcing the regulation provided for, such as traveling expenses, the expenses attendant upon gathering information, and making invеstigations, and reporting to the governor, and prosecuting violations of the Act by employing counsel, or otherwise. It does not follow, that “a specific provision for the payment of expenses, necessary, proper, incidental, or growing out of a law itself, or which may be deemed needful in carrying it or its subject into execution, would not be valid, because such a provision, being matter properly connected with the subject of the law as expressed in the title, would not be prohibited by the title.” (
If it were not for section 16, it might be said that the salaries of the inspectors were a necessary expense incidental to the execution of the law, and properly included in the title, though not expressly named therein. But sections 16 and 13 are in the same article of the constitution, and both use the word “subject,” which evidently has the same meaning in each. The question, therefore, whethеr the matter of the salaries of State officers is an independent subject is not a matter of construction, because the constitution itself, by the language used in section 16, defines and sets apart appropriations for such salaries as a subject, which is distinct and separate from all others, and cannot be included in any other. The design of that section was to enable the people to see clearly what and how much compensation their servants are receiving, without being confused by a commingling of outside matters with appropriations therefor.
We are inclined to think, that the second clause of section 10 of the Act, appropriating “twenty thousand dollars for the salaries of inspector, assistant i ispector and ten deputy factory inspectors, as hereinbef ire provided,” is a subject embraced in the Act, which is not expressed in the title, and must therefоre be regarded as void under the provision in the second sentence of section 13. It is true, that the clause only makes an appropriation for the salaries of -one class of State officers, and is not a general appropriation for the pay of the legislature and for the salaries of all the officers of'the government. But it was the intention of section 16, that the salary of each of such officers, as well as of all of them collectively, should be provided for by appropriations in a separate bill, standing by itself and apart frim any provision on any other subject. The mandate of ihe constitution, as embodied in that section, cannot be violated by passing separate bills making separate and distinct appropriations for the salaries of particular officers of the government, or of particular classes of government officers, and embodying in such separate bills previsions on other subjects than the appropriations so mad 5.
Our conclusion is, that section 5 of the Act c f 1893, .and the first clause of section 10 thereof, are vc id and unconstitutional for the reasons here stated. Thsse are the only portions of the Act, which have been attacked in the argument of counsel. No reason has been pointed out why they are not distinct and separable from the balance of the Act. The rule is that, where a part of a statute is unconstitutional, the remainder will not be declared to be unconstitutional also, if the two are distinct and separable so that the latter may stand, “hough the former becomes of no effect. (C., B. & Q. R. R. Co. v. Jones,
The judgment of the Criminal Court of Cook County is reversed, and the cause is remanded to that Court with » directions to dismiss the prosecution.
Reversed and remanded.