NOTES OF RECENT CASES

EIGHT HOUR LAW. (CONSTITUTIONALITY — LABOR IN MINES — UNHEALTHFULNESS — JUDICIAL NOTICE — EVIDENCE) SUPREME COURT OP NEVADA. In the recent case of Ex parte Kair, the Supreme •Court of Nevada upholds the constitutionality of an act (St. 1903, p. 33, c. 10) imposing a penalty upon any one working more than eight hours a •day in any mine, smelter, or mill for the pro duction of ores. The constitutionality of this statute was passed upon a little over one year before in the case of In re Boyce, 75 Pac. i, which was decided only a few days bc-iore People v. Lochner, 177 N. Y. 145, 69 N. E. 373 and State v. Cantwell, 179 Mo. 345, 78 S. W. 569, both of which cases passed upon similar statutes and both of which reached the same conclusion. In the earlier case, it was held that the act in •question is not in conflict with the i4th Amend ment to the Federal Constitution, declaring that no state shall make any law which shall abridge the privileges or immunities of citizens of the United States nor deprive any person of life, liberty, or property without due process of law, nor deny to any person the equal protection of the laws. In reaching this conclusion, it is •conceded that the right to labor for the purpose of acquiring property is an inherent one, which is protected by the Federal Constitution, but it is said that individual rights, however great. are subject to certain limitations necessary for the good of others and of the community and that the public good and the health of a con siderable portion of the population, must out weigh slight inconveniences and restrictions which individuals may suffer. Judicial cognizance is taken of the fact that labor in mines, quartz mills, and smelters is unhealthful so that they may properly be the subject of legislative control. The cases of State v. Holden, 14 Utah 71, 46 Pac. 756; Holder v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383; Short v. Mining Co., 20 Utah 20, 57 Pac. 720; Soon Hing v. Crowley, 113 U.S. 703, 5 Sup. Ct. 730; Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, and Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383, in which similar statutes were upheld, are cited and commented on with appro val. The later case follows the former one and holds in addition that as the statute is sustain able as a valid health regulation within the police power, owing to the fact that prolonged labor in such places is injurious as a matter of common knowledge, evidence that the occupation of a person prosecuted for violation of the statute, was -not injurious, is not admissible.

391

LICENSES.

(PROHIBITIVE IMPOSITIONS) SUPREME COURT OP WASHINGTON. What would seem at first blush to be an almost self-contradictory decision is that involved in Garfinkle v. Sullivan, 80 Pac. Rep. 188. The case arose out of an attack upon the validity of a municipal ordinance requiring peddlers to obtain a license and to pay a license fee amount ing to from $50 to $100. There was evidence which conclusively showed that the license was burdensome under the conditions existing and that peddlers could not afford to engage in the business of peddling and pay the tax required; but it was also shown that there were some eighty persons actually engaged in the business. On this evidence it was contended that the license was invalid because prohibitive. The court con cedes that a municipality cannot, under the guise of a license or a regulation, place the license so high that it is prohibitive of the transaction of the business sought to be regulated; but it is held that the condition shown by the evidence did not necessarily indicate that the license fee was so high as to constitute a prohibition. Upon this point it is argued that a license cannot be said to be prohibitive in amount where it is shown that a hundred men could not pay the license and do the business profitably; and that the same might be said of fifty or twenty-five or any number of men greater than one. The doctrine must, it is said, be restricted to an individual or to the business under the most favorable circumstances divested of the elements of competition, inability, inexperience, and other qualities which might lead to the failure of any business with or without the payment of a license. NUISANCE. (MAINTENANCE OP HEN-HOUSES) SUPREME JUDICIAL COURT OF MASSACHUSETTS. The question whether an ordinary and appar ently well ordered hen-house constitutes a private nuisance comes up for decision for the first time in Wade v. Miller, 73 N. E. Rep. 849. Plaintiff and defendant in that case occupied contiguous estates situated in a village. Plaintiff owned two houses, the one next to defendant's premises being occupied by a tenant. Defendant main tained two hen-houses in which were kept a number of fowls, and plaintiff claimed that the odor from the houses and yard occasionally be came so pungent that, combined with the cack ling of the hens and crowing of the roosters, the house occupied by the tenant was rendered uncomfortable as a place of residence. It was shown that the tenant and members of his family, particularly his wife, who was a nervous invalid, complained that they were disturbed and annoyed