any such legislation is an interference with the right of property-the free right of contract between employer and employee has been disposed of and settled by the courts in numerous decisions. Thus says the supreme court of the United States, in Holden v. Hardy, 169 U. S. 366: "The legislature has also recognized the fact, which experience of legislators in many states has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are to a certain extent conflicting. The former naturally desire to obtain as much labor as possible from their employees, while the latter are often induced by the fear of discharge to conform to regulations which their judgment, fairly exercised, would pronounce to be detrimental to their health or strength. In other words, the proprietors lay down the rules, and the laborers are practically constrained to obey them. In such a case self-interest is often an unsafe guide, and the legislature may properly interpose its authority." So we have upon the statute-books numerous requirements looking to the safety, and even the welfare, of employees in different vocations. Protection against the inclemency of the weather for motormen, handrails to stairs, inclosing hoist-shafts, automatic doors to elevators, automatic shifters for throwing off belts and pulleys, fire-escapes on buildings, water supplies in ir. tenement houses, are examples of this class and kind of legislation, which have been pronounced valid by the courts. In People v. Smith, 108 Mich. 527,1 it is well said: "The trouble with these cases arises over the inability of the courts to fix a rigid rule by which the validity of such laws may be tested. Each law of the kind involves the question,-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 1 62 Am. St. Rep. 715. 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 employee, to provide by general law that all employers shall furnish a reasonably safe place and reasonably wholesome surroundings for their employees. 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.) 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 inhalation which invites the action of the commisisoner), 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 any such legislation is an interference with the right of property-the free right of contract between employer and employee has been disposed of and settled by the courts in numerous decisions. Thus says the supreme court of the United States, in Holden v. Hardy, 169 U. S. 366: "The legislature has also recognized the fact, which experience of legislators in many states has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are to a certain extent conflicting. The former naturally desire to obtain as much labor as possible from their employees, while the latter are often induced by the fear of discharge to conform to regulations which their judgment, fairly exercised, would pronounce to be detrimental to their health or strength. In other words, the proprietors lay down the rules, and the laborers are practically constrained to obey them. In such a case self-interest is often an unsafe guide, and the legislature may properly interpose its authority." So we have upon the statute-books numerous requirements looking to the safety, and even the welfare, of employees in different vocations. Protection against the inclemency of the weather for motormen, handrails to stairs, inclosing hoist-shafts, automatic doors to elevators, automatic shifters for throwing off belts and pulleys, fire-escapes on buildings, water supplies in ir. tenement houses, are examples of this class and kind of legislation, which have been pronounced valid by the courts. In People v. Smith, 108 Mich. 527,1 it is well said: "The trouble with these cases arises over the inability of the courts to fix a rigid rule by which the validity of such laws may be tested. Each law of the kind involves the question,-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 1 62 Am. St. Rep. 715. 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 employee, to provide by general law that all employers shall furnish a reasonably safe place and reasonably wholesome surroundings for their employees. 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.) 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 inhalation which invites the action of the commisisoner), 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 to 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 thirty 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 |