ors and coal-mine inspectors to immedi- | any employer whose employees are on ately notify the superintendent of free- strike or locked out; nor shall such list employment offices of any and all vacan- be exposed where it can be copied or used cies or opportunities for employment that by an employer whose employees are on shall come to their notice. strike or locked out.

"Sec. 5. It shall be the duty of each such superintendent of a free employment office to immediately put himself in communication with the principal manufacturers, merchants, and other employers of labor, and to use all diligence in securing the co-operation of the said employers of labor, with the purposes and objects of said employment offices. To this end it shall be competent for such superintendents to advertise in the columns of daily newspapers for such situations as he has applicants to fill, and he may advertise in a general way for the co-operation of large contractors and employers in such trade journals or special publications as reach such employers, whether such trade or special journals are published within the state of Illinois or not: Provided, that not more than $400.00, or as much thereof as shall be necessary, shall be expended by the superintendent of any one such office for advertising any one year.

"Sec. 6. It shall be the duty of each such superintendent to make report to the State Bureau of Labor Statistics annually, not later than December 1st of each year, concerning the work of his office for the year ending October 1st of same year, together with a statement of the expenses of the same, including the charges of an interpreter when necessary, and such report shall be published by the said Bureau of Labor Statistics annually with its coal report. Each such superintendent shall also perform such other duties in the collection of statistics of labor as the secretary of the Bureau of Labor Statistics may require.

"Sec. 7. No fee or compensation shall be charged or received, directly or indirectly, from persons applying for employment or help through said free employment offices; and any superintendent, assistant superintendent, or clerk, who shall accept, directly or indirectly, any fee or compensation from any applicant, or from his or her representative, shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined not less than $25.00 nor more than

"Sec. 9. The term 'applicant for employment' as used in this act shall be construed to mean any person seeking work of any lawful character, and 'applicant for help' shall mean any person or persons seeking help in any legitimate enterprise; and nothing in this act shall be construed to limit the meaning of the term 'work' to manual occupation, but it shall include professional service, and any and all other legitimate services.

"Sec. 10. No person, firm, or corporation in the cities designated in § 1 of this act shall open, operate, or maintain a private employment agency for hire, or where a fee is charged to either applicants for employment or for help, without first having obtained a license from the secretary of state, which license shall be $200.00 per annum, and who shall be required to give a bond to the people of the state of Illinois, in the penal sum of $1,000.00, for the faithful performance of the duties of private employment agent; and no such private agent shall print, publish, or paint on any sign, window, or newsof the Illinois free employment offices. And paper publication, a name similar to that any person, firm, or corporation violating the provisions of this act, or any part thereof, shall be deemed guilty of a misupon conviction shall be demeanor and fined not less than $50.00 nor more than $100.00.

"Sec. 11. Whenever, in the opinion of the board of commissioners of labor, the superintendent of any free employment office is not duly diligent or energetic in the performance of his duties, they may summon such superintendent to appear before them and show cause why he should not be recommended to the governor for removal, and unless such cause is clearly shown the said board may so recommend. In the consideration of such case an unexplained low percentage of positions secured to applicants for situations and help registered, $50.00 and imprisonment in the county jail tion to the work, or a general inaptitude lack of intelligent interest and applicanot more than thirty days. "Sec. 8. In or inefficiency, shall be considered by said no case shall the superinboard a sufficient ground upon which to tendent of any free employment office created by this act furnish, or cause to be fur- recommend a removal. And if, in the opinnished, workmen or other employees to ion of the governor, such lack of efficiency any applicant for help whose employees are cannot be remedied by reproval and disciat that time on strike, or locked out; nor pline, he shall remove as recommended by shall any list of names and addresses of said board: Provided, that the governor applicants for employment be shown to may at any time remove any superinten

cause.

dent, assistant superintendent, or clerk for | Bluff, 34 Ark. 603; Russellville v. White, 41 Ark. 485; Ft. Smith v. Ayers, 43 Ark. 82; Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77.

"Sec. 12. All such printing, blanks, blank books, stationery, and postage as may be necessary for the proper conduct of the business of the offices herein created shall be furnished by the secretary of state upon requisition for the same made by the secretary of the Bureau of Labor Statistics."

Laws 1899, pp. 268-271.

The statute is one of police regulation. State ex rel. George v. Aiken, 42 S. C. 222, 26 L. R. A. 345, 20 S. E. 221; Price v. People, 193 Ill. 114, 55 L. R. A. 588, 61 N. E. 844.

It certainly cannot be said that the act grants to any corporation, association, or individual any special or exclusive privi

Messrs. Robert N. Holt and H. T. lege, immunity, or franchise; and the act Wilcoxon, for plaintiff in error:

By the provisions of the act those conducting private employment agencies are deprived of their property without due process of law in violation of the 5th Amendment and of the 14th Amendment to the Federal Constitution, and of § 2 of article 2 of the state Constitution.

Rippe v. Becker, 56 Minn. 100, 22 L. R. A. 857, 57 N. W. 331; Darcy v. Allein, 11 Coke, 84b; Cooley, Const. Lim. 4th ed. p. 346; State ex rel. George v. Aiken, 42 S. C. 222, 26 L. R. A. 345, 20 S. E. 221.

is not a special one.

State ex rel. Webster v. Baltimore County, 29 Md. 520; Unity v. Burrage, 103 U. S. 447, 26 L. ed. 405; State v. Berlin, 21 S. C. 292, 53 Am. Rep. 677; Missouri v. Lewis, 101 U. S. 22, sub nom. Bowman v. Lewis, 25 L. ed. 989; Davis v. State, 68 Ala. 58, 44 Am. Rep. 128; Howell v. State, 71 Ga. 224, 51 Am. Rep. 259; Marmet v. State, 45 Ohio St. 63, 12 N. E. 463; State v. Moore, 104 N. C. 714, 10 S. E. 143; Iowa Railroad Land Co. v. Soper, 39 Iowa, 112; Com. v. Hamilton Mfg. Co. 120 Mass. 383.

Magruder, Ch. J., delivered the opinion of the court:

The business of conducting such agencies is one of the ordinary avocations in life in which every citizen who so desires has an inherent and inalienable right to engage, under the spirit of our constitutions and our laws and form of government. Allgeyer v. Louisiana, 165 U. S. 578, 41 hold certain propositions of law submitted L. ed. 832, 17 Sup. Ct. Rep. 427.

The question involved in this case, arising out of the refusal of the trial court to

by the plaintiff in error, is the constitutionality of the "Act to Create Free Employment Offices in Cities of Certain Desig

the statement preceding this opinion.

That portion of § 2 of the act which, after fixing the amount of the salaries to be paid the superintendents, assistant super-nated Populations," etc., as set forth in intendents, and clerks, provides for their payment, is void because in contravention of 16 of article 4 of the Constitution. Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79, 40 N. E. 454.

Messrs. H. J. Hamlin, Attorney General, Charles S. Deneen, and Frank W. Blair, for defendant in error:

Section 8 of the act in question contains the following extraordinary provision: "In no case shall the superintendent of any free employment office created by this act furnish, or cause to be furnished, workmen or other employees to any applicant for help whose employees are at that time on Rights of property, like all other social strike, or locked out; nor shall any list of and conventional rights, are subject to such names and addresses of applicants for emreasonable limitation in their enjoyment ployment be shown to any employer whose as shall prevent them from being injuri- employees are on strike or locked out; nor ous, and to such reasonable restraints and shall such list be exposed where it can be regulations established by law as the leg- copied or used by an employer whose emislature, under the governing and control-ployees are on strike or locked out." ling power vested in them by the Constitution, may think necessary and expedient. Cooley, Const. Lim. 6th ed. 705. A license fee is properly exacted for assisting employers, who need labor or help carrying on a private agency.

Hawthorn v. People, 109 Ill. 308, 50 Am. Rep. 610; Meyers v. Baker, 120 Ill. 567, 60 Am. Rep. 580, 12 N. E. 79; Ward v. Farwell, 97 Ill. 593; Braun v. Chicago, 110 Ill. 186; Com. v. Bearse, 132 Mass. 542, 42 Am. Rep. 450; Bostick v. State, 47 Ark. 129, 14 S. W. 476; Taylor v. Pine

The act purports upon its face to be a means of assisting persons seeking employment to obtain the same, and also of

to obtain the same. And yet § 8 declares
that any employer whose employees are on
a strike or have been locked out shall not,
when applying for help, be furnished any
workmen or other employees. And
only so, but such employers whose work-
men may be on a strike or locked out shall
not be allowed to see any list of names or

not

addresses of applicants for employment. | labor in some productive industry." 2 Starr And not only so, but no such list of appli- & C. Anno. Stat. 2d ed. p. 1807, chap. 48, cants for employment shall be placed where ¶ 28. The superintendent is not only reit can be copied or used by an employer whose employees are on a strike or locked out. Clearly, the exception contained in § 8 makes the act void as a whole, because that section enters into and pervades the whole act, and cannot be separated from it without defeating the intention of the legislature in passing the act.

quired to receive and record the names of applicants seeking employment, but also of applicants seeking help or seeking to employ labor. By the terms of § 4 the superintendent is required to report to the State Bureau of Labor Statistics "the number of applications for positions and for help received." Here, again, the applications of An examination of the different provi- employers for help are treated as being ensions of the act shows that it professes to titled to as much consideration as the applibe for the benefit of employers as well as of cations of employees for positions or places employees. Section 1 provides that free of employment. The lists referred to in § employment offices are thereby created, one 4 are required to show "the number of situin each city of not less than 50,000 popu- ations desired and the number of persons lation, and three in each city containing wanted at each specified trade or occupaa population of 1,000,000 or over, "for tion." Full information is thus obtained, the purpose of receiving applications of and required to be obtained, by these superpersons seeking employment, and applica- intendents, or the persons wanting worktions of persons seeking to employ labor." men, as well as of the persons wanting emIf one of the purposes of creating free employment. Presumably, the needs of the ployment offices is to receive applications employers in this regard cannot be known of persons seeking to employ labor, what to the superintendent without the action of justice can there be in refusing to entertain the employers themselves in giving informathe applications for labor of employers tion of their needs. By § 4, also, factory whose employees may be on a strike or inspectors and coal-mine inspectors are remay be locked out, irrespective of the ques- quired to do all they reasonably can to astion whether or not there is any good rea- sist in securing situations for applicants for son or justifiable cause for the existence work, and it is also made their duty to deof such strike or lockout? By the broad scribe the character of work "and cause of terms of § 8, the employer therein men- the scarcity of workmen, and to secure for tioned is deprived of the right to have any the free employment offices the co-operation workmen furnished to him, or to have any of the employers of labor in factories and list of applicants for employment shown mines." It is also made the duty of such to him, or to have any such list exposed factory inspectors and coal-mine inspectors, where he can possibly make use of it, even by § 4, “to immediately notify the superinthough his employees may have gone out tendent of free employment offices of any upon a strike for no good cause whatever. and all vacancies or opportunities for emA "lockout" has been defined to be the clos- ployment that shall come to their notice." ing of a factory or workshop by an em- It thus appears that the co-operation of the ployer, usually in order to bring the work- employers of labor in factories and mines is men to satisfactory terms by a suspension to be sought. Inspectors of factories and of wages. Even though an employer may mines are required to state the "cause of have had just cause and good reason for the scarcity of workmen," and to give noclosing his factory or workshop, yet even tice "of any and all vacancies or opporin such case he is subjected to the depriva-tunities for employment that shall come to tion enforced by § 8.

their notice." If the scarcity of workmen shall be caused by strikes or lockouts, or if vacancies exist in factories or coal mines by reason of strikes and lockouts, the inspectors are required to give information in regard to the same to these superintendents. Although the free employment offices and their superintendents are located only in cities containing not less than 50,000 population and in those containing a population of 1,000,000 or over, yet the inspectors are required to report to them as to the condition of labor in factories and mines anywhere and everywhere in the state.

In § 3 of the act, "the superintendent of each such free employment office shall receive and record in books kept for that purpose names of all persons applying for employment or help, designating opposite the name and address of each applicant the character of employment or help desired." The superintendent here referred to is to be appointed by the governor, not of his own motion, or in pursuance of his own selection, but upon the recommendation of the state board of commissioners of labor, which consists of five members, three of them "manual laborers," and the remaining By § 5 the superintendent is required "to members "manufacturers or employers of immediately put himself in communication

with the principal manufacturers, mer- | the laborer and of the employer. It is now chants, and other employers of labor, and well settled that the privilege of contractto use all diligence in securing the co-op-ing is both a liberty and a property right. eration of the said employers of labor, with the purposes and objects of said employment offices." Manufacturers and merchants and other employers of labor are thus to be communicated with, and all dili gence is to be used to secure their co-operation in carrying out the purposes and objects of these free employment agencies, and yet such employers are to be deprived of all the benefit to be derived therefrom, if those employed by them happen to be on a strike or to be locked out, whether with or without justifiable cause. By the terms of § 9, "applicant for employment" means "any person seeking work of any lawful character,” and “applicant for help," means "any person or persons seeking help in any legitimate enterprise."

Thus, all the way through the act, the employer seeking men to work for him, and the employee seeking work to do, are placed upon the same footing, and are equally entitled to the benefits of the act in question. Employers, however, are arbitrarily divided into two classes,-one class where a strike or lockout may exist, and another class where no strike or lockout exists. There is no rational basis in law or justice for this distinction, where the language is so broad as to include as well those who have caused the strike or lockout for good reasons as those who have caused such strike or lockout without any good reason. The prohibition contained in § 8 not only affects the class of employers there named, but it also affects the persons seeking employment with whom such employers might otherwise come in contact; that is to say, not only the employers whose men are on a strike or are locked out are affected by the prohibition, but laborers or employees who might desire to fill the places of the employees who are on a strike or are locked out are also affected by it. The applicants for employment are deprived of the privilege of working for the class of employers named in

Liberty includes the right to make and enforce contracts, because the right to make and enforce contracts is included in the right to acquire property. Labor is property. To deprive the laborer and the employer of this right to contract with one another is to violate § 2 of article 2 of the Constitution of Illinois, which provides that "no person shall be deprived of life, liberty, or property without. due process of law." It is equally a violation of the 5th and 14th Amendments of the Constitution of the United States, which provide that no person shall be deprived of life, liberty, or property without due process of law, and that no state shall 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 laws. Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79, 40 N. E. 454; Adams v. Brenan, 177 Ill. 194, 42 L. R. A. 718, 52 N. E. 314; Gillespie v. People, 188 Ill. 176, 52 L. R. A. 283, 58 N. E. 1007; Fiske v. People, 188 Ill. 206, 52 L. R. A. 291, 58 N. E. 985. The provision embodied in § 8 "is a discrimination between different classes of citizens founded on no justifiable ground, and an attempt to exercise legislative power in behalf of certain classes and against other classes, whether laborers seeking work or employers. It falls under the condemnation of the Constitution."

Section 8 draws an unwarrantable distinction between workmen who apply for situations to employers where there is no strike or lockout and workmen who do not so apply, and it also draws an unwarrantable distinction between employers who may have the misfortune to be the victims of a strike or lockout and employers who do not have such misfortune; that is to say, § 8 does not relate to persons and things as a class, or to all employers, but only to those who have not been the victims of strikes or lockouts. "Where a statute does this,where it does not relate to persons or things as a class, but to particular persons or things of a class, it is a special, as distinAn employer whose workmen have left guished from a general, law." Gillespie v. him and gone upon a strike, particularly People, 188 Ill. 176, 52 L. R. A. 283, 58 N. when they have done so without any justi- E. 1007. Judge Cooley, in his work fiable cause, is entitled to contract with Constitutional Limitations, 6th ed. pp. 481, other laborers or workmen to fill the places 483, says: "A statute would not be conof those who have left him. Any workman stitutional which should select seeking work has a right to make a contract particular individuals from a class or lowith such an employer to work for him in cality, and subject them to peculiar rules the place of any one of the men who have or impose upon them special obligations or left him to go out upon a strike. There- burdens, from which others in the same lofore, the prohibition contained in § 8 strikes | cality or class are exempt. Everyat the right of contract, both on the part of one has a right to demand that he be gov

8. That section, therefore, strikes at the interests of applicants for work, and of employers seeking work or labor.

on

erned by general rules, and a special stat- | properly discriminated in favor of agriculute which, without his consent, singles his case out as one to be regulated by a different law from that which is applied in all similar cases would not be legitimate legislation, but would be such an arbitrary mandate as is not within the province of free governments." Gillespie v. People, 188 Ill.sociations of persons combined their capital, 176, 52 L. R. A. 283, 58 N. E. 1007. The conclusion is inevitable that this § 8 is a provision "in aid of strikes and strikers, whether right or wrong, and regardless of the justice of the propriety of the strike or lockout."