State v. Safeway Stores, Inc.

Respondent contended in the lower court that section 3073.1, Revised Codes, interferes with the freedom of contract between employer and employee. In support of that argument, it cited and relied upon, mainly, Lochner v. New York, 198 U.S. 45,25 Sup. Ct. 539, 49 L. Ed. 937, 3 Ann. Cas. 1133. In that case the court was considering a New York statute, which provided that no employees shall be required or permitted to work in bakeries more than sixty hours in a week, or ten hours a day. It is conceded by appellant that that case so held, but it is not admitted that the majority opinion therein now expresses the trend of judicial thought upon this subject, or that it expresses the sound construction of the Constitution, or that that case may be considered as authority in support of respondent's position. (Here follows an extended review of a large number of cases decided by the Supreme Court of the United States involving issues similar to those presented in the instant case, with special reference to freedom of contract between employer and employee, in support of the last statement above.)

We have quoted at considerable length from these opinions, including dissenting opinions, because they seem to set forth sound principles from which there was a departure, at least in application by the supreme court in the Lochner and Adkins (Adkins v. Children's Hospital, 261 U.S. 525,43 Sup. Ct. 394, 67 L. Ed. 785, 24 A.L.R. 123) cases. This was the view of the court in the late case of West Coast Hotel Company v.Parrish, 300 U.S. 379, 57 Sup. Ct. 578, 81 L. Ed. 703, 108 A.L.R. 1330, decided in March, 1937, which expressly overruled the Adkins case. In the last cited case the court said: "``But it was recognized in the cases cited, as in many others, that freedom of contract is a qualified and not an absolute right. There is no absolute freedom to do as one wills or to contract as one chooses. The guaranty of liberty does not withdraw from legislative supervision that wide department of activity which consists of the making of contracts, or deny to government the power to provide restrictive safeguards. Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.' (Chicago, B. Q.R. Co. v. McGuire, 219 U.S. 549, 565,55 L. Ed. 328, 337, 31 Sup. Ct. 259.)" After the decision in this case, we think it may be fairly said that any regulation of wages or working hours of men and women, generally, need not find its justification in the preservation of health and morals but in the adjustment of our economic problems. This case recognizes the fact that in industry the economic condition of the workers and the effect of unemployment on the state and society at large, are of sufficient concern and so intimately related to the general welfare that the state may deal with them through its police power. While the West Coast Hotel Company Case deals specifically with minimum wages, it follows as a matter of course from the views expressed by the court in that case and from the opinions from which we have quoted, that the same principles apply to maximum hours.

Respondent in the court below cited State v. Henry,37 N.M. 536, 25 P.2d 204, 90 A.L.R. 805, in which case an eight-hour law for mercantile establishments was held unconstitutional. That case has no value as an authority because it was decided in 1933, and rested upon the Adkins Case, supra, which, as we have shown, has been expressly overruled by the federal supreme court.

It is claimed that the persons described in the statute in question did not have the equal protection of the laws because the Act is limited to persons in cities over 2,500 in population, and because it does not include other lines of business. In other words, it is claimed the classification is not a reasonable one. We do not think that this ground of objection to the law can be sustained by the authorities. As was said by Chief Justice Hughes in the West Coast Hotel Company Case, supra, the legislature is free to recognize degrees of harm and to confine its restrictions to those classes where the need is deemed to be clearest.

The equal protection clause of the Fourteenth Amendment does not require that all state laws shall be perfect nor that the entire field of proper legislation shall be covered by a single enactment. The state is not required to go as far as it may in establishing a police regulation. (State v. Loomis, 75 Mont. 88,242 P. 344; Rosenthal v. New York, 226 U.S. 260,33 Sup. Ct. 27, 57 L. Ed. 212, Ann. Cas. 1914B, 71.) It is competent for the lawmakers to classify subjects of legislation and to deal differently with the different classes created. Whether the classification is a reasonable one is a matter for legislative determination in the first instance. (State v. Loomis, supra;Hilger v. Moore, 56 Mont. 146, 182 P. 477.) It is also a well-recognized rule that the classification made by the legislature is a reasonable one and that every presumption will be indulged in favor of it. Also the one who attacks it "must assume the burden of showing that there is not any admissible hypothesis upon which it can be justified." (State v. Loomis, supra; Quong Wing v. Kirkendall, 39 Mont. 64, 101 P. 250.) Laws should be judged by concrete conditions rather than by theoretical standards, and territorial limits may be fixed within which the police power may be exerted. (Loomis Case, supra.)

Certain rules have been formulated for the purpose of testing the contention that a law is arbitrary in its classification and consequently denies the equal protection of the laws to those whom it affects. They have been stated by the United States Supreme Court in a number of cases. We call attention toLindsley v. Natural Carbonic Gas Co., 220 U.S. 61,31 Sup. Ct. 337, 55 L. Ed. 369, in that behalf.

That regulation may be based upon the practical necessities determined by the population seems to be well settled. The rule is stated in 12 C.J. 1150, par. 880. That such classification on a population basis is not unconstitutionally discriminatory is well recognized. (Sec. 6 R.C.L. 388, sec. 380; Ft. Smith Light Tract. Co. v. Board of Improvement, 274 U.S. 387,47 Sup. Ct. 595, 71 L. Ed. 1112; Miller v. Wilson, 236 U.S. 373,35 Sup. Ct. 342, 59 L. Ed. 628, L.R.A. 1915F, 829; Radice v. New York,264 U.S. 292, 44 Sup. Ct. 325, 68 L. Ed. 690; Whitney v.California, 274 U.S. 357, 47 Sup. Ct. 641, 71 L. Ed. 1095;Beasley v. Cahoon, (1933) 109 Fla. 106, 147 So. 288; Budd v. New York, 143 U.S. 517, 12 Sup. Ct. 468,36 L. Ed. 247; Quong Wing v. Kirkendall, 223 U.S. 59,32 Sup. Ct. 192, 56 L. Ed. 350; Freeman v. Board of Adjustment, 97 Mont. 342,34 P.2d 534; Mumme v. Marrs, (1931) 120 Tex. 383,40 S.W.2d 31; Town of Lexington v. Govenar, (Mass., 1936)3 N.E.2d 19; Jones v. Russell, (1928) 224 Ky. 390,6 S.W.2d 460, 462; Grossfeld v. Baughman, (1925) 148 Md. 330,129 A. 370; State v. Buer, (1921) 174 Wis. 120, 182 N.W. 855;Ullman Realty Co. v. Tamur, 113 Misc. 538,185 N.Y. Supp. 612; 12 C.J. 1134.) Section 3073.1, Revised Codes, necessarily interferes with the right of contract between employer and employee, concerning the number of hours the latter may labor. As was said by Mr. Justice Peckham in Lochner v. New York, 198 U.S. 45, 25 Sup. Ct. 539,547, 49 L. Ed. 937, 3 Ann. Cas. 1133: "The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution. (Allgeyer v. Louisiana, 165 U.S. 578,17 Sup. Ct. 427, 41 L. Ed. 832.) Under that provision no state can deprive any person of life, liberty, or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right. There are, however, certain powers, existing in the sovereignty of each state in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated, and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals, and general welfare of the public. Both property and liberty are held in such reasonable conditions as may be imposed by the governing power of the state in the exercise of those powers, and with such conditions the 14th Amendment was not designed to interfere."

In the consideration of an enactment passed by the legislature in the exercise of its police power, two standards or tests must be met by the enactment. First, the law must have a legitimate object or purpose. Second, the law must be reasonably designed to accomplish such object or purpose. Included in this last principle is the additional requirement that any classification of persons, occupations and the like upon whom or which the enactment is designed to operate, must be germane to the purpose of the law.

Again quoting Mr. Justice Peckham in the Lochner Case, supra: "We do not believe in the soundness of the views which uphold this law. On the contrary, we think that such a law as this, although passed in the assumed exercise of the police power, and as relating to the public health, or the health of the employees named, is not within that power, and is invalid. The Act is not, within any fair meaning of the term, a health law, but is an illegal interference with the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best, or which they may agree upon with the other parties to such contracts. Statutes of the nature of that under review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual, and they are not saved from condemnation by the claim that they are passed in the exercise of the police power and upon the subject of the health of the individual whose rights are interfered with, unless there be some fair ground, reasonable in and of itself, to say that there is material danger to the public health, or to the health of the employees, if the hours of labor are not curtailed." (See, also, State v. Livingston Concrete etc. Mfg.Co., 34 Mont. 570 (584), 87 P. 980, 9 Ann. Cas. 204.)

Cases from both state and federal courts passing upon the question of constitutionality of statutes limiting hours of labor in private industry are collected in an exhaustive annotation dealing with this subject. (See 90 A.L.R. 814.) Further reference to them at this time would seem to be unnecessary.

The question here is, is the purpose of the enactment the protection of the public health, or the health of the employees included in the terms of the enactment; and second, is the law reasonably designed to accomplish such object, or purpose?

From a reading of the terms of section 3073.1, it is plain that the legislature did not consider this enactment to be a health measure. The terms of the statute do not apply to employees in cities having a population of under 2,500. It applies only to those employed in cities and towns having a population of 2,500, or over. Nowhere in the statute is the slightest intimation that the legislature considered the enactment of the same as necessary for the protection of the health of those employed in the businesses therein regulated. It can hardly be contended that it is more healthful to work in a retail store in a city of less than 2,500 population, but that a person working in the same sort of store in a city of over 2,500 must be limited in the number of hours which he may work for the protection of his health. And from the standpoint of protection of health, which is the only ground upon which this statute may be upheld, what possible difference can it make whether the lessor or lessee dictates the price, kind of merchandise sold, and the hours and conditions of operation of the business? We submit that the real object and purpose of the legislature in the enactment of this law, was simply to regulate the hours of labor between the master and his employees (all being men, suijuris), in a private business, not dangerous in any degree to morals, or in any real and substantial degree to the health of the employees. Under such circumstances the freedom of master and employee to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the federal Constitution. (Lochner Case, supra; State v. Henry, 37 N.M. 536, 25 P.2d 204, 90 A.L.R. 805.)

The state has undoubtedly the power by appropriate legislation to protect the public morals, the public health and the public safety; but, if by their necessary operation its regulations looking to either of those ends amount to a denial to persons within its jurisdiction of the equal protection of the laws, they must be deemed unconstitutional and void. (Connolly v. UnionSewer Pipe Co., 184 U.S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679 (689).)

Equal protection of the laws means subjection to equal laws applying alike to all in the same situation. While reasonable classification is permitted without doing violence to the equal protection of the laws, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the things in respect to which such classification is imposed; such classification cannot be arbitrarily made without any substantial basis. Arbitrary selection cannot be justified by calling its classification. (Southern R. Co. v. Greene, 216 U.S. 400, 30 Sup. Ct. 287,54 L. Ed. 536; Atchison, T. S.F.R. Co. v. Vosburg, 238 U.S. 56,35 Sup. Ct. 675, 59 L. Ed. 1199; Colgate v. Harvey,296 U.S. 404, 56 Sup. Ct. 252, 80 L. Ed. 299, 102 A.L.R. 54; HartfordS.B.I. Ins. Co. v. Harrison, 301 U.S. 459, 57 Sup. Ct. 838,81 L. Ed. 857; Royster Guano Co. v. Virginia, 253 U.S. 412,40 Sup. Ct. 560, 64 L. Ed. 989; Mallinckrodt Chemical Works v.Missouri ex rel. Jones, 238 U.S. 41, 35 Sup. Ct. 671,59 L. Ed. 1192 (1198).)

Section 3073.1, Revised Codes, applies to retail stores in cities and towns having a population of 2,500 or over. Such a classification is arbitrary and has no reasonable and just relation to the act in respect to which the classification is proposed. The purpose of these eight-hour laws is the protection of the public health. The classification has no reasonable relation to the protection of the public health, for it can hardly be contended that it is more healthful to work in a retail store in a city of less than 2,500 population than in a retail store of the same kind in a city of over 2,500. It is an arbitrary selection, made under the guise of classification. In this, it is violative of the equal protection clause of the 14th Amendment to the Constitution of the United States. (Gulf,Colorado Santa Fe Ry. Co. v. Ellis, 165 U.S. 150,17 Sup. Ct. 255, 41 L. Ed. 666; State ex rel. Rankin v. DistrictCourt, 70 Mont. 322, 225 P. 804; John v. Northern P. Ry.Co., 42 Mont. 18, 111 P. 632, 32 L.R.A. (n.s.) 85; Mills v.State Board of Equalization, 97 Mont. 13, 33 P.2d 563; State v. Cudahy Packing Co., 33 Mont. 179,82 P. 833, 114 Am. St. Rep. 804, 8 Ann. Cas. 717.)

In 12 C.J. 1150 it is pointed out that while in certain cases, discriminations as to localities may be sustained, a statute is void as denying the equal protection of the laws where, without any reasonable ground for the discrimination, it places limitations or restrictions on the right to engage in a particular business or occupation in one portion of the state, but not in other portions. (Bessette v. People, 193 Ill. 334,62 N.E. 215, 56 L.R.A. 558.)

Counsel for appellant contend that it is a well-recognized rule that the classification made by the legislature is a reasonable one and that every presumption will be indulged in favor of it. Also that the one who attacks it must assume the burden of showing that there is not any admissible hypothesis upon which it can be justified. The case of Quong Wing v.Kirkendall, 39 Mont. 64, 101 P. 250, is cited in support of this proposition. We wish to direct the court's attention to language used in that case on this subject, and not mentioned by appellant in its brief. The court also said: "The legislature is presumed to have exercised a reasonable discretion in making the classification, and the courts ought not to interfere with the action of this co-ordinate branch of the government, until the plaintiff, upon whom rests the burden of proof, clearly shows that he is denied the equal protection of the laws. * * * Every intendment is in favor of the validity of the legislative action. In other words, the classification is presumed to be reasonable." * * * "If on the face of the measure the classification appears to be arbitrary and unreasonable, or unjust, or no classification at all, a different question is presented." (See, also, generally, Mayflower Farms v. Ten Eyck, 297 U.S. 266,56 Sup. Ct. 457, 80 L. Ed. 675; Barbier v. Connolly, 113 U.S. 27,5 Sup. Ct. 357, 28 L. Ed. 923; Yick Wo v. Hopkins, 118 U.S. 356,6 Sup. Ct. 1064, 30 L. Ed. 220.) A law limiting the hours of labor enacted to promote the health, peace, morals, education or general welfare of the people does not violate the 14th Amendment. (Barbier v. Connolly,113 U.S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923; Soon Hing v.Crowley, 113 U.S. 703, 5 Sup. Ct. 730, 28 L. Ed. 1145; Holden v. Hardy, 169 U.S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780, 791.)

The statute was enacted by the legislature in the exercise of its police power to promote the health and general welfare of the people of Montana. The broad powers of the state to pass regulations for the public welfare have been recognized by this court on many occasions. (Cunningham v. Northwestern Imp.Co., 44 Mont. 180, 119 P. 554; State v. Loomis, 75 Mont. 88,98, 242 P. 344; Herlihy v. Donohue, 52 Mont. 601,161 P. 164, Ann. Cas. 1017C, 29, L.R.A. 1917B, 702.)

The next question presented then is what rule is to be followed in determining whether a statute limiting the hours of labor in private industry is constitutional. In this connection it should be observed that the legislature has regulated the hours of labor in many industries besides retail stores.

Laws have been passed in Montana limiting the hours of labor of hoisting engineers (sec. 3068), jailors (sec. 3070), miners (sec. 3071), smeltermen (sec. 3072), telephone operators (sec. 3074), female employees (sec. 3076), all state and municipal employees (sec. 3079), and railway employees (sec. 3081), which have been in effect for many years.

More recent are Acts limiting to eight hours labor all employees engaged in "strip mining" (chap. 76, Laws 1933), limiting to eight hours labor all employees engaged at cement plants, quarries, and hydroelectric dams (chap. 77, Laws 1933, sec. 3083.1, Rev. Codes 1935), limiting to eight hours labor all employees engaged in or about sugar refineries (chap. 90, Laws 1933, sec. 3083.3), limiting to eight hours labor all drivers or attendants of motor busses (chap. 76, Laws 1935, sec. 3069.1), and providing minimum wages for policemen (chap. 55, Laws 1935, sec. 5108.16; State v. City Council of Helena,102 Mont. 27, 55 P.2d 671.)

The Attorney General has discussed at length the cases decided by the Supreme Court of the United States, relating to the constitutionality of statutes limiting the hours of labor in private industry. However, it is interesting to observe the gradual trend of the cases: In Holden v. Hardy, (1898)169 U.S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780, the supreme court held valid a law fixing an eight-hour day for miners. In Muller v.Oregon, (1908) 208 U.S. 412, 28 Sup. Ct. 324, 52 L. Ed. 551, upholding a law restricting the hours of labor of women in laundries and mechanical establishments. In Hawley v. Walker, (1913) 232 U.S. 718, 34 Sup. Ct. 479, 58 L. Ed. 813, the court in a memorandum decision, upheld a law restricting the hours of labor for women not only in factories and workshops, but also in telegraph offices, millinery and dressmaking establishments and restaurants upon the authority of Muller v. Oregon, supra. InLochner v. New York, (1905) 198 U.S. 45, 25 Sup. Ct. 539,49 L. Ed. 937, a ten-hour law for bakers was held unconstitutional by a five to four decision. Justices Harlan, White, Day and Holmes dissented. In Miller v. Wilson, (1915) 236 U.S. 373,35 Sup. Ct. 342, 59 L. Ed. 628, an eight-hour law for women was upheld which applied to women engaged in mercantile establishments and hotels as well as the other lines mentioned in the statute referred to in Hawley v. Walker, supra. In Bunting v.Oregon, (1917) 243 U.S. 426, 37 Sup. Ct. 435, 61 L. Ed. 830, Ann. Cas. 1918A, 1043, a law covering both men and women in all mill, factory or manufacturing establishments and limiting their hours of labor was upheld, Chief Justice White and Justices Van Devanter and McReynolds dissenting. Next came Adkins v.Children's Hospital, (1923) 261 U.S. 525, 43 Sup. Ct. 394,67 L. Ed. 785, 24 A.L.R. 1238, in which by a five to three decision the court held a minimum wage law unconstitutional. The majority opinion held that to uphold such legislation would widen the field for the operation of the police power to a dangerous degree. Then in Morehead v. New York ex rel. Tijaldo, (1936)298 U.S. 587, 56 Sup. Ct. 918, 80 L. Ed. 1347, 103 A.L.R. 1445, a New York minimum wage law was held invalid, Justices Hughes, Brandeis, Stone and Cardozo dissenting. Finally, in West Coast Hotel Co. v. Parrish, (1937) 300 U.S. 379,57 Sup. Ct. 578, 81 L. Ed. 703, 108 A.L.R. 1330, Adkins v.Children's Hospital, supra, was overruled, Justices Sutherland, Van Devanter, McReynolds and Butler dissenting.

From these decisions it is apparent that the only question is whether or not a regulatory measure is reasonable and has a reasonable relation to a proper legislative purpose.

The Constitution must be interpreted in the light of changes in economic conditions. (Holden v. Hardy, 169 U.S. 366,18 Sup. Ct. 383, 42 L. Ed. 780; Euclid v. Ambler Realty Co.,272 U.S. 365, 47 Sup. Ct. 114, 71 L. Ed. 303.)

The legislature could properly consider the effect of unemployment in passing the statute to promote the general welfare. That it recognized the existence of an emergency is readily to be seen from reading the laws passed at the Extraordinary Session of 1933-34 session. (See Chapters 17, 20, 22, 24, 35; also, Chapters 95, 96 and 109, Laws of 1935, when the emergency still existed, and Chapter 85, Laws of 1937, that condition still existing.)

That the relieving of unemployment is entitled to consideration is supported by the language of the court in WestCoast Hotel Co. v. Parrish, supra. (See, also, Nebbia v.New York, 291 U.S. 502, 54 Sup. Ct. 505, 78 L. Ed. 940, 89 A.L.R. 1469.)

In view of the trend of judicial authority, it is respectfully submitted that the liberty with which the respondent claims the Act interferes, is subject to the statute in question passed as a reasonable regulation in the interests of the state as a whole. Whether passed in an attempt to adjust unemployment and create more jobs as well as in the interests of employees, it was designed to promote the general welfare.

The legislature has power to make classifications not subject to review by the courts unless palpably arbitrary. (Hilger v.Moore, 56 Mont. 146, 182 P. 477; Quong Wing v.Kirkendall, 39 Mont. 64, 70, 101 P. 250; State v. HammondPacking Co., 45 Mont. 343, 123 P. 407; Cunningham v. Northwestern Imp.Co., 44 Mont. 180, 119 P. 554; State v. McKinney, 29 Mont. 375,74 P. 1095; City of Butte v. Paltrovich, 30 Mont. 18,75 P. 521, 104 Am. St. Rep. 698; State v. Loomis, 75 Mont. 88,97, 242 P. 344.)

Classifications based on differences in population are reasonable. (Radice v. New York, 264 U.S. 292,44 Sup. Ct. 325, 68 L. Ed. 690; Packard v. Banton, 264 U.S. 140,44 Sup. Ct. 257, 68 L. Ed. 596; Miller v. Wilson, 236 U.S. 373,35 Sup. Ct. 342, 59 L. Ed. 628; Hayes v. State of Missouri,120 U.S. 68, 7 Sup. Ct. 350, 30 L. Ed. 578; Stettler v. O'Hara,69 Or. 519, 139 P. 743, 749, Ann. Cas. 1916A, 217, L.R.A. 1917C, 944 (affirmed without opinion 243 U.S. 629, 37 Sup. Ct. 475,61 L. Ed. 937); State v. Ehr, 57 N.D. 310, 221 N.W. 883; People v. Elerding, 254 Ill. 579, 98 N.E. 982, 985, 40 L.R.A. (n.s.) 893; Dominion Hotel v. Arizona, 249 U.S. 265,39 Sup. Ct. 273, 63 L. Ed. 597, 598; Lindsley v. Natural Carbonic Gas Co.,220 U.S. 61, 31 Sup. Ct. 337, 55 L. Ed. 369.) The state has appealed from an order sustaining a demurrer to an information and challenges the correctness of the trial court's ruling.

The information charges a violation of section 3073.1, Revised Codes, which provides as follows: "A period of eight (8) hours shall constitute a day's work and a period of not to exceed forty-eight (48) hours shall constitute a week's work in all cities and towns having a population of twenty-five hundred (2500) or over, for all persons employed in retail stores, and in all leased businesses where the lessor dictates the price, also kind of merchandise that is sold, and the hours and conditions of operation of the business, all persons employed in delivering goods sold in such stores, all persons employed in wholesale warehouses used for supplying retail establishments with goods, and all persons employed in delivering goods to retail establishments from such wholesale warehouses."

The defendant was charged with having worked one of its employees for more than eight hours in one day in a retail store in a city having a population in excess of 2,500 persons. The demurrer was on the ground that the information did not state a public offense. The court's ruling thereon presents the main assignment of error.

Defendant asserts that this court is without authority to[1] consider the appeal because the state has failed to furnish a proper record, and that the time for preparing such a record has passed. The transcript consists of the information, demurrer, ruling on demurrer, notice of appeal, copy of minute entries and certificate of the clerk. In this respect we are confronted with practically the same record that was before the court in the case of State v. Libby Yards Co., 58 Mont. 444, 193 P. 394. The court decided in that case that it was without authority to consider the appeal because it had not been perfected in accordance with the mandatory provisions of the then controlling section 9347, Revised Codes of 1907, requiring that the information, demurrer, and ruling thereon be presented in a bill of exceptions duly settled and allowed. That statute purported to outline the only method of appeal in a criminal case. The year following that decision, the section was amended, and as amended has been carried forward into our present Code as section 12045, reading in part as follows: "The record on appeal in a criminal case shall consist of the judgment-roll as defined in section 12074 of this code, a copy of the notice of appeal and all bills of exceptions settled and filed in the case." (See State v.Nilan, 75 Mont. 397, 243 P. 1081.) To the effect that an order[2] sustaining a demurrer constitutes a judgment, see section 11901, Revised Codes; State v. Atlas, 75 Mont. 547, 549,244 P. 477; State v. Libby Yards Co., supra; State v. Nilan, supra.

It is at once obvious from the record that all the papers enumerated by section 12074, supra, as constituting the judgment roll, are now before this court with the exception of "charges given or refused, and the indorsements thereon." The cause having reached only the demurrer stage, such papers necessarily would not be in existence. For the same reason bills of exceptions, as contemplated by section 12042, Revised Codes, were not settled.

Finally, section 12041, Revised Codes, provides that no exception need be taken to the court's ruling on demurrer (sec. 12038, Id.), and, therefore, a bill of exceptions on that point would serve no purpose where the demurrer and ruling thereon are already included as part of the judgment roll.

We can understand the result reached in State v. LibbyYards Co., supra, under section 9347, Revised Codes of 1907, as it then read, but cannot reconcile the decision with that section as it reads today (sec. 12045, Rev. Codes). State v.Carmichael, 62 Mont. 159, 204 P. 362, however, in so far as it purports to follow the view of the Libby Case, supra, is inexplainable in view of the fact that it was decided after the statute upon which the Libby Case was predicated, had been amended.

To say that this appeal can only be presented by a bill of exceptions would do violence to the plain meaning of section 12045, supra, which, construed with section 12074, would seem to contemplate such a bill only when same had of necessity been settled. The suggested procedure would be an idle act (sec. 8761, Rev. Codes), which, if required, would in effect add nothing to the record but the signature of the trial judge.

The important question for review is the constitutionality of[3] section 3073.1, Revised Codes, under the Fourteenth Amendment to the United States Constitution, and section 27 of Article III of the Constitution of the state of Montana.

Section 3073.1 was enacted at the Extraordinary Session of the Legislature of 1933-34, as section 1 of Chapter 8, page 37. The enactment was in conformity with a specific recommendation of the Governor as contained in his proclamation convening the session.

At the regular legislative session of 1935, a proposed constitutional amendment was submitted to the qualified electors to be voted upon at the general election of 1936. The amendment related to section 4, Article XVIII of the Constitution of Montana, having to do with the general subject of labor (see Chapter 172, Laws of 1935, p. 352). The amendment was adopted by the people and reads as follows: "A period of eight hours shall constitute a day's work in all industries, occupations, undertakings and employments, except farming and stock raising; provided, however, that the Legislative Assembly may by law reduce the number of hours constituting a day's work whenever in its opinion a reduction will better promote the general welfare, but it shall have no authority to increase the number of hours constituting a day's work beyond that herein provided."

Thus the public policy of the state was expressed by the people in official manner. The amendment became a part of the Article dealing with labor. By virtue of section 5 of that Article the legislature is directed to provide for the enforcement of the provisions thereof by appropriate legislation.

The section did not attempt to set up methods of enforcement, or provide penalties for violation thereof. We are not here called upon to decide whether the provision is self-executing. The information was drawn under section 3073.1, supra, though the charged violation occurred after the adoption of the constitutional amendment. Counsel for both sides stated that in their view the amendment is without controlling effect upon the constitutional questions involved here. We concur in that view, but do ascribe to it some significance in the sense that it served to disclose the existence of a public purpose or policy of the state.

Defendant takes the position that the statute infringes the[4] liberty of contract between employer and employee concerning working hours, and deprives it of property without due process of law, and that it is denied the equal protection of the laws by reason of an arbitrary discrimination in the guise of reasonable classification. In disposing of these contentions, we must do so in the light of the well-established rule that every possible presumption must be indulged in favor of the constitutionality of the Act. (State ex rel. Sparling v.Hitsman, 99 Mont. 521, 526, 44 P.2d 747; State ex rel. Du Fresne v. Leslie, 100 Mont. 449, 454, 50 P.2d 959, 101 A.L.R. 1329.)

We enter upon a discussion of the question aided by exhaustive briefs of counsel and amici curiae, as to the history of minimum wage and maximum hour decisions of the United States Supreme Court and of the various states.

The law was passed by the legislature in the exercise of the[5] sovereign police powers inherent in state governments. For a discussion and illustration of such powers, see Cunningham v.Northwestern Improvement Co., 44 Mont. 180, 206, 119 P. 554;State v. Loomis, 75 Mont. 88, 98, 242 P. 344; Herlihy v.Donohue, 52 Mont. 601, 610, 161 P. 164, Ann. Cas. 1917C, 29, L.R.A. 1917B, 702; Freeman v. Board of Adjustment, 97 Mont. 342,34 P.2d 534. Whether it was designed to promote specifically order, safety, health, morals, public prosperity, or simply the general welfare of the state, does not appear by way of preface to the Act or anything expressly contained therein. Just what the exact object was can only be deduced from the existing conditions under which the Act was passed, and the events transpiring thereafter — all in the light of the constitutional powers of the legislative branch of the government.

The law was passed, as observed above, at the extraordinary session of the legislature of 1933-34. The Governor in his proclamation recited that a nation-wide depression had created a serious emergency in the state, due to a wide-spread unemployment, and detailed many reasons necessitating a special session to meet the emergent conditions. (Twenty-third Legislative Assembly, Extraordinary Session 1933-34, p. 1.) One of the recommendations to the legislature was: "To enact a law limiting the hours of labor."

While we do not know the exact reasons that dictated the law in its particular form and scope, it is clear that in pursuance of one of the express purposes of the special session, the manifest intent of the law was to make eight hours a regular day's labor for employees in retail stores and certain kindred occupations in cities having a population of 2,500 or over.

No one can say positively whether the Act was passed in an attempt to adjust unemployment by creating more jobs, to promote health, or whether it was simply for the general prosperity and welfare of the state as a whole. The object may well have been a combination of all such purposes. We are not called upon to say precisely what the object really was, so long as any of these purposes might reasonably have been accomplished by the Act. The problem was squarely met by the Supreme Court of the United States in Bunting v. Oregon, 243 U.S. 426, 37 Sup. Ct. 435,437, 61 L. Ed. 830, Ann. Cas. 1918A, 1043, which is particularly apt here, in view of the fact that it dealt with a maximum hour law relating to the employment of both men and women in mills, factories, and manufacturing establishments. There it was said: "But we need not cast about for reasons for the legislative judgment. We are not required to be sure of the precise reasons for its exercise or be convinced of the wisdom of its exercise. (Rast v. Van Deman Lewis Co., 240 U.S. 342, 365,36 Sup. Ct. 370, 60 L. Ed. 679, L.R.A. 1917A, 421 [Ann. Cas. 1917B, 455].) It is enough for our decision if the legislation under review was passed in the exercise of an admitted power of government; and that it is not as complete as it might be, not as rigid in its prohibitions as it might be, gives, perhaps, evasion too much play, is lighter in its penalties than it might be, is no impeachment of its legality. This may be a blemish, giving opportunity for criticism and difference in characterization, but the constitutional validity of legislation cannot be determined by the degree of exactness of its provisions or remedies. New policies are usually tentative in their beginnings, advance in firmness as they advance in acceptance. They do not at a particular moment of time spring full-perfect in extent or means from the legislative brain. Time may be necessary to fashion them to precedent customs and conditions, as they justify themselves or otherwise they pass from militancy to triumph or from question to repeal."

Defendant contends that there is no legitimate object in the law justifying the exercise of the police power, and it is particularly challenged as having no reasonable relation to the health of those within the purview of the statute. There are no facts before us supporting the contention, and against it is the judgment of the legislature exercised at the time and the judgment of the people themselves later voiced in their approval of the constitutional amendment of 1936, declaring a general state policy in the matter of an eight-hour day in all occupations and fields of endeavor other than farming and stock raising.

By means of the amendment a general policy of the state was declared, and that, in the light of the economic conditions prevailing at the time the law was enacted, is a persuasive factor in the matter of the constitutionality of the Act. The United States Supreme Court, in Nebbia v. New York,291 U.S. 502, 537, 54 Sup. Ct. 505, 516, 78 L. Ed. 940, 89 L.R.A. 1469, correctly stated the reason behind this type of legislation, as follows: "So far as the requirement of due process is concerned,[6] and in the absence of other constitutional restriction, a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare such policy, or, when it is declared by the legislature, to override it. If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio."

The same court further voiced its approval of the technique applied in the Nebbia Case, supra, in the more recent case ofWest Coast Hotel Co. v. Parrish, 300 U.S. 379,57 Sup. Ct. 578, 585, 81 L. Ed. 703, 108 A.L.R. 1330. While that case dealt with a minimum wage law, the language throughout the decision is impelling to the effect that the principles there announced are equally applicable to maximum hour regulation The court, in dealing with the powers of the legislature, said: "The legislature had the right to consider that its minimum wage requirements would be an important aid in carrying out its policy of protection. The adoption of similar requirements by many states evidences a deep-seated conviction both as to the presence of the evil and as to the means adapted to check it. Legislative response to that conviction cannot be regarded as arbitrary or capricious and that is all we have to decide. Even if the wisdom of the policy be regarded as debatable and its effects uncertain, still the Legislature is entitled to its judgment." The court[7] made further observations as to how it could take judicial notice of current economic conditions, which principles we think are likewise applicable to maximum hour regulation, as was recognized by Chief Justice Taft in his dissenting opinion inAdkins v. Children's Hospital, 261 U.S. 525, at page 564,43 Sup. Ct. 394, 403, 67 L. Ed. 785, 24 A.L.R. 1238, wherein he said: "One is the multiplier and the other the multiplicand." And as was also recognized in a dissenting opinion by Justice Holmes in the same case (261 U.S. 525, at page 569) to the effect that "the bargain is equally affected which ever half you regulate."

In view of these precedents we are unable to say that[8] defendant has been deprived of either liberty to contract or property without due process of law. That liberty is necessarily subordinate to reasonable restraint and regulation by the state in the exercise of its sovereign prerogative — police power. Chief Justice Hughes, in the West Coast Hotel Case, supra, very ably defined liberty as contemplated and safeguarded by the Fourteenth Amendment, as follows: "What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process. This essential limitation of liberty in general governs freedom of contract in particular. More than twenty-five years ago we set forth the applicable principle in these words, after referring to the cases where the liberty guaranteed by the Fourteenth Amendment had been broadly described. ``But it was recognized in the cases cited, as in many others, that freedom of contract is a qualified, and not an absolute, right. There is no absolute freedom to do as one wills or to contract as one chooses. The guaranty of liberty does not withdraw from legislative supervision that wide department of activity which consists of the making of contracts, or deny to government the power to provide restrictive safeguards. Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.' (Chicago, B. Q.R. Co. v. McGuire,219 U.S. 549, 565, 31 Sup. Ct. 259, 55 L. Ed. 328 [337].)"

Defendant also contends that it has been deprived of the equal protection of the laws. It is argued that the statute constitutes arbitrary discrimination rather than reasonable classification. It must be remembered that in the matter of classification, the[9] legislature enjoys broad discretion and is not required to go as far as it might in enacting a law. The question of classification is primarily for the legislature. The presumption is that it acted on legitimate grounds of distinction, if any such grounds existed. (6 R.C.L., sec. 376, p. 364; State v.Loomis, supra; Hilger v. Moore, 56 Mont. 146,182 P. 477.)

The constitutional safeguard against unjust discrimination in[10, 11] legislation of this type is well defined by the decisions everywhere, and that is, that the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. (Mills v. State Board ofEqualization, 97 Mont. 13, 31, 33 P.2d 563.)

It must be noted that there are no facts or record before this court throwing any authenticated light on the question. We have the statute, coupled with the judicial notice which we may take of the economic conditions prevailing at the time of its enactment. These conditions still persisted in 1935 when the legislature submitted the general eight-hour day amendment to the people for approval, and they were still existent at the time the amendment was adopted.

What a court may think as to the wisdom or expediency of the legislation is beside the question and does not go to the constitutionality of the statute. We must assume that the legislature was in a position and had the power to pass upon the wisdom of the enactment, and in the absence of an affirmative showing that there was no valid reason behind the classification, we are powerless to disturb it. As was said in the case ofMissouri, R. T.R. Co. v. May, 194 U.S. 267, at page 269,24 Sup. Ct. 638, 639, 48 L. Ed. 971: "When a state legislature has declared that, in its opinion, policy requires a certain measure, its action should not be disturbed by the courts under the 14th Amendment, unless they can see clearly that there is no fair reason for the law that would not require with equal force its extension to others whom it leaves untouched."

Approaching the question in this manner, as we must, we cannot say that the classification was not justified. It must be presumed that the legislature had all of the particular and controlling facts before it when it made the classification of cities to be affected by the Act on the basis of population. (6 R.C.L., sec. 380, p. 388; Radice v. New York, 264 U.S. 292,44 Sup. Ct. 325, 68 L. Ed. 690.) On this phase of the question we[12] again quote with approval from the West Coast HotelCase, supra, wherein the court said: "This Court has frequently held that the legislative authority, acting within its proper field, is not bound to extend its regulation to all cases which it might possibly reach. The legislature ``is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be clearest.' If ``the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.' There is no ``doctrinaire requirement' that the legislation should be couched in all embracing terms. [Citing cases.]" (See, also, State v. Loomis, 75 Mont. 88, at page 95, 242 P. 344.)

We are not impressed with the contention that the statute is[13] too indefinite to be enforceable. When section 3073.1 is read in connection with the two sections immediately following it, one of which provides the penalties for violation of the Act, and the other providing for certain exceptions, the meaning of the statute and intent of the legislature are too plain to admit of doubt.

For the foregoing reasons, our conclusion is that the statute is constitutional under the Fourteenth Amendment to the Constitution of the United States. The same principles and authorities likewise lead to the conclusion that the statute is not in conflict with section 27, Article III, of our state Constitution.

The order sustaining the demurrer is reversed and the cause remanded for further proceedings in the district court.

MR. CHIEF JUSTICE SANDS and ASSOCIATE JUSTICES ANDERSON, MORRIS and ANGSTMAN concur.