signing such name to the writ, pro ess and pleadings, not only violated the provisions of this section of the Code and became liable for the penalties therein provided for, but he enabled Hummel to evade the order disbarring him by arranging to perpetrate his trade name and continue his business. He now claims that he is protected by the Partnership Law and the notice which he has filed. Under selecting a name under which he proposed to carry on the practice of the law, he could not thereby evade or nullify the provisions of that section, nor could he nullify the order of the court by arranging to do for Hummel in his name that which the court has prohibited him from doing himself. The defendant has not shown himself to be a partner, an assignee or an appointee of the firm of Howe & the provisions of the Partnersnip Law business may Hummel, within the requirements of the Partnerbe conducted under a firm name. Section 20 pro-ship Law, and he is not now in a position in which vides that "the use of a partnership or business he can acquire such a right. Howe being dead, name may be continued in either of the following nothing can be acquired from him; Hummel being cases: 1. Where the business of any firm or partner- disbarred, he cannot practice or authorize others ship in this State which has transacted to do so for him or on his account in his or the business in this State for not less than three years, firm's name. We therefore conclude that as to the continues to be conducted by some or any of the last charge the conviction must be sustained and partners, their assignees or appointees" (L. 1897, the order affirmed, with costs. chap. 420). Section 363b of the Penal Code provides that no person or persons shall hereafter carry on or conduct or transact business in this State under any assumed name or under any designation, name or style, corporate or otherwise, other than the real name or names of the individual or individuals conducting or transacting such business, unless such person or persons shall file in the office of the clerk of the county or counties in which such person or persons conduct, or transact, or intend to conduct or transact such business, a certificate setting forth the name under which such business is or is to be conducted or transacted, and the true or real full name or names of the person or persons conducting or transacting the same, with the post office address or addresses of said person or persons." It is suggested that the practice of the law by an attorney or a law firm is not a business, and, consequently, is not brought within the provisions of these statutes. It is quite true that the profession of the law is not regarded as a business in a commercial sense, but the organizing of a firm or copartnership and the selecting of a firm name, the practice of the profession thereunder and the establishing of a reputation and all that pertains thereto give it the character of business, and it may be that these statutes apply to copartnerships among attorneys in so far as is consistent with their duties to their clients and to the courts under their oaths of office and the provisions of the Code with reference to the practice of the profession in their own name or that of a copartnership to which they be long. But we are inclined to the view that the Partnership Law and the provisions of the Penal Code alluded to must be read in connection with the provisions of section 72 of the Code of Civil Procedure, to which we have already referred; and, therefore, when the defendant undertook to file a certificate under the provisions of the Penal Code, CULLEN, Ch. J.; VANN, WERNER and CHASE, JJ., :0: The Law and Industrial Inequality. By George W. Alger, of New York. Has the State ever a clear duty to lend a hand to aid those who are obviously at a disadvantage in struggling with the forces of modern industry? Under our fundamental law and the principles declared in our Constitution, can our Legislatures and Courts recognize not only the facts of existing industrial inequality between men, but a duty to protect by law framed to meet new conditions the weaker against the stronger? When individual action alone cannot secure equalization of the conditions of competition, and where that failure is resulting in misery and distress, may the law intervene to protect the weaker from the tyranny of the strong? Are the handicaps of life to be questions solely for the individual, or are they at times and under special circumstances to be questions for the State itself to grapple with, and if not to solve, at least to create conditions under which the individual may solve them for himself? These are difficult questions which our Courts with increasing frequency are being asked to answer when required to determine the validity of laws which our Legislatures and Congress are yearly enacting, laws regulating or fixing the conditions under which industry shall be carried on; limiting the hours of labor of women and children as well as men in overcompetitive employments; laws aimed to reduce unnecessary dangers to life and limb in dangerous trades or dangers to health in unhealthful occupations; laws which, by increasing the employer's responsibility, seek to urge him to new diligence in the protection of his employes; laws which in a multi- individual fortune, the interests of the State were tude of ways aim to control or regulate as special necessity may dictate the processes of industry, to remove conditions which press too heavily upon the overburdened, and which uncontrolled, sap vitality and destroy or shorten life. The general problem which these questions raise and which involves both the power and the duty of the State would seem to have been answered in all the great civilized countries of the world but ours in the affirmative. Many of these questions were settled in European countries long ago. Economic conditions which gave them urgency earlier in the Old World have more recently come to us and the form of the problem which these new conditions have raised as it is presented to our country is-How far may the Legislatures go in enacting laws aimed at conditions of industrial inequality under the limitations of the law of the land? Our fundamental law has for one of its principles that of equality-that before the law, men are equal in rights, privileges and legal capacities. It has for another principle, individual freedom, the rights of the individual uncontrolled by any arbitrary trammels of the State, to pursue any proper calling and to contract with others in relation to that calling. The liberty to pursue such calling is a property right, is a part of the liberty and property which shall not be taken away with due process of law. History would seem to show that for the first sev enty-five years at least of our national life individual liberty was the dominant note. We were opening a new world. In it there were apparently innumerable opportunities for individual enterprise and initiative. Our national life began, moreover, with greater in dustrial equality than had before existed in any other country. The industrial revolution had not yet begun when American independence was declared. We were then an agricultural people for England, hoping to keep us a market for her manufactures, had forbidden the export of machinery to her colonies. The spinning machinery of Arkwright was not brought to us until after the war. The power loom was not invented until 1875. There was not a factory in the United States when the Constitution was adopted. The artisan was his own master and worked with his own tools or on simple machinery which by moderate savings he himself might own. There were no great fortunes in the modern sense, no great corporate organizations of wealth, no factory system. Is it to be wondered at, that beginning thus with such a marked general condition of industrial independence, amid a wealth of natural opportunities for personal success, our law should for so long have kept dominant the idea of individual personal freedom? Is it strange that in the pursuit of often neglected, or that opportunities for unjust advantage conferred by unjust law on the few or seized by them in spite of law, failed to receive general public interest among citizens too much ab sorbed in their own personal affairs to be aroused by the abuse of the powers of the State? With the passage of time, however, with the industrial changes which have made an agricultural colony a power in the markets of the world, have come changes in our attitude towards the law, changes produced largely by economic variations. The modern note is not simply individual freedom; it is social freedom; not freedom from law, but freedom by law-and in that freedom equality of opportunity. Along with the tardy legislation which aims through law to repair the oversights and blunders of the past and restore so far as may be that equality of opportunity which seeks to take away privilege and unjust enrichment, to prevent transportation discriminations and to reduce the advantages in competition of fraud over honesty, comes legislation of another kind which aims at the industrial welfare of the many by limiting the individual freedom of the few; by imposing new duties on the strong for the protection of the weak. The greater part of this protective legislation must find its justification, if at all, before the Courts, through the police power. The old theory of legal equality based upon the existence of industrial equality, finds itself in conflict with the facts of life. Unless the State must admit itself powerless to deal with new conditions of modern society, authority must be found in the police power to meet their demands for law. The constant expansion of that power in the last fifteen years as expressed in legislative enactments and in the increased bulk of decisions sustaining these enactments, seems to indicate an almost conscious purpose of society, constrained by its own necessities to limit the range of individual freedom. This growth of the police power is one of the marked features of modern American law. It is with great wisdom that the courts have refrained from defining the police power lest it crystallize by definition and lose its capacity to expand. In it is contained the reserved right of the State to preserve its own growth, to make provisions for new conditions as they appear. It is the law which must find its authority in the needs of the present and not solely in the traditions of the past. It is because that law is so obviously in a state of evolution that the Courts have refused to say where the constitu tional boundaries limiting its exercise are to be fixed. As a part of the expansion of the police power the to demand and receive his unpaid wages in money rather than in something less valuable. Its tendency, though slight it may be, is to place the employer and employe upon equal ground in the matter of wages, and so far as calculated to accomplish that end deserves commendation." Courts have declared in a number of cases the right of the Legislature to enact laws not only for health, safety or morals of the general public, but for the protection of individuals whose condition gives them special need of legal protection or whose individual freedom has lost in a measure its reality through economic pressure. Industrial inequality is being How great the industrial inequality must be, how recognized as a justification for the exercise of the far the worker must be unable to protect himself to police power in aid of the health, safety and well justify police legislation for his betterment, are still being of citizens suffering from its burden. In open questions. But the Courts have declared that Holden v. Hardy (169 U. S. 366), the case in which the State may act to protect women and children the United States Supreme Court upheld the con- against excessive labor (Wenham v. State [Neb.], stitutionality of the Utah Eight-Hour Law for un- 91 W. W. 421; Commonwealth v. Hamilton Mfg. Co., derground miners, the Court, after considering at 120 Mass. 383; State v. Buchanan, 29 Wash. 602); some length the conditions injurious to the health that it may provide regulations for greater safety in the miner's occupation, observes: and comfort of factory and railway employes (Peo"The Legislature has also recognized the fact ple v. Smith, 108 Mich. 527; State v. Whitaker, 160 which the experience of many Legislatures in many Mo. 59; State v. Nelson, 52 Ohio St. 88); that it States has corroborated, that the proprietors of these may change the common law and take away defenses establishments and their operators do not stand in actions for personal injuries which heretofore exupon an equality, and that their interests are, to a isted (Ryan v. Mackey, 127 U. S. 205; Tullis v. Ry. certain extent, conflicting. The former naturally Co., 175 U. S. 348; Minn. Iron Co. v. Kline, 199 U. desire to obtain as much labor as possible from S. 593); that it may in certain cases limit the hours their employes, while the latter are often induced of labor of men (in mines In re Boyce [Nev.], 75 by fear of discharge to conform to regulations which P. Rep. 1; State v. Cantevelle, 179 Mo. 245; on their judgment, fairly exercised, would pronounce to street railways: 24 R. I. 603); that it may regulate be detrimental to their health or strength; in other to a certain extent the terms and conditions under words, the proprietors lay down the rules and the which employes shall be paid for their services, and laborers are practically constrained to obey them. | prescribe how they shall be paid (Knoxville Iron In such cases self-interest is often an unsafe guide | Co. v. Harbison, 183 U. S. 13; St. Louis, etc., Ry. and the Legislature may properly interpose its Co. v. Paul, 173 U. S. 404; Wilson v. State, 61 Kan. authority. The fact that both parties are of full age and competent to contract does not necessarily deprive the State of the power to interfere where the parties do not stand upon an equality or where the public health demands that one party to the contract shall be protected against himself. The State still retains an interest in his welfare, how ever reckless he may be. The whole is no greater than the sum of all the parts, and when the indi vidual health, safety and welfare are sacrificed or neglected the State must suffer." The same Court more recently in Knoxville Iron Company v. Harbison (183 U. S. 13), was called upon to test the validity under the Fourteenth Amendment of the Act of Tennessee requiring the redemption in cash of store orders or other evidences of indebtedness issued by employers in payment of wages due employes. In upholding the law the Court quoted with approval the decision of the Supreme Court of Tennessee: "The Legislature evidently deemed the laborer at some disadvantage under existing laws and customs, and by this act undertook to ameliorate his condition in some measure by enabling him or his bona fide transferee at his election, and at a proper time 32; Hancock v. Yaden, 121 Ind. 366). That there is often great disagreement between judges as to the limits the police power in protective or regulative legislation of this kind, goes without saying. The State Courts often flatly contradict one another. both as to their own powers and as to the policy of the Courts. Compare, for example, People v. Hav nor (149 N. Y. 195), upholding a Sunday closing law for barbers, with Ex Parte Jentzsch (112 Cal. 468), both cases being decided in same year 1896. The California Courts indignantly repudiate any power on the part of the Legislature to take away from the barber his constitutional right to work all day on holidays and Sundays, and declare that to sustain such a law would be to send the barbers from the prison to the poorhouse. In spite of the numbers of decisions which have been rendered, the question of what are the limits of legislative regulation or control of industry through the police power, is still an open one. The Courts have adopted no general policy, and it is fortunate that they are not obliged to adopt one. The validity or invalidity of protective laws of this character is ordinarily a question for the State Courts, and to be determined with reference to nation comes within the proper exercise of the police power by the State, and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizens are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law, they do not State Constitutions only. Such is the view which tions for the State to determine, and their determithe Supreme Court of the United States has taken almost uniformly in construing exercises of the police power by State Legislatures. Numerous State laws of this kind have been tested in the Federal Courts to determine whether they violate the Fourteenth Amendment and its sweeping provisions forbidding the States from abridging the privileges and immunities of citizens of the United States or deny-extend beyond the power of the State to pass, and ing them the benefits of due process or equal protection of the laws. That Court has repeatedly declared that the police power was reserved by the States at the time the original Constitution was adopted (Mugler v. Kansas, 123 U. S. 665), and that the Fourteenth Amendment does not impair its authority (Barbier v. Connolly, 113 U. S. 27). V. they form no subject for Federal interference." This general attitude of the United States Supreme Court is important in view of the tendency of the State Courts, when holding statutes of this kind to be unconstitutional, to make the Fourteenth Amendment one of the grounds for their decision. No appeal lies to the United States Supreme Court from such decisions, and when the State Court bases its ruling on this ground, amendments of the State Constitution can afford no remedy. The State Courts sometimes are more sensitive to infractions of the In Holden v. Hardy, Judge Brown expresses the non-intervention policy of the Federal Courts and its reason. After reviewing changes by legislation which States have made in the past, he observes: "An examination of both classes of these cases under the Fourteenth Amendment will demonstrate that in passing upon the validity of State legislation under that amendment this Court has not failed to recognize the fact that the law is to a great extent | Federal Constitution than the Supreme Court itself. a progressive science that restrictions Our Court of Appeals, for example, nullified under which had formerly been laid upon the conduct of the Fourteenth Amendment the Eight-Hour Law on individuals or of classes of individuals had proved Public Works (People v. Orange County Construc detrimental to their interests, while upon the other tion Co., 175 N. Y. 84). No further appeal rehand, certain other classes of persons, particularly mained for those interested in sustaining the valithose engaged in dangerous or unhealthful employ-dity of this law. Shortly after this, however, the ments, had been found to be in need of additional United States Supreme Court in a case involving a protection. They are mentioned only for the pur- similar statute (Atkins v. Kansas, 191 U. S. 207) pose of calling attention to the probability that other held that its constitutionality was beyond all queschanges of no less importance may be made in the tion. Not infrequently when the Federal question future, and that while the cardinal principles of is thus removed State Constitutions are amended to justice are immutable, the methods by which justice permit legislation for which there is strong popular is administered are subject to constant fluctuation. demand. In Colorado before the decision of the and that the Constitution of the United Staes, which United States Supreme Court in Holden v. Hardy, is necessarily and to a large extent inflexible and ex- sustaining the Eight-Hour Law for miners, the State ceedingly difficult of amendment, should not be so Court had advised the Legislature that a proposed construed as to deprive the States of the powers so law of the same order would be unconstitutional unto amend their laws as to make them conform to der the Fourteenth Amendment as well as under the the wishes of the citizens as they may deem best for State Constitution. Thereafter when the Supreme the public welfare, without bringing them in con- Court had disposed of the Federal question in Holden flict with the supreme law of the land." v. Hardy, the Legislature enacted a similar law which the Colorado Courts held to be unconstitutional, but solely under the State Constitution. (In re Morgan, 26 Col. 415.) Thereafter, as in New The broad scope for legislative action which is thus assured the States is apparent from this and other cases in that Court. As the Court says in Gundling v. Chicago (177 York, after the decision of Atkins v. Kansas, the U. S. 183): "Regulations respecting the pursuit of a lawful trade or business are of very frequent occurrence in the various cities in the country, and what such regulations shall be and to what particular trade, business or occupation they shall apply, are ques Constitution of the State was amended to permit the legislation desired by the people. In Illinois a decision (Ritchie v. People, 155 Ill. 98) declares unconstitutional a law prohibiting more than eight hours a day or forty-eight hours a week for women in factories. Its reasoning is based on the Fourteenth Amendment and upon the State Constitution. The decision is generally regarded by writers on the police power as erroneous so far as the Fourteenth Amendment is concerned, and dicta in subsequent decisions of the United States Supreme Court leave little doubt that the Federal question would have been otherwise decided by that Court, but, with the decision of the Illinois Court placed squarely on the Federal Constitution, it is obviously a fruitless task for those interested in the protection of women in industry to attempt to change the Illinois Constitution. The only recent decision of the United States Supreme Court on legislation of the character herein considered in which the Act in question was found to be unconstitutional is Lochner v. New York (198 U. S. 12), involving our law limiting the hours of labor in bakeries to sixty per week or ten hours a day. This decision was concurred in by a bare majority of the Court and is narrow in its scope. The Court refuses to consider the Act as one passed for the health of bakers. It construes the law as one "the real object and purpose of which was to regu. late the hours of labor between master and employes (all being men-sui juris) in a private business not dangerous in any degree to morals or in any real or substantial degree to the health of the employe. Under these circumstances," it says, "the freedom of the master and servant 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." It must be admitted that if followed in subsequent decisions the authority assumed in this case over the exercise of the police power by the State Legislatures will tend very materially to diminish the powers of Legislatures to make laws for conditions within their borders requiring, in their judgment, industrial legislation. If I may venture a personal opinion, it is that the decision is a reactionary one which will not be enlarged beyond is immediate facts in subsequent rulings. The facts themselves which the Court finds as a basis for its decision, regarding the general healthfulness of the baker's occupation, are themselves contrary to the conclusions of modern investigators who have found the occupation to be one of unusual unhealthfulness and of extraordinary mortality. doning the sphere assigned to it by the fundamental law, should enter the domain of legislation and upon grounds merely of justice and reason or wisdom annul statutes that had received the sanction of the people's representatives." The extent to which the police power of the State shall expand to meet economic and social conditions, depends, of course, largely upon the attitude of the judiciary. The judicial policy, as expressed in the courts, has ordinarily been against fixing upon the police power rigid rules. As the Supreme Court of Nebraska has said in a decision sustaining an act limiting the hours of women in mercantile establishments (Wenham v. State, 65 Neb. 394 [1902]): "We are unable to find a rule where the courts have laid down any rigid rule for the exercise of the police power. There is little reason under our system of government for placing a narrow interpretation on this power restricting its scope so as to hamper the Legislature in dealing with the varying necessities of society and new circumstances as they arise calling for legislative intervention in the public interest. The moment the police power is disturbed or curbed by fixed or rigid rules, a danger will be introduced into our system which will be far greater than the results arising from an occasional mistake by legislative bodies in exercising such power." An objection often heard to legislation of this kind comes from those who deny that ethical gains can come through legislation. They say, and it is undoubtedly true, that the courts and the Legislatures can by no action of theirs destroy human selfishness or rapacity. If, in the rush for wealth, standards of national honor have been lowered, if we have canonized capital instead of character, if all this be true (and I do not believe it to be true), then we cannot change the moral fiber of dishonest men by legislation. But admitting all this and that the law cannot transform the character of the avaricious and cruel, even the most conservative of us must admit that it can, if the limitations of our law will permit, create conditions under which men who are willing to conduct business on a plane higher than that of mere dollars and cents, shall not be ground down by competitors willing to oppress the lives of others to make trade profits. As a wise and yet conservative student of our institutions has said: "There are some things outside the field of natural monopolies in which individual action cannot secure equalization of conditions of competition, and in these also, as in the regulation of monopolies, the practice of government, of our own as well as of others, has been increasingly on the side of govern"No evils arising from such legislation could be ment regulation. By forbidding child labor, by sumore far reaching than those which might come to pervising the sanitary conditions of factories, by our system of government if the judiciary, aban-limiting the employment of women in occupations The United States Supreme Court has usually, in reviewing exercises by the State Legislatures of the police power, been influenced by a reflection well expressed by Justice Harlan in Mugler v. Kansas (191 U. S. 207), where he says: |