66 Ninth Annual Report of the 



pass an examination and get a license before he could act as a 

 master plumber. Sustaining that act as being within the police 

 power, the court said that drainage and sewerage affect the 

 public health, and that the act was intended to require capacity 

 in those who were doing such work. The court did say in that 

 case : 



" 1 am not unwilling to state that the act skirts pretty closely 

 that border line beyond which legislation ceased to be within 

 the powers conferred by the people of the State through the 

 constitution upon its legislative body." 



In the Master Plumbers' Act, did the Legislature intend to 

 guard the public health, and in this act for dairy products did 

 the Legislature have no such intention? 



So also the following statutes have been held to be within 

 the police power: 



The exclusion of citizens by reason of race and color from 

 the equal enjoyment of any privilege furnished by owners of 

 places of amusement is prohibited. — People v. King (supra). 



Owners must furnish water at one or more places on each 

 floor in tenement houses. — Health Department v. Rector (supra). 



Barbers shall not work on Sunday, excepting in the city of 

 New York and the village of Saratoga Springs. Laws of 1895. 

 chapter 823. 



It is a crime to exhibit a female child as a dancer or any 

 theatrical exhibition. Penal Code, section 292. 



It is a crime to charge for elevating grain in a price greater 

 than that fixed by law. Laws of 1888, chapter 581. 



If all these restraints be within the police power, what dis- 

 tinction makes it a gross usurpation of constitutional power to 

 prevent the sale of dairy products containing foreign sub- 

 stances? 



POINT V. 



The Presumption of Constitutionality Under the Decisions 

 Cannot Be Overcome by Defendant. 

 "We are not unmindful that the power which courts possess to 

 condemn acts should be exercised with great caution and even 

 with reluctance." — In Matter of Jacobs, 98 N. Y., 98. 



