state would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work. And, if such a policy were permissible, the practical result would be that those lawfully admitted to the country under the authority of the acts of Congress, instead of enjoying in a substantial sense and in their full scope the privileges conferred by the admission, would be segregated in such of the states as chose to offer hospitality. It is insisted that the act should be supported because it is not "a total deprivation of the right of the alien to labor;" that is, the restriction is limited to those businesses in which more than five workers are employed, and to the ratio fixed. It is emphasized that the employer in any line of business who employs more than five workers may employ aliens to the extent of 20 per cent of his employees. But the fallacy of this argument at once appears. If the state is at liberty to treat the employment of aliens as in itself a peril, requiring restraint regardless of kind or class of work, it cannot be denied that the authority exists to make its measures to that end effective. If the restriction to 20 per cent now imposed is maintainable, the state undoubtedly has the power, if it sees fit, to make the percentage less. We have nothing before us to justify the limitation to 20 per cent save the judgment expressed in the enactment, and if that is sufficient, it is difficult to see why the apprehension and conviction thus evidenced would not be sufficient were the restriction extended so as to permit only 10 per cent of the employees to be aliens, or even a less percentage; or were it made applicable to all businesses in which more than three workers were employed instead of applying to those employing more than five. We have frequently said that the legislature may recognize degrees of evil and adapt its legislation accordingly (Consolidated Coal Co. v. Illinois, 185 U. S. 203; McLean v. Arkansas, 211 U. S. 539; Miller v. Wilson, 236 U. S. 373); but underlying the classification is the authority to deal with that at which the legislation is aimed. The restriction now sought to be sustained is such as to suggest no limit to the state's power of excluding aliens from employment if the principle underlying the prohibition of the act is conceded. No special public interest with respect to any particular business is shown that could possibly be deemed to support the enactment, for, as we have said, it relates to every sort. The discrimination is against aliens as such in competition with citizens in the described range of enterprises, and in our opinion it clearly falls under the condemnation of the fundamental law.

The question of rights under treaties was not expressly presented by

the bill, and, although mentioned in the argument, does not require attention, in view of the invalidity of the act under the 14th Amendment.

Order affirmed.

QUESTIONS

1. Is it contrary to the Federal Constitution for a state to provide that only citizens of the United States shall be employed in the construction of public works by the state or a municipality or by persons contracting with the state or municipality?

2. May a state provide that preference shall be given to citizens of that state in the construction of public works?

3. "It shall be unlawful for any municipal or private corporation organized under the laws of this state to employ any alien who has failed to become naturalized or to declare his intention to become a citizen of the United States." Is this statute contrary to Amendment XIV?

4. A state statute imposes on every employer of alien laborers a tax of three cents a day for each such employee and authorizes the deduction of that sum from the wages paid. Is it contrary to Amendment XIV?

5. A state statute requires that a peddler's license shall not be granted to an alien who has not declared his intention to become a citizen of the United States. Is it constitutional?

6. Would a similar statute applying to barbers be constitutional?

7. A municipal ordinance forbids the operation of motor vehicles for hire upon its streets by any one not a citizen of the United States. Is it constitutional?

8. Could Congress pass an act excluding aliens from employment on interstate railroads on the ground that the latter are affected with a public interest?

9. Discuss the economic justification for such an act as that quoted in the principal case, assuming that its sole purpose is to protect American labor.

10. Are there in your state any statutes which discriminate against alien laborers? If so, has their constitutionality been tested in the courts?

B. FROM CONVICT LABOR

A

CONVICT LABOR IN 19238

The collection of data from the several prisons was started in the latter part of 1923. The inquiry covers State and Federal prisons for 8 U. S. Bureau of Labor Statistics, Bulletin No. 372 (1925), pp. 2-4, 14-15, 107-108.

civilian adults only. . . . . A total of 104 institutions were canvassed, Ior being State institutions and 3 Federal. All States and the District of Columbia were covered. . . The report for each institution covers all of the operations during one full year. It was not possible to get reports from the institutions for a year common to all, because of the different times of ending of the fiscal year in the several institutions. It was necessary to take the report for the last fiscal year for which figures were available. . .

The average number of convicts in the institutions during the year reported was 84,761, of which 79,350 were in State prisons and 5,411 in Federal prisons. Of these 84,761 convicts, 51,799, or 61 per cent, were employed at productive labor. . . . . Of the 51,799 convicts employed at productive labor, 6,083, or 12 per cent, were working under the contract system, 3,577, or 7 per cent, under the piece-price system, 13,526, or 26 per cent, under the public-account system, 18,850, or 36 per cent, under the State-use system, and 9,763, or 19 per cent, under the public works and ways system.

The total number of convicts employed in the contract and pieceprice systems combined was 9,660 and the amount paid the institutions for their hire was $3,290,777, or slightly more than $340 per annum per convict.

The relative importance of the several systems is further indicated by the value of the goods produced. In the year covered the value of the goods produced under the several systems was as follows:

The value of the products in the three Federal penitentiaries, which is included in the above statement, was $2,428,081.

All goods produced under the contract, piece-price, and publicaccount systems enter into the general competitive market. The total for the three systems was $47,012,214. Thus 62 per cent of all goods produced were destined for direct competition on the open market. . . . Only twenty States, or two-fifths of all, have the contract or pieceprice system of employing their convicts. The public-account system was found in all States, except Ohio, New Hampshire, and the District of Columbia, but it was inconsequential in several States. The State

use system appears in all States, and the public works and ways system in 28 States and in the District of Columbia.

The total of all sales on the market was $44,843,355, of which 42 per cent represented goods sold within the State in which produced, and 58 per cent those sold outside of the State. In 25 States the products were disposed of entirely within the State, while in 22 States some products were sold outside of the State.

Eighty to eighty-nine per cent of all products sold in eleven StatesDelaware, Iowa, Kentucky, Maryland, Nebraska, New Hampshire, Oklahoma, Rhode Island, Vermont, Wisconsin, and Wyoming-were sold outside the State; 50 to 79 per cent of all products sold in five States Connecticut, Indiana, Tennessee, Virginia, and West Virginiawere sold outside the State; and 6 to 42 per cent of all products sold in six States-Maine, Michigan, Oregon, Minnesota, Illinois, and Massachusetts were sold outside the State. It is interesting to note that these 21 States produced 77 per cent of the total convict-made product placed on the open market. .

With labor conditions so materially different in prison factories as compared with factories employing free labor it is evident that conflicts must arise when the products of these two types of factories meet in competition in the open market. . . . .

The great cause of complaint is that prison contractors get their labor cheaper than free-labor employers do and because of this lower item of production cost the prison contractors can and do undersell them. Further, it is charged that contractors get shop-room, power, heat and light free or at a nominal cost. . . .

Another complaint is that the State itself under the public-account system may produce goods and sell them under terms of ruinous competition. The State has the prisoners and if the prison industries do not support the prisoners then the taxpayers must. The prison can thus make and sell goods without having to pay a free labor wage and the prison must do business regardless of selling price, for the convicts must be kept at work. . . . .

A third complaint is that convict labor may be concentrated, not only on a particular article, but on a particular kind of article, to such an extent that the prison article completely dominates the market. Were convict labor limited to the production of articles in which prices are governed by a world market, like wheat or cotton, there undoubtedly would be no complaint of convict labor competition. It is not the matter of volume that counts so much in competition as the specialization on the particular type of article.

B

PEOPLE v. HAWKINS

Court of Appeals of the State of New York. 1898. 157 N. Y. 1.

[A New York statute required that all goods made by convict labor should be branded or labeled "convict made" before being sold or exposed for sale within the State of New York, and made violation of the statute a misdemeanor punishable by fine or imprisonment. The defendant offered for sale scrub brushes made in an Ohio prison and not labeled as required by the statute.]

O'BRIEN, J. . . . . We may assume, therefore, that the purpose of the law was to promote the welfare of the laboring classes by suppressing, in some measure, the sale of prison-made goods. . . . . It is not claimed that there is any difference in the quality of this scrubbing brush when compared with one of the same grade or character made outside the prisons. There is no pretense that the act was passed to suppress any fraudulent practice or that any such practice existed with respect to such goods. The validity of the law must depend entirely upon the exercise of the police power to enhance the price of labor by suppressing, through the instrumentality of the criminal law, the sale of the products of prison labor.

The citizen cannot be deprived of his property without due process of law. The principle embodied in this constitutional guaranty is not limited to the physical taking of property. Any law which annihilates its value, restricts its use, or takes away any of its essential attributes, comes within the purview of this limitation upon legislative power. The validity of all such laws is to be tested by the purpose of their enactment and the practical effect and operation that they may have upon property. A law which interferes with property by depriving the owner of the profitable and free use of it, or hampers him in the application of it for the purposes of trade or commerce, or imposes conditions upon the right to hold or sell it, may seriously impair its value, against which the Constitution is a protection. The fact that legislation hostile to the rights of property assumes the guise of a health law or a labor law will not save it from judicial scrutiny, since the courts cannot permit that to be done by indirection which cannot be done directly.

The guaranty against depriving the citizen of his liberty comprehends much more than the exemption of his person from all unlawful restraint. It includes the right to engage in any lawful business, and