Page:Harvard Law Review Volume 9.djvu/453

NOTES. 425 fact has rarely been cUspiited since Bowen, L. J., declared, in Edgington v. Fitzmaurice, L. R. 29 Ch. Div. 459, that the state of a man's mind is as much a fact as the state of his digestion." If, then, this misrepresentation of a present fact is accompanied by the other elements of deceit, it seems clear on principle that the action should be allowed. See i Bigelow on Fraud, 484. Whether or not it would be expedient in practice is quite another question. Special Legislation — Closing Barber Shops on Sunday. — The con- stitutionality of so called special legislation" has agai;-* been denied in Illinois. An act to close barber shops on Sunday was reviewed by a minor court in The People v. Eden (28 Chicago Legal News, i, o), and decided squarely on the ground that the legislature made an arbitra y discrimination against a special class. Although the court remarked up n there being a deprivation of liberty and property, it admitted at the en of the decision that, had the law applied to all kinds of business, it would ave been valid. The objection was, then, not that the legislature had forbi- len an occupa- tion on Sunday, but that it had singled out a particular trare, and had not extended its prohibition to others also. It is submitted that this omission is a matter of legislative discretion, and does not furnish a proper occasion for interference by the judiciary. The way in which American courts have come to exercise a supervision over legislation, and the limits to which such supervision is subject, have been discussed elsewhere. (Professor Thayer, in 7 Harvard Law Review, 129. See also 9 Harvard Law Review, 277.) It is enough to say here that the making of laws has been intrusted to the legislative branch of the government, and so long as the actions of the legislature are such that one could conceive them to have been actuated by some rational public reason, the legislature must be deemed to have acted within its province. An anal- ogy may be found in the discretion given to a jury on matters of fact ; a verdict will not be set aside so long as a reasonable man could possibly have entertained the jury's opinion. Applying this test to the subject of special legislation, can it be said, for example, that a reasonable man could not by any possibility have seen fit to apply a Sunday closing rule to barber shops without at the same time applying it to other trades ? Some rational reason must be found, it is said, for singling out barber shops ; another way of putting it is to say that some rational reason must be shown why the legislature did not go farther. It would not be argued that the legislature must go, if at all, to the full length of closing all shops, including that of the apothecary. Some line must be drawn ; and it is conceivable that the legislature may from their present knowledge feel incompetent to draw that line. They may feel sure that barbers should fall on the prohibited side, and yet be in just doubt as to other occupations. Can it be said, then, that the legislature might not have had a reasonable ground for declining to carry their prohibition to its utmost extent? If not, then there is a conceivable reason why it should have stopped where it did. If, whenever a mischief arose in any particular in- stance, it were necessary for the legislature to consider all other possible instances to which they might think the mischief applied, legislation would indeed be a slow process. There has been a tendency in some of our States, especially in Illinois, to drift away from what is here conceived as the proper view of the power of a legislature to pass " special legislation." On the other hand, the