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(211 U. S. 539)

JOHN MCLEAN, Plff. in Err.,

V.

STATE OF ARKANSAS. CONSTITUTIONAL LAW (§ 89*)-LIBERTY OF

CONTRACT-POLICE POWER.

1. The liberty of contract secured by U. S. Const., 14th Amend., against state invasion, is not infringed by the provision of Ark. Acts 1905, chap. 219, § 1, under which miners employed at quantity rates are prevented from contracting for wages upon the basis of screened coal instead of the weight of the coal as originally produced in the mine, but such statute is a valid exercise of the police power.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 157; Dec. Dig. § 89.*] CONSTITUTIONAL LAW (§ 238*) EQUAL PROTECTION OF THE LAWS-CLASSIFICA

TION.

2. The exemption of coal mines not employing ten or more men from the operation of Ark. Acts 1905, chap. 219, § 1, under which miners employed at quantity rates are prevented from contracting for wages upon the basis of screened coal instead of the weight of the coal as originally produced in the mine, does not render such statute invalid under U. S. Const., 14th Amend., as denying the equal protection of

the laws.

The facts are stated in the opinion.
Mr. Daniel B. Holmes for plaintiff in

error.

Messrs. James Brizzolara, Henry L. Fitzhugh, and William F. Kirby for de

in this state, where ten or more men are employed underground, employing miners at bushel or ton rates, or other quantity, to pass the output of coal mined by said miners over any screen or any other device which shall take any part from the value thereof, before the same shall have been weighed and duly credited to the employee sending the same to the surface, and accounted for at the legal rate of weights fixed by the laws of Arkansas; and no emshall be deemed to have waived any ployee, within the meaning of this act, right accruing to him under this section by any contract he may make contrary to the provisions thereof, and any provisions, contract, or agreement between mine owners, lessees, or operators thereof, and the miners employed therein, whereby the provisions of this act are waived, modified, or annulled, shall be void and of no effect, and the coal sent to the surface shall be accepted or rejected; and, if accepted, shall be weighed in accordance with the provisions of this act; and right of action shall not be invalidated by reason of any contract or agreement; and any owner, agent, lessee, or operator of any coal mine in this state, where ten or more men are employed underground, who shall knowingly violate any of the provisions of this section, shall be deemed guilty of a misdemeanor, and, upon conviction, shall be punished by a fine of not less than $200 nor more than $500 for each

offense, or by imprisonment in the county jail for a period of not less than sixty days, nor more than six months, or both such fine and imprisonment; and each day any mine or mines are operated thereafter shall be a to be instituted in any court having comseparate and distinct offense; proceedings petent jurisdiction." (Acts 1905, chap. 219,

§ 1.)

The case was tried upon an agreed statement of facts, as follows:

"That the Bolen-Darnall Coal Company is a corporation organized and existing under the laws of the state of Missouri, and is also doing business under the laws of the state of Arkansas, and has complied with *Mr. Justice Day delivered the opinion of the laws of Arkansas permitting foreign corthe court:

fendant in error.

This proceeding is brought to review the judgment of the supreme court of Arkansas (81 Ark. 304, 98 S. W. 729), affirming a conviction of the plaintiff in error for violation of a statute of the state of Arkansas, entitled "An Act to Provide for the Weighing of Coal Mined in the State of Arkansas as It Comes from the Mine, and before It Is Passed over a Screen of Any Kind." The act provides:

"Sec. 1. It shall be unlawful for any mine owner, lessee, or operator of coal mines

porations to transact and do business within said state.

"It is further agreed that John McLean, defendant, is the managing agent of the said Bolen-Darnall Coal Company, and, as such, has charge of the coal mine of said company situated near Hartford, in Sebastian county, Arkansas.

"It is further agreed that the said BolenDarnall Coal Company employs more than ten men to work underground in its mine situated near Hartford, of which the said John McLean is agent and manager.

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"It is further agreed that the said Bolen- | trade or business, against hostile state legisDarnall Coal Company, by and through said lation, has been affirmed in decisions of John McLean, as its agent and manager, did, this court, and we have no disposition to on the 19th day of June, 1906, in Greenwood question those cases in which the right has district of said Sebastian county, employ been upheld and maintained against such one W. H. Dempsey and others, coal min- legislation. Allgeyer v. Louisiana, 165 U. S. ers, to mine coal underground in said mine 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427; by the ton at the rate and price of 90 cents Adair v. United States, 208 U. S. 161, 52 L. per ton for screened coal, and that the said ed. 436, 28 Sup. Ct. Rep. 277. But, in John McLean, in the said district and coun- many cases in this court, the right of freety, did knowingly pass the output of coal, dom of contract has been held not to be unso mined and sent up from underground limited in its nature, and when the right to by the said W. H. Dempsey and others, over contract or carry on business conflicts with a screen, according to and as provided by a laws declaring the public policy of the state, contract between it and the said Dempsey enacted for the protection of the public and others, and paid the said Dempsey and health, safety, or welfare, the same may be others for only the coal that passed over valid, notwithstanding they have the effect said screen, according to and as provided to curtail or limit the freedom of contract. under the contract, and paid or allowed them nothing for the coal which passed through said screen, part of the value of said coal having passed through said screen, which part of said coal was not weighed or accredited to the said Dempsey and others, and for which they received no pay; said | coal not having been weighed or accredited to the said Dempsey or others before the same was passed over said screen, as provided for by the statutes of Arkansas.

"It is further agreed that more than ten men were employed and did work under said employment underground in mining I coal for the said Bolen-Darnall Coal Company, in said mine aforesaid, at said time; and it is also agreed that there are coal mines in said state and county operated by both corporations and individuals in which less than ten men are employed underground by the ton and bushel rates.

"It is further agreed that the said John McLean did violate the provisions of § 1, aet No. 219, duly passed by the legislature of Arkansas in 1905, which law went into operation and became effective on the 1st day of April, 1906, as hereinabove set out, and the only question herein raised being the validity of said act of the legislature aforesaid, under the law and facts herein." The objections to the judgment of the state supreme court of a constitutional nature are twofold: First, that the statute is an unwarranted invasion of the liberty of contract secured by the 14th Amendment of the Constitution of the United States; second, that the law, being applicable only to mines where more than ten men are employed, is discriminatory, and deprives the plaintiff in error of the equal protection of the laws, within the inhibition of the same Amendment.

It would extend this opinion beyond reasonable limits to make reference to all the cases in this court in which*qualifications of the right of freedom of contract have been applied and enforced. Some of them are collected in Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383, in which it was held that the hours of work in mines might be limited.

In Knoxville Iron Co. v. Harbison, 183 U. S. 13, 46 L. ed. 55, 22 Sup. Ct. Rep. 1, it was held that an act of the legislature of Tennessee, requiring the redemption in cash of store orders or other evidences of indebtedness issued by employers in payment of wages due to employees, did not conflict with any provisions of the Constitution of the United States, protecting the right of contract.

In Frisbie v. United States, 157 U. S. 160, 39 L. ed. 657, 15 Sup. Ct. Rep. 586, the act of Congress prohibiting attorneys from contracting for a larger fee than $10 for prosecuting pension claims was held to be a valid exercise of police power.

In Soon Hing v. Crowley, 113 U. S. 703, 28 L. ed. 1145, 5 Sup. Ct. Rep. 730, a statute of California, making it unlawful for employees to work in laundries between the hours of 10 P. M. and 6 A. M. was sustained.

The statute fixing maximum charges for the storage of grain, and prohibiting contracts for larger amounts, was held valid. Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77.

In Patterson v. The Eudora, 190 U. S. 169, 47 L. ed. 1002, 23 Sup. Ct. Rep. 821, this court held that an act of Congress making it a misdemeanor for a shipmaster to pay a sailor any part of his wages in advance was held to be valid.

In Gundling v. Chicago, 177 U. S. 183, 44 L. ed. 725, 20 Sup. Ct. Rep. 633, this That the Constitution of the United court summarized the doctrine as follows: States, in the 14th Amendment thereof, "Regulations respecting the pursuit of protects the right to make contracts for the a lawful trade or business are of very fresale of labor, and the right to carry on 'quent occurrence in the various cities of the

country, and what such regulations shall be and to what particular trade, business, or occupation they shall apply, are questions for the state to determine, and their determination 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 citizen are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law, they do not extend beyond the power of the state to pass, and they form no subject for Federal interference."

In Jacobson v. Massachusetts, 197 U. S. 11, 49 L. ed. 643, 25 Sup. Ct. Rep. 358, 3 A. & E. Ann. Cas. 765, this court said:

aside because the judiciary may be of opinion that the act will fail of its purpose, or because it is thought to be an*unwise exertion of the authority vested in the legislative branch of the government.

We take it that there is no dispute about the fundamental propositions of law which we have thus far stated; the difficulties and differences of opinion arise in their application to the facts of a given case. Is the act in question an arbitrary interference with the right of contract, and is there no reasonable ground upon which the legislature, acting within its conceded powers, could pass such a law? Looking to the law itself, we find its curtailment of the right of free contract to consist in the requirement that the coal mined shall not be passed over any screen where the miner is employed at quantity rates, whereby any part of the value thereof is taken from it before the same shall have been weighed and credited to the employee sending the same to the surface; and the coal is required to be accounted for according to the legal rate of weights, as fixed by the law of Arkansas, and contracts It is, then, the established doctrine of this contrary to this provision are invalid. court that the liberty of contract is not This law does not prevent the operator from universal, and is subject to restrictions screening the coal before it is sent to marpassed by the legislative branch of the gov-ket; it does not prevent a contract for minernment in the exercise of its power to protect the safety, health, and welfare of the people.

"The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times, and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good."

It is also true that the police power of the state is not unlimited, and is subject to judicial review; and, when exerted in an arbitrary or oppressive manner, such laws may be annulled as violative of rights protected by the Constitution. While the courts can set aside legislative enactments upon this ground, the principles upon which such interference is warranted are as well settled as is the right of judicial interference itself.

ing coal by the day, week, or month; it does not prevent the operator from rejecting coal improperly or negligently mined, and shown to be unduly mingled with dirt or refuse. The objection upon the ground of interference with the right of contract rests upon the inhibition of contracts which prevent the miner employed at quantity rates from contracting for wages upon the basis of screened coal instead of the weight of the coal as originally produced in the mine.

If there existed a condition of affairs concerning which the legislature of the state, exercising its conceded right to enact laws for the protection of the health, safety, or welfare of the people, might pass the law, it must be sustained; if such action was arbitrary interference with the right to contract or carry on business, and having no just relation to the protection of the public within the scope of legislative power, the act must fail.

The legislature, being familiar with local conditions, is, primarily, the judge of the necessity of such enactments. The mere fact that a court may differ with the legislature in its views of public policy, or that judges may hold views inconsistent with the propriety of the legislation in question, affords no ground for judicial interference, unless the act in question is unmistakably and palpably in excess of legislative power. Jacobson v. Massachusetts, supra; Mugler v. Kansas, 123 U. S. 623, 31 L ed. 205, 8 Sup. Ct. Rep. 273; Minnesota v. Barber, 136 U. S. 313, 320, 34 L. ed. 455, 458, 3 Inters. Com. Rep. 185, 10 Sup. Ct. Rep. 862; | passed in Illinois, West Virginia, Colorado, Atkin v. Kansas, 191 U. S. 207, 223, 48 L. ed. 148, 158, 24 Sup. Ct. Rep. 124.

If the law in controversy has a reasonable relation to the protection of the public health, safety, or welfare, it is not to be set

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While such laws have not been uniformly sustained when brought before the statecourts, the legislatures of a number of the states have deemed them necessary in the public interests. Such laws have been

and perhaps in other states. In Illinois they have been condemned as unconstitutional. Ramsey v. People, 142 Ill. 380, 17 L.R.A. 853, 32 N. E. 364. The same conclusion has been reached in Colorado, cit

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ing and following the Illinois case, Re House | quire honest weights and measures in the Bill No. 203, 21 Colo. 27, 39 N. E. 431. transaction of business have frequently been In West Virginia, while at first sustained sustained in the courts, although, in comby a unanimous court, such an act was aft-pelling certain modes of dealing, they intererwards, upon rehearing, maintained by a fere with the freedom of contract. Many divided court. State v. Peel Splint Coal Co. cases are collected in Mr. Freund's book on 36 W. Va. 802, 17 L.R.A. 385, 15 S. E. 1000. "Police Power," wherein that author refers We are not disposed to discuss these state to laws which have been sustained, regulatcases. It is enough for our present purpose ing the size of loaves of bread when sold to say that the legislative bodies of the in the market; requiring the sale of coal states referred to, in the exercise of the in quantities of 500 pounds or more, by right of judgment conferred upon them, weight; that milk shall be sold in wine have deemed such laws to be necessary. measure, and kindred enactments. § 274.

Upon this branch of the case it is argued for the validity of this law that its tendency is to require the miner to be honestly paid for the coal actually mined and sold. It is insisted that the miner is deprived of a portion of his just due when paid upon the basis of screened coal, because, while the price may be higher, and theoretically he may be compensated for all the coal mined in the price paid him for screened coal, that practically, owing to the manner of the operation of the screen itself, and its different operation when differently adjusted, or when out of order, the miner is deprived of payment for the coal which he has actually mined. It is not denied that the coal which passes through the screen is sold in the market. It is not for us to say whether these are actual conditions. It is sufficient to say that it was a situation brought to the attention of the legislature, concerning which it was entitled to judge and act for itself in the exercise of its lawful power to pass remedial legislation.

Conditions which may have led to such legislation were the subject of very full investigation by the industrial commission authorized by Congress by the act of June 18, 1898. 30 Stat. at L. 476, chap. 466. Volume 12 of the report of that commission is devoted to the subject of "Capital and Labor Employed in the Mining Industry." In that investigation, as the report shows, many witnesses were called and testified concerning the conditions of the mining industry in this country, and a number of them gave their views as to the use of screens as a means of determining the compensation to be paid operatives in coal mines. Differences of opinion were developed in the testimony. Some witnesses favored the "run of the mine" system, by which the coal is weighed and paid for in the form in which it is originally mined; others thought the screens useful in the business, promotive of skilled mining, and that they worked no practical discrimination against the miner. A number of the witnesses expressed opinfons, based upon their experience in the mining industry, that disputes concerning the introduction and use of screens had led to frequent and sometimes heated controversies between the operators and the miners. This condition was testified to have been the result, not only of the introduction of screens as a basis of paying the miners for screened coal only, but, after the screens had been introduced, differences had arisen because of the disarrangement of the parts of the screen, resulting in weakening it, or in increasing the size of the meshes through which the coal passed, thereby preventing a correct measurement of the coal as the basis of paying the miner's wages. We are unable to say, in the light of the conditions shown in the public inquiry "This is a species of classification which referred to, and in the necessity for such the legislature is at liberty to adopt, prolaws, evinced in the enactments of the legis- vided it be not wholly arbitrary or unrea latures of various states, that this law had sonable, as it was in Cotting v. Kansas no reasonable relation to the protection of City Stock Yards Co. (Cotting v. Godard) a large class of laborers in the receipt of 183 U. S. 79, 46 L. ed. 92, 22 Sup. Ct. Rep. their just dues and in the promotion of the 30, in which an act defining what should harmonious relations of capital and labor constitute public stock yards, and reguengaged in a great industry in the state. lating all charges connected therewith, was Laws tending to prevent fraud and to re-held to be unconstitutional, because it ap 29 S. C.-14.

The law is attacked upon the further ground that it denies the equal protection of the law, in that it is applicable only to mines employing ten or more men. This question is closely analogous to one that was before this court in the case of Consoli. dated Coal Co. v. Illinois, 185 U. S. 203, 48 L. ed. 872, 22 Sup. Ct. Rep. 616, wherein an inspection law of the state was argued to be clearly unconstitutional by reason of its limitation to mines where more than five men are employed at any one time, and in that case, as in this, it was contended that the classification was arbitrary and unreasonable, that there was no just reason for the discrimination. Of that contention this court said (p. 207):

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