State v. Peel Splint Coal Co.

Beannon, Judge

{dissenting.)

When, at a formerterm, I concurred in the decision then made of these two cases, I had very great doubt; but I resol v-edthat doubt in favor of the validity of the act. Ke-argument and a patient i-econsideration have intensified that doubt into a decided opinion that the “Screening Act” and the “Scrip Act” are both unconstitutional. I cherish the highest respect for the legislature, and, if these acts were meant for and would benefit miners, I will say that no one will go further and more freely than I in the defence of their interests and rights; but I must do so in harmony with the constitution, that impartial arbiter of the rights of all men in free republican government. It is the highest *856 aud most sacred of all tlie functions of the judiciary to uphold the constitution' without fear, favor, or affection.

Federal and State constitutions together declare “that all men are by nature equally free and independent, aud have certain inherent rights, of which, when they enter into a state of society, they can not by any compact deprive or divest their posterity, namely, the enjoyment of life and liberty, and of pursuing and obtaining happiness and safety.” * * “No person shall be deprived of life, liberty, or property without due process of law.” * * “Nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,” nor “abridge the privileges or immunities of citizens of the United States.”

The word “liberty,” as here used, does not mean simply exemption from bodily imprisonment, but liberty and freedom to engage in lawful business, and to make lawful contracts therein, to the ends of earning a livelihood for self and family, and of acquiring and enjoying property, and of obtaining happiness. The right to contract and be contracted with is indispensable to these indispensable objects. Elsewhere this great right is recognized in the constitutions by the provision that contracts made in its exercise shall not be impaired. It is a privilege essential to earn bread and secure happiness. Vain would be the pursuit of happiness if the right of contract necessary to secure the bread of life, and raiment and home be taken away. Scarcely any of the great cardinal rights are more universally recognized and vindicated under our system, indeed, under all civilized governments, than this right of contract. A man must have the right to exercise his skill and talents, and dispose of and use his labor, and property, in lawful pursuits as to him shall seem proper. The property right may be violated by prohibiting its full use to the owner, as effectually as by taking it from him, his ownership being thus damaged.

T shall not elaborate my views, as other judges fully discuss the subject. My conclusion is that both acts invade the essential rights of business, contract, and property, as *857 against, both employer and employe, forbidding contracts and the use of property, and the disposal of skill and labor, which, but for the acts, would be perfectly lawful, and that the acts are not within the police power.

The “Screening Act” discriminates against the business of coal mining only, and is class legislation. Farming and brickmaking, for instance, are private occupations, which, no matter what their magnitude, are not so in touch with the public interest as to place them under the police power and legislative control. Neither is coal mining. If, upon the suggestion of a supposed or real evil, always incident to the transaction of all business, the legislature can restrict lawful contracts in private business, government becomes, not simply paternal, but oppressive and tyrannical.

The “Scrip Act” would prevent the farmer, brickmaker, or coal operator from giving to his hands for wages an order to any one for sugar, coffee, flour, or meat — a great reversal in the right of contract as used time out of mind. This act was not meant to prevent the vitiation of the circulating currency of the country, and can not be supported on that theory.

I concurred in the decisions in State v. Coke Co. 33 W. Va. 188 ( 10 S. E. Rep. 288 ) State v. Goodwill, 33 W. Va. 179 ( 10 S. E. Rep. 285 ); State v. Gilman, 33 W. Va. 146 ( 10 S. E. Rep. 283 .) A review of those cases brings me to the same opinion, and I do not see how we can sustain these statutes without abandonment of the soul and spirit of those decisions. Those cases, with other authorities, upon this rehearing have conducted me to the opinion just indicated. Godcharles v. Wigeman, 113 Pa. St. 431 ( 6 Atl. Rep. 354 ); Frorer v. People, Ill. Sup. filed March, 1892 (31 N. E. Rep. 395); Com. v. Perry, Mass.; filed Dec., 1891 (28 N. E. Rep. 1126); In re Jacobs, 98 N. Y. 98 ; People v. Gillson, 109 N. Y. 389 (17 N. E. Rep. 343); Millett v. People, 117 Ill. 294 (7 N. E. Rep. 631); Ex parte Kuback, 85 Cal. 274 ( 24 Pac. Rep. 737 ); Cooley, Const. Lim. (5th Ed.) 727, 739.

The adverse opinions in Munn v. Illinois 94 U. S. 113 , and Budd v. New York, 143 U. S. 517 (12 Sup. Ct. Rep. 468) are able and exhaustive of the subject. I do not think the decisions in those-cases govern these, because there the *858 statutes could more readily be ranked under the police power, since they regulated between the operators of grain elevators and the general and unlimited public, fixing charges for the benefit of the public; whereas, these acts are not made for the public at large, but simply prohibit certain contracts between employers and employes.

Aeeirmed by a Divided CoüRT.

Note, by Lucas, P. — In tbe opinion it is not intended to assert that counsel admitted that the indictments Nos. 1 and 2 presented moot questions, but that they admitted facts which the court adjudged to constitute a moot proceeding. The defendant can not be permitted to frame the indictment against himself in a criminal proceeding.