lack of uniformity is manifest in another way: One taxpayer has a policy written in the state by a company with authority, upon which no tax is imposed, while his neighbor has one written by an unlicensed company at Indianapolis, or other place outside of the state, which is subject to taxation. Taxes are uniform and equal when imposed upon all property of the same character within the taxing district, and yet here the insured pays a 10 per cent tax upon a policy written outside of the state, while his neighbor pays nothing upon a policy of equal value, and affording the same protection, because it is written within the state. Contracts of insurance written outside of the state cannot be regarded as illegal. Aside from the consideration that they may not be Kansas contracts, and are therefore beyond the reach of the legislature, the act itself contemplates that such contracts may and will be made, and when made are to be treated as property within the state, and become the subject of taxation here. This is an invidious discrimination, purposely made, and is a distinct departure from the constitutional rule of uniformity. State ex rel. Atty. Gen. v. Leavenworth County Comrs. 2 Kan. 61; Hines v. Leavenworth, 3 Kan. 200; Graham v. Chautauqua County Comrs. 31 Kan. 473, 2 Pac. 549; Atchison, T. & S. F. R. Co. v. Howe, 32 Kan. 737, 5 Pac. 397; Marion & M. R. Co. v. Champlin, 37 Kan. 682, 16 Pac. 222. See also People v. Hastings, 29 Cal. 449; Marsh v. Clark County Supers. 42 Wis. 502; Slaughter v. Louisville, 89 Ky. 112, 8 S. W. 917.

stance of requiring a man to pay a tax, not upon what he hath or seemeth to have, but confessedly upon what he hath not." Such contracts, however, indemnify the insured against loss, and have some of the characteristics of bonds, mortgages, and other like securities which are made the subjects of taxation. They have property value susceptible of measurement, and it was competent, therefore, for the legislature to treat them as property, as it did, and to make them subject to taxation. Atchison, T. & S. F. R. Co. v. Howe, 32 Kan. 737, 5 Pac. 397. Being a property tax, the constitutional limitations upon the taxation of all the property in the state are applicable and controlling. In the absence of constitutional restrictions, the sovereign power of the state may be exercised almost without limitation in determining what should be subject to taxation, and the manner of levying and collect ing taxes. Of course, arbitrary and unequal exactions cannot be levied upon persons or property, nor can revenues raised by the exercise of this power be expended for other than public purposes. Unless, however, a tax for public purposes is imposed on false and unjust principles, or violates an express provision of the Constitution, the will of the legislature is conclusive. Our Constitution contains an express limitation on the power to tax, by requiring the legislature to "provide for a uniform and equal rate of assessment and taxation." While this provision has no application to license, capitation, or special taxes, it does apply to direct taxes on property. Hines v. Leavenworth, 3 Kan. 200; Ottawa County Comrs. v. Nelson, 19 Another ground upon which the act is asKan. 234, 27 Am. Rep. 101. As will be ob- sailed is that in part the tax is levied for a served, the Constitution contemplates that private and illegal purpose. Two fifths of there will be an assessment or valuation of the taxes to be raised are to be used for the the property to be used as a basis of the levy, benefit of the fire department of a city or and in this way equality and uniformity of township, whether paid or volunteer. All taxation may be had upon all the property will agree that taxation for other than pubwithin the taxing district. Although as-lic purposes is unjustifiable. For the mainsessment is the most important of all the tenance of a fire department public money steps in the imposition of taxes, no assess- may be raised and expended; and, if the ment or valuation is required by the act, or municipality incurs any legitimate expense made, upon the property sought to be taxed in providing such an organization, taxes in this case. "It will be observed that the may be imposed therefor. The taxing power Constitution does not in terms require that of the state, however, can hardly be exercised the property in the state should be taxed ac- in order to bestow public money upon a decording to its value, but it must be appar-partment made up of volunteers who are not ent to everyone that such was the intention employed by the municipality, and for whose of the Constitution makers. Taxes cannot services no expense is assumed or incurred be levied by an equal and uniform rate, except upon the value." Hines v. Leavenworth, 3 Kan. 200. To accomplish the uniformity and equality required by the Constitution, it would appear that assessment or valuation is indispensable; and yet in this case the legislature, without assessment or valuation of the property, attempts to make an arbitrary exaction. All other property in the state is required to be taxed at its true value in money, but here no account is taken of the solvency of the company or the value of the security or policy. However values of other property may fluctuate or the rate of taxation thereon may change from year to year, no change is made on the tax levied on the property in question. The

by it. However commendable the object of such an organization may be, and however valuable the services of the members may be, it is clear that public money can only be used to discharge a public liability. As will be observed, the money, when collected, is to be applied to the benefit of such a department, and not for the benefit of the municipality; but taxes cannot be imposed nor public money expended for the benefit of private individuals or enterprises, nor can it be given away for such purposes.

For the reasons stated, we conclude that the statute is invalid and the tax illegal, and therefore the petitioner will be discharged.

All the Justices concur.

2. Where miners are employed at bushel, ton, or other quantity rates, it is a valid requirement of the law that the output of coal mined by them shall not be passed over any screen or other device which shall take any part from the value thereof before the same shall have been weighed and duly credited to the employees and accounted for at the legal rate of weights. Information is by this means furnished to the miner by which he may act intelligently, and rest his demand for wages upon the calculated results of what he has accomplished in the past. It also affords the operator knowledge, from the use of which wages may be adjusted, based upon known facts. Such law is further bene

A

ficial in that it supplies the public with statistics showing the total amount of coal produced in the state.

(Smith, J., dissents.)

(November 11, 1899.)

PPEAL by defendant from a judgment of the Court of Appeals, Southern Department, Eastern Division, affirming a judg ment of the District Court for Crawford County convicting him of violating the statute requiring the weighing of coal at mines. Affirmed.

Statement by Smith, J.:

of weighing the output of coal at said mines, and did unlawfully and knowingly employ and make use of certain devices and screens to screen the output of said mines before the same had been weighed. The output of said mines was screened with the knowledge and by virtue of contracts with said miners, and said Wilson then and there failed, and refused to, and did not, weigh the output of said coal mined by said miners so employed before the same was passed over said screens, but said Wilson unlawfully directed and caused all of the output of coal produced by said miners so employed to be passed over screens before the same had been weighed, whereby a large part of the value of the output of said coal mined by said miners was taken therefrom before the same had been weighed and duly credited to said miners and accounted for at the legal rate of weights as fixed by the laws of the state of Kansas. Chapter 188 of the Laws of 1893 reads:

"An Act to Regulate the Weighing of Coal at the Mine.

"Sec. 1. It shall be unlawful for any mine owner, lessee, or operator of coal mines in this state, employing miners at bushel or ton rates, or other quantity, to pass the output of coal mined by said miners over any screen or other device which shall take any part from the value thereof before the same shall have been weighed and duly credited to the employees and accounted for at the legal rate of weights as fixed by the laws of Kan

sas.

"Sec. 2. The weighman employed at any mine shall subscribe an oath or affirmation,

before a justice of the peace or other officer authorized to administer oaths to do justice between employer and employee, and to weigh the output of coal from mines in accordance with the provisions of § 1 of this act. Said oath or affirmation shall be kept conspicuously posted in the weigh office, and any weigher of coal, or persons so employed, visions of this act, shall be deemed guilty of who shall knowingly violate any of the proa misdemeanor, and upon conviction, shall be punished by a fine of not less than twentyfive nor more than one hundred dollars for each offense, or by imprisonment in the county jail for a period not to exceed thirty days, or by both such fine and imprisonment.

The appellant was convicted in the district court for the violation of § 1, chap. 188, of the Laws of 1893, entitled "An Act to Regulate the Weighing of Coal at the Mine." It is charged in the information that the Mt. Carmel Coal Company on or about the 21st day of October, 1897, was a corporation organized and existing under the laws of the state of Kansas, engaged in the business of "Sec. 3. The miners employed by or enmining coal from its mines, located in Crawford county, at ton rates; the wages of min- gaged in working for any mine owner, operaers employed being based upon the quantity tor, or lessee in this state shall have the priv of coal produced by each of them. The ap-ilege, if they so desire, of employing at their pellant, Henry Wilson, was then and there own expense a check-weighman, who shall an agent and superintendent of said corpora- ing of coal as the regular weighman, and be have like rights and privileges in the weightion, having on its behalf the care and management of its coal mines and mining busi- subject to the same oath and penalties as the ness. Said Wilson had a large number of regular weighman. miners in his employ at ton rates. As such agent he used certain scales for the purpose

Headnotes by SMITH, J.

NOTE. For contracts of miners as to weighing coal, see Harding v. People (Ill.) 32 L. R. A. 445.

For constitutionality of restrictions on right of contract between master and servant in gen

"Sec. 4. Any person or persons having or using any scale or scales for the purpose of weighing the output of coal at mines, so arranged or constructed that fraudulent weigh| eral, see Com. v. Perry (Mass.) 14 L. R. A. 325, and note; State v. Loomis (Mo.) 21 L. R. A. 789, and note; and Ritchie v. People (Ill.) 29 L. R. A. 79.

Deprivation of property without due process of law is forbidden by the fundamental principles of the social compact, and is beyond the sphere of the legislative authority, both of the states and the nation.

ing may be done thereby, or who shall knowingly resort to or employ any means whatever, by reason of which such coal is not correctly weighed and reported in accordance with the provisions of this act, shall be deemed guilty of a misdemeanor, and shall, Osborn v. Nicholson, 13 Wall. 654, 20 L. upon conviction, for each offense be punished ed. 689; Taylor v. Porter, 4 Hill, 146, 40 by a fine of not less than two hundred dol-Am. Dec. 274; Wynehamer v. People, 13 N. lars nor more than five hundred dollars, or Y. 394; Wilkinson v. Leland, 2 Pet. 658, 7 L. by imprisonment in the county jail for a ed. 553; Regents of the University v. Willperiod not to exceed sixty days, or by both iams, 9 Gill & J. 365, 31 Am. Dec. 72; Baltisuch fine and imprisonment. more v. State ex rel. Board of Police, 15 Md. "Sec. 5. Any provisions, contract, or 376, 74 Am. Dec. 572; Campbell's Case, 2 agreement between mine owners or operators Bland, Ch. 209, 26 Am. Dec. 360; Stevens v. thereof and the miners employed therein, State, 2 Ark. 291, 35 Am. Dec. 72; Gibson whereby the provisions of § 1 of this act are v. Pulaski County, 2 Ark. 309; Cincinnati, waived, modified, or annulled, shall be void W. & Q. R. Co. v. Clinton County Comrs. 1 and of no effect; and the coal sent to the sur- Ohio St. 77; Cass v. Dillon, 2 Ohio St. 607; face shall be accepted or rejected, and if ac- Welch v. Wadsworth, 30 Conn. 155, 79 Am. cepted shall be weighed in accordance with | Dec. 236; Brown v. Hummel, 6 Pa. 86; Anthe provisions of this act; and right of ac-drews v. Russell, 7 Blackf. 474; Booth v. tion shall not be invalidated by reason of Woodbury, 32 Conn. 118; Feldman v. any contract or agreement. Charleston, 23 S. C. 57, 55 Am. Rep. 6; Yick "Sec. 6. The provisions of this act shall | Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, also apply to the class of workers in mines known as loaders, engaged in mines wherein mining is done by machinery. Whenever the workmen are under contract to load coal by the bushel, ton, or any quantity, the settlement of which is had by weight, the output shall be weighed in accordance with the provisions of this act.

6 Sup. Ct. Rep. 1064; Re Ah Jow, 29 Fed. Rep. 181; Arrowsmith v. Burlingim, 4 Mc Lean, 489, Fed. Cas. No. 563; People ex rel. Bolton v. Albertson, 55 N. Y. 50; Taylor v. Ross County Comrs. 23 Ohio St. 22; East Kingston v. Towle, 48 N. H. 57; Stratton Claimants v. Morris Claimants, 89 Tenn. 497, sub nom. Dibrell v. Lanier, 12 L. R. A. 70, 15 S. W. 87; Griffith v. Crawford County Comrs. 20 Ohio, 609; McCullough v. Brown, 41 S. C. 220, 23 L. R. A. 410, 19 S. E. 458; Com. v. Perry, 155 Mass. 117, 14 L. R. A. The constitutionality of the act was sus- 325, 28 N. E. 1126; Frorer v. People use of tained by the court of appeals, and the judg-School Fund, 141 Ill. 171, 16 L. R. A. 492, 31 ment of the district court affirmed. State v. N. E. 395; 2 Kent, Com. 13, note (b). Wilson, 7 Kan. App. 428, 53 Pac. 371.

"Sec. 7. This act shall take effect and be in force from and upon the first day of September, 1893, after its publication in the official state paper."

Messrs. Morris Cliggitt and Perry & Crain, for appellant:

The statute is void for the following rea

sons:

While in terms the statute does not declare that coal miners lack sufficient capacity to contract, in effect it does so declare by making contracts unlawful which, since the foundation of our government, have always been lawful, and thus renders it impossible for coal miners to enter into such contracts, whether they decide it is to their advantage or not.

1. It is so arbitrary and unjust, so subversive of liberty, and so contrary to the fundamental principles of free government, that it cannot be considered as an exercise of leg-789, 22 S. W. 350; National Bank v. Iola, 9 State v. Loomis, 115 Mo. 307, 21 L. R. A. islative power, independent of any express Kan. 689; 2 Hare, Am. Const. Law, pp. 749, constitutional prohibition. 750; Citizens' Sav. & L. Asso. v. Topeka, 20 Wall. 655, 22 L. ed. 455; People ex rel. Le Roy v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103; State ex rel. Griffith v. Osawkee Twp. 14 Kan. 418, 19 Am. Rep. 99; Central Branch Union P. R. Co. v. Smith, 23 Kan. 745; Mc

2. It deprives coal operators and coal miners of the inalienable natural rights of liberty and the pursuit of happiness guaranteed by § 1 of our Bill of Rights.

3. It deprives the operators and miners of their property, which is destroyed, not for a public purpose, and without compensation

therefor.

Connell v. Hamm, 16 Kan. 228; Allen v. Jay, 60 Me. 124, 11 Am. Rep. 185, 12 Am. L. Reg. 4. It deprives the operators and the min-N. S. 481, and Redfield's note; Feldman v. ers of their liberty and property without due process of law, and denies to them the equal protection of the laws in violation of § 1 of article 14 of Amendments to the Constitution of the United States.

An act of the legislature may be unconstitutional and void, though no express provision of the Constitution which it violates can be pointed out.

Fletcher v. Peck, 6 Cranch, 87, 3 L. ed. 162; Wilkinson v. Leland, 2 Pet. 627, 7 L. ed. 542.

Charleston, 23 S. C. 57, 55 Am. Rep. 6;
Lowell v. Boston, 111 Mass. 454, 15 Am.
Rep. 39; Prouty v. Stover, 11 Kan. 235;
Wyandotte County Comrs. v. Abbott, 52
Kan. 148, 34 Pac. 416.

Liberty and the pursuit of happiness include the right to acquire, possess, and dispose of property; and whatever arbitrarily interferes therewith deprives the citizen of his rights of liberty and the pursuit of happiness.

2 Story, Const. 5th ed. § 1950; 13 Am. &

Eng. Enc. Law, p. 505; Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; People v. Marx, 99 N. Y. 377, 52 Am. Rep. 34, 2 N. E. 29; People v. Gillson, 109 N. Y. 389, 17 N. E. 343. Man's right in his labor is the highest right of property.

Wynehamer v. People, 13 N. Y. 378; 2 Hare, Am. Const. Law, 779; 1 Hare, Am. Const. Law, 357; People ex rel. Manhattan Sav. Inst. v. Otis, 90 N. Y. 48.

"Due process of law" means a course of legal proceedings according to those rules and principles which have been established for the protection and enforcement of private rights.

Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565; Kennard v. Louisiana ex rel. Morgan, 92 U. S. 480, 23 L. ed. 478; Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663; Wally v. Kennedy, 2 Yerg. 554, 24 Am. Dec. 511; Re Parrott, 1 Fed. Rep. 481; Butchers' Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. 111 U. S. 746, 28 L. ed. 585, 4 Sup. Ct. Rep. 652.

The great weight of authority is against the law.

|

|

Cullough v. Brown, 41 S. C. 220, 23 L. R. A. 410, 19 S. E. 458; Com. v. Alger, 7 Cush. 53; Thorpe v. Rutland & B. R. Co. 27 Vt. 140, 62 Am. Dec. 625; Ho Ah Kow v. Nunan, 5 Sawy. 552, Fed. Cas. No. 6,546, 18 Am. L. Reg. N. S. 676, and note by Cooley; Toledo, W. & W. R. Co. v. Jacksonville, 67 Ill. 37, 16 Am. Rep. 611; Janesville v. Carpenter, 77 Wis. 288, 8 L. R. A. 808, 46 N. W. 128; Ex parte Westerfield, 55 Cal. 550, 36 Am. Rep. 47; Ragio v. State, 86 Tenn. 272, 6 S. W. 401; State v. Divine, 98 N. C. 778, 4 S. E. 477; Ex parte Whitwell, 98 Cal. 73, 19 L. R. A. 727, 32 Pac. 870; St. Louis v. Hill, 116 Mo. 527, 21 L. R. A. 226, 22 S. W. 861; Colon v. Lisk, 153 N. Y. 188, 47 N. E. 302; State v. Chicago, M. & St. P. R. Co. 68 Minn. 381, 38 L. R. A. 672, 71 N. W. 400; Tacoma v. Krech, 15 Wash. 296, 34 L. R. A. 68, 46 Pac. 255; Ex parte Jentzsch, 112 Cal. 468, 32 L. R. A. 664, 44 Pac. 803; New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. Rep. 252.

Coal mining is not a public business, nor a business affected with a public interest. Whether or not a business is public, or is "affected with a public interest," is a judicial question.

745; Citizens' Sav. & L. Asso. v. Topeka, 20 Wall. 655, 22 L. ed. 455.

Mr. A. A. Godard, Attorney General, for appellee.

Smith, J., delivered the opinion of the court:

Millett v. People, 117 Ill. 294, 57 Am. Rep. 869, 7 N. E. 631; Ramsey v. People, 142 Ill. Rockwell v. Nearing, 35 N. Y. 302; Re 380, 17 L. R. A. 853, 32 Ñ. E. 364; Frorer v. Townsend, 39 N. Y. 171; Re Deansville CemPeople, 141 Ill. 171, 16 L. R. A. 492, 31 N. E. etery Asso. 66 N. Y. 569, 23 Am. Rep. 86; 395, and 32 N. E. 366; Braceville Coal Co. v. Re Eureka Basin Warehouse & Mfg. Co. 96 People, 147 Ill. 66, 22 L. R. A. 340, 35 N. E. N. Y. 42; State ex rel. Griffith v. Osawkee 62; Com. v. Perry, 155 Mass. 117, 14 L. R. Twp. 14 Kan. 418, 19 Am. Rep. 99; Central A. 325, 28 N. E. 1126; Godcharles v. Wige-Branch Union P. R. Co. v. Smith, 23 Kan. man, 113 Pa. 431, 6 Atl. 354; State v. Goodwill, 33 W. Va. 179, 6 L. R. A. 621, 10 S. E. 285; State v. Fire Creek Coal & C. Co. 33 W. Va. 188, 6 L. R. A. 359, 10 S. E. 288; Harding v. People, 160 Ill. 459, 32 L. R. A. 445, 43 N. E. 624; Shaver v. Pennsylvania Co. 71 Fed. Rep. 931; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255; Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427; Re Grice, 79 Fed. Rep. 627; San Antonio & A. P. R. Co. v. Wilson (Tex. App.) 19 S. W. 910; Re Ziebold, 23 Fed. Rep. 791; State v. Loomis, 115 Mo. 307, 21 L. R. A. 789, 22 S. W. 350; Low v. Rees Printing Co. 41 Neb. 127, 24 L. R. A. 702, 59 N. W. 362; Leep v. St. Louis, I. M. & S. R. Co. 58 Ark. 407, 23 L. R. A. 264, 25 S. W. 75; McMaster v. West Chester State Normal School, 162 Pa. 260, 29 Atl. 734; Waters v. Wolf, 162 Pa. 153, 29 Atl. 646; Re House Bill No. 10, 15 Colo. 600, 26 Pac. 824; Re Eight Hours Bill, 21 Colo. 29, 39 Pac. 328; Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79, 40 N. E. 454; Re House Bill No. 203, 21 Colo. 27, 39 Pac. 431; State v. Julow, 129 Mo. 163, 29 L. R. A. 257, 31 S. W. 781; State v. Paint Rock Coal & C. Co. 92 Tenn. 81, 20 S. W. 499; Ex parte Kuback, 85 Cal. 274, 9 L. R. A. 482, 24 Pac. 737; State v. Brown & S. Mfg. Co. 18 R. I. 16, 17 L. R. A. 856, 25 Atl. 246.

The act is not a valid exercise of the police power.

2 Hare, Am. Const. Law, pp. 760, 784; Palairet's Appeal, 67 Pa. 479, 5 Am. Rep. 450; McCandless v. Richmond & D. R. Co. 38 S. C. 103, 18 L. R. A. 440, 16 S. E. 429; Mc

In this opinion I give the views of the majority of the court. On the argument and in the briefs much time and space were consumed in discussion of the question whether the act under consideration affects the right of contract, and whether the law as it reads has a meaning that the wages paid to coal miners are to be measured by the gross output of valuable product mined and brought to the surface by the laborers employed therein. In our judgment, the law in no wise affects the right of contract, and does not hinder or prevent the mine operator or miner from making such agreements as they choose concerning the amount of compensation to be paid for labor in mining coal. Nor does the act prohibit the employment of miners at day wages, or make void contracts for the payment of wages based on the quantity of screened coal produced. In fact, the law permits complete freedom of action in the respect mentioned. The act does, however, in positive terms, make it unlawful for any mine owner, lessee, or operator of coal mines, employing miners at bushel or ton rates, or other quantity, to pass the output of coal mined by said miners over any screen or other device which shall take away any part from the value thereof before the same shall have been weighed and duly credited