The jury returned a verdict of guilty; and the defendant alleged exceptions.

A. J. Bartholomew, for the defendant.

A. E. Pillsbury, Attorney-General, for the Commonwealth.

KNOWLTON, J. This is an indictment under the St. of 1891, c. 125, the first section of which is as follows: "No employer shall impose a fine upon or withhold the wages or any part of the wages of an employee engaged at weaving for imperfections that may arise during the process of weaving." Section 2 provides a punishment for a violation of the provisions of the statute by the imposition of a fine of not exceeding one hundred dollars for the first offence, and not exceeding three hundred dollars for the second or any subsequent offence.

The Act recognizes the fact that imperfections may arise in weaving cloth, and it is evident that a common cause of such imperfections may be the negligence or want of skill of the weaver. When an employer has contracted with his employee for the exercise of skill and care in tending looms, it forbids the withholding of any part of the contract price for non-performance of the contract, and seeks to compel the payment of the same price for work which in quality falls far short of the requirements of the contract as for that which is properly done. It does not purport to preclude the employer from bringing a suit for damages against the employee for a breach of the contract, but be must pay in the first instance the wages to which the employee would have been entitled if he had done such work as the contract called for. It is obvious that a suit for damages against an employee for failure to do good work would be in most cases of no practical value to the em ployer, and a theoretical remedy of this sort does not justify a requirement that a party to such a contract shall pay the consideration for performance of it when it has not been performed. The defendant contends that the statute is unconstitutional, and it becomes necessary to consider the question thus presented.

The employer is forbidden either to impose a fine or to withhold the wages or any part of them. If the Act went no further than to forbid the imposition of a fine by an employer for imperfect work, it might be sustained as within the legislative power conferred by the Constitution of this Commonwealth, in chap. 1, sect. 1, art. 4, which authorizes the General Court "to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without, so as the same be not repugnant or contrary to this Constitution, as they shall judge to be for the good and welfare of this Commonwealth, and for the government and ordering thereof, and of the subjects of the same." It might well be held that, if the legislature should determine it to be for the best interests of the people that a certain class of employees should not be permitted to subject themselves to an arbitrary imposition of a fine or penalty by their employer, it might pass a law to that effect. But when the attempt is to compel payment under a contract of the price

for good work when only inferior work is done, a different question is presented.

There are certain fundamental rights of every citizen which are recognized in the organic law of all our free American States. A statute which violates any of these rights is unconstitutional and void, even though the enactment of it is not expressly forbidden. Article 1 of the Declaration of Rights in the Constitution of Massachusetts enumerates among the natural, inalienable rights of men the right "of acquiring, possessing, and protecting property." Article 1, § 10, of the Con stitution of the United States provides, among other things, that no State shall pass any "law impairing the obligation of contracts." The right to acquire, possess, and protect property includes the right to make reasonable contracts, which shall be under the protection of the law.

The manufacture of cloth is an important industry, essential to the welfare of the community. There is no reason why men should not be permitted to engage in it. Indeed, the statute before us recognizes it as a legitimate business, into which anybody may freely enter. The right to employ weavers, and to make proper contracts with them, is therefore protected by our Constitution; and a statute which forbids the making of such contracts, or attempts to nullify them, or impair the obligation of them, violates fundamental principles of right which are expressly recognized in our Constitution. If the statute is held to permit a manufacturer to hire weavers, and agree to pay them a certain price per yard for weaving cloth with proper skill and care, it renders the contract of no effect when it requires him, under a penalty, to pay the contract price if the employee does his work negligently and fails to perform his contract. For it is an essential element of such a contract that full payment is to be made only when the contract is performed. If it be held to forbid the making of such contracts, and to permit the hiring of weavers only upon terms that prompt payment shall be made of the price for good work, however badly their work may be done, and that the remedy of the employer for their derelictions shall be only by suits against them for damages, it is an interference with the right to make reasonable and proper contracts in conducting a legitimate business, which the Constitution guarantees to every one when it declares that he has a "natural, essential, and unalienable" right of "acquiring, possessing, and protecting property." Whichever interpretation be given to this part of the Act, we are of opinion that it is unconstitutional; and inasmuch as the instructions of the judge permitted the jury to find the defendant guilty on the second count, a new trial must be granted.

We do not deem it important to consider the other exceptions taken by the defendant, further than to say that we are of opinion that the motion to quash was rightly overruled.

For cases supporting the view we have taken, and for a further discussion of the principles involved in the decision, see Godcharles v.

Wigeman, 113 Penn. St. 431; State v. Goodwill, 33 W. Va. 179; In re Jacobs, 98 N. Y. 98; People v. Marx, 99 N. Y. 377; People v. Gillson, 109 N. Y. 389; Millett v. People, 117 Ill. 294.

Exceptions sustained.

HOLMES, J. I have the misfortune to disagree with my brethren. I have submitted my views to them at length, and, considering the importance of the question, feel bound to make public a brief statement, notwithstanding the respect and deference I feel for the judgment of those with whom I disagree.

The

In the first place, if the statute is unconstitutional, as construed by the majority, I think it should be construed more narrowly and literally, so as to save it. Taking it literally, it is not infringed, and there is no withholding of wages, when the employer only promises to pay a reasonable price for imperfect work, or a price less than the price paid for perfect work, and does pay that price in fact. But I agree that the Act should be construed more broadly, and should be taken to prohibit palpable evasions, because I am of opinion that even so construed it is constitutional, so far as any argument goes which I have heard. prohibition, if any, must be found in the words of the Constitution, either expressed or implied upon a fair and historical construction. What words of the United States or State Constitution are relied on? The statute cannot be said to impair the obligation of contracts made after it went into effect. Lehigh Water Co. v. Euston, 121 U. S. 388, 391. So far as has been pointed out to me, I do not see that it interferes with the right of acquiring, possessing, and protecting property any more than the laws against usury or gaming. In truth, I do not think that that clause of the Bill of Rights has any application. It might be urged, perhaps, that the power to make reasonable laws impliedly prohibits the making of unreasonable ones, and that this law is unreasonable. If I assume that this construction of the Constitution is correct, and that, speaking as a political economist, I should agree in condemning the law, still I should not be willing or think myself authorized to overturn legislation on that ground, unless I thought that an honest difference of opinion was impossible, or pretty nearly so.

But if the statute did no more than to abolish in certain cases contracts for a quantum meruit, and recoupment for defective quality not amounting to a failure of consideration, I suppose that it only would put an end to what are, relatively speaking, innovations in the common law, and I know of nothing to hinder it. This, however, is not all. I do not confine myself to technical considerations. I suppose that this Act was passed because the operatives, or some of them, thought that they were often cheated out of a part of their wages under false pretence that the work done by them was imperfect, and persuaded the legislature that their view was true. If their view was true, I cannot doubt that the legislature had the right to deprive the employers of an honest tool which they were using for a dishonest purpose, and I cannot

pronounce the legislation void, as based on a false assumption, since I know nothing about the matter one way or the other. The statute, however construed, leaves the employers their remedy for imperfect work by action. I doubt if we are at liberty to consider the objection that this remedy is practically worthless; but if we are, then the same objection is equally true, although for different reasons, if the workmen are left to their remedy against their employers for wages wrongfully withheld. My view seems to me to be favored by Hancock v. Yaden, 121 Ind. 366, and Slaughter-House Cases, 16 Wall. 36, 80, 81.1

BRACEVILLE COAL CO. v. THE PEOPLE.

SUPREME COURT OF ILLINOIS.

[147 Ill. 66.]

1893.

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APPEAL from the County Court of Grundy County; the HON. A. R. JORDAN, JUDGE, presiding.

The appellant was tried before a justice of the peace, and found guilty of violating an Act of the Legislature entitled "An Act to provide for the Weekly Payment of Wages by Corporations," approved April 23, 1891, and the penalty of fifty dollars imposed, for which and costs judgment was rendered accordingly. The case was taken by appeal to the County Court of Grundy County, where a trial was held by the court, a jury having been waived, and appellant again found guilty, and the penalty of fifty dollars imposed, and judgment entered for that amount and costs; and the case is brought here by further appeal.

The Act of the Legislature above referred to provides "that every manufacturing, mining, quarrying, lumbering, mercantile, street, electric and elevated railway, steamboat, telegraph, telephone, and municipal corporation and every incorporated express company and water company, shall pay weekly each and every employee engaged in its business the wages earned by such employee to within six days of the date of such payment; provided, however, that if at any time of payment any employee shall be absent from his regular place of labor he shall be entitled to said payment at any time thereafter upon demand." And, after providing a penalty of not less than ten dollars nor more than fifty dollars for each violation, that such action be commenced within thirty days after the violation, notice to the corporation that an action will be brought, defences that may not be set up, etc., proceeds: "No assignment of future wages payable weekly under the provisions of this Act shall be valid if made to the corporation from whom such wages are to become due, or to any person on behalf of such corporation or if made or procured to be made to any person for the purpose of relieving such corporation from the obligations to pay weekly under the provisions of

1 See Archer v. James et al., 2 Best & Sm. 61 (1862). — Ed.

this Act. Nor shall any of said corporations require any agreement from an employee to accept wages at other periods than as provided in section 1 of this Act, as a condition of employment."

Appellant became a corporation under the general incorporation law, in force July 1, 1872, and for several years past has been engaged in the business of coal-mining, with its principal office at Braceville, Grundy County, this State. A certain contract is provided by appellant, which all persons desiring employment in its service are required to sign as a condition precedent to such employment. The complaining witness, Thomas McGuire, in November, 1891, applied to the superintendent of appellant's mines for work, and was required to sign one of its contracts, which was done, in duplicate, each party retaining a copy. Certain rules and regulations of the company on the back of its contracts are, by the terms of each contract, made a part of the same. The contract of witness McGuire, after stipulating, among other things, the wages to be paid, etc., provides: "All payments, hereunder to be made on regular pay-day, and in compliance with the rules and regula-, tions above named; and pay-day is hereby fixed for and on the first Saturday after the 10th of each month, when and at which time all wages or moneys that may have been earned during and in the calendar month next prior to such pay-day shall be paid, less all moneys owing said party of the first part on any account whatever." By the seventh rule, printed on the back of said contract, and made part thereof, it is provided: "Every employee will be paid once a month at regular pay-day all wages or moneys he may have earned during and in the calendar month next prior to such pay-day, after deducting any indebtedness which such employee may owe to the company, or which the company, with the consent of such employee, may have assumed to pay to any other person." McGuire entered upon the employment under the contract November 3, 1891, and quit November 13, 1891, and demanded his wages. The company refused to pay him before the next pay-day, when he gave the notice under the statute, and caused this suit to be brought.

George S. House, for appellant.

Mr. S. C. Stough and Mr. William Mooney, for the People.

MR. JUSTICE SHOPE delivered the opinion of the court: The principles that must control the decisions of this case were announced in Frorer v.. People, 141 Ill. 171. Unless we are prepared to recede from the doctrine of that case, and the subsequent case of Ramsey v. People, 142 Ill. 380, the Act under consideration must be likewise held unconstitutional and void. Section 2 of art. 2, of the Constitution of this State guarantees that no person shall be deprived of life, liberty, or property without due process of law. We said in the Frorer Case, the words "due process of law"" are to be held synonymous with the law of the land," and, quoting from Millett v. People, 117 Ill. 294, said: “And this means general public law, binding upon all the members of the community under all circumstances, and not partial or private laws, affect

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