theater in the city of Providence, should employ a fire guard or inspector at a salary of not less than $3 per day, and that said guard should not be discharged, nor his salary reduced, except with the approval of the board of fire commissioners, interferes with the respondent's right to freely contract with its servant, and thus deprives it of its liberty without due process of law. It has been held that the right to make contracts is embraced in the conception of liberty guaranteed by the Fourteenth Amendment. This was pointed out by the court in Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832; Lochner v. N. Y., 193 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937, 3 Ann. Cas. 1133; Adair v. U. S., 208 U. S. 161, 28 Sup. Ct. 277, 52 L. Ed. 436, 13 Ann. Cas. 764; Coppage v. Kansas, 236 U. S. 1, 35 Sup. Ct. 240, 59 L. Ed. 441, L. R. A. 1915C, 960.

549, at page 567, 31 Sup. Ct. 259, 262 (55 L Ed. 328), says:

"But it was recognized in the cases cited, as in many others, that freedom of contract is a qualified and not an absolute right;" and further that the right to make contracts "is subject also, in the field of state action, to the essential authority of government to maintain peace and security, and to enact laws for the promotion of the health, safety, morals, and welfare of those subject to its jurisdiction."

Said Justice then cites, at page 568 of 219 U. S. (31 Sup. Ct. 262, 55 L. Ed. 328) a list of cases in the United States Reports which support the doctrine which he has enunciated. In Chicago, etc., R. R. Co. v. McGuire, supra, the court held:

In State v. Read, 12 R. I. 137, the defendant had been convicted on a complaint charging him with "keeping and exposing for sale certain drinks, food, and merchandise" in violation of the following statute:

That the "state has power to prohibit contracts limiting liability for injuries made in advance of the injury received, and to provide It may be noted in passing that the re- that the subsequent acceptance of benefits unspondent and the majority opinion place der such contract shall not constitute satisfacgreat reliance upon the authority of the tion of the claim for injuries received after the contract," and that "such a statute does not cases just cited, but the legislation under re-impair the liberty of contract guaranteed by view in those cases had no reference to the Fourteenth Amendment." health, safety, morals, or the public welfare, and it is in the regulation of those matters alone that the legitimate field is presented for the exercise of the police power. In Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832, the court was considering the application of a statute of Louisiana, regulating insurance upon property in said state, to a contract of insurance made in New York. In Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937, 3 Ann. Cas. 1133, a statute of New York regulating the hours of labor of bakers was declared to have no relation to public health and not an exercise of the police power. In Adair v. United States, 208 U. S. 161, 28 Sup. Ct. 277, 52 L. Ed. 436, 13 Ann. Cas. 764, an act of Congress making it an offense for a public carrier to discharge an employé because he was a member of a labor organization was held not to be within the power of Congress in the regulation of interstate commerce. In Coppage v. Kansas the court was considering a statute of Kansas making it a misdemeanor for an employer to require an employé to agree not to become or remain a member of a labor organization during the time of the employment. Those cases, therefore, are not in point upon the question now before us. They all admit that, when the police power may properly be exercised for the preservation of public health and safety, as Mr. Justice Pitney says in Coppage v. Kansas, 236 U. S. 1, 35 Sup. Ct. 240, 59 L. Ed. 441, L. R. A. 1915C, 960:

"Such police regulations may reasonably limit the enjoyment of personal liberty, including the right of making contracts."

Mr. Justice Hughes, in commenting upon these cases in Chicago v. McGuire, 219 U. S.

"Section 1. Whenever any religious society shall hold any camp, tent, grove, or other outdoor meeting, for any purpose connected with the object for which such religious society was organized, no person, without the consent of such religious society or of its proper officers, shall keep in any shop, tent, booth, wagon or carriage, or other place for sale, or expose for sale any spirituous or intoxicating liquors, or other drinks, or food, or merchandise of any kind, or hawk or peddle any such liquors, or merchandise within one mile of the place of such meeting: *** Provided, however, that nothing herein contained shall be construed to prevent innkeepers, grocers, or other persons from place of doing business, nor to prevent any perpursuing their ordinary business at their usual son from selling victuals in his usual place of abode." Laws R. I. 1877, c. 629.

The defendant had leased land for the purpose of selling food, but the statute prohibited his enjoying the privileges provided for in his contract. He, as well as all landowners, except "innkeepers, grocers or other persons," "pursuing their ordinary business at their usual place of doing business," and a person "selling victuals in his usual place of abode," within one mile of the meeting were by the act denied the liberty of acquiring property by making contracts for the sale of food and other merchandise. But this court held that the statute was constitutional as a valid police regulation.

In the case of In re Williams, Petr., 79 Kan. 212, 98 Pac. 777, the court upheld a statute which interfered with the petitioner's

(108 A.)

liberty of making contracts for the sale or delivery of black powder. The act provided as follows:

"It shall be unlawful for any individual, firm or corporation to sell, offer for sale or deliver for use at any coal mine or mines in the state of Kansas, black powder in any manner except in original packages containing twelve and one half pounds of powder, said package to be securely sealed," etc. Laws Kan. 1907, c. 250.

The statute applied to no explosive except black powder, and was limited to coal mines; but the court held that the act was a valid police regulation, and did not violate the state Constitution or the Fourteenth Amend

state, and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and the 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."

We have at this length considered the respondent's claim that under the Fourteenth Amendment there has been secured to the theater manager the absolute and unqualified right to contract as to the service and the compensation of the fireguard or inspector stationed at its theater, and that said section 5, in violation of the Fourteenth Amendment, has undertaken to control the contract be tween it. as a master and said inspector as a servant. In making this contention the respondent and the majority opinion complete ly lose sight of the fundamental principles underlying the relation of master and servant. These principles are too elementary to require statement, save for the fact they have been entirely disregarded by said argument and majority opinion. The relation of master and servant exists only when

"the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or, in other words, not only what shall be done, but how it shall be done." 26 Cyc. 966.

"He is to be deemed a master who has the superior choice, control, and direction of the servant, and whose will the servant represents, not merely in the ultimate result of the work but in the details." 26 Cyc. 965.

is fixed by law. The licensee cannot prescribe his duty, such direction being vested in the fire commission; the licensee may not require or receive services from the inspector beyond the duties prescribed by said board. If said board is not satisfied with the manner in which the inspector performs his duties, he must be replaced by another inspector approved by the board; and the power is given to the board, and not to the licensee, to prescribe the uniform and the badge to be worn by such inspector.

Said section does use the word "employ" with reference to the appointment of such inspector. The respondent seizes upon said word as indicative of the nature of the inspector's service, and appears to assume that, since masters "employ" their servants, the employment of the inspector by the licensee makes said inspector the servant of the licensee. Such reasoning magnifies the use of a somewhat indefinite word into an indication of legislative intent contrary to and inconsistent with all the other provisions of said section. It is plain that the limit of the intention of the General Assembly in the use of the word "employ" was to permit the theater licensee in Providence to nominate for the approval of the fire commissioners, or to select for their approval, the person who should act as fire inspector in the theater of such licensee; but the person so nominated, when approved by the board, did not become in the slightest particular the servant of such licensee, but became the person charged with the performance of a public duty under the direction of the board of fire commissioners. For the court to give the conclusive force to the word "employ" which the respondent urges would be to question the deliberate action of a co-ordinate branch of the government upon a mere verbal quibble, and to magnify what is clearly circumstantial into something essential and intrinsic.

An examination of said section 5 unmistakably indicates that the relation there established between a theater operator and a fire inspector is entirely lacking in the ele ments essential to the relation of master and servant. Disregarding for the time those provisions the validity of which the respondent questions-viz. fixing a minimum salary and providing that the fireguard may not be dis- Under the statute the nature of the duties charged, or his salary reduced, "except with to be performed by the theater fireguards the prior approval of said board"-it appears in each of the cities of the state are the that in the city of Providence the licensee of same, whether said fireguard be a member a theater shall employ a suitable person, of the fire department of such city or a perapproved by the board of fire commissioners, son selected by the theater licensee and apwho shall be stationed in such theater dur- proved by the board of fire commissioners ing the time any audience is present therein, or the chief of the fire department of such who shall perform the duties prescribed by city, save that in the city of Providence it is the board to guard against fire, and to pro- specially provided that the duties of the firetect life and property in case of fire in such guard shall be restricted to the public duty theater, who shall not have any other duty, of guarding against fire, and protecting life and in case said board at any time shall and property in case of fire, and that he withdraw its approval of such person, anoth- shall have no other duty. This provision er person, approved by said board, shall be would completely exclude the performance employed in his stead. The theater licensee by the inspector of any service for the theahas neither the unrestricted choice, control nor direction of the inspector. Such licensee can only employ an inspector approved by the board of fire commissioners. The period dur

ter licensee in the ordinary conduct of its business as the operator of a theater. It is clear to us that the fireguard stationed in a theater is not the servant of the theater

(108 A.)

formance of a public duty, and all the re-trustworthy, you shall be responsible for his spondent's criticism of said section 5 as an ignorance or negligence.' attempt to interfere with its right to contract freely with its servant is without point or pertinency.

The statute was held to be unconstitutional, so far as it purported to make the mine owner liable for the negligence of the

certified foreman.

Such

One of the tests which the respondent suggests to establish that the fire inspector is his servant is that the respondent would be The respondent contends that, if the proresponsible for the result of the inspector's visions of section 5 are held to be valid, such negligence. A master may be compelled to determination will require us to approve the respond in damages for the negligent act of constitutional soundness of all legislation his servant, but the theater manager would which may assume to fix by statute the not be liable for the negligent act of the fire wages of private employes, when the perguard in the performance of his duties, beformance of their duties has any relation to cause the manager can not direct or control public safety, as, for example, the wages of the acts of the fireguard. The board of fire locomotive engineers, motormen, chauffeurs commissioners has certified to the competency and the like, and finally that we must apof the fireguard. The fireguard cannot be prove legislative regulation of the wages of discharged by the manager without permis- any class of workmen with which the Gension from the board of fire commissioners. eral Assembly may see fit to deal. The manager is not the master and the fire- argument is clearly specious. All such priguard is not a servant. See Durkin v. Kings-vate employés and workmen are servants of ton Coal Co. et al., 171 Pa. 193, 33 Atl. 237, a private master, performing such master's 29 L. R. A. 808, 50 Am. St. Rep. 801, which business in accordance with the master's diwas an action of negligence for injury to a coal miner brought against the mine owner. The statute provided that no person "shall be permitted to act as mine foreman" until after examination by an examining board created by the state and a certification as to qualification by the mine inspector appointed by the Governor. The statute required all mine owners and operators to "employ" a certified mine foreman under penalty of a fine of $25 per day. The duties of the mine foreman are prescribed by the act, and the owners or operators of the mines cannot interfere with his duties. The act provides

that:

"For any injury to person or property occasioned by any violation of this act or any failure to comply with its provisions by any

mine foreman a right of action shall accrue to the party injured against said owner or operator for any direct damages he may have sustained thereby." Act Pa. June 2, 1891 (P. L. 207) art. 17, § 8.

The court, holding that the mine owner was not liable in spite of the statute making him liable for the negligence of the certified mine foreman, said:

"This statute, regarded as a whole, is an extraordinary piece of legislation. Through it the lawmakers say to the mine owner: You cannot be trusted to manage your own business. Left to yourself, you will not properly care for your own employés. We will determine what you shall do. In order to make certain that our directions are obeyed, we will set a mine foreman over your mines with authority to direct the manner in which your operations shall be conducted, and what precautions shall be taken for the safety of your employés. You shall take for this position a man whom we certify to as competent. You shall pay him his salary. What he orders done in your mines you shall pay for. If, notwithstanding our certificate, he turns out to be incompetent or un

rection.

That the safety of the public frequently depends upon the proper performance of their duties is merely an incident of their occupation. A fire inspector stationed in a theater is not engaged in the service of a private master. He is performing the duties prescribed by law under the direction of a public board. His duty is to the public. The public is the master, and it is for the public, as represented by the lawmaking power of the state, to fix his compensation and to regulate the terms of his employment. No principle is better settled than that compensation for the performance of public duties may be fixed by law, whether such compensation is paid from the public treasury or charged against the business in relation to which it is to be performed.

The burden upon the theater manager consists in being obliged to pay the compensation of the fireman or fireguard stationed in his theater; it is a matter of no consequence to him, and it has no bearing upon the reasonableness of the charge or the constitutionality of the act whether he be required to pay said compensation to the city, and the city pay the fireman or inspector, or that the manager be directed to pay the fireman or inspector directly. The manner of payment is a matter of detail; the vital consideration is whether such manager should be compelled to pay the charge at all. There is a long line of decisions holding that, whenever any business or line of business affects the public health, safety, morals, or welfare, thereby becoming a proper subject for police regulation, the fees and charges for inspection or otherwise for protecting the public against the dangers incident to such business may be imposed upon the business itself, regardless of whether any special franchise or privilege had been conferred upon such business, or that it was one affected with a

public interest, or was one merely of private (employés of the defendant. The court held interest. that the act was not in violation of the Fourteenth Amendment.

In Willis v. Standard Oil Co., 50 Minn. 290, 52 N. W. 652, it was held that a statute requiring illuminating oil which was held for sale to be first inspected, and fixing the fees for inspection, was a valid exercise of the police power, and the court said:

"On its face the act is a bona fide police regulation, a proper inspection law, and not a law levying a tax. What is a reasonable fee for inspection under such laws must depend largely upon the sound discretion of the Legislature, having reference to all the circumstances and necessities of the case; and, unless it is manifestly unreasonable in view of the purpose of the law as a police regulation, the court will not adjudge it a tax."

In Consolidated Coal Co. v. People, 186 Ill. 134, 57 N. E. 880, 56 L. R. A. 266, the court held "that under the police power the Legislature has the right to provide for the inspection of mines, and also that it has the right to place the burden of the expense of such inspection upon the mine owners," and that a law was not in violation of the Fourteenth Amendment of the Constitution of the United States, as one denying equal protec tion of the laws, or taking property without due process of law, because it did not lay down proper rules for its impartial execution in fixing fees to be charged upon a basis of the number of men employed, size of the mine, or "some definite circumstance or condition," and fixing a reasonable number of inspections to be made annually, by which the exercise of an arbitrary discretion might be avoided. The inspection fee was fixed at not less than $6 nor more than $10 a visit. By statute it became the inspector's duty to inspect "as often as he may deem necessary and proper" and "at least four times a year." In City of New Orleans v. Kee, 107 La. 762, 31 South. 1014, the court held an ordinance constitutional which provided for inspection of laundries and required the laundry to pay the inspection fee. In Morgan's Steamship Co. v. Louisiana Board of Health, 118 U. S. 455, 6 Sup. Ct. 1114, 30 L. Ed. 237, a statute was held to be valid which required steamship vessels to submit to inspection and pay a fee therefor.

In People v. Harper, 91 Ill. 357, the court held an act constitutional which created a board with powers to fix the fees for inspecting grain. In Louisiana State Board v. Standard Oil Co., 107 La. 713, 31 South. 1015,

the court held that the act which required the plaintiff board to inspect coal oil throughout the state by reasonable implication confers upon the board authority to exact an inspection fee from the dealer in oil. In Nashville, etc., Railroad v. Alabama, 128 U. S. 96, 9 Sup. Ct. 28, 32 L. Ed. 352, the court considered the provision of a statute requiring a railroad to pay a fee fixed at $3 for the examination of certain of its employés as to color blindness and visual powers, and held the same to be constitutional, as not depriving such railroad of property without due process of law. In Smith v. Ala., 124 U. S. 465, 8 Sup. Ct. 584, 31 L. Ed. 508, the plaintiff in error, a locomotive engineer, had been convicted of operating a locomotive without a license prescribed in a statute which required all engineers to be examined by a state board of examiners as to their fitness to operate locomotives, and forbade the operation of a locomotive by an engineer not possessing such license on the main line for the purpose of hauling passengers or freight. The examination fee was fixed at $3, which was required to be paid by the engineer. The court held that the act did not contravene the Constitution of the United States, and that the statute was valid under the police power of the state. Upon the point now under consideration, see Charlotte, etc., R. R. v. Gibbes, 142 U. S. 386, 12 Sup. Ct. 255, 35 L. Ed. 1051; Daniels v. Hilgard, 77 Ill. 640; People v. Smith, 108 Mich. 527, 66 N. W. 382, 32 L. R. A. 853, 62 Am. St. Rep. 715; People v. Squire, 107 N. Y. 593, 14 N. E. 820, 1 Am. St. Rep. 893; State v. Murlin, 137 Mo. 297, 38 S. W. 923; Williams v. Bonnell, 8 Phila. (Pa.) 534; Davis Coal Co. v. Polland, 158 Ind. 607, 62 N. E. 492, 92 Am. St. Rep. 319.

A somewhat novel case of a law aiming to protect the public against the dangers incident to a business is considered in State In Louisville & Nashville R. R. Co. v. v. Cassidy, 22 Minn. 312, 21 Am. Rep. 765. Baldwin, 85 Ala. 619, 5 South. 311, 7 L. R. An act making it an offense to sell spirituous A. 266, an act made it a misdemeanor for liquors without having a special license (in any railroad to have in its employ any engi- addition to all other licenses), for which a neer, fireman, brakeman, conductor, gateman, fee of $10 must be paid, "to establish a fund signalman, etc., who did not "possess a cer- for the foundation and maintenance of an tificate of fitness therefor in so far as color asylum for inebriates," was held to be a blindness and visual powers are concerned," valid exercise of the police power. In Noble issued by a medical examiner provided for State Bank v. Haskell, 219 U. S. 104, 31 Sáp. by the act. The railroad company was Ct. 186, 55 L. Ed. 112, 32 L. R. A. (N. S.) obliged to pay the examination fee, fixed by 1062, Ann. Cas. 1912A, 487, the court conthe act at $3. The plaintiff brought suit to sidered a statute of Oklahoma which prorecover from the railroad his fees for exam- vided for a levy upon all banks existing