comitant and correlative power to protect labor? The two powers, associated in their exercise for centuries, have not been divorced by American institutions. Such an idea is not to be entertained for a moment.

The Arkansas court, in McLean v. State, disposes of the essential point in the case in a brief statement. "This legislation," it concludes, "is clearly within the scope of the police power. The manifest purpose of the statute is to prevent those who operate coal mines from perpetrating fraud upon laborers whom they have employed to mine coal by the quantity." This case was appealed to the supreme court of the United States, and a lengthy opinion was written by Justice Day. So far as freedom of contract is concerned, the court recognizes the principle. It has been upheld in many cases. Yet, "in many cases in this court the right of freedom of contract has been held not to be unlimited in its nature." Limitations in favor of public health, safety and welfare, "may be valid, notwithstanding they have the effect to curtail or limit freedom of contract." After citing several cases in which the right has been restricted the conclusion is stated. "It is, then, the established doctrine of this court that the liberty of contract is not universal, and is subject to restrictions passed by the legislative branch of the government in the exercise of its power to protect the safety, health, and welfare of the people." But likewise the police power is not unlimited, it "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." The principle underlying this adjustment of power between the legislature and the judicial power is declared to be well settled. It is stated to be: "The legislature, being familiar with local conditions, is, primarily, the judge of the necessity of such enactments," and the fact that the court may not entertain the same view

as to the necessity, "affords no ground for judicial interference, unless the act in question is unmistakably and palpably in excess of legislative power." These principles are then applied to the case at bar.

After an examination of opinions from the several state courts, of the evidence of the Industrial Commission as published in its report, and of the conditions presented in evidence in the case, the court concludes: 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."

In the same year that the first case mentioned above was brought before the West Virginia court, the Illinois court considered Ramsey v. People. That court had just handed down its opinion in Frorer v. People in which it had held that the prohibition of miners and manufacturers from keeping truck stores was in violation of the constitutional right of freedom of contract. In Ramsey v. People the court declares that the case before it dealing with the weighing of coal before screening involves "in the main, the same constitutional principles." Because of the fullness with which the earlier case had been considered, we need do little more than refer to what is said" in that opinion. The

statute

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attempts to take from both employer and employee, engaged in the mining business, the right and power of fixing by contract the manner in which such wages are to be ascertained. . . . There is nothing in the business of coal mining which renders either the employer or employee less capable of contracting in respect to wages than in any of the other numerous branches of business in which laborers are employed under analogous conditions. There is no difference, at least

in kind, so far as this matter is concerned, between coal mining, on the one hand, and other varieties of mining, quarrying stone, grading and constructing railroads, and their operation when constructed, manufacturing in all its departments, the construction of buildings, agriculture, commerce, domestic service, and an almost infinite variety of other avocations requiring the employment of laborers, on the other hand. Upon what principle, then, can those engaged in coal mining be singled out, and subjected to restrictions of their power to contract as to wages, while those engaged in all these other classes of business are left entirely free to contract as they see fit? We think the attempt of the legislature to impose such restrictions is clearly repugnant to the constitutional limitation above referred to, and therefore void.

Although the court in Peel Splint Coal Co. v. State had decided unanimously in favor of the law, a re-hearing was allowed. The second time the court was divided in its view, two still holding to the former opinion and two dissenting. The views set forth in this dissenting opinion, held by half of the court, are important, though they did not prevail in determining the decision of the case. Objection to the law is based upon an analysis of the mining work which may be summarized as follows. The coal in the mine is the property of the operator; and it is immaterial whether the operator be a corporation or a single individual. The object is to obtain from the mine merchantable coal in as large quantities as possible. In mining it is necessary to have some slack, but the greater the skill of the miner the less percentage of slack there will be. The weighing of coal after it is screened is a truer test of the amount of coal that has been mined. Otherwise the unskilled miner who loads most slack upon his car will receive the larger pay. The question is then asked: Is not screening before weighing the

proper method of giving to the skilled miner what he is entitled to by reason of years of experience, instead of placing him on a par with the beginner, or really below the beginner, who is able to produce a small percentage of merchantable coal, and sends out the residue in the shape of slack?

Further this dissent points out that with a less amount of merchantable coal, a less wage must be paid. The "inevitable result" of the law must be to depress wages, to take 'bread from the family of the skilled miner, and give it to the family of the careless and unskilled one," to cause

the product of the mine to be received in such a condition that a large percentage thereof is worthless to him, and to that extent the coal property for which he has paid his money is taken from him without compensation. . . . What more complete confiscation of the operator's property could possibly be enforced than to have a large percentage of his coal mined and put out in a condition that would be utterly worthless to him, and in addition to that to be compelled to pay the miner for his labor in producing it in that condition?

Turning from the property consideration the opinion takes up the question of contract.

I fail to perceive in what manner the public is interested in the private contract made between the coal operator and his employees, as to the time when such employee shall have the product of his labor weighed and paid for. The labor of the employee is his own property, and he has a perfect right to fix a price upon it, let it be high or low, and the public has no right to say, "Why do you so?" Neither is the public welfare in any manner affected by the terms of the contract, any more than it is in that of the man who works by the day on the farm.

CHAPTER XVI

HOURS OF LABOR-MINES AND SMELTERS

THE validity of laws regulating the hours of labor of men in mines and smelters has been tested in two states in cases that led to the writing of elaborate opinions. One of these cases was appealed to the United States supreme court by which a third opinion was handed down. These three opinions afford an excellent opportunity to study the two opposing views.

The first of these cases came before the supreme court of Utah as Holden v. Hardy and State v. Holden, one dealing with mines and the other with smelters. The appeal of the former case to the United States supreme court in Holden v. Hardy led to the opinion from that court. The third opinion was one handed down by the supreme court of Colorado, In re Morgan. These opinions were all written within three years and the conditions in the neighboring states were such as to make the cases very similar. There was, however, one difference that must not be passed by unnoticed. The constitution of Utah contained a clause not found in the constitution of Colorado which required the legislature to pass laws to provide for the health and safety of the employees in factories, smelters and mines." It does not appear from the reasoning in the opinions, however, that this difference was the real cause for the opposite conclusions reached.

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The opinion of the Utah court deals first with the relation of the provisions of the law in question to the clause of the