
    In re Gilbert D. Preston.
    
      Weighing of coal before screening — Contracts between miners- and operators — Invalidity of act of March 9, 1898 — Constitutional law.
    
    The act of March 9, 1898 (93 O. L., 33), “to provide for the weighing of coal before screening,” having no other object, than to prevent the malting of contracts between operators and miners, whereby the former shall become bound to make, and the latter entitled to receive, compensation having regard to the skill and care of the miner, is repugnant to the bill of rights as an unwarrantable invasion of the-right to make contracts.
    (Decided November 27, 1900.)
    In Habeas Corpus.
    The petitioner is deprived of his liberty under the-following charge: “Being then and there the operator of a certain coal mine situated within said county, and having then and there under his employ a miner who was mining and sending to the surface coal under-said employment at ton rates, to-wit, one William Brown, did, knowingly and purposely pass the output of coal so mined by said miner as aforesaid, over-a screen, whi&h took away a part of the value thereof, before the same had been weighed and credited to said employe sending the same to the surface, and before the same was accounted for at the legal rate of weights fixed by the laws of Ohio.” The prosecution is founded on the act of March 9, 1898 (93 O. L., 33), entitled “An act to provide for the weighing of coal before screening.” The provisions of the act are as follows: Section 295a. “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 employe sending the same to the surface, and accounted for at the legal rate of weights fixed by the laws of Ohio.” Section 295b. “The provisions of this act -shall also apply to the class of workers, engaged in mineg wherein the mining is done by machinery, known as loaders; whenever the workmen are under •contract to load 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.” Section 295c provides the penalty for the violation of this act.
    
      Arnold, Morton & Irvine and T. A, Jones, for petitioner.
    The act of March 9, 1898, commonly called the “screen law,” infringes, we think, the vested rights .granted this petitioner under the state and federal constitutions, in that it divests him of his inalienable right of “acquiring, possessing and protecting property.” It denies him the guaranty that his private property “shall be held inviolate.” It deprives him of property “without due process of law.” And it affects his individual right of contract.
    We find that the weight of judicial authority is distinctly in favor of holding all such acts unconstitutional and void.
    The following decisions are reported denying the constitutionality of acts for weighing coal before screening. Commonwealth v. Brown, 8 Pa. Sup. Ct., 339; In re House Bill 203, 21 Col., 27; Harding v. The 
      
      People, 160 Ill., 459; Millett v. The People, 117 Ill., 294; Ramsey v. The People, 142 Ill., 380.
    The following authorities we think show that the constitutionality of the acts providing for the weighing of coal before screening. State of Kansas v. Wilson, 58 Pac. Rep., 981; State v. Coal Co., 36 W. Va., 802; Morse v. Stoeker, 1 Allen, 150; State v. Glenn, 7 Jones L., 321.
    The screen law cannot possibly be justified as a police measure. To be classified as such it must meet, the requirements of that class of legislation. It must, relate to the general health, morals or safety of the public. This law does not affect either. It does not. affect the general welfare in any possible way. It must be conceded that, if valid, the law will affect the use of the employer’s property.
    A similar law was passed by the legislature of Illinois, requiring the output to be weighed in the miner’s car. Harding v. The People, 160 Ill., 459; State v. Goodwill and State v. Miner, 33 W. Va., 179; State v. Coal and Coke Co., 33 W. Va., 188.
    What constitutes a proper police power? How-may a state step in and regulate the business of the-citizen or limit his right to contract as he pleases? Godcharles v. Wigeman, 113 Pa. St., 431; Austin v. Murray, 16 Pick., 121; People v. Marx, 99 N. Y., 307; People v. Hawkins, 157 N. Y., 1; Frorer v. People, 141 Ill., 171.
    The following authorities we think show that the' business of coal mining is not in any way affected with a public use. State v. Loomis, 115 Mo., 313; Holden v. Hardy, 37 L. R. A., 103 (14 Utah).
    The right of contract and the power to make a contract is “property” within the meaning of state and federal organic law. Palmer v. Tingle, 55 Ohio St., 423; Ritchie v. People, 155 Ill., 98; Low v. Printing Co., 41 Neb., 127; Commonwealth v. Perry, 155 Mass., 117; Application of Jacobs, 98 N. Y., 106; Allgeyer v. Louisiana, 165 U. S., 578; Leep v. Railway Co., 58 Ark., 407.
    The act of March, 1898, is a species of class legis-. lation and does not operate uniformly upon all in the business of coal mining, nor uniformly throughout the state. Article 1, Section 2, of the state constitution; Article 2, Section 26. So also by the terms of' the 14th amendment , to the national constitution. No other industry save that of coal mining is affected by this law. One class of persons only has been selected for the paternal protection of the state. As we have indicated, the only purpose that this act can have is. to provide a scheme whereby people may make contracts on the basis of information resulting from the operation of the law. The same reasons could as well apply to' other branches of industry. Laws of a similar tendency might as well be enacted regulating industries other than that of coal mining. They could be enacted for the purpose of regulating ore or limestone mining, but all such legislation is against the .‘spirit and policy of the constitution. Cooley’s Const. Limt., 6th ed., p. 484.
    The so called “scrip acts” in Ohio and other states, are, in reference to their constitutionality, governed by the same principles as the “screen acts.” We not only refer to the decision of the Supreme Court of Ohio upon the scrip law, as an authority precedent •that the screen law is unconstitutional, but by comparison it will be seen that where there is a difference in the decisions of the supreme courts of the different states upon the constitutionality of these respective acts, that in some states both the screen law and scrip laws are held constitutional, while in other states, more numerous, they hold these laws to be unconstitutional. Marsh v. Poston, 35 W. L. B., 327; 1 Unrep. Cas., 448; 54 Ohio St., 681.
    The only state of which we are aware in which it is held that the so called scrip laws are constitutional, is Kansas. State v. Haun, 7 Kan. App., 509.
    We, of course, should refer to the decision of the Supreme Court of West Virginia in the case of the State v. Coal Company, 36 W. Va., 802, in which it is held that the so called scrip law is constitutional. But as to tins decision, it was by an evenly divided court, and when we consider it in connection with the decision of the same court in the case of State v. Goodwill, 33 W. Va., 179, we do not see how any weight can be attached to the former decision.
    In the following cases the so called scrip laws or similar laws have been held.unconstitutional. In re House Bill No. 147, 23 Col., 504; Frorer v. People, 141 Ill., 171; Showalter v. Ehlan, 5 Pa. Sup. Ct., 242; State v. Coal Co., 8 Pickle (Tenn.), 81.
    We have reserved for separate consideration the Ohio decisions bearing upon the questions under discussion. Coal Co. v. Rosser, 53 Ohio St., 12; State v. Nelson, 52 Ohio St., 88.
    The Supreme Court, in the unreported case of State v. Lake Erie Iron Co., 33 Bull., 6; 1 Unrep. Cas., 254, held what is known as the semi-monthly payment law to be unconstitutional.
    We also cite in support of our contention in this case the decisions in the following cases. State v. Gardner, 58 Ohio St., 599; State v. Ferris, 53 Ohio St., 314; Cow v. Railway Co., 1 N. P., 213, 2 Dec. 594: Marmet v. State, 45 Ohio St., 63.
    In the. case of the Wheeling Bridge & Terminal Railway Co. v. Gilmore, 8 C. C., 658, 4 Circ. Dec., 366, the circuit court in Belmont county holds unconstitutional the act of 1890, as amended 1891, providing that employes shall be paid for every hour they work in excess of ten, and that the same is in conflict with sections 1 and 19 of article 1 of the constitution of Ohio, and section 1 of the fourteenth amendment to the constitution of the United States.
    
      Darnel J. Ryan; W. T. Letois; J. M. Sheets, attorney general; J. E. Todd and Smith W. Bennett, for respondent.
    As to the ground that this is class legislation, we refer to the State v. Nelson, 52 Ohio St., 88.
    In this state, and in all other states, the legislatures have established classified cities and towns, and have passed, and are passing, laws general in form, but which in fact refer to one class, and these laws have always been upheld in Ohio and elsewhere as valid and not obnoxious to the objection of class legislation or non-uniformity.
    This act in question certainly has a uniform operation wherever the kind of business said to be regulated is transacted, and all persons similarly situated in all parts of the state are affected in the same way. Budd v. New York, 143 U. S., 517.
    After all, the real question in controversy in this case, and as appears to us the only ground which may admit of argument, is the fifth specification, which challenges the validity of this act, upon the ground that it is beyond the power of the legislature in-the exercise of what is known as police power, to pass such a law. In proceeding to a discussion of the limits of the police power, we call the attention of the court to a decision of this court in Crawford v. Wick, 18 Ohio St., 190.
    
      We insist, as a proposition of law, that the exercise of the police power in a state, is full and complete in the legislature thereof, and subject to no restrictions except those which may be found in the constitution of the United States and of the state itself; that a court will not usurp the powers of the legislature by declaring an act invalid upon any broad ground of justice, or upon the ground that particular hardship is in the act before them, or upon other mere equitable considerations, and that the court is silent before the express will of the people (the written law), and if the court thinks the law a hard one it is not for them to say it is void for that reason.
    It had been recognized for a long time prior to the independence of the United States, that the legislative branch of government had ample authority to make regulations for the conduct of certain kinds of business among the citizens; and these United States, that is the people thereof, were and are possessed with the same powers. As has been many times said, this particular power referred to is a power inherent in every government, and that under these powers the government may regulate the conduct of its citizens toward each other and the manner in which they shall use their property when such regulation becomes necessary for the public good.- And so we say, that in the state of Ohio the legislature, as the representative of, and in expressing the will of, the people, has the same power of regulation which has existed since governments have existed and which are not expressly surrendered in the constitution of the state or of the United States. Munn v. Illinois, 94 U. S., 113 (24 Law Ed., 77.)
    The common law of police power as now in vogue is, as we have seen, not a new force, but is now more often called into action as conditions have so wondrously changed, and its repeated assumption in .these later days only substantiates the claim made for it, that it accommodates itself to meet the requirements of an ever-growing, progressive age.
    We now desire to call the attention of the court to instances of the exercise by the legislature of this power in several of the states of the Union, and to the fact that the Supreme Court of the United States has recognized the right of a state legislature to the exercise of this power in similar cases to the case at issue. Jones v. Illinois, 110 Ill., 590; Holden v. Hardy, 169 U. S., 366; Barbier v. Connolly, 113 U. S., 27; Budd v. New York, 143 U. S., 517; Davis v. State, 68 Ala., 58; Sawyer v. Davis, 136 Mass., 239; Brechbill v. Randall, 102 Ind., 528; 55 Md., 97; Hancock v. Yaden, 23 N. E., 253; Palmer v. State, 39 Ohio St., 236; Kansas v. Wilson, 58 Pac. Rep., 981; State v. Coal Company, 36 W. Va., 802.
    The law making power of the state can do any legislative act not prohibited by the constitution. The statutory provision or regulation of any business which is required to insure peace and quietude to the community and to secure the general welfare is within the legislative authority.
    Before taking up the decisions of other states we desire to cite to the court the amount of legislation enacted in Ohio for the supervi ion and government of mine owners for the inspection of their mines and the prevention of casualties and protection of their employes.
    This is to show that the state of Ohio has taken under its general supervision this vocation, for the purpose of securing the safety of employes by requiring ventilation and inspection of mines, and governmental reports thereof, and that the defendant, therefore, must submit to such regulations as the sovereign, the state, thinks conducive to public health, public morals and public security. All of chapter 9, title 3, Revised Statutes of Ohio, embracing sections 290 to 306, inclusive, were enacted for the purpose aforesaid and all the restrictions therein required in the business of mining are directly in harmony with the character of the legislation embraced within the act in question.
    We also in this connection desire to refer the court to sections 4444, 4444a, 4445 and 4446, Revised Statutes of Ohio, where it is plainly designated as to what the contents of a bushel for measuring coal, stone and lime shall be, and that where facilities can be had all sales of coal shall be by weight and 2,000 pounds avoirdupois shall constitute a ton thereof, and also the liability of persons selling coal in violation of these provisions. These statutes have existed upon our statute books for more than twenty years and have never been questioned. The power embodied in them has been called into question in other states and fully sustained.
    By the express enumerations of powers given to cities and villages in the statutes of Ohio, under section 1692, in subdivision 16 thereof, the express authorization is given to councils to provide by ordinances for the regulating of the weighing and measuring of hay, wood and coal and other articles exposed for sale; so that every citizen of a city or village where such an office has been created by ordinance, can demand as a matter of right from any person selling to him a ton of coal, a certificate of weight that there are 2.000 pounds avoirdupois in the ton purchased by such person. Stokes v. City of New York, 14 Wend., 87; Munn v. Illinois, 94 U. S., 113.
    The inspection and regulation of weights and measures have always been regarded as proper subjects of police supervision and the mere fact that it may' to some extent interfere with the right of contract is no objection to it. First Blackstone Com., 274.
    In the case of Crawford v. Wick, supra, the public policy of the state was announced. Such public policy is back of, or the foundation of, the legislation in question. Frisbie v. U. S., 157 U. S., 160; U. S. v. Joint Traffic Ass’n, 171 U. S., 505; Wilson v. State, decided by the court of appeals of Kansas, May 19, 1898, construing chapter 188 of the Kansas laws of 1893. This statute is very similar to the one passed by the Ohio legislature, which is here objected to as being unconstitutional. Yates v. Milwaukee, 12 Wis., 673; Wilson v. State, 53 Pacific Reporter, 375.
    The following cases also sustain the proposition contended for: Boston Beer Co. v. Mass., 97 U. S., 25; Holden v. Hardy, 169 U. S., 366; Munn v. Illinois, 94 U. S., 113; Stokes v. New York, 14 Wend., 87; Eaton v. Kegan, 114 Mass., 433; Charleston v. Rodgers, 2 McCord, 495; Smith v. State, 90 Tenn., 575.
    It might not be improper to call attention, in a casual way, to the rules governing courts in passing on the constitutionality of legislative acts. Article 2, Section 1, of the constitution provides: “The legislative power of this state shall be vested in a general assembly, which shall consist of a senate and house of representatives.”
    Here then the whole legislative power vests in the legislature, and is . supreme, except when limited by some other provision of the constitution. Ohio ex 
      
      rel. v. Covington, 29 Ohio St., 102; 1 Story on the Constitution, Sec. 426; Palmer v. Tingle, 55 Ohio St., 423.
   Shauok, C. J.

There is no authority for the detention of the petitioner unless the act of the general assembly set out in the statement of the case is constitutionally valid.

That the constitution gives inviolability to the right to make contracts, and that the legislature may deny the right only when it is required for the general welfare, and when it is promotive of public health or morals, are propositions established by familiar authorities and admitted by the attorney general.- We have, therefore, to consider only the purpose of this enactment and the nature of the contract which it assumes to forbid. Its purpose is to terminate the rights heretofore universally recognized in this state, and often exercised, of determining by contracts voluntarily entered into between miners and operators the mode in which the basis of compensation to be made by the latter to the former should be ascertained. Counsel for the state expressly disclaim any authority in the legislature to determine the price to be paid for mining coal, and it is true that no such authority is assumed in this act. By the method of payment heretofore in use, in which compensation was determined upon the basis of screened coal, miners have become entitled to receive and operators have become bound to make, compensation having regard to the skill and care exercised by the miner in the prosecution of his work. The effect of the act is that the total compensation to be paid by an operator is to be determined by agreement, but that it must be paid to miners without discrimination on account of their skill and care. Why the general assembly selected this class of laborers for discrimination — why they are deemed less entitled than others to compensation which encourages merit by rewarding it — we do not know, nor inquire. For, however unjust to this class of laborers the act may be, we can inquire only whether the general assembly had power to pass it. It is suggested as the basis of the act, that frauds may be perpetrated in the screening and weighing of coal under the contracts heretofore entered into. To this suggestion it is sufficient to answer that if such danger exists it may well justify appropriate legislation for the prevention of such fraud. But this legislation does not seek to prevent fraud nor to provide for the health or safety of those engaged in mining. Its sole purpose is to establish a uniform standard of compensation among those upon whom it operates. That is, so far as skill and care are concerned, it estaN lishes a uniform standard of earning capacity. The standard thus to be established for all must sarily be that of the least efficient, since their efficiency can not be increased by legislation. To withhold from merit its reward, may be a favorite object of socialism, but it is inimical to the individual rights which are preserved by the constitution. Acts not distinguishable from this in any substantial respect have been held repugnant to similar constitutional provisions. In re House Bill, etc., 21 Col., 27; Commonwealth v. Brown, 8 Pa. Superior Ct., 339; Millett v. The People, 117 Ill., 294; Ramsey v. The People, 142 Ill., 380. We are aware that divided courts have reached the opposite conclusion. The State v. Coal Co., 36 W. Va., 802, and State v. Wilson, 61 Kans., 32. But in both cases what we regard as the correct view is expressed in the dissenting opinions. The views which prevailed in the cases lastly cited seem to be entertained by those whose minds have not become entirely' divorced from the view once urged, but long since abandoned, that constitutional limitations are mere admonitions to the general assembly, and that they do not serve to annul legislative enactments inconsistent with their provisions.

This act may be invalid for other reasons, but our decision is placed upon the ground that it is an unwarranted invasion of the rights of miners and operators to make contracts by which the former shall be entitled to receive, and the latter obliged to make compensation according to the value of the service rendered and received.

Petitioner discharged.  