7. Summarize the arguments for restricting the application of the law to corporations. Do they justify the classification?

8. Do you know of other cases where police legislation has been restricted to corporations?

9. If the act had applied only to employees engaged in manual or mechanical labor, would it have been upheld?

10. If the act applied to employers engaged in the operation of mines where ten or more miners are employed, would it be contrary to Amendment XIV?

II. If the act had applied only to manufacturers, would it have been upheld?

12. A state law requires that employees engaged in agricultural or horticultural pursuits, stock or poultry raising, and domestic service, if boarded or lodged by the employer, shall be paid monthly, and all other employees semi-monthly. Is it constitutional?

13. If the Missouri act had required weekly payment, would it have been upheld?

14. A state law requires railroad companies to pay discharged employees within seven days from demand, and on non-payment at that time, the wages are to continue from the time of discharge until they are paid. Is it valid under Amendment XIV?

15. If the statute in the principal case had imposed a penalty of one dollar for each day that the wages remained unpaid after demand for payment was made, and granted a reasonable attorney's fee to the employee in any civil action brought to recover unpaid wages, would the decision have been different?

16. A state law requires all corporations doing business in the state to pay their employees at least once a month wages earned during the preceding month and declares that violation of such requirements shall entitle an employee to a lien for his wages on all the corporation's property, taking precedence of all other liens except recorded mortgages or deeds of trust. Is it constitutional under Amendment XIV?

17. Is there in your state a law regulating the time of payment of wages? If so, what are its provisions and how has it fared in the courts?

2. PLACE OF PAYMENT

§ 680.1 Payment of wages to employees in a saloon or bar-room. Every person who shall pay any employee his wages, or any part thereof, while such employee is in any saloon, bar-room, or other place where intoxicating liquors are sold at retail, unless said employee is employed in such saloon, bar-room, or such other place where intoxicating liquors are sold, shall be deemed guilty of a misdemeanor.

1 §680 of California Penal Code.

3. COMPUTATION OF WAGES

MCLEAN v. ARKANSAS

United States Supreme Court. 1909. 211 U. S. 539.

[This case reviews the judgment of the supreme court of Arkansas affirming a conviction of McLean for violation of a state statute concerning methods of paying miners. The statute provides that in mines, where ten or more men are employed underground, payment based on output shall be reckoned before the coal is passed over any screen or other device which shall diminish its weight. McLean, the manager of such a mine, admits that he has paid certain employees on the basis of coal that has been passed over a screen.]

MR. JUSTICE DAY delivered the opinion of the court:

The objections to the judgment of the state supreme court of a constitutional nature are two-fold: First, that the statute is an unwarranted invasion of the liberty of contract secured by the 14th Amendment of the Constitution of the United States; second, that the law, being applicable only to mines where more than ten men are employed, is discriminatory, and deprives the plaintiff in error of the equal protection of the laws, within the inhibition of the same Amendment.

That the Constitution of the United States, in the 14th Amendment thereof, protects the right to make contracts for the sale of labor, and the right to carry on trade or business, against hostile state legislation, has been affirmed in decisions of this court, and we have no disposition to question those cases in which the right has been upheld and maintained against such legislation. But, in many cases in this court, the right of freedom of contract has been held not to be unlimited in its nature, and when the right to contract or carry on business conflicts with laws declaring the public policy of the state, enacted for the protection of the public health, safety, or welfare, the same may be valid, notwithstanding they have the effect to curtail or limit the freedom of contract. It would extend this opinion beyond reasonable limits to make reference to all the cases in this court in which qualifications of the right of freedom of contract have been applied and enforced. Some of them are collected in Holden v. Hardy, 169 U. S. 366, in which it was held that the hours of work in mines might be limited. . . . .

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.

It is also true that the police power of the state is not unlimited, and 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. While the courts can set aside legislative enactments upon this ground, the principles upon which such interference is warranted are as well settled as is the right of judicial interference itself.

The legislature, being familiar with local conditions, is, primarily, the judge of the necessity of such enactments. The mere fact that a court may differ with the legislature in its views of public policy, or that judges may hold views inconsistent with the propriety of the legislation in question, affords no ground for judicial interference, unless the act in question is unmistakably and palpably in excess of legislative power. If the law in controversy has a reasonable relation to the protection of the public health, safety, or welfare, it is not to be set aside because the judiciary may be of opinion that the act will fail of its purpose, or because it is thought to be an unwise exertion of the authority vested in the legislative branch of the government.

We take it that there is no dispute about the fundamental propositions of law which we have thus far stated; the difficulties and differences of opinion arise in their application to the facts of a given case. Is the act in question an arbitrary interference with the right of contract, and is there no reasonable ground upon which the legislature, acting within its conceded powers, could pass such a law? Looking to the law itself, we find its curtailment of the right of free contract to consist in the requirement that the coal mined shall not be passed over any screen, where the miner is employed at quantity rates, whereby any part of the value thereof is taken from it before the same shall have been weighed and credited to the employee sending the same to the surface; and the coal is required to be accounted for according to the legal rate of weights, as fixed by the law of Arkansas, and contracts contrary to this provision are invalid. This law does not prevent the operator from screening the coal before it is sent to the market; it does not prevent a contract for mining coal by the day, week, or month; it does not prevent the operator from rejecting coal improperly and negligently mined, and shown to be unduly mingled with dirt or refuse. The objection upon the ground of interference with the right

of contract rests upon the inhibition of contracts which prevent the miner employed at quantity rates from contracting for wages upon the basis of screened coal instead of the weight of the coal as originally produced in the mine.

If there existed a condition of affairs concerning which the legislature of the state, exercising its conceded right to enact laws for the protection of the health, safety, or welfare of the people, might pass the law, it must be sustained; if such action was arbitrary interference with the right to contract or carry on business, and having no just relation to the protection of the public within the scope of legislative power, the act must fail.

While such laws have not been uniformly sustained when brought before the state courts, the legislatures of a number of the states have deemed them necessary in the public interests. Such laws have been passed in Illinois, West Virginia, Colorado, and perhaps in other states. In Illinois they have been condemned as unconstitutional. Ramsey v. People, 142 Ill. 380. The same conclusion has been reached in Colorado, citing and following the Illinois case, Re House Bill No. 203, 21 Colo. 27.

In West Virginia, while at first sustained by a unanimous court, such an act was afterwards, upon rehearing, maintained by a divided court. State v. Peel Splint Coal Co., 36 W. Va. 802.

We are not disposed to discuss these state cases. It is enough for our present purpose to say that the legislative bodies of the states referred to, in the exercise of the right of judgment conferred upon them, have deemed such laws to be necessary.

Conditions which may have led to such legislation were the subject of very full investigation by the industrial commission authorized by Congress by the act of June 18, 1898. Volume 12 of the report of that commission is devoted to the subject of "Capital and Labor Employed in the Mining Industry." In that investigation, as the report shows, many witnesses were called and testified concerning the conditions of the mining industry in this country, and a number of them gave their views as to the use of screens as a means of determining the compensation to be paid operatives in coal mines. Differences of opinion were developed in the testimony. Some witnesses favored the "run of the mine" system, by which the coal is weighed and paid for in the form in which it is originally mined; others thought the screens useful in the business, promotive of skilled mining, and that they worked no practical discrimination against the miner. A number

of the witnesses expressed opinions, based upon their experience in the mining industry, that disputes concerning the introduction and use of screens had led to frequent and sometimes heated controversies between the operators and the miners. This condition was testified to have been the result, not only of the introduction of screens as a basis of paying the miners for screened coal only, but, after the screens had been introduced, differences had arisen because of the disarrangement of the parts of the screen, resulting in weakening it, or in increasing the size of the meshes through which the coal passed, thereby preventing a correct measurement of the coal as the basis of paying the miner's wages.

We are unable to say, in the light of the conditions shown in the public inquiry referred to, and in the necessity for such laws, evinced in the enactments of the legislatures of various states, that this law had no reasonable relation to the protection of a large class of laborers in the receipt of their just dues and in the promotion of the harmonious relations of capital and labor engaged in a great industry in the state.

Laws tending to prevent fraud and to require honest weights and measures in the transaction of business have frequently been sustained in the courts, although, in compelling certain modes of dealing, they interfere with the freedom of contract. Many cases are collected in Mr. Freund's book on "Police Power," wherein that author refers to laws which have been sustained, regulating the size of loaves of bread when sold in the market; requiring the sale of coal in quantities of 500 pounds or more, by weight; that milk shall be sold in wine measure, and kindred enactments. § 274.

Upon this branch of the case it is argued for the validity of this law that its tendency is to require the miner to be honestly paid for the coal actually mined and sold. It is insisted that the miner is deprived of a portion of his just due when paid upon the basis of screened coal, because, while the price may be higher, and theoretically he may be compensated for all the coal mined in the price paid him for screened coal, that practically, owing to the manner of the operation of the screen itself, and its different operation when differently adjusted, or when out of order, the miner is deprived of payment for the coal which he has actually mined. It is not denied that the coal which passes through the screen is sold in the market. It is not for us to say whether these are actual conditions. It is sufficient to say that it was a stiuation brought to the attention of the legislature, con