dissenting. The constitutionality of the act entitled ‘ ‘An act to provide for the protection of servants and employees of railroads,” approved March 25, 1889, is called in question by the plea of the appellee company, which was sustained in the court below, and the appellant appeals to this court.
The majority of the court holds that the act in question, in so far as it affects private individuals, is unconstitutional, but that in so far as it affects corporations, it is constitutional; and, furthermore, that it is divisible, so that the unconstitutional part may be eliminated and the valid part may stand. The court also holds that the act, in fact, does not interfere with the right to contract, but only affects some of its incidents, if I fully comprehend its meaning. From the decision of the majority of the judges, I feel constrained to dissent, for reasons that follow.
Since the court, in its well considered opinion, holds that the act in question, according to the weight of authority, cannot stand upon the ground that is a legitimate expression of the police or of any of the other great powers said to be inherent in government, I am relieved of the necessity of discussing the question involved from, that standpoint, and therefore address myself directly to the consideration of the constitutional provision subjecting incorporation statutes to the legislative power of alteration and repeal on the one hand, and of alteration, revocation and amendmenf' of charters on the other, to-be found in section 6, article 12 of the constitution, from which, and from which- alone,' the court derives the authority to enact the act in question and similar acts.
The act'is as follows: “Section 1. Whenever any railroad company or any company, corporation or person engaged in the business of operating or constructing any railroad or railroad bridge, or any contractor or subcontractor engaged in the construction of any such road or bridge, shall discharge, with or without cause, or refuse to further employ any servant of employee thereof, the unpaid wages of any such servant or employee, then earned at the contract rate, without abatement or deduction, shall be, and become due and payable on the day of such discharge, or refusal to longer employ; and if the same be not- paid on such day, then, as a penalty for such non-payment, the wages of such servant or employee shall continue at the same rate until paid. Provided, Such wages shall not continue more than sixty days, unless an action therefor shall be commenced within that time. .
‘ ‘ Sec. 2. That no such servant or employee who secretes or absents himself to avoid payment to him, or refuses to receive the same when fully tendered, shall be entitled to any benefit under this act for such time as he so avoids payment.
“Sec. 3. That any such servant or employee whose employment is for a definite period of time, and who is discharged without cause before the expiration of such time, may, in addition to the penalties prescribed by this act, have an action against any such employer for any damages he may have' sustained by reason of such wrongful discharge, and such action may be joined with an action for unpaid wages and penalty.
“ Sec. 4. That this act shall take effect and be in force from and after its passage.”
The constitutional provision referred to is in these words, viz: Article 12, sec. 6. “ Corporations may be formed under general laws; which laws may, from time to time, be altered or repealed. The general assembly shall have the power to alter, revoke or annul any charter of incorporation now existing and revocable at the adoption of this constitution, or any that may hereafter be created, whenever, in their opinion, it may be' injurious to the citizens of this State; in such manner, however, that no injustice • shall be done to the corporators.”
It is stated in the opinion of the court that the act would be treated as amendatory of our incorporation laws; and thus it was thought to give it the effect of accomplishing what is thought to be provided for in the section of the constitution quoted above. At the threshold of the discussion, therefore, we are confronted with a question of the most serious character. It is this : Can this court arbitrarily treat one statute as amendatory of another? That is to say, is it not a legal proposition of itself, whether any statute is amendatory of another, aside from the idea of both dealing with the same or kindred subjects ? It will be observed that the act in question does not in terms refer to any other statutes, and, this being so, can any other statute be said to be amended by it?
Section 23, article 5, of the constitution is in these words, viz: “No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is ' revived, amended, extended or conferred, shall be reinstated and published at length.” Now, if a law referring to a previous law by title only is not to be considered as amendatory of it, how much more true is it that a subsequent law, which does not refer even to the title of a former law, is not amendatory of the existing or former law?
The prohibition contained in this section of the constitution was not meant as an idle saying, a mere flourish of high sounding words, but was intended to sub-serve a great purpose — the protection of the citizen against surreptitious legislation. Nor has this court, nor the courts of other States, treated this and similar provisions as light and meaningless things. Beard v. Wilson, 52 Ark. 290 ; Havis v. Jefferson, 14 S. W. Rep. (Ark.) 1101 ; Watkins v. Eureka Springs, 49 Ark. 131 ; Judson v. Bessemer, 6 So. Rep. 267 ; State v. City of Trenton, 22 Atl. Rep. 731 ; Board of Comr’s. v. Aspen Mining Co. 32 Pac. Rep. 717.
Prom the decisions on the subject, we gather this principle, that an act, as an independant law, may not be objectionable on constitutional grounds, and yet, as an amendment of some existing law, it may be invalid. The rule is a reasonable one, because no law should be altered or amended without something appears in the amendatory act to give notice to the public of a change in the original law, while if the new act is intended as an independent act, the original act is not affected,'and there is nothing to take notice of.
This, perhaps, is enough to say on this part of the subject. The majority of the court, treating the act in question as an independent act, would hold it unconstitutional for reasons assigned in the opinion, which reasons we think sound and incontrovertible. But the majority of the court, treating the act in question as amendatory of our general incorporation laws, (the court does not say which one, for there are two or more,) holds it to be constitutional under the power reserved to the legislature in the last sentence, (section 6, art. 12, of the constitution,) and I have endeavored to show that the act can have no place as an amendment, because it does not show a compliance with the constitution in the manner of its enactment as such amendment.
The last sentence of the sixth section of article twelve of the constitution manifestly refers to corporations created and to be created by special acts of the legislature, judging from the words employed and the context. Bach charter is then made the subject of legislative alteration, revocation, and amendment, in case it becomes injurious to the citizens of the State, and provided it was revocable at the adoption of the constitution, if already in existence. The charters “hereafter to exist ” were doubtless those special charters conferred by legislation to be expressed in special acts.
Now, it does not appear in this case what kind of a corporation the appellee company is, whether it was created under our general incorporation laws, or by special act of the legislature. As a matter of common knowledge, it may be assumed, however, that it was created by a special act, since it is now forty or more years since it became a matter of public concern, and since it had its origin at a time when there was no general incorporation law in this State. There could then be no grant of corporate powers for strictly private purposes. All such were considered in conflict with the constitutional prohibition of monopolies. Strictly public, or municipal, and quasi public, such as railroad corporations, were all that were allowable. The former were strictly at the will and pleasure of the legislature; the latter were the result of contract between the State and corporators, and by their contracts were both State and corporations to be governed. The State v. Curran, 12 Ark. 321. Of this latter class, presumably, was the appellant company, and to show that its charter is the subject of legislative alteration, revocation or amendment we must look to the language of the contract — the charter — which does not appear in, evidence in this cause.