(dissenting). The main question in this case is the constitutionality of the act of the general assembly entitled, “An act to prevent fraud in weighing and measuring coal, and requiring the same to be weighed before screening, and for other purposes,” approved April 10, 1899. What the “other purposes” may mean, we have-no means of ascertaining, for no “other purposes” are indicated in the act. I take it therefore that to “prevent fraud against” the miner is the sole purpose of the act.
I desire to say in the outset that an act having that particular end in view is or may be entirely unobjectionable from a constitutional standpoint if it be a general act, subject however to the inalienable rights of the parties concerned-; for instance, subject to the inalienable rights of the parties to acquire and hold property, and consequently to make their own contracts which do not injure the public or others. Such an act is or may be good where no private contract between the parties touching the subject has been made. In other words, it is only where such an act seeks to restrict the individual inalienable rights of the parties that it can he called in question.
What are the. inalienable rights of the citizens of this state in respect to making contracts? The second section of the bill of rights of our present constitution reads: “All men are created equally free and independent, and have certain inherent and inalienable rights, amongst which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness! To secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” All men, it is said, are created, not only free, but equally free. The succeeding section declares the equality of all persons before the law. It is also declared as a principle of government, in the section quoted above, that to secure these inherent and inalienable rights, not to fritter them away, governments are instituted. They have no other real purpose, and all details must lead up to that, or else they axe subversive of the true theory of government.
It is well settled by all the courts, from the highest to the lowest, that, coming within the meaning and scope of “acquiring, possessing and protecting property,” and other kindred inherent and inalienable rights, is the right to contract; for without this right the right to acquire property would be mainly cut off, and be nugatory. I need not therefore cite authorities to sustain that position.
The twenty-second section declares the right of property to be “before and higher than any constitutional sanction even, and, while in the next succeeding section (33) the right of eminent domain is fully conceded to the government of the state, yet no private property can be taken under the mere pretense of mere superiority of thé public demand and exigency, but the same must be paid for in advance. And, to make assurance doubly sure against the encroachments of government on private rights, the twenty-ninth section of the bill of rights declares that the enumeration of rights in preceding sections shall not be construed to be a denial or disparagement of other rights retained, and so forth. In the federal constitution provisions of similar import are to be found. So sacred are these inherent and inalienable rights, not only in this country, but among English speaking people everywhere, that no man in all the race, however humble he may be, if once informed of the real question before him, would voluntarily surrender one of them, or one iota of any one of them.
But the opinion of the court, while conceding the foregoing to be true, propounds the doctrine that an individual who has become a member of a domestic corporation in some way has surrendered the inalienable right in so far as the corporate enactments have restricted his inalienable right. To admit the soundness of such a doctrine would be to admit that the legislature could so provide by enactment that one could waive or surrender any of these inalienable rights, in consideration of being endowed with the privilege of managing his affairs in conjunction with others in corporate capacity. The natural freedom of the citizen is a more costly thing than that. Mot only cannot the legislative department provide law general or special for the citizen to sell him-sslf in this way, but this court- has said that the legislature could not amend the bill of rights, as was attempted to be done, by the formulary of amending the constitution, given in the constitution of 1836, by which such amendment was in effect submitted to the people. See Eason v. State, 11 Ark. 481.
The opinion in that case forcibly, expresses the sentiment of our southern forefathers on the relative rights of government and the private citizen. Moreover, that generation held to the doctrine that when once civil and political rights were recognized in a man, he was thenceforth the equal of any other man before the law, and for that reason what is now known as paternal government had no place in their notions of government. I think it. is well to adhere to these old notions as to fundamentals.
But the opinion of the court makes a distinction between the citizen when he assumes to act alone, and when he acts as a corpo-rator, under the incorporation laws of the state. I do not deem it essential to this discussion to do more than note the distinction between corporations and public and’ quasi public corporations, for the case before us involves a private corporation only. In so far it is distinguished from the case of Leep v. Railway Company, cited in brief of counsel;* and upon different grounds it is distinguished from the case of St. Louis, Iron Mountain & So. Railway Company v. Matthews, 64 Ark. 398.
Whether there be any distinction between the citizen acting in an individual and in a corporate capacity is well worthy of inquiry.
The constitution, article 12, section 6, reads: “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 the state; in such manner, however, that no injustice shall be done to the corporators.”
It is more convenient and more logical to consider first the latter clause of this section.
In order to get at the real meaning of constitutional provisions and statutory enactments, it is allowable to take into consideration the circumstances surrounding their adoption and enactment. It will be observed from the clause now under consideration that all charters of incorporation which had become revocable at the time of the adoption of the constitution, and all such as might thereafter be created which in the opinion of the legislature might be injurious to the public, might be altered, revoked or annuled by the legislature. Until the adoption of the constitution of 1868, corporations in this state were created only by special act of the legislature. Under the constitution of 1868, all corporations were formed under general laws, and not otherwise. Under the present constitution, corporations could be formed under general laws, but the legislature'was not confined by the plan of incorporating by general laws, but might still incorporate by special act, unless there is something in the language of section 18 of the bill of rights which restricts the legislature in this regard.
When the present constitution was being adopted, there were possibly some charters granted by special act, which the corporators had not entitled them selves to by neglecting or refusing to comply with the conditions precedent therein named. These were, in the language of the constitution, revocable for that cause. It is well known also that many paper corporations had been formed under the general laws enacted under the constitution of 1868, in which the corporators had failed to comply with the law, in order to entitle them to the privileges of being incorporated. These were for that reason held to be revocable, and the constitution conferred upon the legislature the power so to declare, and thereby revoke or .annul. Or, if so asked by the corporators, the legislature might alter the terms so as to give new life to them. In none of these provisions was it ever intended to confer upon the legislature any judicial power, or to affect the judicial rights of the incorpora-tors; for whenever corporators should consider themselves injured by the exercise of this annulling and revoking power of the legislature, they could have their day in court, under section 13 of the bill of rights. All questions such as of non-user and mis-user are judicial questions, and are not the subject of legislation, for they do not come under the head of legislation. Forfeitures for non-compliance with conditions are more of the nature of ministerial acts, and are most frequently left to the executive, but may be left to the legislature. But the fact that no injury shall be done to the corporators makes all such acts of reservation and annulment subject to the determination of the courts, if grounds exist therefor. That is all there is in this second clause of the section, and it evidently has no application to rights under a going charter.
The first clause of the section, the only one having any application here, reads: “Corporations may be formed under general laws; which laws may from time to time be allowed or repealed.” It is inconceivable that an amendment to a law which is derogatory of some right guaranteed elsewhere in the constitution, like the right to contract, can "be considered as a Yalid amendment. All amendments must be within the scope of existing constitutional provisions, or they are' to be considered unconstitutional; for amendments must stand on the same footing in this respect as original acts, and no original act could stand the test which denied the right of property or the right to- contract.
It is unnecessary to consider how far all certificates and charters of incorporation are to be considered in the nature of contracts between the state and the corporators. That the state may, through its legislature, alter or repeal charters, to affect the incor-porations for the future, in matters not determined by the constitution itself, will not be denied, but legislation, whether original or by amendment, must respect rights under the constitution, especially those rights which, from the essential principles of government, are inherent and inalienable. I do not think a citizen surrenders, or is required to surrender, any of these rights in consideration of the paltry and sometimes questionable privilege, and merely temporary advantage, of becoming a member of a corporation.
With my way of thinking on such subjects, in so far as the act of the legislature seeks to restrict the right of the miner or operator of the coal mine to enter into, between themselves, a contract otherwise lawful, it is unconstitutional. Be Preston, 52 L. R. A. 523, and notes and citations therein.
58 Ark. 407.