ON REHEARING.
Upon the rehearing allowed, by the Court in this case, elaborate and able arguments were filed and delivered by opposing counsel, and we have given them the most careful consideration. Counsel have considered the acts separately, and have called one the “Screening Act” and the other the “Scrip Act,” and we will adopt this nomenclature.
THE SCREEN ACT.
What we have said heretofore may be summarized as follows: The principle seems to be that when a few persons are engaged in an extensive business, and they have a multitude of customers or dependent employes, and it appears that the business is of such a character that the parties do not deal upon an equal footing, and that the many are at a disadvantage in their contractual relations with the few, the legislature may regulate these relations, with a view to prevent fraud, oppression or undue advantage. Familiar illustrations are contracts for the loan of money; for transportation of persons and freight; for insurance of life and property; for the manufacture and sale of lard and artificial butter; for measuring and inspecting lumber, grain, tobacco, Hour, etc. The number of these peculiar subjects must vary as trade and commerce increase or drift into new channels. Thus the subject of insurance has been added within recent years, so far, at least, as my observation has extended. See Assurance Co. v. Clements, 140 U. S. 226 (11 Sup. Ct. Rep. 822).
In the State of Virginia all of the subjects above enumerated have, from the very earliest times, been the subject of legislative commercial regulation. Thus we find an act passed as early as 26th December, 1792, for regulating the inspection of pork, beef, tar, pitch and turpentine. 2 Rev. Code, 1819, p. 185. At various periods, flour, Indian meal, bread, salt, fish, pork, beef, lumber, lime, hemp, butter and lard were the subjects of commercial regulation.
Many of these laws were on our statute-book when our present constitution was adopted, and it is not at all probable, when the bill of rights was embodied in our constitution as a jjart thereof in 1872, that the framers intended to *830curtail the police power of the legislature as theretofore exercised; nor is it to be supposed that they intended to prohibit the legislature from adding new subjects of police commercial regulation, as necessity might arise.
The mining of coal, as we shall see when we come to consider the scrip act, has been for a hundred years in England the subject of such police regulation. Though dropped for a season from the enumeration of articles in the legistion of Virginia, it has now been resumed by the legislature of this State ii\the act we are considering, and, as we think, in a perfectly reasonable and legitimate manner.
The objects of the acts we are considering seem to be— First, to protect against negligence by inspection laws, in order to protect miners in fulfilling contracts of labor as regards their health and lives; secondly, to protect them from fraud in measuring and paying for their earnings. If the first object of protection, namely, to protect life and health, be a legitimate subject for legislative interference with contractual relations between miners and operators or owners, upon what conceivable ground can it be maintained that the second object, namely, to protect against fraudulent practices, is not equally in the scope of the police power of the legislature?
This view of the case is so perfectly conclusive to my mind that no amount of argument or authority can add to its strength. And once concede that the coal industry is a proper subject for the exercise of police regulation, and it follows, by all the authorities, that the legislature, not the courts, is to judge of the propriety and reasonableness of any given regulation, provided that it be enacted for the avowed police purpose, and is not upon its face in excess of the police power claimed. In other words, if any conceivable circumstances would justify the exercise of such police power, the legislature, not the courts, is to judge of the existence or prevalence of such circumstances. See Munn v. Illinois, 94 U. S. 113.
So well satisfied am I that these laws are not only constitutional but also reasonable and just, that, so far as I am individually concerned, I do not question that they can be successfully maintained against all classes of persons em*831braced iu tlieir scope. But this Court is neither in duty bouud nor ought it to decide in advance upon the guilt or innocence of persons not now before us, but who may probably come before us on some future indictment. We are not willing to prejudice any future trials by prejudging a different class of persons who. might be indicted; because to -interpret and pjass upon these laws as to them would be to' prejudge their cases, inasmuch as their main defence, judging from the present cases, might consist of an attack upon the constitutionality of the acts in question as applied to themselves. Should individual operators hereafter be indicted, the question as to the divisibility of the ad»— whether they may be maintained against licensees and corporations, but not as against individuals — will properly arise.
There was one point urged in argument for defendant, which was not overlooked but was not perhaps sufficiently dwelt upon in the opinion, and that was that the screening act only applies to persons, companies or corporations operating a coal mine in which more than ten miners are employed. It is urged that this is “class legislation” — a term so loosely and vaguely applied as to defy any critical analysis of its meaning. The distinction drawn in favor of the smaller operators would indi cate that the legislature thought that the evils of fraud and danger of imposition did not extend to the smaller classes of operators, and hence the remedy was not extended to their employes.
It is impossible to see how this distinction renders the act amenable to, the charge of violating the. fourteenth amendment of the federal constitution. This is our opinion, heretofore expressed, and it is confirmed by a recent decision of the Supreme Coui’t of the United States, published since our opinion was announced. In Budd v. New York, 143 U. S. 517 (12 Sup. Ct. Rep. 468) the law of the State of Hew York, which was attacked as unconstitutional, was confined in its operation to cities having a population of one hundred and thirty thousand or more, and it was contended that this feature was in violation of the fourteenth amendment. To this contention the Supreme Court of the United States replied:
*832“It is further contended for the plaintiffs in error that the statute in question violates the fourteenth amendment, because it takes from the elevator owners the equal protection of the laws, in that it applies only to places which have one hundred and thirty thousand population or more, and does not apply to places which have less than one hundred and thirty thousand population, and thus operates against elevator owners in the larger cities of the State. The law operates equally on all elevator owners in places having one hundred and thirty thousand population or more, and we do not perceive how they are deprived of the equal protections of the laws, within the meaning of the fourteenth amendment.”
The same reasoning applies exactly aucl with equal force to the case now before us.
THE SCRIP ACT.
In view of the elaborate argument presented on the motion to re-hear, I have thought it best to make some further observations on the so-called “Scrip Law,” which prohibits persons engaged in mining, ete., from issuing to their employes, in payment of wages, any store-order or check not payable or redeemable in lawful money.
More than a century ago the attention of the parliament of England was directed to the regulation of an admitted evil growing out of what was known in that country as the “Truck System.” A law was passed in the reign of William IV. consolidating all previous laws upon the subject, prohibiting manfacturers of iron and certain other enumerated articles, and the miners of coal, salt, etc., from paying their laborers in anything other than lawful money of the realm. See Truck Act, 1 & 2 Wm. IV. cc. 36, 37, 22 St. at Large, pp. 484, 490.
Now, what was the object of these enactments, and the motive lor passing them ? Mr. Black, in his Law Diction-tionary, thus defines the “Truck Act” under that title: “In English law this name is given to St. 1 & 2 Wm. IV. c. 37, passed to abolish what is commonly called the ‘Truck System/ under which employers were in the practice of paying the wages of their work people in goods, or of requiring them to purchase goods at certain shops. This led *833to laborers being compelled to take goods of inferior quality at a high price.” Mr. Sweet, from whom this is taken, gives the same motive for passing the áct. See Sweet Law Diet, tit. “Truck Act.”
The motive is here declared to be to prevent fraud — -an object which all concede to be a primary power to bring into operation the police machinery of the State. But we are not dependent upon conjecture or the concurrent opinions of the lexicographers and commentators to inform us as to the object of these laws, or that they originated in a police power which aimed to defeat fraud. "We find this object enunciated on the very face of the “Truck Act” itself. The act consists of two chapters, 36 and 37. The thirty sixth chapter answers the purpose of a preamble, and enumerates the various antecedent acts which were to be repealed and consolidated into one, as embraced in the thirty seventh chapter. Those acts, as recited, were the following: 4 Edw. IV. c. 1; 8 Eliz. c. 7; 14 Eliz. c. 12; 1 Anne, c. 18; 9 Anne, c. 20; 10 Anne, c. 16; 1 Geo. I. c. 15; 12 Geo. I. c. 34; 13 Geo. I. c. 23; 13 Geo. II. c. 8; 22 Geo. II. c. 29; 29 Geo. II. c. 33; 30 Geo. II. c. 12; 17 Geo. III. c. 56; 19 Geo. III. c. 49; 57 Geo. III. cc. 115, 122; 58 Geo. III. c. 51.
Upon turning to the acts here enumerated, we find that they disclose in their titles the object of the intended legislation. The more important of them are as follows :
1 Anne, c. 18, entitled “An act for the more effectual preventing the abuses and frauds of persons employed in the working up the woolen, linen, fustian, cotton, and iron manufactures of this kingdom;”
12 Geo. 1, c. 34, entitled “An act to prevent unlawful combination of workmen employed in the woolen manufactures, and for better payment of their wages.”
22 Geo. II, c. 27, entitled “An act for the more effectual preventing of frauds and abuses committed by persons employed in the manufacture of hats, and in the woolen, linen, fustian, cotton, iron, and silk manufactures, and for preventing unlawful combination of journeymen dyers, etc., and of all persons employed in the said several manufactures, and for the better payment of their wages.”
30 Geo. II, c. 12, “An act to amend an act made in the *834twenty ninth year of the reign of his present majesty, en-' titled ‘An act to render more effectual an act passed in the twelfth year of the reign of his late majesty, King George, to prevent unlawful combinations of workingmen employed in the wooleu manufactures, for hotter payment of their wages,’ and also an act for the better regulation of the woolen manufactures, and for preventing disputes among the persons concerned therein, and for limiting a time for prosecuting for the forfeiture appointed for the aforesaid act, in case of payment 'of the workmen’s wages in any other manner than in money.”
19 Geo. III. c. 49, entitled “An act to prevent abuses in the payment of wages to persons employed in the bone and thread-lace manufacture;” also an act to extend the provisions of an act of the twelfth year of his late majesty, King George I; and an act of the twenty second year of his late mujesty, King George II., against the payment of laborers in goods or by truck, and to secure their payment in the lawful money of this realm;” also an act entitled “An act to extend the -provisions of an act of the twelfth year of his late majesty, King George III., and an act of the twenty second year of his late majesty, King George II. against payment of laborers in goods or by truck, and to secure their payment in the lawful money of this realm to laborers employed in the collieries, or in the Avorking and getting of coal, in the United Kingdom of Great Britian and Ireland.”
. These were some of the most important of the acts repealed and consolidated in the “Truck Act” of ¥m. IY. Upon their very face they proclaim their object “to prevent abuses and frauds,” and they were therefore police regulations, in the strictest sense of the term. Down through the centuries, hand in hand, and consolidated into one police regulation, have come these conspiracy laws to protect capital, and these truck acts to protect labor, and both to pi’otect society; and are we now to he told that the effect of adopting our free American constitutions is to leave in full vigor the power to protect capital, but to destroy the concomitant and correlative power to protect labor ? The two powers, associated in their exercise for centuries, have *835not been divorced by American institutions. Such an idea is not to be entertained for a moment. The American lawmakers are presumed to have known of the existence of these police powers at common-law, and in the statute law of England embedded for centuries, and it is not to be presumed, when they framed the restrictions of our constitutions, that they meant to prohibit the exercise of such police powers, when demanded in behalf of the security of society, and necessary to prevent fraud and abuse.
Holt, Judge:“The legislative power shall be vested in a Senate and Ho'use of Delegates.” Section 1, Art. VI, Const. W. Va. “The legislative, executive and judictial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others.” Section 1, Art. V, Const. W. Va. “One branch of the government can not encroach on the dominion of another without danger. The safety of our institutions,depends in no small degree on a strict- observance of this salutary rule.” Sinking Eund Cases, 99 U. S. 700-718. “Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt.” Id. Therefore to every act of the legislature a lawful purpose in the constitutional sense, as well as an intelligent purpose, must be ascribed.
So use your own property and rights as not to injure those of another or those of others collectively constituting the State, is a rule of law of universal application.
The legislative power to enforce this maxim is called the police power.” The police power of a State, in a comprehensive sense, embraces its whole system of' internal regulation by which the State may subject persons and property to all kinds of reasonable restraints and burdens in order to secure the general comfort, health and prosperity of the State, to preserve public order, prevent offences and to establish for the intercourse of citizens with citizens those rules of good conduct and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as it *836is reasonably consistent with a like enjoyment of rights by others. This power, however, is subject to constitutional limitations both State and Federal. Section 10, Art. III. Const. W. Va.; section 1, Art. 14, Const. IT. S.
Of such limitations the legislature must judge and is always presumed to judge correctly, unless the law in question plainly transcends them ; but this in our system necessarily makes it also a judicial question in the last resort; for it is for the courts in a practical case to declare such statute constitutional or unconstitutional. This legislative police power, so far-reaching, is necessarily changeable, as conditions and circumstances change; which is an additional reason for caution and reserve in judicial supervision, while it must be confessed that its exercise is so constant and so multiform that there is a tendency to become disregardful of pri vate rights and constitutional limitations. See Tiedm. Lim. Pol. Pow. 1-3, and note; Cooley Const. Lim. c. 16, p. 572; “Liberty of Contract under the Police Power,” an able article on the subject by-Frederick N. Judson, Esq., in Amor. Law Rev., November, December, 1891, and authorities cited; Budd v. New York, 143 U. S. 517 (12 Sup. Ct. Rep. 468).
One of the laws in question, passed by the legislature of this State, is called the “Screening Act,” and it is claimed by defendant to be in violation of the liberty of contract guarantied by both State and federal constitutions. Section 10, Art. III, Const. W. Va.; section 1, Art. XIV, Const. U. S.
To every legislative act a lawful purpose, in the constitutional sense, as well as an intelligent purpose must be ascribed. What is the object of this screening act? The title says : “An act providing for weighing and measuring-coal at the place where mined, before the saméis screened.” The body of the act discloses the more particular object of requiring that the mining shall be paid . for according to the weight or measure thus ascertained before screening, at such price per ton or bushel as may be agreed on by such owner or operator and the miner who mined the same ; in short, on the basis of the “run of the mine.”
Such exercise of the police power, in restraint of the liberty of contract, we must presume was put in force for the *837genei’al purpose of promoting certainty, and by consequence fair dealing, between the operator and the miner. It may not, in our opinion, tend to accomplish such object. . It may be impolitic, unwise, imperfect. There may be need of repeal or of amendment. But can we say from anything on the face of the act or from anything, of which we can take judicial notice, that it is clearly and plainly an unreasonable and capricious invasion or restraint of the right or liberty to contract? See Powell v. Pennsylvania, 127 U. S. 768 (8 Sup. Ct. Rep. 992, 1257).
The legislative discretion of tjhe State, in the exercise of the police power, must be, from the nature and necessity of the function, and the sovereignty of the body politic, indefinitely broad; and, as a matter of legislation in our own State aud the mother State, has been given without question a very extensive scope in the power to restrict the freedom of contract. Of this our decisions, by necessary implication at least, and our statute-books past and present throughout our whole history furnish many illustrations and examples. Many of these laws relate to freedom of contract concerning matters not affected with any public use in the true sense only in the sense of the nature or extent of the private business being affected with a public interest, such as usury laws, statute requiring written evidences, some parts of the inspection laws, laws against selling spirituous liquors, the oleomargarine laws, law on selling commercial fertilizers, and, in some places, laws regulating-contracts of insurance and anti trust laws. See Acts 1891, for preventing the wasting of natural gas. Code W. Va. 1891, p. 1060. Of the perfect right in the -legislature to do most of these things “no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.” Cooley, Const. Lim. 574, citing Redfield, C. J., in Thorpe v. Railroad Co., 27 Vt. 149.
On the other hand, the judicial power of supervision and ultimate control, when the contract relates to matters private, not affected with a public use in the strict sense, although of vital importance and within its proper sphere requiring to be rigidly upheld and enforced, must from the very nature of the case be limited and definitely restricted to such *838statutes as appear on their face, or from facts judicially known, so capricious, so unreasonable, as to be clearly and plainly in violation of the constitutional guaranties. “Every possible presumption is in favor of the validity of the statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government can not encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.” Sinking Fund Gases 99 U. S. 718.
If the statute in question restrains the liberty of contract in regard to a business affected with a public use in the true and proper sense of the term then, I take it from the arguments, it is confessedly constitutional. What I have said is confined to the supposition that the busiuess of coal mining dealt with by the statute is a private business in the strict and proper sense; although, from its magnitude and importance, the number of persons employed, its dangers, the importance of preventing waste, its relation to the commerce of the State, and the fact that it is already minutely regulated and controlled by our “mining law,” may, in such secondary sense, affect such business with a public interest. See “Mining Law,” Code (Ed 1891) p. 991. For a full and recent discussion of the term, “affected with a public interest,” as determined by the nature and extent of the business, see opinion by Blatchford, J., in Budd v. New York, 143 U. S. 517 (12 Sup. Ct. Rep. 468) (Feb. 29, 1892;) also dissenting opinion of BREWER, J. How far this Act may be objectionable as being what the counsel call “paternal legislation” I have not considered, deeming that a matter for the legislature, not for the courts.
I can not pronounce- this law unconstitutional beyond a reasonable doubt. The remedy, if any be needed, is with the legislature by repeal or amendment.