(dissenting).
After a careful consideration of the arguments which were submitted in these eases when they wmre originally heard, and which have been presented upon the re-argument, and a thorough examination of the authorities *839cited both by the representatives of the State and the plaintiff in error, I have reached the conclusion that the validity of the acts under which the indictments were found can not be sustained, for the reason that one is in restraint of trade and the otlier in contravention, not only of section 10 of Article III of the bill of rights of the State, but also of section one of the fourteenth amendment of the constitution of the United States.
The judgments which were under consideration by this Court, and upon which an opinion was handed down at a former term, were upon indictments Nos. four and five, the former of which was found under section 1, c. 76, Acts 1891. familiarly known as the “Scrip Law;” and the latter under section 3, c. 82, Acts 1891, “providing for weighing and measuring coal at the place where mined, before the same is screened,” which section provides that “all coal so mined and paid for by weight shall be weighed in the car in which it is removed from the mine before it is screened, and shall be paid for according to the weight so ascertained, at such price per ton as may be agreed on by such owner or operator and the miners who mined the same; and coal mined and paid for by measure shall be paid for according to the number of bushels marked upon each car in which it is removed from the mine, and before it is screened, and the price paid for each bushel so ascertained shall be such as may be agreed on as aforesaid.”
Section one of the same chapter, provides that “it shall be the duty of every corporation, company, or person engaged in the business of mining and selling coal, by weight or measure, to procure and constantly keep on hand, at the proper place, the necessary scales and measures, and whatever else may be necessary to correctly weigh and measure the coal as mined by such corporation, company, or person.”
Now, it will be perceived that this requirement does not apply to corporations alone, but the language is: “It shall be the duty of every corporation, company, or person enagaged in the business of mining and selling coal,” etc. Let the mine-owner be an individual, a firm, or acorpoi’ation when the mining operation is commenced. The act is imperative that “the coal shall be weighed in the car in wrhich it is re*840moved from the mine before it is screened, and shall be paid for according to the weight so ascertained.”
The leanied counsel for the State in their brief filed upon the re-hearing assert “that whatever rules and regulations can be passed and made by the legislature in the exercise of its power in relation to the business of a corporation can also be exercised in relation to the same business when carried on by natural persons, and that it would be strange, indeed, if it were not so.” And again they say : “This and numerous other cases that might be cited settle the matter beyond controversy that there is no distinction between the rights of private persons and corporations, so far as they relate to the screening of coal, as required by the act in question, and that if the act is a legitimate exercise of the police power of the State as to the one it is same as to both.”
This T regard as a proper concession and a fair statement as to- the effect of the act under consideration. It was evidently the intention of the legislature to place all persons operating miues upon the same footing. The act is severable; it was not intended to discriminate between corporations and individuals; and such discrimination would not have been allowed by the constitution, if such had been the inteutiou.
It being then conceded that individuals and corporations engaged in mining coal occupy precisely the same relation to the screening act above quoted, it follows that the police power confers no more right or power upon the legislature to interfere with the private contracts of such a corporation than it does to interfere with like contracts of an individual.
In the ninth clause of section 17, c. .14, Code, it is provided that the word “person” includes corporations, if not restricted by the context, and it has been held by the Supreme Court of the United States that they are persons, within the fourteenth amendment. See Railroad Co. v. Beckwith, 129 U. S. 26 (9 Sup. Ct. Rep. 207); Santa Clara Co. v. Southern Pac. R. Co., 118 U. S. 394 (6 Sup. Ct. Rep. 1132); Pembina etc., Co. v. Pennsylvania, 125 U. S. 181 (8 Sup. Ct. Rep. 737).
*841If, then, a corporation chartered for the purpose of mining and shipping coal, as the plaintiff in error was, occupies the same attitude that a natural person does who is engaged in the same business, the question presented for our consideration is, what authority has the legislature, under police or any other power, to interfere with or control the private contracts of such corporation' made with its employes for the production of merchantable coal from its mines ?
We surely would search in vaiu for any precedent sanctioning such an unwarranted interference with private contracts. In the words of Sir George Jessel : “If there is one thing more than any other that public policy requires, it is that men of full age and competent understanding shall have the utmost liberty to contract, and that their contract, when entered into freely and voluntarily, shall be held sacred, and shall be enforced in courts of justice.”
It is readily conceded that the police power is exercised ■where public protection, health and safety, and the rights of other individuals and corporations, are concerned; and Judge Cooley, in his valuable work on Constitutional Limitations, p. 575, says: “Perhaps the most striking illustrations of the principle here stated will be found among the judicial decisions, which have held that the rights insured to private corporations by their charters, and the manner of their exercise, are subject to such new regulations as from time to time may be made by the State with a view to public protection, health, and safety, and to properly guard the rights of other individuals and corporations Although these charters are to be regarded as contracts, and the rights assured by them are inviolable, it does not follow that these rights are at once, by force of .the charter contract, removed from the sphere of State regulation, and that the charter implies an undertaking on the part of the State that in the same way in which their exercise is permissible at first, and under the regulations then existing, and those only, may the corporators continue to exercise their lights while the artificial existence continues. The obligation of the contract by no means extends so far, but, on the contrary, the rights and privileges which it confers *842are only thereby placed upon the same footing with other legal rights and privileges of the citizen in respect to proper rules for their due regulation, protection, and enjoyment. The limit to the exercise of police power in these cases must be this: The regulations must have reference to the comfort, safety, or welfare of society. They must not be in conflict with any- of the provisions of the charter, and they must not, under any pretense of regulation, take from the corporation any of the essential rights or privileges which the charter confers. In short, they must be police regulations in fact, and not amendments of the charter in curtailment of the corporate franchise. The maxim, sic utere tuo ut alienum non laedas, is that which lies at the foundation of the power, and to whatever enactment affecting the management and business of private corporations it can not fairly be applied the power will not extend.”
Can this statute be reconciled with section 10 of article III of the bill of rights of this State, which provides that “no person shall be deprived of life, liberty, or property without due process of law and the judgment of his peers,” or with the first section of the fourteenth amendment to the constitution of the United States, which provides the same thing, in substance? In considering this question we must not lose sight of the fact that the coal, as it lies untouched in the mine, is the property of the operator, whether such operator be a single individual, or several who have combined their capital for the purpose of purchasing aud operating the same as a corporation.
When the mine is opened for practical operation, as a matter of course, the object of the operator, whether individual or corporate, is to obtain as much mei’chantable coal as possible .from each foot of coal as it is mined. It is a matter of history connected with the mining of coal that in digging coal a considerable percentage of slack is necessarily produced, and that the most skillful miner produces the least slack, and this is something the court may take judicial cognizance of; and, as every bushel of coal that is brought from the mine in an unsalable condition in the shape of slack results in a sacrifice of just so much of the operator’s coal-property, the operators of coal mines found *843it necessary years ago to adopt the use of the screen, not only to separate the worthless slack from the clean, merchantable coal, but they also found it necessary to weigh the coal after it was screened as the true test of the value of each individual miner’s services; otherwise, if the coal was weighed before it was screened as it came from the mine, the miner who sent out the bank car laden with the largest percentage of slack would receive the greater remuneration, because the slack would lie more compactly and weigh more than lump coal.
Can the screeu, under these circumstances, be regarded as a fraud which calls for the interposition of the police powrer of the State ? Is it not rather the proper method of giving to the skilled miner what he is entitled to by reason of years of experience, instead of placing him on apar with the beginner, or really below the beginner, who is able to procure a small percentage of merchantable coal, and sends out the residue in the shape of slack. Ordinarily, where an employer contracts with his employe for the performance of his work in a certain manner, the production of an article of a certain quality — for instance, the quarrying of stone and dressing it to certain dimensions, or the mining of coal in lumps of sufficient size to pass over a screen, and pass as merchantable coal — he has a right to have the work performed in accordance with the contract, and not, to use a common expression, “purchase a pig in a poke,” and pay ■the contract-price, without getting or without having the opportunity of applying the test, and ascertaining that he is receiving what he contracted for.
It is true the operator may, without violating the act under consideration, pass the .coal over the screen, after it is weighed and paid for ; but that only results in disclosing the large percentage of slack and small proportion of merchantable coal he has weighed and paid for, and the only redress he can obtain is in a reduction of wages, which will cause dissatisfaction among the miners, and will not restore to him the coal which has been destroyed by unskillful mining, It is also true that the miner can not either expect or reasonably demand as much per bushel for coal which is weighed before it is screened as he has heretofore received for screened coal.
*844What, then, are the inevitable results of the law under consideration ? It depresses the wages of the miner ; it takes bread from the family of the skilled miner, and gives it to the family of the careless and unskilled one; and it causes the product of the mine to be received in such a condition that a large percentage thereof is worthless to him, and to that extent the coal property for which he has paid his money is taken from him without compensation. 'When this act is enforced, there is no longer any incentive to the skillful miner to send out, as the product of his labor, the highest percentage of merchantable coal; and in consequence the product of the mine in the shape of merchata-ble coal is small, while the waste in the substance of the mine is great.
The opinion which has been handed down in these cases places the constitutional validity of the acts, under which said indictments were found upon the general police powers of the State, and with this position I can not concur, for the following reasons:
First, it must be conceded that an individual or a corporation becoming the owner of coal lands, and engaging in mining and disposing of coal, can not be regarded in any other light than as being engaged in a private enterprise. In the case of Salt Co. v. Brown, 7 W. Va. 191, this Court held that a corporation chartered for the purpose of mining coal and manufacturing salt was not organized for a public use, and for that reason could not exercise the right of eminent domain.
The opinion handed down in speaking of the peculiar and extraordinary privileges conferred upon corporations, cites section 7, p. 994, Code, which provides that, “in case a coal-mine has but one opening, and the owner thereof does not own suitable surface ground for another opening, as required by the next preceding section, he may select and appropriate any adjoining land for that purpose, and for approach thereto, and he shall be governed in his proceeding in appropriating such land by the'laws in force providing for the appropriation of private property by corporations, and such appropriation may be made whether he is a corporator or not; but no land shall be appropriated mi-*845der the provisions of this act, until the coiirt is satisfied that suitable premises can not lie obtained on reasonable terms;" showing that this privilege is not conferred on corporations alone, but upon individuals engaged in the business of mining; and the only ground upon which this act could possibly be sustained is that the health and safety of the miners demand it, and it might thereby be brought within the purview of the police power.
In the case of Varner v. Martin, 21 W. Va., 584, this Court held that, “under our constitution, private property can not be taking with or without compensation, for private. use ;”.als'o that, “under our constitution private property can be taken only for public use, and then only upon just compensation being paid or secured to be paid.” And in the case of Railroad Co. v. Benwood Iron Works, 31 W. Va. 710 (8 S. E. Rep. 453) this Court held that, “where a railroad company sought to condemn land, over which to build a switch, branch road or lateral work to reach a private manufactory (a steel mill) for the purpose of transporting freight.to and from said steel mill over petitioner’s road, the use to which the land was to be subjected was a private, uot a public, use.”
Row, when we look to the charter of the Peel Splint Coal Company to see what it was authorized to do, we find that it was chartered for the purpose of leasing or buying and owning coal-lands ancl coke-plants; mining, shipping and selling coal, manufacturing, shipping and selling coke, buying and selling general merchandise; owning chartering and operating steam boats, barges, flatboats and other water-craft for the purpose of transporting ' the ■goods and products of said corporation and others, and acquiring and holding such property, real and personal, and doing such acts, as said corporation might lawfully, as incidental or necessary to the transaction of the business aforesaid, hold and do — all of which a natural person or individual could lawfully do without a charter, and without being limited, as a corporation is, by statute to holding ten thousand acres of real estate. There is nothing in this charter which would characterize said company as anything other than a private corporation.
*846The question as to whether the legislature has a legal right to provide how and when coal shall be weighed appears from the authorities to turn upon and be controlled by the question as to whether the business is affected with a public interest. So in the case of Budd v. New York, 143 U. S. 539 (12 Sup. Ct. Rep. 468). Justice Blatchford says: “In State v. Gas Co., 34 Ohio St. 572, 582, (in 1878) Mann v. Illinois, 94 U. S. 113, was cited with approval, as holding that, where the owner of property devotes it to a use in which the public have an interest, he, in effect, grants to the public an interest in such use, and must, to the extent of that interest, submit to be controlled by the public for the common good, so long as he maintains the use; and the court added that in Munn v. Illinois the principle was applied to warehousemen engaged in receiving and store-ing grain, and it was held that their rates of charges were subject to legislative regulation, and the principle applied with greater force to corporations when they were invested with franchises to be exercised to subserve the public interest.”
As we have seen, in this State, in the case of Salt Co. v. Brown, it was held that the mining of coal was not of such public utility as to entitle the company to exercise the right of eminent domain; and in the case of Railroad Co. v. Benwood Iron Works, supra, it was held that a private corporation engaged in the manufacture of steel was not of such public utility as to enable it to condemn land for a switch leading to the Pan Handle Railroad, for the purpose of transporting-the product of the mill.
If such corporations, then; are not affected with sufficient public interest to enable them to exercise this right, should they not be regarded as private corporations, and not subject to police control, further than the health and safety of the operators are concerned, and further than an individual engaged in the same business would or could be controlled?
In the case of Sawyer v. Davis, 136 Mass. 239, the supreme judicial court of Massachusetts said that “nothing is better established than the power of the legislature to make what are called police regulations, declaring in what *847maimer property shall' be used aud enjoyed and business carried on with a view to the good order and benefit of the community, even though they may interfere to some extent with the full enjoyment of private .property, and although no compensation is given to a person so inconvenienced;” and just here I may ask, with propriety, how will the community in any manner be affected, whether the coal of this company is weighed before or after it is screened, and how will the public in general be affected thereby ?
In the case of Ward v. Farwell, 97 Ill. 608, the court in its opinion says : “Private corporations created for business purposes are artificial beings, clothed with certain rights and privileges, and are permitted to own and acquire property for certain purposes and to a limited extent; and when so created they are subject to the same legislative control that natural persons are under’ like eiroumstances. With certain constitutional limitations, the rights of all persons, whether natural or artificial, are subject to such legislative control as the legislature may deem necessary for the general welfare, and it is a fundamental error to suppose there is any difference in this respect between the rights of natural and artificial persons. They both stand precisely on the same footing."
Tiedman, in his valuable work on the Limitations of Police Powers, in speaking of the police regulation of corporations in general, on page 584, § 191, says : “But the coi’poration is no more subject to arbitrary regulations than is the individual. In order that the regulation of a corporation may be within the constitutional limitations of police power, it must have reference to the welfare of society, by the prevention or control of those actions which are calculated to inflict injury upon the public or the individual. As in all other cases of the exercise of the police power, the police regulations of corporations must be confined to the enforcement of the maxim, sic títere tuo utalienum von Icedas, subject to the observance of which every corporate charter must be supposed to have been granted. Any attempt, under the guise of police regulations, to repeal or amend the charter, or to abridge any of the corporate rights and pri*848vileges, would of course, be unconstitutional and void,” (citing numerous cases). “The property of the corporation can not be confiscated under the pretense of being a police regulation, without payment of compensation.”
And at this point the question suggests itself, what more complete confiscation of the operator’s property could possibly be enforced than to have a large percentage of his coal mined and put out in a condition that would be utterly worthless to him, and in addition to that to be compelled to pay the miner for his labor in producing it in that condition ?
To uphold, as constitutional, legislation which interferes with the private contracts of the operator with the miner, and prescribes that coal shall be weighed and paid for before it is screened or any opportunity is afforded to determine its quality and value, would appear to me to be on a par with legislation which ivould compel the owner of a stone or marble quari’y, who had contracted with his employes to pay them for dressed stone of certain dimensions, to measure the blocks in the rough, as they came from the quarry, and pay, not only for the dressed stone, but for the spalls and waste that accrued in squaring the same in accordance with the contract, and would characterize as constitutional an act which would provide that the landowner who employes a sawmill man to go among his timber, and according to the common expression take it from the stump and convert it into merchantable boards and lumber, to measure and pay for the same as it came from the saw, including in the measurement, slabs, culls, sawdust, and particles torn away by the action of the saw, and would sanction a law which would compel a diamond to be paid for in the rough, before its qualities had been tested and developed by submitting it to the skillful hands of the lapidary-
I fail to perceive in what manner the public is interested in the private contract made between the coal-operator and his employes, as to the time when such employe shall have the product of his labor weighed and paid for. The labor of the employe is his own property, and he has a perfect right to fix a price upon it, let it be high or low, and the public has no right to say, “’Why do you so?” if either is *849the public welfare hi any maimer affected by the terms of fhe contraot, any more than it is in. that of the man who works by the day on the farm.
The seventh section of the act providing for weighing coal before it is screened excludes from its operation any corporation, company, or person owning or operating a coal mine in which less than ten miners are employed, which results in this : that an operator only employing nine need not weigh the coal before it is screened, but one employing twelve must. Can any one say why the operator should be allowed to weigh the coal after it is screened for the nine, and that ho must weigh it previously for the twelve? Is not the danger of fraud as great to the individual miner in the one instance as the other? and is not one miner as much entitled to the benefit of the law (if it be beneficial) as another? And again, is there any good reason why the small operator should be allowed to obtain from his mine merchantable coal by using the screen before it is weighed, and the large operator be denied the privilege of thus testing the sendees of his employes, and obtaining merchantable coal for the wages he pays them ? and why is it that the police power of the State should be invoked for the protection of the twelve while the nine are left to work their way with fear and trembling, and protect themselves from the alleged iniquities of the screen ?
The case of Godcharles v. Wigeman, 113 Pa. St. 431 (6 Atl. Rep. 354) holds that “the first four sections of the ‘Store Order Act’ of June 29, 1881, which attempts to prevent persons who are mijv.ria from making their own contracts, are unconstitutional and void,” and the court in its opinion says: “The act is an infringement alike of the right of the employer and the employe; more than this, it is an insulting attempt to put the laborer under a legislative tutelage, which is not only degrading, but subversive of his rights as a citizen of the' United States. He may sell his labor for what he thinks best, whether money or goods, just as his employer may sell his iron or coal, and any and every law that proposes to prevent him from so doing is an infringement of his constitutional priviliges, and consequently vicious and void.”
*850So, also, In Re Jacobs, 98 N. Y. 98, it is held that “while, generally, it is for the legislature to determine what laws are required to secure and protect public health, comfort, and safety under the guise of police regulations, it may not arbitrarily infringe upon personal or property rights, and its determination as to what is a proper exercise of the power is not final or conclusive, but is subject to the scrutiny of the courts.”
In the case of Watertown v. Mayo, 109 Mass. 315, 319, Colt, J., says: “The law will not allow rights of property to be invaded under the guise of a police regulation for the preservation of health or protection against a threatened nuisance, and, when it appears that such is not the real object and purpose of the regulation, courts will interfere to protect the rights of the citizen.”
In the Slaughterhouse Cases, 16 Wall 36, 87, Field, J., says: “All sorts of restrictions and burdens are imposed under the police power, and, when these are not in conflict with any constitutional prohibitions or fundamental principles, they can not be successfully assailed in a judicial tribunal; but, under the pretense of prescribing a police regulation, the state can not be permitted to encroach upon any of the just rights of the citizen which the constitution intended to secure against abridgement.”
Again, in the case of People v. Gillson, 109 N. Y. 389 (17 N. E. Rep. 343) the court held that “while it is for the legislature generally to determine what laws and regulations are needed to protect the public health and serve the public comfort and safety, and the exercise of its discretion in this respect is not the subject of judicial review, yet a statute, to be upheld as an exercise of the police power, must have some relation to these ends. The rights of property may not be invaded under the guise of a police regulation for the protection of health, when it is manifest such is not the object of the regulation.”
In this immediate connection I may ask how or in what manner could the public health, comfort or safety be in any manner concerned in the enforcement of a statute which provides that coal, as it comes from the mine, shall be weighed in the car in which it is removed from the mine *851before it is screened,- and shall be paid for according to the weight so ascertained, at snch price per ton as may be agreed on by such owner or operator and the miners who mine the same ? Instead of promoting the public safety and welfare, does not this act rather have a tendency to promote dissatisfaction and discord between the operator and miners who were prosecuting their woi'k under their contract to receive pay for mining the coal which was weighed after it was screened?
Inutile State of Illinois an act was passed requiring the operator of mines to cause to be furnished and placed upon the railroad track adjacent to the coal mine a track scale of standard measure, upon which to weigh the coal hoisted from the mine, and at the time the act took effect, and for a long time prior thereto, the corporation owning the coal mine had a contract with all men employed to mine coal in that rhino to receive, as the wages for their labor, forty cents per box for the coal mined therefrom, and said miners were satisfied to work under .said contract. Upon an indictment for failing to provide such track scales and weigh the coal as in said act provided, the Supreme Court of Illinois, in the case of Millett v. People, 117 Ill. 295 (7 N. E. Rep. 631) held (p’t 5 of syllabus :)
“It is not competent for the legislature, under the constitution, to single out owners and operators of coal mines, .and provide that they shall bear burdens not imposed on other owners of property or employers of labor, and prohibit them from making contracts which it is competent for other owners of property or employers of labor to make. Such legislation can not be sustained as an exercise of the police power.’'" And the same thing was held by this Court in the case of State v. Goodwill, 33 W. Va. 179 (10 S. E. Rep. 285) and in the case of Frorer v. People, 31 N. E. Rep. 395 (decided by the Supreme Court of Illinois, March 26,1892) which was an action of debt under the act approved May 28, 1891,. entitled “An act to provide for the payment -of wages in lawful money, and to prohibit the-truck system, and to prevent deduction from wages, except for lawful money actually advanced.”
The court in its opinion quotes with approval the case of *852Com. v. Perry, from the Supreme Court of Massachusetts, reported in 28 N. E. Rep. 1126, saying: -‘The defendant was indicted under a statute in Massachusetts providing that no employer shall impose a tine upon, or withhold wages or any part of the wages of an employer at weaving for imperfections that may arise during the process of weaving;” and the court held the statute unconstitutional, and in doing so said :
“There are certain fundamental rights of every citizen which are recognized in the organic law of all our free American States. A statute which violates any of these rights is unconstitutional and void, even though the enactment of it is not expressly forbidden. The right to acquire, possess, and protect property includes the right to make reasonable contracts which shall be under the protection of the lawn The manufacturer of cloth is an important industry, essential to the welfare of the community. There is no reason — indeed, the statute before us recognizes it — why men should not be permitted to engage in it as a legitimate business into which anybody may freely enter. The right to employ weavers, and to make proper contracts with them, is therefore protected by our constitution ; and a statute which forbids the making of such contracts, or attempts to nullify them or impair the obligation of them, violates fundamental principles of right, which are expressly recognized by our constiution.”
Why, I ask, may not all this be said with equal propriety with reference to contracts made between employer and employe engaged in the coal industry in our own State'''’
The Court further on in its opinion, in the case of Frorer v. People, supra, says : “But it is contended the euactmeut before us is sustained by the principles announced in Munn v. People, 69 Ill. 80. There is, in our opinion, no analogy between that case and the present. In the first place, there the subject-matter of the act was local and exceptional in its nature, and the law in question operated alike upon all effected by like conditions. In the second place, the business of warehousing was held to be affected by a public use, and assimilated to the business of carriers,, innkeepers, millers, and others of like kind, and therefore subject to *853regulations for the public welfare.” * * “And iu the third place, the statute1 there affected only the business of warehousing — that wherein the necessity of transportation from west to east left the shipper no discretion, but compelled him, whether lie would or not, to patronize the warehouse. It did not assume to regulate or restrict the warehousemen in contracting with his laborers, or hislaborei’s in contracting with liim.”
And again,-the court says: “But the police'power is limited to enactments having reference to the comfort, the safety, or the welfare of society, and under guise of it a person can not be deprived of a constitutional right;” citing Millett v. People, supra. “It would seem quite clear that the enactment before us “speaking of the truck-store bill” has no reference to the comfort, the safety, or the welfare of society, for it applies as well to a case where a poor man in want of tools, clothing, and food, without money and without credit, but able and desirous to labor to obtain tools, clothing and food, applies to the operator of a mine or manufactory who is able to, and but for the prohibition of this law willing to, exchange them on fair terms for the labor of him who needs them, as to cases where there is the strongest probability that the employer will in such exchange overreach and defraud the employe. * * * 'The act does not attempt to prevent extortion and fraud by the operator of the mine or manufactory otherwise than by the heroic treatment of withdrawing the power of contract. It proceeds upon the principle that because liberty may be abused, the liberty itself should be withdrawn — a principle by the extension of which all liberty in the acquisition of property may be withdrawn from every citizen.”
Indictment No. 4, under consideration in this case, was found under section 1, c. 76, Acts 1891, which provides that “it shall be unlawful for any corporation, company, firm, or person engaged in an}'' trade or business, either directly or indirectly, to issue, sell, give, or deliver to any person employed by such corporation, company, firm, or person, in payment of wages due such laborer, or as advances for labor not due, any scrip, token, draft, check, or *854other evidence of indebtedness payable or redeemable otherwise than in lawful money,” 'etc.
Now, while this act seems to be aimed only at corporations and persons engaged in trade or business, it would include in its operation a person engaged in farming, which constitutes one of the great industries of the country, on which many others depend, and would forbid the farmer from giving his farm haud an order .to the village store for merchandise in payment for his labor; and it loses sight of the fact that a large portion of every community is composed of those who have retired from business, or who never engagedin any trade or business. To one of the latter class, who are not engaged in any of the active industries of the country, the act does not apply. . lie may employ a man to black his boots or groom his horse or spade his garden, but surely he could not be regarded as being engaged in the business of blacking boots, grooming horses, or spading gardens, and, if he has not the money in his pocket, he may with impunity give his servant an order to the store in payment for his servides because he is engaged in no trade or business.
It therefore appears that this act singles out those who are engaged in trade or business to the exclusion of those not so engaged, and does the very thing which this court in the case of State v. Goodwill, has said can not be done without a violation of the constitution.
In the case of Hancock v. Yaden, 121 Ind. 366 (23 N. E. Rep. 253) a distinction appears to be drawn between a contract made by the miner before the services are performed and a contract made subsequent thereto, and in that case it was held that the contract is void, in so far as it assumes, by an antecedent agreement, the right to receive wages in lawful money of the United States, being in violation of the statute ; and, further, that the legislature has such authority over the right to contract as to prohibit contracts from being made in advance, waiving the right to payment in lawful medium of'payment; and the court seems to concede in its opinion that such an agreement may be made after the services have been rendered.
The statute we are considering, however, makes it un*855lawful for any corporation, firm, or person engaged in any trade or business to issue, sell, give or deliver to any person employed by such corporation, company, firm, or person, in payment of wages due such laborer, or as advances for labor not due, any scrip, token,'draft, check, or other evidence of indebtedness payable or redeemable otherwise than in lawful money. This statute would prevent the mine operator from giving to the miner who came to him empty handed, and wanted to labor, an order to his store for meat and flour to live on until he earned something; although accepting said contract would amount to no antecedent agreement to receive all of his wages in goods, yet it might be considered an advance for labor not due, and would thus fall within the- inhibition of this statute, and results in this : that a mine operator cannot lawfully advance wages in the shape of merchandise to the miner before he has earned them, nor cari he pay him in anything but money after the services have been performed, however willing the miner might be to accept it.
Por these reasons I am of opinion that the act known as the “Scr-eening Law” can not be sustained under the general police porver; neither can the other act be regarded as constitutional, for the reasons herein stated; and, under the rulings of this Court in the case of State v. Goodwill, supra, in my opinion, the judgments complained of should be reversed.