Additional opinion on petition for rehearing :
Per Curiam :The petition for rehearing filed in this
cause greatly emphasizes the previous contention that the act of 1889, providing that a reasonable attorney’s fee shall be allowed to successful plaintiffs in suits for wages, to be taxed as costs, is a partial and special statute, working deprivation of property without due process of law, and therefore unconstitutional. Reliance is placed in Millett v. People, 117 Ill. 294, Frorer v. People, 141 id. 171, Ramsey v. People, 142 id. 380, and Braceville Coal Co. v. People, 147 id. 66, as sustaining the position taken. Those cases do not, however, control the present case or decide the question here involved. Without discussing separately the facts of the cases relied upon, it may be said, generally, that in each of those cases a principal and controlling question was the right of miners of coal (no less than their employers) to make contracts regulating the time and manner of the payment of wages and the method of computing such wages, and in each case cited a law restricting in some manner this important right of contract was held invalid. It was, with great propriety, said that the privilege of contracting is both a liberty and a property right, of which a portion of the people can not be deprived by an arbitrary statute and without due process of law. It was further said (Braceville Coal Co. v. People, supra, p. 75): “The right to contract necessarily includes the right to fix the price at which labor will be performed and the mode and time of payment. Each is an essential element of the right to contract, and whosoever is restricted in either, as the same is enjoyed by the community at large, is deprived of liberty and property.” It might, perhaps, have been said, with equal propriety, that no legislative act, however general and universal its application, could invade the fundamental right of the citizen to make contracts not against public policy or injurious to society.
The statute here in question interferes with no one’s right to contract. It embraces a well-defined class of cases and persons, not singled out, as is contended, wholly without reason, and arbitrarily, but upon grounds which may, we think,' properly serve as a basis for valid legislative action. Those to whom the wages of labor are due, and who, after demand, in writing, of a sum no greater than that subsequently recovered, are compelled to establish and do establish their rights, as demanded, by judgment of court, are within the provisions of the act, and we cannot say this classification is so arbitrary and unreasonable, and the law so partial and unequal, as to be beyond legislative discretion and power.
If this law were to be held unconstitutional for the reasons assigned, then many other acts long in force in this State, hitherto deemed to be salutary, and against which no constitutional objection has been heard, would certainly fall with it. Why, for instance, should the seller of materials for a building have, by law, a lien for their price, not only upon the specific things sold, but upon the whole structure, with the land it stands on, while the seller of a horse, a piano or a corn-sheller is denied any lien, even on the specific thing sold ? Why should he whose labor constructs a house be secured by a lien on his product, while he who raises a crop must look only to the personal responsibility of his hirer ? Surely, it could be said the Lien law makes classes of beneficiaries quite as arbitrary in character as that marked out to receive benefit by the act under discussion.
Again, why should the wages of a defendant who is head of a family, to an amount not exceeding $50, be exempt from garnishment, (Laws of 1879, p. 176,) while sums due other defendants are protected by no such exemption ? And why, again, it might be asked, should heads of families earning wages be made the subject of advantageous provisions not applied to all other wage earners, if not to all other persons ? The general Exemption law also makes heads of families a distinct class, who may claim as exempt three hundred dollars’ worth more of personal property than other judgment defendants are allowed, while a further section (Rev. Stat. 1874, p. 499,) declares that where a judgment is for the wages of a laborer or servant, and noted by the court as such, no personal property whatever shall be free from levy, whatever the estate or condition of the debtor.
An analogous case for this purpose is found in the provision of the general Assignment law, that “all claims for the wages of any laborer or servant which have been earned within three months next preceding the making of the assignment, etc., shall, after the payment of costs, etc., be preferred and first paid, to the exclusion of all other demands.” (Hurd’s Stat. 1893, p. 166, sec. 6.)
It is difficult to see how any of these statutes, and many similar ones which might be named, could be sustained if the strict rule of constitutional validity, so strenuously urged in this case, were applied to them.
The petition for rehearing will be denied.
Reltearing denied.