dissenting:
Being of the firm view that the Court, by the decision in this case, has unnecessarily and unwarrantedly struck down meritorious legislation, and thereby effectively precludes the exercise of the police power by the Legislature of the State, in a field wherein legislation is very much needed, I must attempt to state reasons for my dissent. Since the Legislatures of more than half of the States of the Union have already enacted legislation to the effect of that struck down, or very similar thereto, undoubtedly designed for the same purpose, prevention of fraud, there would seem to remain no vestige of doubt *195as to the need for such legislation, or as to the general welfare of the people being touched thereby.
To aid in a clear understanding of the questions involved, some of the salient facts should be mentioned. Defendant’s business consists in part of the sale of “interment spaces” or burial rights in certain cemeteries, including Beverly Hills Memorial Gardens in Monon-galia County. From the sale prices paid for such burial spaces, a certain percentage is deducted and deposited in a trust account, to be used solely for the beautification or maintenance of the cemetery grounds. The percentage of the purchase price to be paid into the trust account is fixed by provisions of the contract. That is the exclusive source, in so far as material to this case, of the funds deposited in such trust account. That account has no connection with, is not in any manner security for, the performance of any contract of defendant with any purchaser relating to the business of defendant attempted to be regulated by the legislation held invalid. All transactions relating to purchases of such burial spaces are, by the statute, excluded from its operation in this language: “This article shall not apply to the sale of lots or graves by a cemetery.” Michie’s Code, 1955, 47-14-6. Therefore, as to such part of defendant’s business, no question is raised in this proceeding. These observations seem necessary to make clear that the trust fund mentioned in the majority opinion has no relation, as security or otherwise, to the moneys received by defendant from other parts of its business, those parts of its business attempted to be regulated by the Legislature.
In addition to sales of burial spaces, defendant enters into contracts with purchasers whereby a purchaser “agrees to buy and the Company agrees to obtain for the benefit of and sell to the Purchaser, his heirs or assigns”, certain merchandise, including burial vaults, companion-ate memorials, family memorials, grave markers, interment fees and perhaps other merchandise and services. For such merchandise and services the purchaser binds himself to pay a certain sum, in cash or in installments, *196plus such further amount as may represent any increase in the price of such merchandise or services between the date of the contract and the time of the delivery of the merchandise or the rendering of such services, and the further sum of “504 on each installment payment” as a “service charge”. The delivery of the merchandise is to be made by defendant “upon request of the Purchaser, his heirs or assigns”, provided that such request is made “after receipt of the full sum” contracted to be paid. Clearly, it is not contemplated that delivery be made or services rendered until after the death of the purchaser, as to such items as the burial vault or the interment fees, such as the “opening and closing of graves”, the “use of Chapel tent, lowering device, greens, chairs, and other equipment as is usually provided by the Company for this purpose”. Certain provisions of the contract permit the defendant, in certain circumstances, to substitute merchandise or services for those described in the contract. Other provisions relate to the creation of a trust fund, a trust fund different from that mentioned above, as a guaranty for the performance of the contract on the part of the seller, but all such matters as amounts or proportions of purchase prices to be placed in such trust fund, and the control and management thereof, are left to the sole decision of the company. No provision is inserted in the contract relating to the deduction of any commissions for agents, deductions for “overhead” expenses or the like, though defendant now contends that it will be unable to remain in business if not permitted to make such deductions. As to the income to be earned by the purchase money between the time of payment and the death of the purchaser, the contract provides “* * * the income therefrom to be used for the best interests of the Company, or its nominees, as its Board of Directors may determine”. Of common knowledge is the fact that income from such a trust fund reaches large proportions, where held for a lifetime.
From the terms of the contract, it is clear that as to such merchandise there is no present sale; no delivery thereof is then even contemplated. The sale may be, *197and in most cases will be, to “heirs or assigns”. The defendant only “agrees to obtain for the benefit” of the purchaser the merchandise, or substitutes therefor. At the time of the execution of the contract such merchandise is not necessarily in possession of the company, or held in storage by it. It is not necessarily in existence. It may be manufactured or purchased by defendant after “request of the Purchaser, his heirs or assigns”, which request may not be made during the lifetime of the purchaser or, for that matter, in some instances, never. For such period of time, as indefinite as life, the defendant possesses and controls the purchase money, removing it beyond the control of the Legislature and from the jurisdiction of the Courts of this State, with “the income therefrom to be used for the best interests of the Company”, after deducting from the purchase price paid such commissions, overhead expenses and other costs as the company may consider proper, without the consent or knowledge of the purchaser. Such is the nature of the business attempted to be regulated by the act declared unconstitutional.
While the defendant argues that the act is unconstitutional for a great number of reasons, the Court held it unconstitutional for two reasons only: That the police power of the State is too narrow and limited to permit regulation of such a business in the manner attempted by the statute; and that the act interferes, in a constitutional sense, with privileges of contract. A third basis for the decision of the Court, class legislation, is alluded to in the opinion and may have influenced the result reached. Cases cited in this dissent clearly demonstrate that the statute can not be condemned as class legislation. I agree with the majority that the other contentions of the defendant have not substance sufficient to merit consideration.
As noticed in the opinion of the Court, some of the •contracts executed by the defendant with purchasers were executed before the effective date of the act held unconstitutional. As to such contracts, I could probably *198accede to the view of the majority, for the reason that the public policy of the State as to such contracts had not been previously determined by the Legislature. To permit the regulation contemplated by the act, as to that class of contracts, possibly could disturb vested rights. It should be pointed out, however, that even as to those contracts it is open to question whether any vested contractual rights are disturbed. The act simply attempts to regulate the manner in which the purchase money paid for the merchandise or services is handled or preserved as security for the performance of the contract. At least, to save the statute, it could possibly be so applied. It is as to certain rights assumed by defendant to have been created by the contract, though not even mentioned therein, that it actually complains — such as the right to deduct from the trust funds commissions to be paid to its agents, expected profits and overhead and other costs, the amounts of which are not even indicated. Can one in such a business justly complain that he be required to preserve funds, paid to him in trust, for the very purpose for which the trust was created or the money received? Is it no concern of the public, not a matter of general welfare, that such funds be held in trust for the purpose provided by the contract, the proper burial of the dead, especially since the contracts, at least in large part, are not to be performed until after the death of one of the contracting parties? Notwithstanding the contract makes no provision as to such deductions, and notwithstanding, in so far as the record shows, the purchasers have no knowledge of the intention of the seller to make any such deductions, or the amounts thereof, the defendant now contends that it can not remain in business unless its interpretation of the contract be accepted and it be allowed to make such deductions, contrary to the provisions of the statute. Do such contentions, in such circumstances, in such a business, indicate potential fraud, or an ugly face of fraud?
There is no doubt that rights of contract are highly favored by protective provisions of the State and Fed*199eral Constitutions and by the Judiciary as well. No one, of course, would contend that such constitutional provisions should not be respected. Such rights, however, must give way, in certain instances, to other constitutional rights and privileges, for example, those relating to the general welfare. It is only interference with contractual rights, which in some sense is arbitrary, that legislation will be held to violate constitutional principles. “9. Private contract rights must yield to the public welfare where the latter is appropriately declared and defined and the two conflict”. Mill Creek Coal & Coke Co. et al. v. Public Service Commission, 84 W. Va. 662, 100 S. E. 557, 7 A. L. R. 1081. See Quesenberry v. Estep, 142 W. Va. 426, 95 S. E. 2d 832; Public Service Commission v. Harpers Ferry and Potomac Bridge Co., 114 W. Va. 291, 171 S. E. 760, Certiorari denied, 292 U. S. 624, 78 L. ed. 1479, 54 S. Ct. 628; White v. Raleigh Wyoming Mining Co., 113 W. Va. 522, 168 S. E. 798; Holliday v. Elkhorn-Piney Coal Mining Co., 102 W. Va. 147, 134 S. E. 736; Marlow v. Ringer, 79 W. Va. 568, 91 S. E. 386, L. R. A. 1917D 619; Atkins v. Grey Eagle Coal Co., 76 W. Va. 27, 84 S. E. 906; Ex Parte M. T. Dickey, 76 W. Va. 576, 86 S. E. 781, L. R. A. 1915F 840; Reaves Warehouse Corp. v. Commonwealth, 141 Va. 194, 126 S. E. 87.
In so far as the instant case is concerned, no material difference exists as to the effect on contractual rights or privileges, between the State and Federal Constitutions. In Chicago, Burlington and Quincy Railroad Co. v. McGuire, 219 U. S. 549, 567, 55 L. ed. 328, 31 S. Ct. 259, Mr. Justice Hughes, speaking for a full Court, said: “* * * But it was recognized in the cases cited, as in many others, that freedom of contract is a qualified and not an absolute right. There is no absolute freedom to do as one wills or to contract as one chooses. The guaranty of liberty does not withdraw from legislative supervision that wide department of activity which consists of the making of contracts, or deny to government the power to provide restrictive safeguards. Liberty implies the absence of arbitrary restraint, not immunity *200from reasonable regulations and prohibitions imposed in the interests of the community. Crowley v. Christensen, 137 U. S. p. 89; Jacobson v. Massachusetts, 197 U. S. p. 11. ‘It is within the undoubted power of government to restrain some individuals from all contracts, as well as all individuals from some contracts. It may deny to all the right to contract for the purchase or sale of lottery tickets; to the minor the right to assume any obligations, except for the necessaries of existence; to the common carrier the power to make any contract releasing himself from negligence, and, indeed, may restrain all engaged in any employment from any contract in the course of that employment which is against public policy. The possession of this power by government in no manner conflicts with the proposition that, generally speaking, every citizen has a right freely to contract for the price of his labor, services, or property.’ Frisbie v. United States, 157 U. S. pp. 165, 166.” See Atchison, Topeka and Santa Fe Railroad Co. v. Matthews, 174 U. S. 96, 43 L. ed. 909, 19 S. Ct. 609; Minneapolis and St. Louis Railway Co. v. Beckwith, 129 U. S. 26, 32 L. ed. 585, 9 S. Ct. 207; Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 S. Ct. 383; Erie Railroad Co. v. Williams, 233 U. S. 685, 58 L. ed. 1155, 34 S. Ct. 761.
Some of the fields or affairs of business wherein regulatory legislation under the police power, comparable to that herein involved, has proved effective in furtherance of the general welfare, are: banking, usury contracts, insurance contracts, annuity contracts, securities, negotiable instruments, building and loan associations, small loan businesses, pawnbrokers, credit buying, payment of wages, regulation of hours of employment, other employer-employee relations, warehouse transactions, bulk sales, re-sales, rebates, workmen’s compensation laws, farm programs, mechanics liens, advertising, weights and measures, zoning laws and undertaking. Excluded from the illustrated class are businesses which may not only be regulated but prohibited, such as prostitution or betting. It may be interesting to note that in a very recent case, Quesenberry v. Estep, supra, this Court *201specifically held that Rules promulgated by the West Virginia Board of Embalmers and Funeral Directors, pursuant to statutory authority, relating to “solicitation of business” and to “advertising”, constitute a “valid exercise of the police power of the State, in relation to embalming and funeral directing”. Are not the activities of agents of the defendant, in soliciting and obtaining the burial contracts, to whom the commissions to be deducted from the purchase price are to be paid by defendant, as clearly a “solicitation of business” as the activities of undertakers prohibited by the decision in that case?
From the authorities considered, the conclusion seems inescapable that as to any business wherein potential fraud may exist, or where one of the contracting parties, because of circumstances or conditions, may possibly be put to a disadvantage, the police power of the Legislature extends thereto. In 16 C. J. S., Constitutional Law, Section 187, it is stated: “Enactment of statutes having for .their object the prevention of fraud and deceit is within the police power of the state; and such power may be exercised to protect the ignorant and rash, as well as the intelligent and prudent, from being imposed on.” In Atchison, Topeka and Santa Fe Railroad Co. v. Matthews, 174 U. S. 96, 43 L. ed. 909, 19 S. Ct. 609, it is pointed out that “While cases on either side and far away from the dividing line are easy of disposition, the difficulty arises as the statute in question comes near the line of separation. Is the classification or discrimination prescribed thereby purely arbitrary or has it some basis in that which has a reasonable relation to the object sought to be accomplished? * * See Powell v. Pennsylvania, 127 U. S. 678, 685, 32 L. ed. 253, 8 S. Ct. 992.
In State ex rel. Fishback v. Globe Casket and Undertaking Co., 82 Wash. 124, 143 P. 878, some of the potential evils of just such a contract as here considered were pointed out in this language: “Again, the contract is not one that the courts will strain the laws to uphold. It is freighted with the greatest possibilities for fraud. *202Since the corporation was organized under the general incorporation laws, it could enter upon its business when its capital stock was all subscribed. It is not required to have or keep any paid-up capital. Its duration is limited to 50 years. The officers of the corporation may handle and dispose of the funds received in payment of the certificates in any manner they please. It is certain that many of these certificates will not be ripe for redemption for a number of years, and it is reasonably certain that some of them will survive the life of the corporation itself. If, therefore, the company were permitted to continue the business, and all or any considerable proportion of these certificates were ever redeemed, it will be a consummation unique in human experience”.
Moreover, as to such legislation, the necessity for the exercise of the police power rests exclusively in the legislative branch of the government and will always be upheld unless clearly contrary to or in violation of some right guaranteed by a constitutional provision. “* * * But neither the amendment — broad and comprehensive as it is — nor any other amendment, was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity. From the very necessities of society, legislation of a special character, having these objects in view, must often be had in certain districts * * Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 S. Ct. 357. In Powell v. Pennsylvania, 127 U. S. 678, 685, 32 L. ed. 253, 8 S. Ct. 992, the Court pointed out that it is no part of the functions of the judiciary “* * * to conduct investigations of facts entering into questions of public policy merely, and to sustain or frustrate the legislative will, embodied in statutes, as they may happen to approve or disapprove its determination of such questions. The power which the legislature has to promote the general welfare is very great, and the discre*203tion which that department of the government has, in the employment of means to that end, is very large * * *”. See Atchison, Topeka and Santa Fe Railroad Co. v. Matthews, 174 U. S. 96, 43 L. ed. 909, 19 S. Ct. 609.
No comprehensive definition of “police power” has ever been attempted, because, perhaps, its breadth of application is too elastic, too elastic not merely as to the fields of activities reached by it, but also as to times, circumstances and effects. Nevertheless, by the judicial process of inclusion and exclusion, its extent and application have been, in a very definite manner, indicated. In 11 Am. Jur., Constitutional Law, Section 245, it is stated: “The breadth and extent of the police power, covering the exigencies confronting the community, its adaptability, durability, inalienability, and the number of public purposes included in its scope make irfe a principal pillar of government. It has been stated that the police power in effect sums up the whole power of government, and that all other powers are only incidental and ancillary to the execution of the police power; it is that full final power involved in the administration of law as the means to the attainment of practical justice. Moreover, it has been said that the very existence of government depends on it, as well as the security of the social order, the life and health of the citizen, the enjoyment of private and social life, and the beneficial use of property.” In Eubank v. City of Richmond, 226 U. S. 137, 142, 57 L. ed. 156, 33 S. Ct. 76, the Court, in discussing the police power, quoted with approval from District of Columbia v. Brooke, 214 U. S. 138, 149, 53 L. ed. 941, 29 S. Ct. 560, as follows: “It is the most essential of powers, at times the most insistent, and always one of the least limitable of the powers of government”. See Erie Railroad Co. v. Williams, 233 U. S. 685, 58 L. ed. 1155, 34 S. Ct. 761; Muller v. State of Oregon, 208 U. S. 412, 52 L. ed. 551, 28 S. Ct. 324; Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 S. Ct. 383; Powell v. Pennsylvania, 127 U. S. 678, 32 L. ed. 253, 8 S. Ct. 992; Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 S. Ct. 357; Tweel v. West Virginia Racing Commission, 138 W. Va. 531, 76 *204S. E. 2d 874, Certiorari denied 346 U. S. 869, 98 L. ed. 379, 74 S. Ct. 123; Blevins v. State Compensation Commissioner, 127 W. Va. 481, 33 S. E. 2d 408; Bates v. State Bridge Commission, 109 W. Va. 186, 153 S. E. 305; Holliday v. Elkhorn-Piney Coal Mining Co., 102 W. Va. 147, 134 S. E. 736.
The majority concedes, as it must, Quesenberry v. Estep, 142 W. Va. 426, 95 S. E. 2d 832, that the undertaking business, as such, falls squarely within the class of businesses which may be regulated by the Legislature by virtue of the police power, yet it undertakes to separate the business of defendant from that phase of the undertaking business which may be regulated. On one side of the supposed imaginary line it places the casket, but the vault wherein the casket vrests is on the other side. On one side of such supposed line is the act of embalming, while the opening and closing of the grave and the actual lowering of the body to its final resting place are on the other side. Can there possibly be any such artificial separation of such phases of such a business? At least, since the age of the Homo Neanderthalensis, ethnologists inform us, men have endeavored to dispose of human bodies with respect, honor and ceremony. That ceremony in this State has almost universally included the casket, the vault, the grave and the lowering of the body to its final resting place. I can conceive of no possible imaginary line which separates a phase of that ceremony into a business not reachable by the police power of the State. To demonstrate almost universal concern and interest as to such matters, touching the general welfare of the people, we need only look from Arlington to the family cemetery at almost every front door. Yet the Court holds, in effect, that that which is of universal interest and concern to the public is no concern of the police power of the State.
The majority concedes that “such subjects as insurance or related risk businesses” fall squarely within the reaches of the police power. Is not the contract under consideration, in fact, a form of insurance or related *205risk? All authorities which I have been able to find, and none is cited to the contrary, so hold. In Renschler v. State, 90 O. St. 363, 107 N. E. 758, Ann. Cas. 1916C 1014, a contract to the same effect as the contract here involved, insofar as can be determined from the opinion, was before the Court. In the opinion it was stated: “* * * By all the tests to which the contract may be subjected, it unerringly leads one to the conclusion that the intention of the parties was on the one hand to receive and on the other to provide a fund to pay the burial expenses of the insured.
“The contract being naked insurance and nothing else, it is subject to regulation by the insurance department. State ex rel [Coleman] v. Wichita Mut. Burial Ass’n., 73 Kan. [179] 181, 84 Pac. 757; Fikes v. State, 87 Miss. 251, 39 South. 783; State v. Willett, 171 Ind. 296, 86 N. E. 68, 23 L. R. A. (N.S.) 197; Guenther on Insurance, §191; 1 May on Insurance (4th Ed.) §27; Robbins v. Hennessey, 86 Ohio St. 181, 99 N. E. 319.” In addition to the authorities cited in that opinion, see Falkner v. Memorial Gardens Association (Texas), 298 S. W. 2d 934; State v. National Co-Operative Burial Association of Galena, 70 Kan. 28, 98 P. 1134; Oklahoma Southwestern Burial Association of Ardmore v. State, 135 Okla. 151, 274 P. 642, 63 A. L. R. 704; Annotation, 68 A. L. R. 1525; Miehie’s West Virginia Code, 1955, 33-1-3a.
As pointed out in the majority opinion, the case of Falkner v. Memorial Gardens Association (Texas), 298 S. W. 2d 934, involving the precise questions decided in the instant case, holds directly opposite to that of the majority herein. The conclusions reached in the Falkner case are substantially supported by other cases. None is cited as holding the contrary, and I find none. See Quesenberry v. Estep, 142 W. Va. 426, 95 S. E. 2d 832; Oklahoma Southwestern Burial Association of Ardmore v. State, 135 Oklahoma 151, 274 P. 642, 63 A. L. R. 704; Renschler v. State, 90 O. St. 363, 107 N. E. 758, Ann. Cas. 1916C 1014; State v. Willett, 171 Ind. 296, 86 N. E. 68, 23 L. R. A., N. S., 197; State ex rel. Attorney General v. *206Wichita Mutual Burial Association, 73 Kan. 179, 84 P. 757; State ex rel. Fishback v. Globe Casket and Undertaking Co., 82 Wash. 124, 143 P. 878. Apparently, every pertinent question posed in the instant case was answered effectively by the reasoning in the Falkner case, contrary to the answers given in the instant case. In the opinion in the Falkner case it is stated: “Clearly the Act applies alike to all individuals and corporations desiring to sell prearranged or prepaid funeral services or funeral merchandise to be delivered at an undetermined future time dependent upon the death of the contracting party; it is actual classification by the Legislature and it is made to apply to all persons and corporations in the class. 9 Tex. Jur. p. 555, Sec. 119. The Act does not prohibit the conduct of the business but merely regulates it. This the Legislature has the authority to do * * In Prata Undertaking Company v. State Board of Embalming & Funeral Directing, 55 R. I. 454, 182 A. 808, 104 A. L. R. 389, after a discussion of the types of businesses which may be regulated by the police power, the Court stated: “* * * The undertaking business is an enterprise of this type, and the safeguarding of the public in relation to its health, safety, morals, comfort, and general welfare is the primary object sought by and is the basis for such legislation. People v. Ringe, 197 N. Y. 143, 90 N. E. 451, 27 L. R. A. (N. S.) 528, 18 Ann. Cas. 474; Keller v. State, 122 Md. 677, 90 A. 603; Miller v. Johnson, 110 Kan. 135, 202 P. 619; State v. Norvell, 137 Tenn. 82, 191 S. W. 536, L. R. A. 1917D, 586. It is of importance to all that such a business be conducted properly, and only by those who are qualified to carry out its responsibilities. Questions relating to the care of dead human bodies, their embalming and transportation, the location of the business and its equipment, sanitation, danger of infection or contagion from disease, the obtaining of required certificates and permits before acting, the orderly conduct of funerals and burials, and the like, are all of public concern.”
In -the instant case the majority indicates its belief that the statute has the effect of prohibiting the business *207of defendant rather than regulating it. No reason is given for such a conclusion, except the contention of defendant that if refused the right to make the unauthorized deductions from the trust fund, it can not remain in business, and can not replace moneys already expended by it. In considering the question, it must not be overlooked that under the contract defendant is not required to make any expenditure whatever until sometime after the “request” for delivery of the merchandise or performance of the service contracted for, and not even then unless the “full sum” contracted to be paid has actually been received by it. In addition, the defendant collects a “service charge” over and above the sum contracted to be paid and, by the terms of the contract, may “use for the best interests of the Company, or its nominees”, the income from the trust fund. In no other business have I been able to observe a practice whereby prospective purchasers are required to furnish or advance capital funds necessary for the operation of a business. The contract involved actually provides a “service charge” to be paid by the purchaser. Does that not necessarily lead the purchaser to believe that no other deduction is intended? The statute condemned does not preclude such a provision. Assuming that the contention of the company is reasonable, could not the payment of such an additional sum be provided for in the contract in the manner of the inclusion therein of the provision relating to the fifty cents service charge, if the purchasers are to be required to pay a sum sufficient to enable defendant to “remain in business”? The most complete and conclusive answer to the question, however, is the well known fact that undertakers now, and always have, successfully operated such businesses, furnishing all such merchandise and services, and more, without payment therefor, before delivery of the merchandise or the furnishing of the services. Assuming, however, that the defendant is correct in its contention, must the general welfare of the people of the State be abrogated, and the right to exercise the police power denied the legislature for the purpose of enabling an in*208dividual to remain in business? Must the police power of the State depend on such uncertainties, or should the pre-eminent excellence thereof be deemed more staid? Does it not clearly appear that the contention of necessity for immediate deductions from the trust moneys contracted to be paid to the defendant is for the purpose only of pyramiding profits to the heights hoped for, not merely for the purpose of enabling defendant to remain in business?
To sustain its position, the majority relies on three cases: Traux-Traer Coal Co. v. Compensation Commissioner, 123 W. Va. 621, 17 S. E. 2d 330; Marlow v. Ringer, 79 W. Va. 568, 91 S. E. 386; and State v. Goodwill, 33 W. Va. 179, 10 S. E. 285. The decision in the Traux-Traer Coal Co. case rested on the fact that the legislative branch of the government, in attempting to permit the re-opening of a matter which had been finally judicially determined, constituted, on the part of the legislative branch of the government, unauthorized interference with a function of the judiciary. No one, of course, doubts the soundness of that holding. It has no relation, however, to any question involving the police power of the State. The Marlow case did involve questions relating to interference with contractual rights, as regards the police power, but it held that the statute considered was constitutionally valid as “a valid regulation in the exercise of the police power of the State to prevent and relieve from fraud against creditors”. The holding in no sense supports the holding in the instant case.
In State v. Goodwill, the Court held unconstitutional a statute which attempted to regulate contractual rights relating to the manner of payment for labor by persons engaging in mining and manufacturing. Undoubtedly, the statute there considered had the same characteristics, was subject to the same objections, as the statue considered in the instant case. The same questions were considered by the Court. However, a result directly opposite that of the Goodwill case was reached in State v. Peel Splint Coal Co., 36 W. Va. 802, 15 S. E. 1000, Judge *209Lucas announcing the opinion for the Court. On rehearing, however, the same result was reached, but by an equally divided Court. In Atkins v. Grey Eagle Coal Co., 76 W. Va. 27, 84 S. E. 906, the Court unanimously reached a conclusion opposite that stated in the Goodwill case. In White v. Raleigh Wyoming Mining Co., 113 W. Va. 522, 168 S. E. 798, the holding in State v. Goodwill was effectively overruled in this language: “* * * In Atkins v. Coal Co., 76 W. Va. 27, 29, 84 S. E. 906, 907, decided in 1915, this Court abandoned definitely the attitude taken in State v. Goodwill, and approved the argument of Judge Lucas in State v. Peel Splint Co., 36 W. Va. 802, 15 S. E. 1000, saying: ‘The argument so well sustained by him need not now be restated or amplified. The trend of it is that the freedom of individual contract must yield to due legislative restraint whenever necessary to conserve the public health, safety and morals and to promote the general welfare and peace of the community * * *’ ”. In Keokee Consolidated Coke Co. v. Taylor, 234 U. S. 224, 58 L. ed. 1288, 34 S. Ct. 856, Mr. Justice Holmes, for a full Court, though mentioning State v. Goodwill, declined to follow the doctrine therein announced and reached a conclusion opposite thereto. In an article by Dean Roscoe Pound, “Liberty of Contract”, 18 Yale Law Journal 454, State v. Goodwill was severely criticised and the doctrine therein announced completely discredited. See “Freedom of Contract Under the Constitution”, 28 Harvard Law Review 496; Note, 22 Virginia Law Review 946; Note, 16 Virginia Law Review 618. The return to the doctrine of State v. Goodwill, to me, is regrettable retrogression, retrogression in a field where modern progression, within constitutional limits, is essential.
Being of the view that the enactment of the statute held invalid was a valid exercise of the police power of the State by the Legislature, and that the holding in the instant case has the undesirable effect of rolling back the law of this State to the discredited and refuted doctrine of State v. Goodwill, I respectfully dissent.