104
THE GREEN BAG
The opinion in this case is valuable for its summary and analysis of the decisions upon the subject and on account of the clear statement therein contained as to what is and what is not class legislation. It emphasizes the fact which has been so often overlooked, that classification is not necessarily discrimination and that if all persons who really belong to the same class and compete with each other are equally regulated, no one should be allowed to complain because per sons outside of the class are not regulated also. In this it repudiates the absurd position which was taken by the supreme court of Illinois in the case of Richie i1. People, 155 Ill., Hon. E 454 and in which that court held that a statute regu lating the hours of employment of women in factories was class legislation and invalid since it did not also regulate the hours of cooks and housemaids and stenographers, who, it is clear, do not compete in any way with factory employees. So also it repudiates the position taken in that case and in others that the court in considering the validity of such statutes and the question of class legislation may take into consideration the fact that if the corporation is precluded from paying by the month or by checks, their employees are by that fact precluded from making a contract based on such a method of payment and to that extent are deprived of liberty and property. The restrictions of their rights the court says " is not direct but results from the restrictions of the defendant's rights, and as that restriction is good as to the defendant, the rights of its employees are not thereby infringed, for they have no right to demand greater liberty for the defendant in order that their liberty may be enlarged." On the same subject it will be remembered the Supreme Court of the United States in the case of Holden,• Hardy, 169 U. S. 366, 18 S. Ct. 383, intimated that the objection had never been raised by the employees, and that it would come with a good deal better grace from them than from the employer. Generally speaking, the opinion, in the case is unsatisfactory in its attempt to reconcile and to distinguish which it does to such an extent as to obscure basic principles. It shows, perhaps as much as any recent opinion, the futility of trying to decide social and economic questions and to build an industrial structure on a foundation of legal refinement. In the particular case the statute is, it seems, really upheld on the ground that the defendant is not only a corporation whose charter the legislature has reserved the right to amend, but a quasi-public corporation which is affected with a public interest, and it is on this theory of public interest that the case is sought to be distinguished from others which hold to a different doctrine. There is in the opinion, how ever, a slight reference to, and an implied ap- . proval of the case of Knoxville Iron Co. r. Harbison, 183 U. S. 13, 22 S. Ct. i, in which, even in the absence of a provision in the charter reserving the right of amendment, a similar statute of the state of Tennessee was upheld on the theory of
a police regulation, and it is to be regretted that more stress was not laid on this case. It is to be regretted indeed, that the court instead of seeking to make friends with all of the decisions and often of attempting to distinguish where no real dis tinction existed, did not confine itself to a dis cussion of the principles announced in the Knox ville Iron Co. case and decide for or against the statute on the fundamental basis of its industrial and social necessity and reasonableness. The justification of the statute on the theory that the corporation affected was one which was affected with a public interest, is unsatisfactory, for even such corporations have their private sides. They are in fact, quasi-public merely, not public. It is only in dealing with those matters which are of public concern, even in the case of a corporation which is itself of a quasi-public nature, that the state can and should freely step in and regulate. The real question to be determined in all these cases is not whether the business is one which is affected with a public interest, but whether the subject matter of the regulation itself is one in which the public as *i whole is interested. The case of Knoxville Iron Co. r. Harbison in the Supreme Court of the United States, and the case in the state court to which the writ of error was directed meets this question fairly and squarely. It takes the position that the employee is a part of the general public, that the payment of wages by means of checks or orders on " company stores " often works a fraud on the employee, and that the con troversies arising over the payment of wages in the mines have become so numerous and have resulted in so much bloodshed and disorder that the state for the purpose of preserving the public peace and protecting itself is justified in inter fering in the matter and establishing rules of its own for the conduct of such business. The questions involved indeed are industrial and social and not legal. They are essentially questions of fact. The life and liberty guaranteed by the Con stitution do not involve an unrestrained exercise of these privileges. Whenever the unrestrained exercise thereof is injurious to the public, that exercise can be restrained. Any restriction which is not reasonably necessary, and which is not justi fied on considerations of public welfare, which in fact is unreasonable, is against the policy of our law and Anglo-Saxon individualism. There can be unreasonable interferences with the liberty and property of a quasi-public as well as of a private corporation or a private individual, and there is, it is believed, no warrant in the law or in the decisions for holding that a quasi-public corpo ration can be regulated in matters which are not in themselves of public interest merely because it is a quasi-public corporation. In the particular case the points to be considered are, whether or not the payment of wages by the week and in cash was necessary to protect the employee from fraud; whether he was so much a member of the public and so unequal in contractual ability as to justify the public in interfering in his behalf; whether,
