this, it declared, was the establishment of no new principle in the law, but only giving a new effect to an old one, in order to expand the law to meet the requirements of the new economic conditions.

It is true these decisions have been modified with respect to the power of the legislature to fix rates regardless of whether they may prove confiscatory or not, and also in the respect that whether a specified rate is a reasonable one or not is a judicial and not a legislative question; but in all other respects they stand as a bulwark of the people against oppressive charges by all concerns, public or private, whose property is devoted to a use in which the public is interested. Their wholesome doctrine, as occasion has arisen, has been applied not only to warehouses and railroads, but to all common carriers, telephone and telegraph companies, street railway companies, electric light companies, municipal gas and water companies, grain elevators, public conveyances, theatres and other places of public amusement, and to boards of trade, to say nothing of instances where property is held to be affected with a public interest at common law, such as ferries, hackmen, inkeepers, etc. All such interests, being affected with a public use, must to that extent submit to be controlled for the public good.

Let us next see how, in the process of squaring their judgments with the requirements of moral and economic conditions, the courts, notwithstanding the Fourteenth Amendment, have modified and restricted the right, freely and validly, to contract. And with us, it must be remembered, contracts are something more than mere scraps of paper. Professor Dicey, of Oxford, pays us a high compliment when he says that "the faith that the obligation of contracts is sacred is a part of the public morality of the American people." But he is referring to the obligation of contracts and not to the right to make them.

As far back as 1868 Congress passed an act constituting eight hours a day's work for all laborers employed by the United States. Construing that act in 1876 the Supreme

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Court held that it amounted only to a direction from a principal to his agent that eight hours were deemed to be a proper length of time for a day's work, but that it was a matter between the principal and his agent, in which a third party had no concern. Accordingly the court held that contracts fixing or giving a different length of time as a day's work, whether more or less than eight hours, were legal and binding upon the party making them, even to the extent of twelve hours a day, when made with a consenting laborer. It adhered to the old rule that: "Principals, so far as the law can give them power, are entitled to employ as many workmen, of whatever degree of skill, and at whatever price they think fit; and except in some special cases, as of children or orphans, the hours of labor, and the price to be paid, are left to the determination of the parties interested." And, no question of police power being presented and the statute not prohibiting then as it does now contracts of employment for more than eight hours a day, the court held that the statute under consideration did not interfere with the old principle.*

Twenty years later (1896) conditions in the mining industry of the country had become such that in a number of states it was deemed necessary for the health and safety of workmen in underground mines and smelters to limit the period of their employment to eight hours a day, except in cases of emergency where life or property was in imminent danger, and to make employment for a longer period a misdemeanor. Among the states passing such laws was Utah, from which in 1897 an historic case involving the validity of such a statute was carried to the Supreme Court of the United States. The statute was vigorously assailed as class legislation, as abridging the privileges and immunities of the mine owners as citizens of the United States, and as depriving employers and employees of the right to contract in a lawful way and for lawful purposes. It was contended that even if the enforcement of their provisions could be conducive to the health or welfare of employees, still they were so flag

"Martin vs. Unites States, 94 U. S.

rantly violative of the rights and liberties of both employers and employees that they could not be allowed to stand.*

These arguments the court answered, by pointing to the changed conditions in the mining and manufacturing industries of the country; that formerly these industries, as well as others, were carried on in such a limited way and by such primitive methods that no special laws were considered necessary for the protection of the operatives; but that in the vast proportions which they had then assumed, it had been found that they could no longer be conducted with due regard to the safety and health of those engaged in them without special protection against the dangers necessarily incident to those employments; and that in consequence, laws had been enacted in most of the states designed to meet these exigencies and to secure the safety of persons peculiarly exposed to those dangers. Of such a nature were ordinances providing for fire escapes for hotels, theatres, factories, and other large buildings, municipal inspection of boilers, appliances designed to protect passengers upon railways and steamboats, provisions for the protection of employees in manufacturing and mechanical establishments from accidental contact with dangerous machinery, for cleanliness and ventilation of working rooms, the guarding of stairways and elevator shafts, and for the instalment of sanitary appliances. And in the mining industries, provisions for shoring up of dangerous walls, the ventilation of shafts, for means of signaling to the surface, for the supply of fresh air, for the elimination as far as possible of dangerous gases, and other similar precautions.

With these conditions and these numerous statutes in mind the court asks, if it be within the power of the legislature to adopt such means for the protection of the lives of its citizens, why may not precautions also be adopted for the protection of their health and morals? It points to the fact that flexibility and capacity for growth and adaptation are the peculiar boast and excellence of the common law; that

*Holden vs. Hardy, 169 U. S.

"the Constitution of the United States, while ordained by descendants of Englishmen who inherited the traditions of English law and history, was nevertheless made for an undefined and expanding future and for a people gathered and to be gathered from many nations and of many tongues;" that there is nothing in Magna Charta rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age; that it was the characteristic principle of the common law to draw its inspiration from every fountain of justice and it was not to be assumed that the sources of its supply were exhausted, but on the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms.

In this catholic spirit the court upheld the statute in question, setting the precedent that the state may protect the citizen even against himself and prohibit him from working or contracting to work longer than a fixed number of hours a day, although he is willing to work and wants to work longer; that the fact that both parties are of full age and competent to contract does not deprive the state of the power to interfere when the parties do not stand upon an equality and when the public health demands that one party to the contract should be protected against himself; that the state still retains an interest in his welfare, however reckless he may be; that "the whole is no greater than the sum of all the parts and when the individual health, safety and welfare are sacrificed or neglected, the state must suffer." The wholesome application of the law made in that case proved an incentive to further efforts on the part of the states to conform their laws to the necessities of new conditions. The next year after that decision was rendered, Congress authorized the appointment of a commission to investigate industrial conditions in this country, and among other subjects investigated by the Commission was that of capital and labor employed in the mining industry. One whole volume of its report is devoted to that subject. It contains the testimony of

witnesses examined concerning conditions in that industry, many of whom opposed the use of screens before weighing and crediting coal which had been mined, as inimical to the interests of the miner in that they were conducive to the practice of fraud in the measurement of the coal and consequently led to frequent disputes and controversies between the operators and the miners. To meet the condition thus disclosed, a number of states, Arkansas among them, enacted laws making it unlawful for any mine owner, lessee or operator of a coal mine where ten or more were employed underground, at quantity rates, to pass the output of coal mined by them over any screen or other device which should take away any part of the value of the coal before the same had been weighed and credited to the employee, and further providing that no employee should be deemed to have waived any right accruing to him under the statute by reason of any contract he might make contrary to the provisions thereof, but that such contract should be void.

This was an outright denial both to the employer and employee of the right to make a contract that the coal mined by the employee should be screened, though apparently no one could possibly be interested in or affected by such a contract but themselves.

A citizen of Arkansas, disregarding the statute, was indicted and convicted and carried his case to the Supreme Court on the ground, among other things, that the statute was an unwarranted invasion of his liberty to contract as secured by the Fourteenth Amendment. *

In many cases the court had held that when the right to contract or carry on business conflicted with laws declaring the public policy of the state and enacted for the protection of the public health, safety, welfare or morals, such laws might be valid notwithstanding their tendency to curtail or limit the freedom of contract. But in this case the contract between the operator and miner, by which the latter agreed that the coal mined by him might be screened before it was

*McLean vs. Arkansas, 211 U. S.