sideration of the loan of $750, payable in two years, and the further consideration of services in securing sales in said business, and further moneys furnished, the net profits are to be divided. The services promised, and the moneys advanced and to be advanced, each and all constituted the consideration for the division of the profits. We think such an agreement. within all authorities, constitutes a partnership as to third parties. By it, Stanley had an interest in the general business of the concern; a right to require a RUGER, C. J. The determination of this case involves the construction of an agreement between James Stanley and Moulton W. Gorham, and the question whether such agreement constituted the defendant Stanley a partner as to third persons with Gorham. If it did, then the judgment must be sustained. The liability of the alleged partners is predicated upon a debt for services rendered and materials furnished by the plaintiffs, upon the request of Gorham, in fitting up a place in New York to carry on the business of heating, ventilating, etc. The part of the agree-quarterly account of its transactions; authority to ment which it is claimed creates the partnership reads as follows: "That for and in consideration of the loan of seven hundred and fifty ($750) dollars from the said party of the second part to the said party of the first part, for use in the business of heating, ventilating, etc., for which said party of the first part has given unto said party of the second part his note at two years, with interest, bearing date of January 14, 1885, payment of which is secured by an assignment of said value in a certain $3,000 policy in the Massachusetts Mutual Life Insurance Company, and also by a certain chattel mortgage, bearing date January 23, 1885, and in further consideration of services of said party of second part in securing sales in said business, and for any further moneys he may, at his own option, advauce for me in said business, the said party of the first part agrees to divide equally the yearly net profits of said business. It is understood and agreed that said loan of $750 is expressly for use in said business, and for no other use whatever." It was further provided that advances made by either party in the business were at all times subject to be withdrawn, at the option of the party making them, and were to bear interest while used in the business. Gorham was to be allowed $1,000 per annum for his services in managing the business, and quarterly statements of its condition were to be made by him to Stanley. It is fairly to be implied from the contract that Gorham was to be the active man in the business, and it was to be carried on in his name; but whether he was to furnish any capital, and if so how much, is not disclosed. For aught that appears the money furnished by Stanley was all that was supposed to be necessary to start and carry on the business until returns were realized from its prosecution. The This agreement does not, in express terms, purport to form a partnership; neither is the intention to do so disclaimed; and the question is therefore whether, in a business carried on under the conditions provided for in the contract, the parties thereto became partners, as to third persons. It clearly provides for something more than a loan of money, as it is fairly to be implied from it that Stanley would render active services as a principal in the prosecution of the business, and furnish further financial aid therefor, if it became necessary, and he deemed it advisable to do so. loan was not one made to Gorham generally, but was for the benefit of the particular business, in whose prosecution Stanley had an equal interest, and any diversion of the funds from such use was strictly prohibited. Each party was authorized to charge the business with interest on the funds advanced by him for its prosecution, and they would each be entitled to pro rata reimbursement of such funds from the assets of the business, in case of a deficiency in assets to pay the advances in full. In that respect, it was evidently contemplated that each party should bear any loss incurred, in proportion to the advances made by them respectively. For all this, Stanley was to receive onehalf the net profits of the business. His right to profits would not cease upon the repayment of the original loan, or depend upon the value of the services rendered or moneys advanced, or either of them alone, but was to continue as long as the business was carried on. The letter of the contract is that in con make contracts in its behalf; and an irrevocable right to demand one-half of the profits of the business. That the original loan of $750 was secured to be repaid by Gorham to Stanley does not preclude the conclusion that they were partners; for it is entirely competent for one partner to guaranty another against loss, in whole or in part, in a partnership business, if the parties so agree. The application of the rule that participation in profits" reuders their recipient a partner in the business from which profits are derived, as to third persons, has been somewhat restricted by modern decisions; but we think that the division of profits must still be considered the most important element in all contracts by which the true relation of parties to a business is to be determined. We think this rule is founded in strict justice and sound policy. There can be no injustice in imposing upon those who contract to receive the fruits of an adventure a liability for credits contracted in its aid, and which are essential to its successful conduct and prosecution. This liability does not, and ought not to, depend upon the intention of the parties, in making their contract, to shield themselves from liability, but upon the ground that it is against public policy to permit persons to prosecute an enterprise which, however successful it may for a time appear to be, is sure in the end to result in the advantage of its secret promoters alone, and the ruin and disaster of its creditors and others connected with it. Atherton v. Tilton, 44 N. H. 452; Chase v. Barrett, 4 Paige, 159. Expected profits being the motive which induces the prosecution of all commercial and business enterprises, their accumulation and retention in business are essential to their success; and if persons are permitted, by secret agreement, to appropriate them to their own use, and throw the liabilities incurred in producing them upon those who receive only a portion of the benefits, not only is a door opened to the perpetration of frauds, but such frauds are rendered inevitable. Exceptions to the rule are however found in cases where a share in profits is contracted to be paid as a measure of compensation, to employees, for services rendered in the business, or for the use of moneys loaned in aid of the enterprise; but where the agreement extends beyond this, and provides for a proprietary interest in the profits as a compensation for moneys advanced and time and services bestowed as a principal in its prosecution, we think that the rule still requires such party to be held as a partner. The rule laid down in Kent's Commentaries (vol. 3, p. 25, note b), that "the test of partnership is a community of profit; a specific interest in the profits, as profits, in contradistinction to a stipulated portion of the profits as a compensation for services"-was approved by this court in Leggett v. Hyde, 58 N. Y. 272, in which case Judge Folger says: "The courts of this State have always adhered to this doctrine, and applied or recognized it in the cases coming before them." After citing numerous cases in support of the statement, he proceeds: "There have been from time to time certain exceptions established to this rule, in a broad statement of it; but the decisions by which these exceptions have been set up still recognize the rule that where one is interested in profits, as such, be is a partner as to third persons. These exceptions deal with the case of an agent, servant, factor, broker or employee who, with no interest in the capital or business, is to be remunerated for his services by a compensation from the profits, or by a compensation measured by the profits." The learned judge, after referring to the English cases claimed to have qualified, if not overruled, the cases of Grace v. Smith, 2 W. Bl. 998, and Waugh v. Carver, 2 H. Bl. 235, which were the foundation of the doctrine that a participation in profits renders those receiving them partners, says that "without discussing those decisions, and determining just how far they reach, it is sufficient to say that they are not controlling here; that the rule remains in this State as it has long been; and that we should be governed by it until here, as in England, the Legislature shall see fit to abrogate it." The same remark may also be applied to the cases of Harvey v. Childs, 28 Ohio St. 319: Hart v. Kelley, 83 Penn. St. 286; Beecher v. Bush, 45 Mich. 188; Eastman v. Clark, 53 N. H. 276; Emmons v. Bank, 97 Mass. 230-decided in the courts of our sister States, in which the distinction between contracts of partnership inter sese and those making the parties partners as to third persons, although not so as between themselves, is sought to be practically abolished. The doctrine that persons may be partners as to third persons, although not so as between themselves, and although the contract of partnership contains express provisions repudiating such a relation, has been too firmly established in this State by repeated decisions to be now disregarded by its courts. See cases cited in Leggett v. Hyde. It is claimed that this doctrine has been practically overruled in this State by the decisions in this court of Richardson v. Hughitt, 76 N. Y. 55; Burnett v. Snyder, id. 344; Eager v. Crawford, id. 97; Curry v. Fowler, 87 id. 33; and Cassidy v. Hall, 97 id. 159. We do not think these cases had the effect claimed. They were all cases distinguished by peculiar circumstances, taking them out of the operation of the general rule. It cannot be disputed but that a loan may be made to a partnership firm on conditions by which the lenders may secure a limited or qualified interest in certain profits of the firm, without making them partners in its general business; but that is not this case. In Richardson v. Hughitt, supra, Bench Bros. & Co. were a manufacturing firm, carrying on the business of making wagons, and Hughitt contracted to advance to them $50 on each wagon manufactured by them and delivered to him, to the extent of two hundred wagons, under an agreement that upon the sale of the wagons he was to receive back the moneys advanced, with interest, and one-fourth of the net profits on such wagons. It was held that this was a mere loan of money, providing for an interest in the profits as a compensation for the money loaned. The lender secured no interest in the general business of the firm, or interest in the profits made therein, and did not become liable for its debts. It is quite clear that if such a contract had been made after the wagons were finished, it would have created simply a pledge of property for the payment of a debt, competent for the parties to make, and which would not have made the pledgee a partner. The fact that the contract was executory would not alter the real nature of the transaction or affect the relations of the parties to third persons. The case of Eager v. Crawford, supra, was a pure loan of money, with an agreement that the borrower should pay to the lender, on the first day of each month, one-half of the gross receipts of the business carried on by him, until the whole sum, with interest, was repaid. The dispute in the case was upon the question whether the stipulation for one-half the gross receipts was intended to refer to profits. The question submitted to the jury, the evidence being conflicting, was whether it was "the real understanding between the parties that Crawford should participate in the profits, as such. If it was, it would constitute a part nership; " otherwise, not. This court approved the charge. In Burnett v. Snyder, supra, two of the members of an existing firm, composed of five persons, agreed with Suyder, for a good consideration, that if he would become liable to them for one-third of the losses sustained by them in the business of their firm they would pay to him one-third of the profits received by them in such business. For obvious reasons it was held that Snyder, under this agreement, took no interest in the general business of the firm, and did not become a member thereof. In Curry v. Fowler, supra, W. G. and J. E. McCormick were an existing firm, owning certain vacant real estate in New York, which they desired to improve. To enable them to do 80, Fowler loaned $50,000 to them; taking as security therefor a mortgage upon the land, with an agreement that he should be repaid his loan and interest, with one-half of the profits of the adventure, which the McCormicks guaranteed should amount to $12,500. This case was decided upon the authority of Richardson v. Hughitt, and was said to resemble it in all essential particulars. In Cassidy v. Hall, supra, it was held that the defendants were mere lenders of money to an existing corporation. The opinion states that "under the agreement the advances were to be made only upon such orders as the defendants approved, and the most that can be claimed from it is that the defendants were the financial agents of the company, to make advances and discount their paper, for the purpose of relieving the company from the financial embarrassment under which it was evidently laboring; for which they, the defendants, were to receive a proportion of the face of the orders upon which the advances were made as a compensation for the risks they incurred, and for the use of the money advanced by them. They were not generally interested in the affairs of the company, but only for a special and specific purpose; and in no sense were they partners." It cannot reasonably be claimed that either of these cases is an authority for the reversal of this judgment. Whatever might have been their bearing if they related to the loan of money alone, we will not say; but, when connected with the circumstance that the defendant was expected to render future services as a principal, and furnish further financial aid, with a certain supervision over the conduct of the business, we think this case is clearly distinguishable from those cited. In the view taken of this case, it is quite immaterial whether the plaintiff extended the credit to Gorham alone or not, as the defendant was held liable upon the ground that, as to third persons, he was a partner; and it did not affect that liability, whether the plaintiff knew the fact or not. The exception to the ruling of the court sustaining the objection to the question put to plaintiff on crossexamination, as to whom the credit was furnished, was not well taken, as the fact sought to be proved was immaterial. The judgment should therefore be affirmed. All concur. Henritze & Haythe, C. W. Smith, J. W. St. Clair, and Brown & Jackson, for plaintiffs in error. Attorney-General Caldwell, for the State. SNYDER, P. These two cases present the same questions, and may therefore be considered together. The first is a writ of error to a judgment of the Circuit Court of Mercer county, pronounced on April 3, 1889; and the second is a writ of error to a judgment of the Circuit Court of Fayette county, pronounced September 29, 1887. Both are indictments and convictions for the violation of section 3 of chapter 63, Acts 1887. See Code 1887, p. 983. The title of said act is as follows: "An act to secure to operatives and laborers engaged in and about mines, manufactories of iron and steel, and all other manufactories, the payment of their wages at regular intervals, and in lawful money of the United States." And the first and third sections are in these words: "(1) That all persons, firms, corporations or associations in this State, engaged in mining coal, ore or other minerals, or mining and manufacturing them, or either of them, or manufacturing iron or steel, or both, or any other kind of manufacturing, shall pay their employees as provided in this act.' "(3) That it shall not be lawful for any person, firm, company, corporation or association engaged in the business aforesaid, their clerk, agent, officer or servant, in this State, to issue for the payment of labor any order or other paper whatsoever unless the same purports to be redeemable, for its face value, in lawful money of the United States, bearing interest at the legal rate, made payable to employee or bearer, and redeemable within a period of thirty days by the person, firm, company, corporation or association giving, making or issuing the same." The residue of the section makes its violation a misdemeanor, and fixes the penalty at not less than $25, or more than $100. There was a demurrer to each of the indictments, which was overruled by the court; and the plaintiffs in error assign this as ground for the reversal of the judgments. The main question argued before this court is, whether or not the said statute is constitutional, the counsel for the plaintiffs in error contending that it is unconstitutional and void, and the attorney-general insisting that it is a proper exercise of the police power, and therefore not unconstitutional and void. observed that this statute applies to certain specified classes of persons, firms, companies, corporations and associations and none others. It is by its terms limited to persons, corporations, etc., engaged in mining coal or other minerals, or any kind of manufacturing. While these terms include not only all persons engaged in mining coal and other minerals, and all persons engaged in manufacturing iron and steel, but all persons engaged in any kind of manufacturing, such as the shoemaker, the cigarmaker, the undertaker, the distiller, the brickmaker, the jeweler, the weaver, the milliner, the dairyman and the miller, it does not include the wholesale merchant, with his hundreds of clerks and agents; the railroad construction companies, or railroad companies, with their thousands of employees. The propriety or the necessity, if such exists, of applying the provisions of the statute to these latter is equally as great, if not more so, as it is to any of the former. The rights and privileges of certain specified employers are abridged, while others of the same class are left free. By the first section of the fourteenth amendment of the Constitution of the United States, all persons born or naturalized in the United States are made citizens thereof; and it there declares that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." And the "Bill of Rights" of this State declares that "all men are, by nature, equally free and independent, and have certain inherent rights, of which, when they enter into a state It will be | of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and of pursuing and obtaining happiness and safety." Const., art. 3, § 1. Can the Legislature, in view of these constitutional guaranties, limit or forbid the right of contract between parties under no mental, corporal or other disability, when the subject of contract is lawful, not public in its character, and the exercise of it is purely private and personal to the parties themselves? The court, in People v. Gillson, says: "The term 'liberty,' as used in the Constitution, is not dwarfed into mere freedom from physical restraint of the person of the citizen, as by incarceration; but is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. Liberty, in its broad sense, as understood in this country, means the right, not only of freedom from servi tude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation." 109 N. Y. 398. Field, J., in Butchers' Union Co. v. Crescent City, etc., Co., 111 U. S. 755; Association v. Crescent City Co., 1 Abb. (U. S.) 398. The court in Civil Rights Cases says: "Under the fourteenth amendment, it [Congress] has power to counteract and render nugatory all State laws and proceedings which have the effect to abridge any of the privileges or immunities of citizens of the United States, or to deprive them of life, liberty or property without due process of law, or to deny to any of them the equal protection of the laws. ** Many wrongs may be obnoxious to the prohibitions of the fourteenth amendment which are not, in any just sense, incidents or elements of slavery. Such, for example, would be the taking of private property without due process of law; or allowing persons who have committed certain crimes (horsestealing, for example) to be seized and hung by the posse comitatus, without regular trial; or denying to any person, or class of persons, the right to pursue any peaceful avocation allowed to others. What is called 'class legislation' would belong to this category, and would be obnoxious to the prohibitions of the fourteenth amendment." 109 U. S. 23. The rights of every individual must stand or fall by the same rule of law that governs every other member of the body politic under similar circumstances; and every partial or private law which directly proposes to destroy or affect individual rights, or does the same thing by restricting the privileges of certain classes of citizens and not of others, when there is no public necessity for such discrimination, is unconstitutional and void. Were it otherwise, odious individuals or corporate bodies would be governed by one law, and the mass of the community, and those who make the law, by another; whereas, a like general law, affecting the whole community equally, could not have been enacted. Wally v. Kennedy, 2 Yerg. 554. * The property which every man has in his own labor, as it is the original foundation of all other property, 80 it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing these in what manner he may think proper, without injury to his neighbor, is a plain violation of this most sacred property. It is equally an encroachment both upon the just liberty and rights of the workman and his employer, or those who might be disposed to employ him, for the Legislature to interfere with the freedom of contract between them; as such interference hinders the one from working at what he thinks proper, and at the same time prevents the other from employing whom he chooses. A person living under the protec tion of this government has the right to adopt and follow any lawful industrial pursuit, not injurious to the community, which he may see fit. And, as incident to this, is the right to labor or employ labor; make contracts in respect thereto, upon such terms as may be agreed upon by the parties; to enforce all lawful contracts; to sue, and give evidence; and to inherit, purchase, lease, sell and convey property of every kind. The enjoyment or deprivation of these rights and privileges constitutes the essential distinction between freedom and slavery; between liberty and oppression. These principles have been fully recognized and announced in many decisions of the Supreme Court of the United States and other courts. Yick Wo v. Hop kins, 118 U. S. 356; Slaughter-House Cases, 16 Wall. 36; Butchers' Union Co. v. Crescent City, etc., Co., 111 U. S. 746: 6 Myer Fed. Dec., § 1000; In re Jacobs, 98 N. Y. 98; People v. Marx, 99 id. 377; Ex parte Westerfield, 55 Cal. 550; Ragio v. State, 2 Pickle, 272; State v. Divine, 98 N. C. 778. The vocation of an employer, as well as that of his employee, is his property. Depriving the owner of property of one of its attributes is depriving him of his property, under the provisions of the Constitution. People v. Otis, 90 N. Y. 48. The right to use, buy and sell property, and contract in respect thereto, including contracts for labor-which is, as we have seen, property-is protected by the Constitution. If the Legislature, without any public necessity, has the power to prohibit or restrict the right of contract between private persons in respect to one lawful trade or business, then it may prevent the prosecution of all trades, and regulate all contracts. Questions of power," says Marshall, C. J., in Brown v. Maryland, 12 Wheat. 419, "do not depend on the degree to which it may be exercised. If it may be exercised at all, it must be exercised at the will of those in whose hands it is placed." No one questions the position that, unless the government intervened to protect property and regulate trade, property would cease to exist, and trade would exist only as an engine of fraud; but this does not authorize the government to do for its people what they can do for themselves. The natural law of supply and demand is the best law of trade. In Munn v. Illinois, 94 U. S. 113, and other cases involving the same questions, the Supreme Court of the United States has held that persons or corporations engaged in occupations in which the public have an interest or use may be regulated by statute. But the reasons assigned for these decisions are that the public has a use in these occupations, and that the persons engaged in them are in the exercise of a public franchise, or special privileges, not enjoyed by others not so engaged; that their business implies a trust and public duty; and that the government has therefore the power to see that this trust is not abused, and that the duty imposed by it is properly performed. On this principle, statutes have been upheld which regulate the charges of railroad companies and other common carriers; elevator, telephone, telegraph and other companies; hack men, warehousemen, owners of water-mills, etc. But we are aware of no well-considered case in which a statute has been upheld that undertook to regulate the dealings between employer and employee, even in this class of occupations; much less in cases that are not impressed with a public trust or duty. But the claim is made that the Legislature should pass the act now in question in the exercise of the police power which every sovereign State possesses. That power is very broad and comprehensive, and is exercised to promote the health, safety and welfare of society. Its exercise in extreme cases is frequently justified by the maxim salus populi suprema lex est. It is used to regulate the use of property by enforcing the rule, sic utere tuo, ut alienum non lædas. Under it, the conduct of an indi vidual and the use of property may be regulated so as to interfere, to some extent, with the freedom of the one and the enjoyment of the other; and in cases of great emergency, engendering overruling necessity, property may be taken or destroyed without compensation. The limit of the power cannot be accurately defined; and the courts have not been willing definitely to circumscribe it. But this power, however broad and extensive, is not above the Constitution, which is the supreme law; and, so far as it imposes restraints, the police power must be exercised in subordination to it. In re Jacobs, 98 N. Y. 98; Cooley Const. Lim. 719; Mugler v. Kansas, 123 U. S. 623. Generally it is for the Legislature to determine what laws and regulations are proper, in the exercise of the police power; but if it passes an act ostensibly for the public health or safety, and thereby destroys or takes away the property of a citizen, or interferes with his rights or personal liberty, then it is for the courts to determine whether it is a proper and reasonable exercise of the power, and, if it is not, to declare it void. Austin v. Murray, 16 Pick. 121; State v. Gilman, ante 283 (decided at the present term). The right to regulate the rate of interest existed at the time the Constitution was adopted, and cannot therefore be considered as either an abridgement or restraint upon the right of the citizen guaranteed by the Constitution. The power to pass usury laws exists by immemorial usage; but such is not the case with such acts as we are now considering. Munn v. Illinois, 94 U. S. 113, 153. Our act is almost a literal copy of an act passed by the Legislature of Pennsylvania on June 29, 1881. Laws Penn., 1881, p. 147. In Godcharles v. Wigeman, 113 Penn. St. 431, the Supreme Court of that State declared the first four sectious of that act unconstitutional and void. The court, in its opinion, says: "The first, second, third and fourth sections of the act of June 29, 1881, are utterly unconstitutional and void, inasmuch as by them an attempt has been made by the Legislature to do what, in this country, cannot be done; that is, prevent persons who are sui juris from making their own contracts. The act is an infringement alike of the rights of the employer and the employee. More than this, it is an insulting attempt to put the laborer under a legislative tutelage, which is not only degrading to his manhood, 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 privileges, and consequently vicious and void." In Millett v. People, 117 Ill. 294, the Supreme Court of Illinois, in a wellconsidered opinion, held unconstitutional and void an act of the Legislature of that State which required the owners or operators of mines to provide scales for weighing their coal, and make the weight of coal the basis of the wages of miners. A part of the syllabus is as follows: "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 cannot be sustained as an exercise of the police power." In view of what the courts have uniformly held in respect to this class of legislation, it is needless to prolong this discussion. It is a species of sumptuary legislatlon which has been universally condemned, as an attempt to degrade the intelligence, virtue and manhood of the American laborer, and foist upon the people a paternal government of the most objectionable character, because it assumes that the employer is a tyrant and the laborer an imbecile. "Such legislation," as is well said by the court in Re Jacobs, 98 N. Y. 114, "may invade one class of rights to-day and another to-morrow; and, if it can be sanctioned under the Constitution, while far removed in time, we will not be far away in practical statesmanship from those ages when governmental prefects supervised the building of houses, the rearing of cattle, the sowing of seed and the reaping of grain, and governmental ordinances regulated the movements and labor of artisans, the rate of wages, the price of food, the diet and clothing of the people, and a large range of other affairs long since, in all civilized lands, regarded as outside of governmental functions. Such governmental interferences disturb the normal adjustments of the social fabric, and usually derange the delicate and complicated machinery of industry, and cause a score of ills while attempting the removal of one." For the reasons aforesaid, I am clearly of opinion that the said third section of the act aforesaid is unconstitutional and void. In arriving at this conclusion, we have not been unmindful that the power of the courts to condemn legislative acts as unconstitutional is one of great delicacy, and to be exercised with extreme caution, and even with reluctance. But, as said by Chancellor Kent (1 Kent Com. 450), "it is only by the free exercise of this power that courts of justice are enabled to repel assaults and protect every part of the government, and every member of the community, from undue and destructive innovations upon their charter rights." The statute itself being, as we have seen, unconstitutional and void, there could be no valid indictment founded upon it; and consequently the Circuit Court erred in overruling the demurrer to the indictment in each of these cases; and for that reason the judgments of the Circuit Court are reversed, and the defendants discharged. ENGLISH and BRANNON, JJ., concurred; GREEN, J., absent. WEST VIRGINIA SUPREME COURT OF APPEALS, NOV. 18, 1889. STATE V. FIRE CREEK COAL AND COKE Co. The statute which prohibits persons and corporations engaged in mining and manufacturing, and interested in selling merchandise and supplies, from selling any merchandise or supplies to their employees at a greater per cent of profit than they sell to others not employed by them, is unconstitutional and void, because it is class legislation, and an unjust interference with private contracts and business. cided by us at the present term), this court held it is not competent for the Legislature, under the Constitution, to single out owners and operators of mines, and manufacturers of every kind, 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 cannot be sustained as an exercise of the police power. And we also held, in that case, that the third section of the same act, under which the indictment now under consideration is founded, is unconstitutional and void. In that case we referred to the constitutional provisions, both State and Federal, and reviewed at some length the decisions of the courts in respect to the power of the Legislature to enact laws such as the one here in question. The provision of the statute which we declared invalid in that case was an attempt to prohibit persons engaged in mining and manufacturing from issuing, for the payment of labor, any order or paper, except such an order as is specified in the act. The chief ground upon which we held that section void was that it discriminated against a class of employers, and interfered with the right of contract between citizens in respect to matters purely private. Having held that section of the act void, as an abridgment of the guaranteed rights and privileges of the citizens of this State, it seems to me that the fourth section of the same act-the one now in question-must, for the reasons and upon the authorities and principles set forth in the opinion in the said case of State v. Goodwill, be also held unconstitutional and void. There are many considerations for selling goods or supplies at less per cent of profit to one customer than to others. The goods may be of the "like character, kind, quality and quantity," and still there may be considerations, entirely proper, why the sale should not be at the same price in all cases-such as the character and promptness of the customer; the risk of loss or time of pay. ment, the aggregate amount of purchases by the same person of different kinds of goods or supplies. It may be more profitable to sell a large bill of different kinds of goods to a large consumer than to sell one of the same kind of articles to one who buys nothing else. The statute is a Procrustean bed. It consigns all sizes and conditions to the same measure of treatment, regardless of their differences. It excludes all freedom in trade, and all considerations of mutual benefit, and even charity. If the employer sells goods to the family of some friend, in indigent circumstances, at less than cost, then under this statute, he must sell at the same price to all his employees. But it is unnecessary to illustrate the vices, the crudities, and the injustice of the statute. That it is an attempt to do for private citizens, under no physical or mental disabilities, what they can best do for themselves, is apparent. It selects miners and manufacturers as a class, and denies to them privileges which are not only proper and legiti mate in themselves, but to some extent necessary and unavoidable in the conduct of business; privileges which concern private affairs solely, and which are enjoyed by all other classes and citizens. It is an attempt on the part of the Legislature to do what, in this country, cannot be done; that is, to prevent persons who are sui juris from making their own contracts. The act is an infringement alike of the right of the employer and the employee. More than this, it is an insulting attempt to put the laborer under legislative tutelage, which is not only degrading to his manhood, but subversive of his rights as a citizen of the United States. Godcharles v. Wigeman, 113 Penn. St. 431. J. W. St. Clair, for plaintiff in error. Attorney-General Caldwell, for State. SNYDER, P. Writ of error to a judgment of the Circuit Court of Fayettte county, pronounced on September 29. 1887, upon an indictment against the Fire Creek Coal and Coke Company, a domestic corporation. There was a motion to quash, and a demurrer to the indictment - each of which were overruled — a trial by jury and conviction, and a fine of $25 imposed upon the defendant. The indictment is under the provisions of the fourth section of chapter 63, Acts of 1887, which provides, in substance, as follows: That it shall be unlawful for any person, firm, company, corporation, or association engaged in mining or manufacturing, and who shall be interested in merchandising, to knowingly and willfully sell any merchandise or supplies whatsoever to any employee at a greater per cent of profit than merchandise and supplies of the like character, quality and quantity are sold to other customers, buying for cash, and not employed by them. The violation of this section is made a misdeIn condemning this statute we do not wish to give meanor, punishable by a fine not exceeding $100 and countenance to the idea that any employer, whether not less than $25. In State v. Goodwill, ante, 285 (de- I he is engaged in mining, manufacturing or any other |