In re Morgan

• Citation: 58 P. 1071,26 Colo. 415
• Parties: In re MORGAN.
• Decision Date: 17 July 1899
• Court: Colorado Supreme Court

58 P. 1071

26 Colo. 415

In re MORGAN.

Supreme Court of Colorado

July 17, 1899

Original application by Thomas A. Morgan for writ of habeas corpus. Petitioner discharged.

At a preliminary examination before a justice of the peace upon a charge of contracting to labor in a smelter in excess of eight hours per day, the defendant was committed to jail, in default of giving the required bail, and, to secure his liberty, has filed in this court his petition for a writ of habeas corpus. The prosecution was under section 2 of 'An act regulating the hours of employment in underground mines and in smelting and ore reduction works, and providing penalties for violations thereof,' passed by the Twelfth general assembly, the material provisions of which are embraced in the first two sections:

'Section 1. The period of employment of working men in all underground mines or workings shall be eight (8) hours per day, except in cases of emergency, where life or property is in imminent danger.

'Sec 2. The period of employment of working men in smelters, and in all other institutions for the reduction or refining of ores or metals, shall be eight (8) hours per day, except in cases of emergency, where life or property is in imminent danger.'

Section 3 makes the violation of the foregoing provisions a misdemeanor, and provides the penalty therefor. Sess. Laws 1899, c. 103. The following sections of the constitution are referred to in the opinion:

Article 2:

'Section 1. That all political power is vested in and derived from the people; that all government, of right, originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.'

'Sec 3. That all persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property, and of seeking and obtaining their safety and happiness.'

'Sec. 28. The enumeration in this constitution of certain rights shall not be construed to deny, impair, or disparage others retained by the people.'

Article 5:

'Sec. 25. The general assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: * * * [Subdivision 23] Granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever. [Subdivision 24] In all other cases, where a general law can be made applicable, no special law shall be enacted.'

Wolcott & Vaile, John M. Waldron, C. W. Waterman, C. H. Toll, and W. W. Field, for petitioner.

Booth M. Malone, Dist. Atty., Daniel Prescott, Asst. Dist. Atty., David M. Campbell, Atty. Gen., Calvin E. Reed, Asst. Atty. Gen., Dan B. Carey, Asst. Atty. Gen., Thomas M. Patterson, and John H. Murphy, for respondent.

CAMPBELL, C.J. (after stating the facts).

The petitioner challenges the validity of the statute, as inhibited by the foregoing clauses of the organic law. The position of the attorney general is that it was passed as a health regulation, and may be vindicated as coming within the range of the police powers of the state. Four years before it became an act, this court, to an inquiry of the house of representatives of the Tenth general assembly as to the constitutionality of a bill reading, 'Eight hours shall constitute a legal day's work for all classes of mechanics, workingmen and laborers employed in any mine, factory or smelter of any kind whatsoever in the state of Colorado,' replied that it was 'not competent for the legislature to single out the mining, manufacturing, and smelting industries of the state, and impose upon them restrictions with reference to the hours of their employés from which other employers of labor are exempt.' And it was further said that the section 'violates the right of parties to make their own contracts,--a right guarantied by our bill of rights.' In re Eight-Hour Bill, 21 Colo. 29, 39 P. 328. The Twelfth general assembly must have been aware of this, and another decision concerning the power of the legislature to pass what is called a 'coal-screening bill,'--the opinion being reported in 21 Colo. 27, and 39 P. 431 (In re House Bill No. 203),--in which this species of legislation was condemned as hostile to the constitution. But, wholly disregarding these decisions, binding alike on all departments of government, it proceeded to enact the measure now before us. Though it affords no justification for such legislative action in defiance and against the solemn decision of this court, we presume the excuse that might be offered therefor is that, after these decisions were handed down, in a sister state an act in the same language was passed and approved by its highest court, and, as is claimed, sanctioned by the supreme court of the United States. Following the rule of stare decisis, we might content ourselves with a mere affirmance of our previous announcements, made, as they were, upon full consideration; but, in view of the importance of the questions involved, we have thought it best fully to discuss the principles by which this act must be tested.

The question presented for our determination is, does the act under which the petitioner is being prosecuted violate any constitutional provision? In this resolution the provisions of our own constitution must govern. Decisions of other jurisdictions, defining the limits of legislation under their constitutions, are not always to be followed elsewhere, upon the supposition that the same limitations everywhere prevail. This is illustrated in the answer of the judges of the supreme judicial court of Massachusetts in response to an inquiry by the house of representatives as to the validity of a proposed bill. In the course of the opinion, after referring to the fact that legislation similar to that proposed had been held by the courts in some states unconstitutional on different grounds, and without expressing an opinion as to the correctness of those decisions, tested by the respective constitutions, the honorable judges said: 'The legislative power granted to the general court by the constitution of Massachusetts is perhaps more comprehensive than that found in the constitutions of some of the other states.' In re House Bill No. 1,230, 163 Mass. 590, 40 N.E. 713. A similar observation was made by the supreme court of Illinois in the Ritchie Case, 155 Ill. 98, 40 N.E. 454. It is peculiarly appropriate, we think, to our organic act. A comparison of many other constitutions with ours shows that the latter probably contains more restrictions upon the power of the legislature than are to be found in any other instrument; and whether measured by the decisions of the courts of that state, or as the result of our own construction, we think it clear that the general court of Massachusetts has, in the field of legislation under review, much wider latitude, and is hampered by fewer restrictions, than is our general assembly.

The extent and meaning of the act in question are not difficult of ascertainment, though it is not a model of statutory composition. That it operates as a limitation both upon the employer and the employé seems clear. It forbids a certain kind of employment. There can be no employment without the concurring acts of him who contracts for employment and of him who contracts to be employed.

Both are within the inhibitions of the enactment, and, if it is valid, each is liable to the penalty for making the forbidden contract. The petitioner, therefore, as a laboring man, is prohibited from entering into a contract to work in a smelter more than eight hours in any one day. If, in our constitution, there was, as there seems to be in that of Utah, a specific affirmative provision enjoining upon the general assembly the enactment of laws to protect the health of the classes of workingmen therein enumerated, it might be that acts reasonably appropriate to that end would not be obnoxious to that provision of our constitution forbidding class legislation; for it could hardly be said that a classification made be the constitution itself was arbitrary or unfair, or that it clashed with another provision of the same instrument inhibiting class legislation. The two provisions should be construed together, so as to harmonize if that be possible under sound canons of construction, and the general clause forbidding class legislation might be regarded as qualified by the special one which authorizes such legislation in respect to the enumerated classes. Article 16 of our constitution is devoted to mining and irrigation, and section 2 directs that 'the general assembly shall provide by law for the proper ventilation of mines, the construction of escapement shafts, and such other appliances as may be necessary to protect the health and secure the safety of the workmen therein.' These regulations manifestly embrace only such reasonably necessary mechanical appliances as will secure the end in view, and do not include other kinds of health regulations. Whether this command, addressed to the legislature, to protect the health of these workmen by requiring the mines to be furnished with the appliances specified, does not restrict the lawmaking power to the things named, on the principle that when authority to do a particular thing is given, and the mode of doing it is prescribed, all other modes are excluded, might be a material inquiry, where the validity of the act was challenged by a minor; but as that question relates to workmen in mines, and not in smelters, we prefer to put our decision upon impregnable grounds that cover both cases. Be that as it may, we have no constitutional provision which authorizes the legislature to single out workingmen in...