This case comes before us upon the constitutionality of Section 5 of Chapter 131 of the General Laws of 1909 as amended by Chapter 1780 of the Public Laws of 1919, approved April 24, 1919. The act is entitled, "Of diminishing danger to life in case of fire."
The portion of the act which we are called upon to examine in the consideration of the questions presented to us is as follows: "The board of fire commissioners, or in case there is no such board, the chief of the fire department of every city shall station in every theatre during the time any audience is present therein a fireman, and the person or persons holding the license for the same shall pay such city for the attendance of such fireman the sum of two dollars, except in the City of Newport, where such person or persons holding the license shall pay such city for the attendance of such fireman the sum of three dollars, for every day during which any performance, show or exhibition shall be given therein: Provided, however, that in the city of Providence in lieu thereof the person or persons holding the license pertaining to such theatre shall employ at a salary of not less than three dollars per day a suitable person, approved by the board of fire commissioners thereof, who shall be stationed in such theatre during the time any audience is present therein, and who shall perform such duties as from time to time may be prescribed by said board to guard against fire, and to protect life and property in case of fire therein, and who shall not have any other duties and in case said board at any time shall withdraw its approval of any such person, another person approved by said board shall be employed in his stead; and no such employee approved as aforesaid shall be discharged by such licensee or licensees from his said employment nor his salary reduced except with the prior approval of said board; and said board from time to time may prescribe a distinctive uniform
and badge to be worn by every such employee during the time he is performing such duties; and said board from time to time may assign any officers or members of the fire department thereof to inspect such theatres and see whether such persons are properly performing their said duties therein, and such officers or members at all reasonable times upon showing their credentials shall be admitted free of charge into all parts of all theatres in said city; and provided, further, that in the cities of Woonsocket and Central Falls in lieu thereof the person or persons holding the license pertaining to such theatres shall employ a suitable person approved by the chief of the fire department thereof, who shall be stationed in such theatre during the time any audience is present therein, and who shall perform such duties as from time to time may be prescribed by said chief of the fire department to guard against fire, and to protect life and property in case of fire therein, and in case said chief of the fire department at any time shall withdraw his approval of any such person, another person approved by said chief of the fire department shall be employed in his stead; and no such employee approved as aforesaid shall be discharged by such licensee or licensees from his said employment except with the prior approval of said chief; and said chief from time to time may prescribe a distinctive uniform and badge to be worn by every such employee during the time he is performing such duties; and said chief from time to time may assign any officers or members of the fire department thereof to inspect such theatres and see whether such persons are properly performing their said duties therein, and such officers or members at all reasonable times upon showing their credentials shall be admitted free of charge into all parts of all theatres in said cities."
A complaint issued by the District Court of the Sixth Judicial District charged the defendant, holding a theatrical license in the city of Providence, with failure to pay three dollars a day pursuant to said Section 5 to one Robert S. Gallagher employed by said defendant to guard against
danger from fire in its theatre located in said city. The defendant pleaded not guilty.
At the hearing in the district court, it appeared that the defendant had not paid the sum of three dollars a day to the said Gallagher; that he had been employed for some two years, and still was employed, at two dollars a day; that he was approved as competent for such employment by the board of fire commissioners of the city of Providence; and that such approval was in force at the date of the complaint.
The defendant offered testimony as to the character of the contract of hiring, the seating capacity of the theatre in question, and the seating capacity of the theatres in the various cities of the State and then filed its motion to dismiss the complaint and to discharge the defendant on the ground that said act was unconstitutional.
The defendant was found guilty, sentence was stayed, and the constitutional questions raised by the motion to dismiss were certified to this court for determination.
The act in question appeared originally as Chapter 131 of the General Laws of 1909 and by Section 5 of the said original act it was provided as follows: "Sec. 5. The board of fire commissioners, or, in case there is no such board, the chief of the fire department, of every city shall cause to be installed and maintained in every theatre therein a fire alarm box, and shall station in every theatre, during the time any audience is present therein, a fireman, and the person or persons holding the license for the same shall pay such city for the attendance of such fireman the sum of two dollars for every day during which any performance, show, or exhibition shall be given therein. The board of police commissioners, or in case there is no such board, the chief of police of every city shall cause to be installed and maintained in every theatre therein a police call box."
Before noting the changes in this section brought about by the later amendatory acts it may be well to bear in mind that the original act provided that a member of the fire department of each city in the State should be stationed by
the fire commissioners or chief of the fire department in every theatre and that each theatre in which a fireman was so stationed should pay to the city the sum of two dollars per day for his attendance. At the January Session of the General Assembly, 1916, Section 5 was amended by Chapter 1366 of the Public Laws in respect to the theatres in Providence, the amendment providing that the licensee of the theatre should employ a suitable person, to be approved by the board of fire commissioners, who should perform the duties which had previously devolved upon the fireman stationed therein, and that such person so employed could not be discharged by his employer without the consent of such board.
At the January Session of the General Assembly, 1919, the act was again amended by Chapter 1780 of the Public Laws in respect to the theatres in the city of Newport, the amendment providing that the theatres in that city should pay the sum of three dollars per day for the services of the fireman stationed therein.
Later, at the same session, the act was further amended by Chapter 1780 of the Public Laws. It is upon the act as finally amended that the questions now submitted to us arise. Under the provisions of the act as it now stands, in the cities of Newport, Pawtucket and Cranston firemen must be stationed in theatres by the respective municipal authorities for which services the city of Newport is required to pay three dollars per day and the cities of Pawtucket and Cranston two dollars per day.
In the cities of Providence, Central Falls and Woonsocket a person approved by the board of fire commissioners, or other municipal authority, must be employed by the person holding a theatrical license to guard against danger by fire, and cannot be discharged by his employer without the consent of the proper municipal authority.
In the city of Providence such employee must be paid not less than three dollars a day while in Woonsocket and Central Falls no compulsory payment of any amount whatsoever
is made necessary, and further, in Providence the salary of such person cannot be reduced without the previous approval of the board of fire commissioners while no such provision is in force as regards Woonsocket and Central Falls.
The defendant claims that Section 5 of Chapter 131, General Laws, 1909, as thus amended, is unconstitutional and raises the following questions:
(1) Does the provision compelling the holder of a theatrical license in the city of Providence to pay three dollars a day to a person employed by him and stationed in the theatre to guard against fire deprive the defendant of liberty and property without due process of law?
(2) Does such provision deny the defendant the equal protection of the law?
(3) Does the provision that the salary of the person employed to guard against fire shall not be reduced except by consent of the board of fire commissioners deprive the defendant of its liberty and property without due process of law?
(4) Does such provision deny the defendant the equal protection of the law?
(5) Does the provision that such employee cannot be discharged without the prior approval of the board of fire commissioners deprive the defendant of liberty and property without due process of law?
(6) Does the provision requiring the payment of three dollars a day violate the obligation of any contract between this defendant and Robert S. Gallagher mentioned in the complaint and warrant?
(7) Does the provision requiring the payment of three dollars a day violate Art. I, Section 2 of the Constitution of Rhode Island in that it does not distribute the burdens of the State fairly among its citizens?
The defendant advises the court in its brief and argument that it does not object to the provisions of Section 5 of Chapter 131 as amended by Chapter 1780 of the Public
Laws, in so far as they compel every person holding a theatrical license to employ a competent person to guard against fire in the theatre to which such license pertains, nor to the provision requiring such employee to be approved by the board of fire commissioners, nor to those portions of Section 5 as amended which give power to officers of the fire department to inspect theatres and ascertain whether such employee is properly performing his duty and, therefore, all discussion of those matters may be eliminated.
It may be further noted here that under Section 8 of said Chapter 131 of the General Laws of 1909 it is also provided that the license of any owner or lessee of any theatre who shall neglect or refuse to comply with any obligations imposed by said chapter may be suspended or revoked by the authority having the power to grant the same, thus preventing such owner or licensee from giving any performance or entertainment therein.
The defendant claims first that the portion of the act which compels the payment of three dollars a day to the person employed is unconstitutional in that it deprives the defendant of liberty of contract and deprives it of its property without due process of law and is, therefore, in conflict with the Fourteenth Amendment of the Constitution of the United States.
That the carrying on of a theatre or place of amusement is a private business has been clearly stated by this court in the case of Buenzle v. Newport Amusement Association, 29 R.I. 23, in which the following language of the court in Horney v.Nixon, 213 Pa. St. 20 was adopted and made a part of its opinion. "The proprietor of a theatre is a private individual, engaged in a strictly private business, which, though for the entertainment of the public, is always limited to those whom he may agree to admit to it. There is no duty, as in the case of a common carrier, to admit every one who may apply and be willing to pay for a ticket, for the theatre proprietor has acquired no peculiar rights and privileges from the state, and is, therefore, under no implied obligation to
serve the public. When he sells a ticket he creates contractual relations with the holder of it, and whatever duties on his part grow out of these relations he is bound to perform, or respond in damages for the breach of his contract," and the opinion further holds that no analogy can be drawn between a place of entertainment and a corporation affected with a public duty. Such therefore is the law of this state and it would be useless to pursue further the discussion of this particular point in the case. Reference however may be made to Adair v. U.S.,208 U.S. 161 and Coppage v. Kansas, 236 U.S. 1, which sustain the proposition that while the duties of the person so employed may have to do with the public safety his employment remains a private relationship in its legal and constitutional aspects. Under the very terms of the act he is employed by the licensee of the theatre and from such licensee he receives his wages. He has no claim against anyone else for compensation for his services. The power of the board to pass upon his competency, prescribe his duties and scrutinize their performance are only matters of supervision in the interest of public safety.
The sole purpose of the act in question, as its title indicates, is to diminish the danger from fire to those who may assemble in places of amusement, a danger which not only arises from fire itself but also from the panic which is apt to seize upon an assemblage of people whose individual freedom of movement is more or less restricted. The act provides that every person holding a theatre license shall employ a suitable person approved by the board of fire commissioners who shall be stationed in the theatre during the time any audience is present therein; that such person shall perform such duties as may be prescribed by said board to guard against fire; that such person shall have no other duties; that said board may at any time withdraw its approval of any such person when another person approved by said board shall be employed in his stead; and that said board may assign any officer or member of the fire department to inspect the theatres for the purpose of ascertaining
whether the persons employed are properly discharging their duties. These provisions fully meet all the purposes and requirements of the act which is to protect the audience from the dangers of fire and to such provisions the defendant offers no objection.
The act however goes further and provides that the licensee of the theatre employing such a person shall pay him a wage of not less than three dollars per day and that no such employee shall be discharged by such licensee from his employment nor his salary reduced except with the prior approval of the board.
In the case at bar it appears that one Robert S. Gallagher had been for a long period an employee of the defendant at its theatre in Providence charged with the duty of protecting the premises from the dangers of fire. His employment in that capacity had been approved by the board of fire commissioners and such approval had never been withdrawn; and that the defendant paid to the said Gallagher for his services the sum of two dollars per day. This arrangement between the defendant and Gallagher continued without interruption from the time when the latter was employed by the defendant down to April 24, 1919, when Chapter 1780 of the Public Laws was approved. Thereafter upon the neglect or refusal of the defendant to raise the pay of its said employee to three dollars per day the complaint was instituted under which the constitutional questions now before us have arisen.
The defendant contends that these provisions, compelling the payment of three dollars per day, forbidding the discharge of the employee without the approval of the board of fire commissions, and forbidding any reduction in the salary of such employee, are unconstitutional, being in violation of the Fourteenth Amendment of the Constitution of the United States.
These provisions seem to us to be unrelated to the purposes of the act. The safety of the public is amply provided for without them. If these provisions are eliminated
the act would still effectively provide for the safety of the people who may compose the audience and the degree of safety is neither increased or diminished by the amount of wages paid to the employee nor does it depend upon depriving the employer of the right to discharge his employee or to reduce his wages. Whatever may be the amount of the wages paid to the employee and whoever may be empowered to reduce his salary or bring about his discharge, the fact remains that all the elements of the act bearing upon the safety of the public still remain in full force and effect. A man whose competency is approved by the board of fire commissioners must be on duty whenever an audience is present, and at all times under the supervision of said board who may prescribe his duties and through inspection see that he discharges them properly, and who may in its discretion withdraw its approval thus compelling the licensee to employ another person in his stead who likewise can only act with the approval of said board. Any failure on the part of the licensee to have an approved man on duty would bring about the cancellation of his license without which he could not continue his business.
As the amusement business is a private business and not a business affected with a public interest it may be exercised under the police power of the State. But the police power of the State is subject to the limitations and provisions of the Federal Constitution as the Supreme Court of the United States has held in several cases.
In Connolly v. Union Sewer Pipe Co., 22 Sup. Ct. Rep. 431, the court said: "The question of constitutional law to which we have referred cannot be disposed of by saying that the statute in question may be referred to what are called the police powers of the state, which, as often stated by this court, were not included in the grants of power to the general government, and therefore were reserved to the states when the Constitution was ordained. But as the Constitution of the United States is the supreme law of the land, anything in the Constitution or statutes of the states to the contrary
notwithstanding, a statute of a state, even when avowedly enacted in the exercise of its police powers must yield to that law. No right granted or secured by the Constitution of the United States can be impaired or destroyed by a state enactment, whatever may be the source from which the power to pass such enactment may have been derived. `The nullity of any act inconsistent with the Constitution is produced by the declaration that the Constitution is the supreme law.' The state has undoubtedly the power, by appropriate legislation, to protect the public morals, the public health, and the public safety; but if, by their necessary operation, its regulations looking to either of those ends amount to a denial to persons within its jurisdiction of the equal protection of the laws, they must be deemed unconstitutional and void." See also Atchison, Topeka Santa Fe Ry. Co. v.Vosburg, 238 U.S. 56; Buchanan v. Warley, 245 U.S. 60.
The Fourteenth Amendment to the Constitution of the United States provides, "nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."
The meaning of this provision has been interpreted and defined by the Supreme Court of the United States in a number of cases. In Allgeyer v. Louisiana, 165 U.S. 578, the court said: "The liberty mentioned in that amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned." And in Coppage v.Kansas, 236 U.S. 1, the word "liberty" as used in the Fourteenth Amendment
is defined as follows: "Included in the right of personal liberty and the right of private property — partaking of the nature of each — is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense." And to the same effect are the cases of Adair v. U.S., 208 U.S. 161 andSmith v. Texas, 233 U.S. 630.
In the case of Adair v. U.S., supra, the court said: "While, as already suggested, the rights of liberty and property guaranteed by the Constitution against deprivation without due process of law, is subject to such reasonable restraints as the common good or the general welfare may require, it is not within the functions of government — at least in the absence of contract between the parties — to compel any person in the course of his business and against his will to accept or retain the personal services of another, or to compel any person, against his will, to perform personal services for another. The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell it."
The case of Wilson v. New, 243 U.S. 332 is referred to in the brief of the complainant and also in the brief of the defendant. It involves the constitutionality of an act of Congress popularly known as the Adamson Act.
We do not deem it necessary to discuss that case at great length. The act provided among other things that, pending the report of a commission to investigate and deal with the wages of trainmen on interstate railroads, the then existing rate of compensation should "not be reduced below the present standard day's wage." It differs materially from the case at bar in that it was a temporary expedient resorted
to in the face of an emergency. It did not undertake to fix a permanent wage but to retain the already existing wage for a limited period of thirty days until, through an investigation then progressing, certain rights might be determined "leaving the employers and employees free as to the subject of wages to govern their relations by their own agreements after the specified time." The act was intended as an exercise of governmental power over a matter of interstate commerce or a business affected with a public interest. The act was passed to meet an emergency arising from a nationwide dispute over wages between railroad companies and their train operatives in which a general strike was threatened which would bring about commercial paralysis and grave loss and suffering, the parties concerned being unable to agree. It was designed to bridge over a limited period within which the parties might reach an agreement.
The question in that case as stated by the court in its opinion was, "Did Congress have power under the circumstances stated, that is, in dealing with the dispute between the employers and employees as to wages, . . . to create by legislative action a standard of wages to be operative upon the employers and employees for such reasonable time as it deemed necessary to afford an opportunity for the meeting of the minds of employers and employees on the subject of wages? Or, in other words did it have the power in order to prevent the interruption of interstate commerce to exert its will to supply the absence of a wage scale resulting from the disagreement as to wages between the employers and employees and to make its will on that subject controlling for the limited period provided for?" The difference between the Adamson law and the act which we are considering, which fixes a permanent wage in the absence of any emergency, is so apparent that it need not be specifically pointed out. That the court recognizes a distinction between employment in a private business and an employment in a business charged with a public interest and that its decision is not intended to apply to the former
is fully evidenced in the opinion itself wherein it is stated, "Whatever would be the right of an employee engaged in a private business to demand such wages as he desires, to leave the employment if he does not get them and by concert of action to agree with others to leave upon the same condition, such rights are necessarily subject to limitation when employment is accepted in a business charged with a public interest," and it may be fairly said that the court confined itself solely to dealing with an employment charged with a public interest for the opinion states, "It is also equally true that as the right to fix by agreement between the carrier and its employees a standard of wages to control their relations is primarily private, the establishment and giving effect to such agreed on standard is not subject to be controlled or prevented by public authority.". And further that, "there is no question here of purely private right since the law is concerned only with those who are engaged in a business charged with a public interest."
In Smith v. Texas, 233 U.S. 630, the court, in passing upon a statute forbidding the employment of any person as a passenger conductor unless such person had had two year's experience as a brakeman or conductor of a freight train, declared that, "The liberty of contract is, of course, not unlimited; but there is no reason or authority for the proposition that conditions may be imposed by statute which will admit some who are competent and arbitrarily exclude others who are equally competent to labor on terms mutually satisfactory to employer and employe."
In Gulf C. S.F. Ry. Co. v. Ellis, 165 U.S. 150, the court said, "While good faith and a knowledge of existing conditions on the part of a legislature is to be presumed, yet to carry that presumption to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminating legislation is to make the protecting clauses of the Fourteenth Amendment a mere rope of sand, in no manner restraining state action."
We have already pointed out that it is obligatory upon the licensee, under the provisions of the act, to employ a person who shall attend at the theatre during the time when an audience is present for the purpose of guarding against fire; that such person must be approved by the board of fire commissioners; that such approval may be withdrawn compelling the licensee to employ another man; that said board may prescribe the duties to be performed; that the said board may direct some member of the fire department whose duty it shall be to make an inspection for the purpose of determining whether the person so employed is properly discharging his duties; and that these provisions of the act are not objected to by the defendant.
The act goes further and dictates a minimum wage and seeks to take away from the employer the right to discharge or reduce the wages of the employee whom he has employed in the conduct of his private business. Neither of these last named provisions are essential or have any relation to the protecting features of the act which are its sole object and purpose.
We cannot assume that the legislative power has been properly exercised. It does not follow that because the General Assembly has enacted a law that it must have had some good and sufficient reason for so doing although such reason may not be apparent. The Court of Appeals of New York, In re Jacobs, 98 N.Y. 98, in a carefully considered and well reasoned opinion has satisfactorily disposed of that question, holding that while generally it is for the legislature to determine what laws are required to protect and secure the public health, comfort and safety, under the guise of police regulations it may not arbitrarily infringe upon personal or property rights; and its determination as to what is a proper exercise of the power is not final or conclusive but is subject to the scrutiny of the courts; and that when the legislature passes an act ostensibly for the public health, but which does not relate to the purpose sought to be carried out and which destroys the property or interferes with
the rights of the citizens, it is within the province of the court to determine that fact and to declare the act unconstitutional.
Other portions of the opinion in the Jacob case seem to have a substantial bearing upon the questions now before us. The court in stating the facts says, "The relator at the time of his arrest lived with his wife and two children in a tenement-house in the city of New York in which three other families also lived. There were four floors in the house, and seven rooms on each floor, and each floor was occupied by one family living independently of the others, and doing their cooking in one of the rooms so occupied. "The relator at the time of his arrest was engaged in one of his rooms in preparing tobacco and making cigars, but there was no smell of tobacco in any part of the house except the room where he was thus engaged. These facts showed a violation of the provisions of the act." The court then proceeded to quote the provisions of the act the first section thereof being as follows: "Section 1. The manufacture of cigars or preparation of tobacco in any form on any floor, or in any part of any floor, in any tenement-house is hereby prohibited, if such floor or any part of such floor is by any person occupied as a home or residence for the purpose of living, sleeping, cooking or doing any household work therein.". The title of the act was, "An act to improve the public health by prohibiting the manufacture of cigars and preparation of tobacco in any form in tenement-houses in certain cases, and regulating the use of tenement-houses in certain cases."
This law by its title and otherwise purports to be designed to promote the public health and the court says in respect to that, "When a health law is challenged in the courts as unconstitutional on the ground that it arbitrarily interferes with personal liberty and private property without due process of law, the courts must be able to see that it has at least in fact some relation to the public health, that the public health is the end actually aimed at, and that it is
appropriate and adapted to that end. This we have not been able to see in this law, and we must, therefore, pronounce it unconstitutional and void." The court further says, "This law was not intended to protect the health of those engaged in cigarmaking, as they are allowed to manufacture cigars everywhere except in the forbidden tenement-houses. It cannot be perceived how the cigarmaker is to be improved in his health or his morals by forcing him from his home and its hallowed associations and beneficent influences, to ply his trade elsewhere." "It is plain therefore that this law interferes with the profitable and free use of his property by the owner or lessee of a tenement-house who is a cigarmaker, and trammels him in the application of his industry and the disposition of his labor, and thus, in a strictly legitimate sense, it arbitrarily deprives him of his property and of some portion of his personal liberty". The opinion also quotes with approval from the cases of Austin v.Murray, 16 Pick. 121, 126 and Watertown v. Mayo,109 Mass. 315, 319. In the first mentioned case the court said, "The law will not allow the right of property to be invaded under the guise of a police regulation for the preservation of health, when it is manifest that such is not the object and purpose of the regulation," and in the last mentioned case the court said, "The law will not allow rights of property to be invaded under the guise of a police regulation for the preservation of health or protection against a threatened nuisance; and when it appears that such is not the real object and purpose of the regulation, courts will interfere to protect the rights of the citizen."
So in the case at bar, as we have already demonstrated, the purpose of the act is to protect the public from the dangers of fire and that the degree of protection for which the act provides can be neither increased or diminished by fixing the wages of the person employed in carrying out its provisions.
The defendant argues that if the lawmaking power can fix the wages of such employee it could with equal propriety
fix the wages of motormen, telegraph operators and of those engaged in a variety of other employments. We think there is much logic in that argument. In the Jacob case, supra, the court said, "Such legislation may invade one class of rights today and another tomorrow, and if it can be sanctioned under the Constitution, . . . we will not be far away in practical statesmanship from those ages when government prefects . . . 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."
In Lochner v. New York, 198 U.S. 45, it was held that a statute of New York providing that no employees shall be required or permitted to work in bakeries more than sixty hours in a week, or ten hours a day, is not a legitimate exercise of the police power of the state, but an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract, in relation to labor, and as such is in conflict with, and void under, the Federal Constitution.
People v. Coler, 166 N.Y. 1 is another case decided by the Court of Appeals of New York. A contractor having performed his contract for grading a public street and having received from the proper authorities a certificate that the contract price had been earned, it was held that he may compel the city to pay the amount due by mandamus although he has failed to comply with the labor statute regulating the amount of wages to be paid his employees on the ground that such labor law, in such respect, invades rights of liberty and property in that it denies to the city and the contractor the right to agree with their employees upon the measure of their compensation, and compels them to pay an arbitrary and uniform rate, and further, that in effect it imposes a penalty upon the exercise by the city or by the contractor of the right to agree with their employees upon the terms and conditions of the employment.
And it was held in the case of Tannenbaum v. Rehm,152 Ala. 494, that a fireman assigned to duty at a theatre under an ordinance requiring the assignment, and providing that the manager of the theatre shall pay for such attendance, may bring his action against such manager for compensation for his services. The main contention in that case however was that the actual cost of the services could be collected, a point not involved here. It cannot be reasoned from this case that a property owner may be compelled to pay an amount in excess of cost and we need not consider the cases which deal with the right to reimbursement for the services of firemen appointed to duty at a theatre from the regular force of the city.
In Nashville, Chattanooga and St. Louis Ry. v. Alabama,128 U.S. 96, the court held that a state statute which requires locomotive engineers and other persons, employed by a railroad company in a capacity which calls for the ability to distinguish and discriminate between color signals, to be examined in this respect by a tribunal established for the purpose, and which exacts a fee from the company for the service of examination does not deprive the company of its property without due process of law. In that case such provisions were not only closely related to the purposes of the act but were absolutely essential if the act was to be effective. As the court said in its opinion, "Color blindness is a defect of a vital character in railway employees . . . Ready and accurate perception by them of colors . . . are essential to safety of the trains, and, of course, of the passengers and property they carry" and the court further held that, "Requiring railroad companies to pay the fees allowed for the examination of parties who are to serve on their railroads . . . is not depriving them of property without due process of law. It is merely imposing upon them the expenses necessary to ascertain whether their employees possess the physical qualifications required by law.". The difference between that case and the case at bar is too apparent to require elucidation.
In Chicago, Burlington Quincy R.R. Co. v. McGuire,219 U.S. 549, the question presented was as to the validity of an act precluding the railroad company from making the defense that recovery was barred by the acceptance of benefits under a contract of membership in its relief department. The defendant in error while acting as a brakeman in the service of the railroad company had received injuries for which he had recovered judgment. The railroad company claimed that the defendant in error having received the benefits to which he was entitled from the relief fund the payment and acceptance thereof subsequent to the injury constituted a full satisfaction of his claim.
The statute involved in that case is as follows: "Every corporation operating a railway shall be liable for all damages sustained by any person, including the employees of such corporation, in consequence of the neglect of the agents, or by any mismanagement of the engineers or other employees thereof, and in consequence of the wilful wrongs, whether of commission or omission of such agents, engineers, or other employees; when such wrongs are in any manner connected with the use and operation of any railway on or about which they shall be employed and no contract which restricts such liability shall be legal or binding. Nor shall any contract of insurance relief, benefit or indemnity in case of injury or death, entered into prior to the injury, between the person so injured and such corporation or any other person or association acting for such corporation, nor shall the acceptance of any such relief, insurance, benefit or indemnity by the person injured, his widow, heirs or legal representatives after the injury, from such corporation, person or association, constitute any bar or defense to any cause of action brought under the provisions of this section; but nothing contained herein shall be construed to prevent or invalidate any settlement for damages between the parties subsequent to the injuries received."
The railroad company contended that the statute attempts to prohibit the making of a contract for settlement "by acts
done after the liability had become fixed." The court however rejected that view holding that while the acceptance of benefits was, of course, an act done after the injury, the legal consequences sought to be attached to that act were derived from the provision in the contract of membership and that the stipulation which the statute nullifies is one made in advance of the injury, that the subsequent acceptance of benefits shall constitute full satisfaction. The full import of the case is that it is within the power of the legislature to provide that contracts entered into prior to the injury and designed to exempt the employer from liability shall not be legal or binding and that the statute cannot be abrogated by such a contract. The opinion itself excludes its application to the case at bar when it says, quoting from the case of Frisbie v. United States,157 U.S. 160, 166, "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."
The weight of authority is well stated in 6 R.C.L. § 258, as follows: "Since an employee cannot be compelled to work against his will, it is generally recognized that he is at liberty to refuse to continue to serve his employer. In this respect the rights of the employer and the employee are equal. Any act of the legislature that would undertake to impose on an employer the obligation of keeping one in his service whom, for any reason, he does not desire, would be a denial of his constitutional right to make and terminate contracts and to acquire and hold property."
It may be here observed that the act before us seeks to deprive the licensee of the free exercise of his right to discharge his employee but does not attempt to place a similar restriction upon the right of the employee to leave the service of his employer.
We think that the provisions compelling the payment of three dollars per day, forbidding the discharge of the employee without the prior approval of the board of fire commissioners,
and forbidding the reduction of his salary take away that freedom and liberty of contract to which the defendant is entitled under the Fourteenth Amendment to the Constitution of the United States and are, therefore, unconstitutional and void.
We do not think however that the elimination of these provisions tends to nullify the act as a whole but that the other requirements thereof remain in full force and effect.
Under the provisions of the act if the defendant fails to pay three dollars per day its license will be refused or taken away by the board of police commissioners and the defendant's business, otherwise lawful, will forthwith cease. It appears in the case at bar that the defendant prior to the objectionable enactment employed a person approved by said board, at two dollars per day, down to the time that the act fixing the wage at three dollars was passed. Such fixing of the price is made without regard to the market price of such services or whether employer and employee fix a lower rate. It seems to us that this is depriving the defendant of his property without due process of law and is therefore unconstitutional and void under the Fourteenth Amendment to the Constitution of the United States.
As the city of Providence does not furnish any of its employees to guard against fire in any of its theatres we need not discuss a number of cases cited in the briefs bearing upon the question as to whether the city could legally claim reimbursement for such services.
The defendant further claims that the act deprives it of equal protection of the laws contrary to Section 1 of the Fourteenth Amendment of the Constitution of the United States. In other words that the law which is applicable to all cities in the State imposes upon the owners or lessees of theatres in Providence a greater burden than is imposed upon others carrying on a similar business in other portions of the State and the defendant points out that in the cities of Pawtucket and Cranston the act provides that firemen from the city force must be stationed in each theatre to be
paid two dollars per day for their services and that in Providence the person employed by the owner or lessee of a theatre shall receive for his services not less than three dollars per day while in Woonsocket and Central Falls the act does not fix any wage to be paid to the person employed but leaves owners and lessees in the two cities last named to contract for such service in their discretion.
We do not think it necessary for us to discuss this question in view of the conclusions which we have already reached regarding the fixing of wages.
With that portion of the act eliminated which seeks to fix the wages of such employees the question of equal protection under the law disappears and becomes purely academic. With such elimination all parties will stand upon an equal footing and be left to contract for such required service upon such terms as may be in accordance with their own judgment and wishes.
If the employer and employee have a right to agree upon the terms of the employment it naturally follows that such employment may be terminated by either party without the interference or dictation of the board of fire commissioners and such right is well settled by authority. Adair v. U.S. 208 U.S. 161;Coppage v. Kansas, 236 U.S. 1.
Our decision is that General Laws, 1909, Chapter 131, Section 5, as amended by Public Laws, January Session, 1919, Chapter 1780 is in violation of the Fourteenth Amendment of the Constitution of the United States in so far as it undertakes (1) to fix the wages which a person holding a theatrical license shall pay to a person employed by him to guard against danger by fire; (2) to forbid the discharge of such person so employed without the consent of the board of fire commissioners; and (3) to forbid a reduction in the wages of such employee without the consent of the board of fire commissioners.
The papers in the case are sent back to the District Court of the Sixth Judicial District, with the decision of this court certified thereon, for further proceedings.